People v. Perry
| Decision Date | 25 January 1971 |
| Docket Number | No. 42701,42701 |
| Citation | 266 N.E.2d 330,47 Ill.2d 402 |
| Parties | The PEOPLE of the State of Illinois, Appellee, v. Robert PERRY, Appellant. |
| Court | Illinois Supreme Court |
Walter W. Winget, II, Peoria, appointed by the court, for appellant.
William J. Scott, Atty. Gen., Springfield, and Robert S. Calkins, State's Atty., Peoria (Fred G. Leach, Asst. Atty. Gen., and Roland N. Litterst, Asst. State's Atty., of counsel), for the People.
This is an appeal from a post-conviction hearing on the petition of defendant Robert Perry. He was indicted for armed robbery and also indicted in two separate instruments for aggravated battery which grew out of the same incident. He was found guilty as charged in a jury trial by the circuit court of Peoria County and sentenced only for armed robbery for a term of not less than 10 nor more than 20 years. His appeal therefrom to the appellate court is stayed pending our disposition of his post-conviction appeal.
On appeal it is charged that (1) the incourt identification of the defendant by the witnesses was nullified by his out-of-court show-ups; (2) the search of the defendant's home and subsequent admission into evidence of certain articles therein seized violated fundamental concepts of due process; and (3) the conviction and sentence of the defendant on two indictments alleging identical facts of armed robbery and aggravated battery constituted the denial of due process and cruel and unusual punishment.
From the evidence adduced at the trial and at the post-conviction hearing, it appears that on Saturday, October 15, 1966, at about 1:25 P.M., Joseph Perry entered the Peoria Loan Service on Seventh Street and announced a robbery. Within minutes his companion, a taller man, entered, and Joseph Perry took the proprietor Silverstone into a side room, and pistol whipped and tied him up, while the taller man rummaged through the front office for cash. The police, alerted by a merchant across the street, arrived minutes later. As the men started to flee, a police officer shouted, 'Halt', and fired his gun. The taller man turned, faced the officer and returned the fire. Both robbers then fled out the rear exit of the building. Joseph Perry was shot by the police and apprehended as he attempted to climb over the back fence, but the taller man escaped.
About 2:00 P.M., that same afternoon, Josephine Robinson, age 69, residing on Sixth Street some two blocks from the Peoria Loan Service, went to her basement and was confronted by a man crouching under a table with his shoes off. He had a gun and told her to keep still and she would not get hurt. They went upstairs, and he remained in her home for approximately two hours while she did her housework under his continuous surveillance. At about 3:45 he left in a cab and she telephoned the police.
At the hospital, the police learned from Joseph Perry's girl friend, Donna Ford, that she, Joseph Perry, his cousin Robert Perry, and Bobbie King all lived together at 618 West First Street. The girl told the police that Joseph Perry and Robert Perry had left the apartment that morning together, and Robert returned later alone. She purportedly described Robert Perry to the police. They immediately went to the First Street apartment but found no one there. They learned from a cab driver, however, that he had taken a man, described similarly, and a woman from that address to the area of the Sands Motel. The police went instead to Freeman Flats, located in the same vicinity, where they had on previous occasions apprehended suspects. Officer Wilson talked to the manager and learned that a man answering the description of defendant and a woman were registered in Room 6. Officers Walker, Pisano, Short and Wilson went to the door. Officer Walker knocked and a woman asked who it was. Walker replied 'Police.' According to the testimony of officers Walker, Wilson and Pisano, they each heard the sounds of a window shade going up and a window being raised. After an interval of 15 to 30 seconds, officer, Walker then broke down the door and they all entered the small room, 10 12 in dimensions. Defendant was standing near the door, about 8 from the window, and according to the testimony of officer Pisano, defendant had put something in or taken something out of the top dresser drawer. There was an open suitcase with clothing on the bed and clothing hanging up. Defendant was an open taken into the corridor and handcuffed. The police continued the search of the room, found a gun and clip in the partially opened top dresser drawer and some shells in the girl's purse on the chair beside the bed. The police seized those items and the clothing, and took them and defendant to the station.
About 7:00 P.M., that same evening, defendant was taken to be viewed in a small room with a two-way mirror. Silverstone identified him by his goatee, the cab driver could not identify defendant, claiming the man he drove was younger, and Mrs. Robinson identified defendant by his goatee, his hair style, his new shoes and the greenish colored coat he wore. Some two months later there was another identification involving a 5-man line-up which included Joseph Perry, and Silverstone again identified defendant. Mrs. Robinson was not present at that time. There were also in-court identifications of defendant by Mrs. Robinson, Silverstone and the police officers who exchanged fire with defendant at the Peoria Loan Service.
Defendant denied implication in the robbery and testified that at 1:00 P.M. on the day of the robbery he lunched alone at a specified restaurant. After lunch he returned to the First Street apartment, packed his clothes and hired a vehicle to move his things over to his girl friend's apartment at Freeman Flats. He arrived there about 3:30 or 4:00 P.M. Defendant described the police entry into the room, their search, and his trying on different clothes at the station show-up that night.
No evidence in mitigation or aggravation was offered except the statement of defendant's counsel that defendant had never been convicted of a felony.
On this appeal from the post-conviction hearing, defendant contends first that the in-court identification by the witnesses was nullified by his out-of-court show-ups and deprived him of due process. This is a 'pre-Wade' case (United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149), hence a defendant, without counsel at such confrontation, may establish that he was deprived of due process of law where it appears from a totality of the surrounding circumstances that the identification is unnecessarily suggestive and conducive to irreparable mistaken...
To continue reading
Request your trial
-
People v. Carroll
...and of itself, support an inference that the greater sentence was imposed as a punishment for demanding trial. (People v. Perry (1971), 47 Ill.2d 402, 408, 266 N.E.2d 330, 333; Greene, 102 Ill.App.3d at 937, 58 Ill.Dec. at 86, 430 N.E.2d at 28; People v. Jackson (1980), 89 Ill.App.3d 461, 4......
-
People v. Massarella
...within the statutory range on the mere allegation that it was imposed because a defendant demanded a trial. (People v. Perry (1971), 47 Ill.2d 402, 408, 266 N.E.2d 330.) That fact must be clearly established by evidence and should not be inferred merely because a defendant received a higher......
-
People v. Henderson
...109 Ill.App.2d 62, 248 N.E.2d 685.) Consequently, the trial court did not err in consolidating the separate indictments. People v. Perry, 47 Ill.2d 402, 266 N.E.2d 330. Defendants also argue that they were indicted twice for aggravated kidnapping. However, the record clearly indicates that ......
-
People v. Campbell
...The scope of such a search includes the person of the defendant and the area within his immediate control (Williams; People v. Perry (1971), 47 Ill.2d 402, 266 N.E.2d 330), and this search falls within this definition (United States v. Edmonds (2d Cir. 1976), 535 F.2d 714, 720; United State......