People v. Poole

• Decision Date: 05 March 1970
• Docket Number: Gen. No. 51860
• Citation: 121 Ill.App.2d 233,257 N.E.2d 583
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold L. POOLE (Impleaded), Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 583

257 N.E.2d 583

121 Ill.App.2d 233

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Harold L. POOLE (Impleaded), Defendant-Appellant.

Gen. No. 51860.

Appellate Court of Illinois, First District, Third Division.

March 5, 1970.

Gerald W. Getty, Public Defender of Cook County, Chicago, for appellant, Theodore A. Gottfried, James J. Doherty, Asst. Public Defenders, of counsel.

John J. Stamos, State's Atty. of Cook County, Chicago, for appellee, Elmer C. Kissane, Sheldon M. Schapiro, Asst. State's Attys., of counsel.

SCHWARTZ, Justice.

Defendant Harold Poole and one William Dunaway were jointly indicted for the crimes of robbery and aggravated battery. In a separate jury trial Poole was found guilty on each charge and sentenced to serve seven to fifteen years in the penitentiary on the charge of robbery and seven to ten years on the charge of aggravated battery, both sentences to run concurrently. He seeks reversal and remandment on the following grounds: (1) that the trial court admitted prejudicial hearsay evidence, and (2) that the conduct of the Assistant State's Attorney during the trial was improper in that (a) he handed police reports to the defense counsel in the presence of the jury, (b) in his final argument he commented on the failure of the defense to call certain witnesses and (c) that he made several other prejudicial and inflammatory remarks in final argument. While the sufficiency of the evidence is not in issue, a summary of the testimony of the respective witnesses is necessary to an understanding of the issues involved.

Alvin Harris, the victim of the offense for which the defendant was tried, testified that on June 12, 1966, at approximately 3:00 a.m. he was walking south in the 6200 block of Kenwood Avenue in the City of Chicago. He was returning home after purchasing a bottle of vodka in a liquor store at the corner of 61st Street and Kenwood Avenue and as he walked along the sidewalk, two men approached him from the rear. One of them, whom he later identified as the defendant, struck him with his fist, prompting Harris to return the blow. Harris was knocked to the ground and kicked repeatedly. Just before he lost consciousness one of his assailants removed his wrist watch. Sometime later he regained consciousness through the efforts of police officers Campbell and Hunt who had arrived on the scene. He realized that his wallet, keys and the bottle of vodka had also been taken. The officers asked him what had happened and he answered that the two men, who were still present, had robbed him. Harris also testified that he remembered seeing both men in the vicinity of 63rd Street and Kenwood Avenue prior to the morning in question, but that they were not friends of his. He had not been drinking with them earlier in the evening nor had he associated with them that evening. At no time during the commission of the crime did he see more than two people and he denies that he was attacked by the Blackstone Rangers.

William Campbell, one of the police officers who responded to a call to go to 6221 Kenwood Avenue on the morning in question, testified that when he arrived on the scene there were three men present--Alvin Harris, who was bleeding profusely, the defendant Poole and one William Dunaway. The defendant was leaning against a nearby fence while Dunaway searched through one of the victim's shoes. Officer Campbell asked Harris what had happened and Harris replied by pointing to Dunaway and the defendant and saying, "they robbed me." The two men were arrested and searched. A wrist watch, a bottle of vodka and a set of keys, which Harris said were his, were found in Dunaway's possession. The defendant had a dollar bill and some change in his pocket. His left arm was bloodstained, the result he said of his efforts to assist Harris after he was beaten by the Blackstone Rangers. Later that day officer Campbell went to the victim's apartment and unlocked the apartment door with the keys he had taken from Dunaway. While officer Campbell was at the scene of the crime Harris told him that $120 had been taken from him, but he later admitted that only some "change" had been taken.

The testimony of officer Willie Hunt, officer Campbell's partner on the morning in question, corroborated all the material elements of officer Campbell's testimony, that only three men, Harris, Dunaway and the defendant, were present when he and Campbell arrived at the scene of the crime, that the defendant had blood on his left arm and that Harris identified the defendant and Dunaway as his attackers. He also testified that defendant told him that Harris had been attacked by a group of Blackstone Rangers.

The only evidence offered on behalf of defendant was his own testimony. On direct examination he testified that in 1956 he had been convicted of the sale of a narcotic drug and of burglary. He further testified that at approximately 2:30 a.m. on the morning in question he and Dunaway saw Harris intoxicated in a neighborhood lounge, that a short time later defendant left the lounge and met two men, White and Morris, at the corner of 63rd Street and Kenwood Avenue. Dunaway followed several minutes later. About 3:00 a.m. Harris also left the lounge, approached Dunaway and asked whether he could borrow fifty cents so they could buy a half-pint of vodka. Dunaway loaned him the money and they bought the vodka. As they were walking south in the 6200 block of Kenwood Avenue they finished drinking the vodka, whereupon defendant and Dunaway left Harris and went to another lounge to buy more liquor. When they returned, a group of four or five people "scattered," leaving Harris on the sidewalk beaten and robbed. Defendant further testified that he dragged Harris from the middle of the sidewalk to a staircase leading to the porch at 6221 Kenwood Avenue and propped him up on the stairs.

In support of charge (1) that prejudicial hearsay evidence was admitted, defendant argues that it was error to permit officers Campbell and Hunt to testify that they heard Harris at the scene of the crime identify the defendant as one of his assailants. The record shows however that Harris had previously testified to the identification himself. Moreover, during the course of his direct examination defendant testified that while at the scene of the crime he heard officer Campbell ask Harris if he (defendant) and Dunaway had robbed him and that Harris had responded by nodding his head, "Yes."

As a general rule a witness may not testify to a prior identification of an accused made by another person. People v. Denham, 41 Ill.2d 1, 241 N.E.2d 415; People v. Reeves, 360 Ill. 55, 195 N.E. 443. Such testimony has been held to be hearsay and therefore inadmissible. People v. Krejewski, 332 Ill. 120, 163 N.E. 438; People v. Lukoszus, 242 Ill. 101, 89 N.E. 749. An out-of-court assertion is hearsay and therefore inadmissible when it is offered to prove the truth of the matter asserted therein and thus rests for its value on the credibility of the out-of-court asserter. People v. Carpenter, 28 Ill.2d 116, 121, 190 N.E.2d 738, 741; People v. Hannah, 54 Ill.App.2d 218, 223, 203 N.E.2d 764, 766. The fundamental purpose of the rule against hearsay is the exclusion from evidence of those out-of-court assertions whose real value cannot be determined because the source of the assertion cannot be cross-examined by the party against whom it is being offered. People v. Carpenter, supra; People v. Burks, 105 Ill.App.2d 112, 245 N.E.2d 120; Wigmore on Evidence, § 1362 (3rd ed., 1940). Hence it is the opportunity for cross-examination of the out-of-court declarant, whose assertion is being offered, that is the essential feature without which the assertion must be rejected. People v. Carpenter, supra; People v. Burks, supra. See, also, Uniform Rules of Evidence rule 63(1); Model Code of Evidence rule 503(b). In the instant case Harris, the State's first witness,...