People v. Smith

• Decision Date: 04 December 1980
• Docket Number: Nos. 78-992,78-1087,s. 78-992
• Parties: , 47 Ill.Dec. 1 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adolph SMITH and Larry Lewis, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1117

414 N.E.2d 1117

91 Ill.App.3d 523, 47 Ill.Dec. 1

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Adolph SMITH and Larry Lewis, Defendants-Appellants.

Nos. 78-992, 78-1087.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 4, 1980.

Michael J. Rovell, William C. Staszak, Vicki A. Thompson, Chicago (Jenner & Block, Chicago, of counsel), for appellant Adolph Smith.

James J. Doherty, Public Defender of Cook County, Chicago (Timothy P. O'Neill, Asst. Public Defender, Chicago, of counsel), for appellant Larry Lewis.

Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr, Pamela L. Gray, Nancy Lynn Martin, Asst. State's Attys., Chicago, of counsel), for appellee.

JOHNSON, Justice:

Defendants, Adolph Smith and Larry Lewis, appeal from a judgment of conviction entered by the circuit court of Cook County. They had been charged by information with the crimes of aggravated kidnapping and robbery of an automobile and currency. After a jury trial, defendants were found guilty of aggravated kidnapping (Ill.Rev.Stat.1975, ch. 38, par. 10-2(a)(3)), which included the crime of unlawful restraint (Ill.Rev.Stat.1975, ch. 38, par. 10-3), and robbery (Ill.Rev.Stat.1975, ch. 38, par. 18-1). Prior to sentencing, the trial judge vacated both the robbery charge and the unlawful restraint charge. Defendant Smith was sentenced to 6 years and defendant Lewis to 5 years in the penitentiary. They individually appeal from the judgment against them, and their cases are consolidated before us. We reverse the circuit court's judgment finding defendants guilty of aggravated kidnapping, and we reverse the court's order vacating the charge of robbery and affirm the jury's finding of guilty as to robbery.

Prior to trial, defendants made a motion for mistrial on the grounds that they were not going to get a jury of their peers. Defendants charged that of the seven peremptory challenges exercised by the State, four had been for non-white individuals. The trial judge stated he did not agree because there were good and substantial reasons for each of the dismissals. He denied defendants' motion for a mistrial, stating: "And I don't think there is any law (that) says they must accept them of any kind of race or nationality." The next juror, who was black, was excused for cause over defendants' objection. Defendants again offered a motion for mistrial because the State was excluding blacks from the jury. The motion was denied.

The first witness for the State was Susan McAuliffe who testified she was living at 1360 Sandburg Terrace, in Chicago, with her family on March 1, 1977. She stated she was driving in one car and her boyfriend, Edward Szatkowski, in another when they stopped on North Avenue between LaSalle and Clark streets. The witness said she returned to her apartment to obtain the title to the car her boyfriend was driving, as it bore no license plates. When she returned 10 minutes later, the car and her boyfriend were gone. She finally heard from Szatkowski at 3:45 p. m., at which time they went to a police station where they recovered the automobile.

Edward Szatkowski testified that on March 1, 1977, he and Susan McAuliffe, his girlfriend, left her parents' apartment to take her new car to a garage. He explained that title to the new car had been left at the apartment. Szatkowski was afraid he might be stopped because the car did not bear license plates. He pulled over on North Avenue between LaSalle and Clark streets while McAuliffe went back to her home to obtain the title.

While Szatkowski was parked at the curb, two men, whom he had observed loitering for 5 to 10 minutes prior, approached the car and one of them knocked on the window. The witness stated he opened the door slightly, thinking the men might be interested in buying the car since there were "For Sale" signs in the window. One of the men pulled the door open, grabbed Szatkowski's head and forced it down to the seat. The man entered the car and told Szatkowski to be quiet; the other man entered from the passenger's side. Szatkowski identified defendant Smith as the man who pushed his head down and slid into the driver's seat. He identified defendant Lewis as the man who entered the car from the passenger's side.

Szatkowski further testified that Lewis told him not to make any noise or they would kill him. The witness offered defendants the car and whatever else they wanted in exchange for his freedom. Smith told him that he and Lewis had just robbed a bank and they needed the car to get out of the area. Defendants drove off with Szatkowski who repeatedly asked to be let out of the car. According to the witness, he was asked for all the money he had, which was only 60 cents. He was asked for his wallet; when defendants discovered it empty, they returned it. He told defendants he did not have any more money in his possession.

Further testifying, Szatkowski stated that Lewis told him he would write down his (Szatkowski's) name, address and telephone number so that the car could be returned. Smith drove the car into a service station to obtain gas. Upon leaving the car, Lewis warned Szatkowski not to move or there would be shooting. When Lewis returned, he wrote the name, address and telephone number of Szatkowski on a parking sticker. Smith pulled out of the service station and drove south on Clark Street. At the intersection of Clark and Addison, Smith stopped the car. Lewis let Szatkowski out, warning him not to call the police or he would never see his car again. Defendants proceeded east on Addison Street. Szatkowski ran 4 blocks to his father's house and called the police. He later went to the police station where he identified both defendants in a lineup.

On cross-examination, Szatkowski admitted he never saw either defendant with a weapon. He also stated defendants gave back the 60 cents he had given them, plus an additional 5 cents. Szatkowski stated he did not give defendants permission to take his car keys, to drive his car, or to take his money.

Chicago police officer John Grizzoffi testified that on March 1, 1977, at approximately 4:30 p. m., he was driving in his squad car when he received a radio message that a car had just been taken in a robbery. The description of the automobile was a 1969 Oldsmobile Cutlass with a red body and a white convertible top, bearing no license plates. Officer Grizzoffi spotted the car parked in a gas station. He questioned the station attendant and then walked across the street to the hardware store. When Officer Grizzoffi entered the store, he observed two men walking toward the check-out counter. At trial, Officer Grizzoffi identified the two defendants as the men he saw in the hardware store. He stopped Smith and Lewis in the store, placed them under arrest, and advised them of their constitutional rights. The officer stated he searched both men, recovering a set of car keys from Smith and a sheet of paper on which was written the name, Szatkowski, along with an address and a telephone number, from Lewis.

The jury found defendants guilty of aggravated kidnapping, robbery, and unlawful restraint. Defendants' motion for a directed verdict was denied. The trial court determined the evidence was sufficient to warrant a charge of aggravated kidnapping.

The Illinois Criminal Code defines kidnapping as follows:

"(a) Kidnapping occurs when a person knowingly:

(1) And secretly confines another against his will, or

(2) By force or threat of imminent force carries another from one place to another with intent secretly to confine him against his will, or

(3) By deceit or enticement induces another to go from one place to another with intent secretly to confine him against his will. " (Ill.Rev.Stat.1977, ch. 38, par. 10-1(a)(1) to (3));

and aggravated kidnapping as follows:

"(a) A kidnaper within the definition of paragraph (a) of Section 10-1 is guilty of the offense of aggravated kidnaping when he:

(1) Kidnaps for the purpose of obtaining ransom from the person kidnaped or from any other person, or

(2) Takes as his victim a child under the age of 13 years, or

(3) Inflicts great bodily harm or commits another felony upon his victim, or

(4) Wears a hood, robe or mask or conceals his identity, or

* * *." Ill.Rev.Stat.1977, ch. 38, par. 10-2(a)(1) to (4).

In reviewing the trial court's judgment, we limit the application of the kidnapping statute. Kidnapping is a prerequisite of aggravated kidnapping (see People v. Marin (1971), 48 Ill.2d 205, 269 N.E.2d 303; People v. Landis (1966), 66 Ill.App.2d 458, 214 N.E.2d 343), and, in our view, the trial court's judgment is subject to reversal on the issue of whether there was an actual kidnapping as contemplated by statute.

In People v. Levy (1965), 15 N.Y.2d 159, 204 N.E.2d 842, 256 N.Y.S.2d 793, the New York Court of Appeals was faced with a situation similar to the case at bar. The two defendants forced two victims into their car at gunpoint. The car was driven some 27 blocks, during which time the victims were robbed of jewelry and money. The court affirmed the robbery conviction but overruled the kidnapping conviction. It adopted a position we choose to follow in this case when it said:

"We * * * limit the application of the kidnapping statute to 'kidnapping' in the conventional sense in which that term has now come to have acquired meaning. There may well be situations in which actual kidnapping in this sense can be established in conjunction with other crimes * * *. But the case now before us is essentially robbery and not kidnapping.

In the case before us the movement of the automobile, which was itself the situs of the robbery, was not essentially different in relation to the robbery than would be the tying up of a victim in a bank and his movement into another room. In essence the crime remained a robbery although some of the kidnapping statutory language might literally also apply to it. " Levy, at 165...