People v. Smith

• Decision Date: 08 October 1998
• Docket Number: No. 1-97-3754,1-97-3754
• Citation: 702 N.E.2d 218,234 Ill.Dec. 52,299 Ill.App.3d 1056
• Parties: , 234 Ill.Dec. 52 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 218

702 N.E.2d 218

299 Ill.App.3d 1056, 234 Ill.Dec. 52

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Benjamin SMITH, Defendant-Appellant.

No. 1-97-3754.

Appellate Court of Illinois,

First District, Fourth Division.

Oct. 8, 1998.

[234 Ill.Dec. 53] [299 Ill.App.3d 1057] Rita A. Fry, Public Defender of Cook County (Pamela Pfrang, Asst. Public Defender, of counsel), for Defendant-Appellant.

Richard A. Devine, State's Attorney, County of Cook (Renee Goldfarb, James Fitzgerald, Daniel Furhman, Asst. State's Attorneys, of counsel), for Plaintiff-Appellee.

Justice WOLFSON delivered the opinion of the court:

After the State's only eyewitness to the home invasion was questioned by the lawyers, the judge in this bench trial asked him questions about his ability to see without his glasses. Then the judge conducted a brief courtroom experiment. Minutes later, the judge found the defendant guilty.

The issue on appeal is whether, under the circumstances, the judge committed reversible error. We find he did not and we affirm the defendant's conviction and sentence.

FACTS

Defendant Benjamin Smith (Smith) was charged with home invasion and armed violence in connection with events which occurred on September 27, 1996. On August 15, 1997, Smith was tried before the bench. The only eyewitness to the crimes, 74-year-old Charles Willis, testified. He was the only witness to appear at the trial.

Willis said he lived alone in a first-floor apartment at 7247 South Harvard. On the evening of September 27, 1996, he was roused from his bed at about 9 p.m., when his doorbell rang. When he opened the door, two men pushed their way into the apartment. Willis made an in-court identification of Smith as one of those two men.

When he opened the door, Willis said, Smith was standing in front of the second man, whom Willis described as tall. This taller man was holding a gun, which he pointed at Willis' forehead. Willis said the taller man pushed Smith through the door, demanded money, and threatened to kill Willis if he didn't do as he was told.

Willis said he walked to his bedroom, followed by the two men. There he retrieved a $20 bill from a shoe and gave it to the taller man with the gun. The taller man then reached into the shoe and pulled out a second $20 bill. After this transaction, the taller man turned over the gun to Smith, who then pointed the gun at the back of Willis' head While Willis remained on the bed, with Smith holding a gun to his head, he could hear the taller man in the kitchen, rifling through the freezer. After a short time, Smith left the bedroom. Willis got up from the bed and looked out through his bedroom door into the dining room. He saw Smith take a shaving kit off the dining room table as Smith made his way to the front door. Willis said the shaving kit contained some medicine, two bank books, and a key ring. The key ring held the keys to Willis' car, Willis' sister's Atlanta home, and her car. There was some testimony regarding the theft of Willis' car the following night, but no connection was made between the theft and Smith.

[234 Ill.Dec. 54] and told him to lie face down across the bed. Smith also told Willis to close his eyes.

After the two men left the apartment, Willis said, he tried to call the police. He discovered, however, the wires on his telephone had been disconnected. Willis waited until the next day to notify the police about the break-in.

No police officer testified at trial about the report Willis made or about the line-up procedure. All that was revealed at trial, by way of stipulation, is that Detective Lanahan, if called, would testify that 24 days after the break-in, on October 20, 1996, Smith was arrested and, during his transport to the police station, attempted to flee.

Willis testified he viewed a line-up on the same day as Smith's arrest, October 20, 1996. Willis said he picked Smith out of a line-up and identified him as the shorter of the two men who had broken into his home on September 27, 1996. In court a picture of the line-up was admitted into evidence. Willis placed an X over the head of the person in the picture he had selected--Smith. Again, no police officer testified about the line-up.

On cross-examination, defense counsel established that Willis, who was wearing eyeglasses at trial, had not been wearing glasses when the break-in occurred on the evening of September 27, 1996. Willis said he wore the glasses mainly for reading and sometimes when watching television. There were no questions concerning Willis' ability to see without glasses.

On redirect, the prosecutor did not address Willis' use of eyeglasses, but asked Willis about the lighting in his apartment at the time of the break-in. Willis said there had been some light coming through the windows from outside. Also, he turned a light on in his dining room as he went to answer the doorbell. Willis said he was able to see the faces of the men clearly when he answered the door.

After counsel finished questioning Willis, the court took over. The trial judge asked Willis if he had driven to court and if he had been capable of driving his car near the time this event occurred. Willis did not drive to court, but had been driving at the time of the robbery. The judge then made the following inquiry:

"THE COURT: Okay. If you took off your glasses, could you see where the deputy is sitting, the young lady in the dark uniform?

A. Yes.

THE COURT: Could you take off your glasses and

could you see her now if you take your glasses off?

A. Yes.

THE COURT: Would you do that. All right. Can you tell me what she's doing now?

A. Working her fingers, got her hand up.

THE COURT: Okay. All right. The record should reflect the deputy is 6, 7 feet from the defendant, -- from the witness rather and was--did have her hand raised in the air, as the witness described. And he did so without benefit of glasses. Okay. You can put your glasses back on. Any questions?"

Defense counsel made no objection to the trial court's examination of the witness. Defense counsel did, however, request and receive a not guilty verdict on count II. The trial judge agreed that count II (alleging armed violence) charged Smith with the same conduct charged in count I (alleging The State then rested its case and the defense presented no evidence.

[234 Ill.Dec. 55] home invasion) and constituted double enhancement.

The court, when finding Smith guilty of home invasion, said:

"Let me go on to say for the record, I found Mr. Willis' testimony to be clear and convincing without impeachment. His recollection of the events that occurred now 11 months after the event seem to be as clear as moments, hours after this tragedy where his home was invaded by this defendant and some other unknown person. Or unidentified person.

He testified that while the lights may have been off prior to going to sleep, in response to answering the door, he did put on the light in the house. He said it was the dining room.

He went on to give the layout of the apartment. And if you recall, he said he was held in his bedroom which took the offenders through the illuminated dining room and into his room.

He further testified that while in his room, he observed the defendant, the defendant and the third party in the living area and also the dining area going through his shaving case which was on the edge of the dining room table which is the room where the light was turned on.

Last but not least, almost 11 months after the event and without the benefit of his glasses, Mr. Willis was able to satisfy this Court's inquiry regarding his ability to make observations in this courtroom, again without benefit of glasses. So, I hasten to point out Mr. Willis' statement he uses his glasses for reading. There is absolutely no question in my mind Mr. Smith was one of the 2 persons who invaded this man's home."

Later, before sentencing defendant, the court considered Smith's post-trial motion. Smith asked that his conviction be reversed because the victim's identification testimony wasn't sufficient beyond a reasonable doubt.

The trial court denied the motion and sentenced Smith to a 15-year term of imprisonment.

DECISION

Smith contends the trial judge erroneously assumed the role of prosecutor when he, sua sponte, made inquiries regarding Willis' ability to observe. Also, because the demonstration did not mirror the conditions under which Willis viewed the men at the time of the crime, Smith says, the demonstration introduced incompetent and irrelevant evidence into the trial. The prejudice, he says, stems from the trial court's reliance on this incompetent evidence to find him guilty.

Smith also contends there was insufficient evidence of his guilt. He says Willis' identification of him was weak. In support of his claim he points to the trial judge's in-court test of Willis' ability to observe, which he says, "innately demonstrates the court's dissatisfaction" with the State's identification evidence. Furthermore, because the court's examination of Willis failed to produce any competent or relevant evidence, Smith says, there was insufficient proof of guilt and his conviction should be reversed.

The State, of course, does not agree the evidence was insufficient. The State maintains the trial judge's questions were merely a fair and impartial means of clarifying a material issue--Willis' ability to observe without glasses. It urges us to find no abuse of discretion in the court's examination of Willis.

When deciding the sufficiency of evidence reviewing courts are required to consider all of the evidence in a light most favorable to the prosecution and then determine whether any rational trier of fact could have found the defendant guilty beyond a reasonable doubt. People v. Gilliam, 172 Ill.2d 484, 515, 218 Ill.Dec. 884, 670 N.E.2d 606 (1996). A criminal conviction will not be overturned unless the proof is so improbable or unsatisfactory a...