People v. Smith, 1-93-1506
| Decision Date | 13 September 1995 |
| Docket Number | No. 1-93-1506,1-93-1506 |
| Parties | , 211 Ill.Dec. 746 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony SMITH, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
After a jury trial, defendant, Tony Smith, was convicted of one count of armed robbery (720 ILCS 5/18-2(a) (West 1992)), two counts of aggravated battery (720 ILCS 5/12-4(B)(1) (West 1992)), and three counts of home invasion (720 ILCS 5/12-11(a)(1) (West 1992)). He was subsequently sentenced to 30 years' imprisonment. On appeal, defendant asserts that (1) his armed robbery conviction violated double jeopardy because the trial court had directed an acquittal on that charge; (2) two of his home invasion convictions must be vacated because only one home invasion occurs as a result of one unauthorized entry; (3) the trial court erred by finding that Lowell Tuff, one of the victims, was unavailable to testify; (4) the testimony of the State's rebuttal witnesses violated the hearsay rule and his right to confrontation; and (5) his due process rights were violated when the State misstated the facts and shifted the burden of proof unto him during closing arguments. For the following reasons, we affirm in part, vacate in part, and remand for resentencing.
Rodney Burton and Chris Spann both testified that on Sunday, November 3, 1991, they were at Lowell Tuff's apartment at 1158 N. Cleveland Street, Apt. 305, in Chicago. The three men had smoked crack cocaine from Friday night until Saturday night. Between 2 and 2:30 p.m. Sunday afternoon, they were sitting in the living room listening to the radio when there was a knock on the door. Tuff answered the door and four or five men rushed in, some with guns pointed, and told the three victims to lie on the floor. Both Burton and Spann identified defendant as one of the attackers who was carrying a gun.
The attackers threatened to kill the three victims if they did not tell them where the drugs and money were. While defendant and other attackers beat the three victims with a stick and kicked them repeatedly, other attackers searched the apartment looking for drugs and money.
When no drugs or money were found, the attackers told the victims to take off their clothes, which were then searched. While the victims were unclothed, the attackers heated a metal ice chopper on the stove and burned the backs of Burton and Spann, then beat them with a wooden stick.
About 45 minutes into the attack, defendant and several other attackers took Tuff from the apartment. Burton and Spann could hear Tuff's screams from the apartment next door. A few minutes later, defendant and Tuff returned to Tuff's apartment. The beatings against Burton and Spann resumed while Tuff got dressed.
Eventually, Tuff was able to escape. As most of the attackers chased him, Burton and Spann heard gunshots in the hallway. When the attackers returned to the apartment, they resumed beating Burton and Spann. About 15 to 20 minutes later, one of the attackers saw the police coming, so they all ran away. Burton and Spann locked the door until the police arrived at the apartment. After they dressed, they were taken to Grant Hospital and released the same day.
Chicago police officer Porter Goosby testified that he was stopped by a man on the street at 5:15 p.m. on November 3, 1991. As a result of the conversation with the man, Goosby went to 1158 North Cleveland Street, Apartment 305, where he found Burton and Spann in the ransacked apartment. Burton and Spann both had visible bruises and injuries on their bodies.
Chicago police officer Edward King testified that he arrested defendant on November 8, 1991. During his investigation, King went to 1158 North Cleveland Street, Apartment 305, where he recovered a metal ice chopper/hoe with a wooden handle. The next day, King took Burton to the police station to have his injuries photographed.
Louis Schubrych and Kenneth Harris, investigators for the Cook County Sheriff's Police, testified that they attempted to personally serve Tuff with a subpoena. On October 7, 1992, Schubrych left a subpoena at 9327 South Wallace Street in Chicago where there was no answer. On December 28, 1992, Harris left a subpoena at that same address. Schubrych then unsuccessfully tried to serve Tuff on December 29, 1992, at 1158 North Cleveland Street, Apartment 305. There, Schubrych spoke with the security personnel in an effort to locate Tuff, but was unsuccessful.
At the close of the day's evidence, the trial court told the State in a sidebar that they did not have to formally rest until the next day, but that for judicial economy and time management, defendant's motion for a directed verdict would be heard. After the trial court granted defendant's motion on several counts, court was adjourned for the day.
The next morning, the State asked that Tuff be found unavailable to testify. The assistant State's attorney explained that additional attempts had been made to locate Tuff: the Cook County jail and the morgue were checked and Detective Kill was asked to look for him.
After the trial court found Tuff unavailable, the transcript of his November 12, 1991, preliminary hearing testimony was read. Defendant objected on the basis that there had already been a directed verdict on his armed robbery charge. The trial court explained, however, that the verdict had not been directed and that the proceedings that occurred on the previous day were for time management purposes only.
At the preliminary hearing, Tuff had testified under oath that he was at his apartment at 1158 North Cleveland Street, Apartment 305, with Burton and Spann on November 3, 1991. When Tuff answered a knock on his door, defendant, whom he had known by sight for nearly two years, forced his way into the apartment with the other attackers. Defendant was holding a gun. The attackers ordered Tuff, Burton, and Spann to lie on the floor and demanded to know where the drugs and money were. Defendant ordered the victims to undress while the other attackers searched the apartment for money and drugs.
After defendant asked who in the building sold drugs and Tuff replied that a man upstairs sold drugs in the past, defendant took Tuff out of the apartment. When they returned, defendant continued to beat the three victims. One of the attackers took a metal ice chopper from the closet, heated the metal part on the stove, and burned the backs of Burton and Spann.
While Tuff was putting his pants back on, he was able to run out the door. Before leaving, he noticed that one of the attackers had a digital clock radio and an iron. Tuff stated that he did not give any of the attackers permission to enter his apartment or take any of his belongings.
After the State rested, the transcript of Tuff's September 17, 1992, bond hearing was read during defendant's case-in-chief. At that hearing, Tuff stated under oath that he identified defendant at the police station from a distance of 50 to 60 feet away and again identified him at the preliminary hearing without looking at him. Tuff testified that he looked only at the left side of defendant's face because defendant did not look at him.
According to Tuff, he knew that his attacker's name was Tony, but the police officers gave him the last name of Smith. Tuff further testified that his attacker had a scar on the right side of his face whereas defendant had no such scar. After the court hearing in November 1991, Tuff realized that he had identified the wrong man because he saw his attacker several times on the street. Tuff stated that he told the police of the wrong identification and asked about the procedure to inform the court. He also told an assistant State's attorney, who responded that he would have to check Tuff's story to make sure that he was not being harassed or threatened.
In the State's rebuttal, Officer Goosby testified that Tuff told him on November 3, 1991, that the name of the attackers were Tony Smith or Tony Brown and Prentice Smith. Officers Bronkema and Gray testified that Tuff was 10 to 15 feet from defendant when he identified him in the police station.
In defendant's surrebuttal, a statement Tuff made to assistant public defenders James Saltouros and Frank Astrella on September 11, 1992, was published to the jury. In that interview, which was not under oath, Tuff stated that he believed that defendant was the wrong person. He explained that he identified defendant in the police station after he glanced at him from 50 to 60 feet away; he was able to see only the left side of defendant's face at the preliminary hearing; and he saw his attacker, who had a scar on the right side of his face, while defendant was incarcerated.
Following deliberations, the jury returned a guilty verdict on one count of armed robbery, two counts of aggravated battery, and three counts of home invasion. Subsequently, defendant was sentenced to 30 years' imprisonment.
On appeal, defendant asserts that his conviction for armed robbery violated double jeopardy principles because the trial court had directed a verdict on that charge, then reinstated the charge the next day, and allowed the jury to reach a verdict on the charge. At issue is whether the trial court directed a verdict on the armed robbery charge when he heard defendant's motion for a directed verdict before the State rested its case-in-chief.
In a sidebar, the trial court had asked the State whether it was resting. The prosecutors responded that their witnesses were done, but that they had evidence to admit....
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