People v. Smith

• Decision Date: 03 November 1986
• Docket Number: No. 85-0833,85-0833
• Citation: 149 Ill.App.3d 145,500 N.E.2d 605,102 Ill.Dec. 712
• Parties: , 102 Ill.Dec. 712 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Levi SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 605

500 N.E.2d 605

149 Ill.App.3d 145, 102 Ill.Dec. 712

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

No. 85-0833.

Appellate Court of Illinois First District, First Division.

Nov. 3, 1986.

Marshall A. Levin, Ronald S. Rodgers, of counsel, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., Cook County, Chicago (Joan S. Cherry, Paula M. Carstensen, William J. Hielscher, of counsel), for plaintiff-appellee.

Presiding Justice QUINLAN delivered the opinion of the court:

The defendant, Levi Smith, was charged by indictment with attempted murder, two counts of aggravated battery, and two counts of armed violence stemming from the shooting of Arthur Irby on February 17, 1984. Prior to trial, the State nolle prossed the two counts of armed violence. Following a jury trial in the circuit court of Cook County, the defendant was found guilty of attempted murder and aggravated battery, and sentenced to 15 years' imprisonment.

On appeal, the defendant presents the following issues for review: (1) whether the defendant was proved guilty beyond a reasonable doubt; (2) whether the trial court erred in its refusal to allow the defendant to recall the victim after the State had rested its case; (3) whether the instructions given to the jury accurately stated the law to sustain a charge of attempted murder; and (4) whether the jury was properly instructed as to the evidence of other crimes.

For the reasons set forth below, we affirm the defendant's conviction.

At the trial, the defendant's ex-wife, Charlene Smith, testified on behalf of the State as to the events leading up to the incident on February 17, 1984. Mrs. Smith stated that she had been divorced from the defendant in 1980, and that she began dating the victim, Arthur Irby, in May 1983. On the afternoon of February 9, 1984, Irby was visiting Mrs. Smith at her home located at 5706 W. Superior Street in Chicago. At approximately 3:30 p.m., Mrs. Smith drove Irby to his home located at the corner of Madison and Washtenaw streets in Chicago. She dropped Irby off in front of his house and then began to drive back home.

Mrs. Smith stated that when she stopped for a red light at the intersection of Jackson and Hamlin, her car was suddenly "bumped" from behind. Looking into her rearview mirror, Mrs. Smith saw her ex-husband, the defendant, sitting in the driver's seat of the car immediately behind her. The defendant motioned to Mrs. Smith to pull her car over to the side. After the light changed, Mrs. Smith crossed the intersection and stopped on the side of the road. Mrs. Smith testified that the defendant got out of his car, opened the driver's door of her car, pushed her over to the passenger side, and began hitting her in the ribs and head with his fist. According to Mrs. Smith, the defendant said to her, "I'm going to kill him, you bitch, you think you're smart," and "I'm going back [to] find your boyfriend." The defendant then drove Mrs. Smith back to Irby's home in her car.

Mrs. Smith stated that when she and the defendant arrived at the corner of Madison and Washtenaw, Irby was standing on the street talking to a friend. The defendant stopped the car in front of where Irby was standing, and Mrs. Smith rolled down her window. Irby leaned over and looked into the car on the passenger side. Mrs. Smith tried to introduce Irby to the defendant, but when Irby extended his hand, the defendant just looked at Irby and then sped off.

The defendant and Mrs. Smith returned to the defendant's car at Jackson and Hamlin. Before getting out of Mrs. Smith's car, the defendant told her, "whenever I see either one of you again, I'm going to kill you." Mrs. Smith returned home and called Irby who, later that evening, moved in with Mrs. Smith and her children. The defendant was charged with no crime relative to the incident on February 9, 1984.

The State's next witness was Irby. He, too, testified as to the events that took place on February 9, 1984, and substantiated Mrs. Smith's testimony. During direct examination, he made an in-court identification of the defendant.

Irby also testified that approximately one week after the February 9, 1984 incident, he was working as a drummer in a band at a bar known as "Kingston Mines" located at 2500 N. Halsted Street in Chicago. At approximately 3:45 a.m., on February 17, 1984, after the band had finished playing, Irby loaded his drums into his car and drove to Mrs. Smith's home. He testified that he had not been drinking that night. When he arrived at Mrs. Smith's home, he parked on the opposite side of the street, approximately two car lengths from the corner of Superior and Waller. He said that there was a street light directly across the street in front of Mrs. Smith's house, and another street light at the corner in front of the house next to Mrs. Smith's.

Irby further stated that when he got out of his two-door vehicle and bent down to get his drums out of the backseat he sensed a shadow on his left side. He immediately turned around and saw the defendant approaching him, walking south off the curb across the street, approximately 20 feet from where Irby was standing. When Irby noticed that the defendant had a gun in his left hand, he attempted to get back into the car and pull the door shut. However, the defendant grabbed the door handle and shoved the gun between the window of the door and the car frame. Immediately thereafter, the defendant started shooting, striking Irby in the arm and shattering the car window. Irby testified that the defendant shot at him with a handgun. As the defendant continued shooting, Irby jumped over to the passenger's side of the front seat and rocked back and forth, trying to avoid the bullets. He said that he could see the defendant from the waist up "as clear as day." Irby stated that after the defendant stopped firing his gun, he fled north on Waller Street.

Irby said he then got out of the car and went to Mrs. Smith's house and pounded on the window. Mrs. Smith opened the door, and Irby entered the house and told her that her husband had shot him. Mrs. Smith called the police.

Officers Donald Rouzan and Aaron Parker from the Chicago police department also testified on behalf of the State. Officer Rouzan stated that while on duty during the predawn hours of February 17, 1984, he received a call over his car radio that an individual had been shot at 5706 W. Superior Street. Upon arriving at that address, Officer Rouzan found Irby lying on the dining room floor of Mrs. Smith's house; he had been shot and was bleeding. Officer Rouzan said Irby told him that Levi Smith had shot him, and then gave a detailed description of the defendant.

On cross-examination, Officer Rouzan testified from his case report. He said that Irby told him that when he arrived at Mrs. Smith's home at approximately 4:30 a.m. on February 17, 1984, he saw the defendant standing in the gangway of the house and that the defendant proceeded to walk towards him. Officer Rouzan also said that Irby told him that he "ducked down" on the car seat after the defendant began firing, and that the defendant had fled in an unknown direction after the shooting. (The victim's pretrial statements to Officer Rouzan, as recounted by the officer at trial, were later claimed by the defendant to be in direct conflict with the victim's testimony.)

On redirect, Officer Rouzan stated that the information contained in his police report was merely a summary of the conversation he had had with the defendant. Officer Rouzan also noted that when the victim made these statements he was lying on Mrs. Smith's dining room floor bleeding.

Officer Parker testified that he arrived at 5706 W. Superior Street shortly after Officer Rouzan. He stated that Mrs. Smith provided him with the defendant's address, as well as the address of the defendant's sister. Officer Parker said that after leaving Mrs. Smith's home, he went to the home of the defendant's sister where he learned that the defendant could be found at his girl friend's apartment located at 2245 W. Lake Street in Chicago. Officer Parker testified that he subsequently went to that address and placed the defendant under arrest.

Fred Lauback, an evidence technician employed by the Chicago police department, testified that he arrived at 5706 W. Superior Street at 6:10 a.m. on February 17, 1984, and recovered a bullet underneath the chrome strip on the driver's door, as well as another "spent" bullet underneath the backrest on the passenger seat. Fred Warner, a firearms expert for the Chicago police department testified that both pieces of evidence were .22 caliber bullets.

The defendant testified in his own behalf and offered an alibi defense. He claimed that from midnight, February 16, 1984, until approximately 6 a.m. on February 17, 1984, at the time of his arrest, he had been at his girl friend's apartment at 2245 W. Lake Street. The defendant testified that he and his girl friend left the apartment after midnight to get cigarettes and pop at the gas station, but stated that they returned 15 to 20 minutes later. He admitted that shortly after they returned to the apartment he left alone, but claimed he simply went down to the first floor for five minutes, and never left the building. The defendant denied shooting Irby on February 17, 1984.

As part of its case in chief, the defense called Officer Anthony Bongiorno apparently in an effort to demonstrate additional alleged inconsistencies between Irby's testimony at trial and his pretrial statements to the police. Officer Bongiorno testified from his case report regarding his conversation with the victim in Cook County Hospital on February 17, 1984. Officer Bongiorno stated that Irby told him that after he arrived at Mrs. Smith's house, he got out of his car and started to walk across the street, and then saw the defendant standing in the gangway of the house. Irby, Bongiorno...