People v. Smith

• Decision Date: 05 October 1990
• Docket Number: No. 1-87-2768,1-87-2768
• Citation: 150 Ill.Dec. 23,562 N.E.2d 553,205 Ill.App.3d 153
• Parties: , 150 Ill.Dec. 23 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 553

562 N.E.2d 553

205 Ill.App.3d 153, 150 Ill.Dec. 23

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

No. 1-87-2768.

Appellate Court of Illinois First District, Fifth Division.

Oct. 5, 1990.

Rehearing Denied Nov. 19, 1990.

Randolph N. Stone, Public Defender of Cook County; Lynn R. Flanagan, and Richard Gade, Asst. Public Defenders, of counsel, Chicago, for defendant-appellant.

Cecil A. Partee, State's Atty., County of Cook; Renee Goldfarb, David R. Butzen, and Jannis Eisbart, Asst. State's Attys., of counsel, Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

Defendant, Larry Smith (Smith), appeals from a burglary conviction and sentence of four years. Smith was sentenced on August 3, 1987. He had served 83 days in the Cook County Jail prior to his sentence. If Smith is still incarcerated, as of the date of the writing of this opinion, he will have served three years and 130 days of his four-year sentence.

Smith raises two issues on appeal: (1) that the trial judge erred in not allowing defense counsel to complete her closing argument; and (2) that he was not proved guilty beyond a reasonable doubt. For the reasons hereafter set forth, we reverse Smith's conviction.

The following facts appear from the trial record.

Police officer Jose Cartagena testified that about 5 a.m. on August 22, 1986, he and his partner, Officer Kofron, received a radio call concerning a possible theft from some railroad boxcars at 1341 South Talman in Chicago. When the officer arrived at that location he observed a four-foot hole in the chain link fence which surrounded a portion of railroad property. The officer crawled through the hole and walked up to some railroad tracks where he observed about 15 men taking boxes out of the car in "assembly line" fashion and stacking them on a nearby road. After observing the men for a few minutes, he approached the group and the men began to run.

Officer Cartagena returned to the squad car, called for assistance and then returned to the railroad tracks and began gathering boxes. Officers Calderon and Jaques started walking up the embankment toward the tracks when Officer Cartagena heard Officer Jaques "holler for somebody to get up." As Officer Cartagena approached the two officers, he saw them pull defendant from some bushes. Officer Cartagena testified that he had observed defendant in the "assembly line," moving boxes from the railroad car and stacking them on the road. Defendant was arrested and Officer Cartagena then returned to the railroad tracks and resumed picking up boxes.

Later, Officer Rodriguez approached Officer Cartagena and he then accompanied Officer Rodriguez to a squad car, where he saw codefendants, Anthony Weeks and Michael Triplett. Officer Cartagena then returned to the tracks where he observed that about 10 of the boxes he had just gathered were missing. He and Officer Rodriguez started walking through nearby bushes in search of the boxes when they found codefendant, Richard Washington, hiding in the bushes with the missing boxes. The boxes were subsequently inventoried and claimed by a representative of the Chicago and Northwestern Railroad Company. Officer Cartagena testified that at the time he observed the "assembly line" the sky "was getting daylight," that there was one light on the opposite side of the railroad car and one light further down from the car and that "light was coming over the boxcar and on to where all these people were." On cross-examination the officer stated that he first observed the line from a distance of 20-to-25 yards. He testified that as he started walking toward the group he turned on his flashlight, stating "I didn't want to trip over anything." The officer testified that when he called for assistance the only description he provided was that the offenders were approximately 15 black men who were about 16- to 20-years old. At one point, the officer testified that he did not see any of the faces when the boxes were being unloaded, but he later testified that at some point he saw the faces of some of the people in the assembly line and that some of those people he had identified in court. The officer provided in-court identifications of defendant and codefendants.

Officer Calderon testified that he found defendant "crouched down in the bushes" inside the fence and that Officer Cartagena identified defendant as one of the offenders. Officer Kofron testified that she first observed defendant as he was being brought down from an embankment that led up to the railroad tracks. At the conclusion of the State's case in chief, defense counsel requested a directed finding and argued extensively about defendant's identification by police. The motion was denied.

Thomas Carroll, a law clerk from the Cook County public defender's office, then testified that about one...