People v. Wright
| Decision Date | 15 November 1965 |
| Docket Number | Gen. No. 50161 |
| Citation | 212 N.E.2d 126,65 Ill.App.2d 23 |
| Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Theodore WRIGHT, Defendant-Appellant, |
| Court | United States Appellate Court of Illinois |
Daniel P. Ward, State's Atty., Chicago, Elmer C. Kissane, James Sammons, Chicago, of counsel, for defendant-appellee.
William D. Maddux, Chicago, for plaintiff-appellant.
Defendant, Theodore Wright, appeals from a conviction by jury for the crime of robbery. He seeks reversal contending the court erred in admitting hearsay and prejudicial testimony; denying him a continuance; unduly restricting cross-examination and allowing the prosecution to make inflammatory and prejudicial argument to the jury.
A prior trial resulted in a hung jury and the matter comes here on appeal following the retrial.
On October 22, 1962, Nathaniel Jones was robbed by two men. A watch and five one dollar bills were taken from him. On November 5, 1962, fourteen days later, Jones observed the defendant on the street, went to the nearest telephone, called the police, and continued to keep the man under surveillance. Jones hailed a roving police squad car and had the officer thereof detain the defendant until the arrival of the police officer sent out as a result of the telephone call. Defendant was placed under arrest and taken to the police station where further investigation was conducted by Detective Miller of the robbery unit. No one else was apprehended as being involved in the crime.
Jones testified that on the day of the occurrence he was in the vicinity of 50th Street and Calumet Avenue, Chicago, at approximately 4:45 p. m. While walking on 50th Street he was confronted by man with a piece of paper in his hand who asked him for directions to the Howard Hotel. Jones told him to knew of no Howard Hotel in that vicinity and as he attempted to walk around the man, he heard a voice behind him say 'this is it, a stick up'. The man behind him had a pistol, and the man in front of him who had asked for the directions then brandished a knife and 'shoved' it against Jones' stomach. Both men rifled his pockets, took his watch, and left after the man behind struck him on the head with the gun. Jones identified the defendant in court as the man who asked directions of him and held the knife, and said that approximately thirty seconds elapsed from the time he first saw the defendant on the street and the time the second person with the gun approached; that two or two and a half minutes transpired until his watch was taken from his wrist by the defendant. During all of the time he was looking 'in an easterly direction * * * face to face' with the defendant with whom he was in body contact, and who was 'standing close, within hands reach * * *.'
He further testified that the man who held the knife to his stomach was a slender Negro approximately six feet tall, between 30 and 40 years of age, in need of a haircut, with a short mustache, and 'wearing a gray sport jacket with black interwoven, black or charcoal colored pants with a sweater low neck V front with a dark or black band around the outer edge of this fold that was on the front of it.' The man also walked with a strut as if his feet were sore or tender. When Jones saw the defendant two weeks later, he recognized his face and his walk. He said defendant also wore the same sweater.
Defendant argues that prejudicial and incompetent hearsay evidence was admitted. The record indicates that the complaining witness, Jones, was allowed to relate a conversation with the arresting officer, Cullen, as to the identification of the defendant, in his presence, as follows:
Well, Officer Cullen asked me, 'Did you call the police?' and I said, 'Yes, I did,' and I told him why * * *. I said, 'I am the man that called the police, I was robbed.' He said, 'Where is the man that robbed you?' I said, 'This is the man.' I pointed to the defendant and he said, 'Are you sure?' I said, 'I am sure.' He said to the man, 'Come with me to the squad car.' The man said to me, 'Why don't you tell him like it is, man.' $Then, the complaining witness was allowed to relate a conversation in defendant's presence with Officer Miller regarding identification, in substance, as follows:
I had a conversation with the defendant at the police station. Present was Officer Cullen and Officer Miller. This was a short time after the man had been apprehended * * *. When I was confronted by the investigating officer whom I later learned to be officer Miller from Robbery, he asked me could I identify the man that robbed me and I said yes. He asked the man about the charges and the man said no. By the man I am referring to Theodore Wright, the man that was in custody. [emphasis ours].
And again, Officer Cullen was permitted to repeat the conversations between himself and the complaining witness, Jones, as to the identification of the defendant. Officer Cullen stated that when he arrived there were a number of people present on the street including Mr. Jones, the defendant, and other police officers. He further stated that 'I asked Mr. Jones the circumstances of the call and he pointed to the defendant and said 'He is one of two men that held me up on a previous date.''
Detective Miller was permitted to relate his conversation with Officer Cullen and his conversation with the complaining witness, Jones, as to the identification of the defendant made in defendant's presence. He testified as follows:
I asked Officer Cullen who placed the call for assistance for the robbery unit. Officer Cullen responded he had placed the call for assistance inasmuch as he had a robbery victim present with a possible offender and the robbery had occurred on a previous date. I also had a conversation with Mr. Nathaniel Jones at that time and the defendant was still present in the room.
'I asked Mr. Jones to relate the date, the circumstances and the amount of loss and the number of people involved in his original police report. Mr. Jones stated that he had been robbed on the 22nd of October by two unknown men underneath the elevated structure on 50th Street between Calumet and Prairie Avenue; that there were two men involved; that he had lost currency, an unknown amount of change and a man's Benrus wristwatch.
I then asked Mr. Jones was he able to identify the mean and he said yes, he was able to identify the men and one of the men was arrested then and he pointed to the defendant, Theodore Wright. I asked Mr. Jones was he positive of the identification of the defendant, Mr. Wright, and he stated that he was, that Mr. Wright was the man that had held the knife to his stomach facing him and removed his watch from his arm.
He also stated that at this time Mr. Wright had on the same sweater that he had on the evening of the robbery.
In our opinion these statements made by the complaining witness and repeated by the police officers as to the identification of defendant are hearsay and inadmissible. The sole evidence involving defendant in the crime was the testimony of the complaining witness. The effect of such additional statements was to give the impression to the jury that the evidence against defendant was corroborated.
People v. Lukoszus, 242 Ill. 101, 105, 89 N.E. 749 (1909) involved a positive identification by one witness with 'no important circumstances of corroboration'. In holding the testimony of the arresting officer inadmissible, the court states:
In the amination of the police officer who arrested the defendant the witness was asked if anyone gave him a description of the defendant. The court overruled on objection, and the witness answered that he got the description from Mike Wajankowski. The witness was then asked if that was the man he took the defendant to, and he answered that was the man they took the defendant to, to identify him. The connection of defendant with the crime rested on the testimony of Wajankowski, and it was error to permit the police officer to testify that he got a description of defendant from Wajankowski. The testimony amounted to the same thing as permitting one witness to testify that the other witness told him the defendant was the man. The rule against hearsay was violated, and the testimony of the officer amounted to a corroboration of Wajankowski's testimony identifying the defendant as the man who struck the deceased. (pp. 107, 108, 89 N.E. p. 75).
The State contends that 'while the facts in the Lukoszus case are significantly different from those at hand, it is difficult to reconcile the principle involved from that at issue in cases decided differently since;' yet, it does not attempt to show or indicate wherein the facts are significantly different. In Lukoszus, one Wajankowski testified that the person who assaulted and struck the deceased was the defendant, while the defendant testified that he had nothing to do with it. The court held that the evidence was such as to make it important that the rulings should be correct. The difference, if any, would be that Lukoszus took the stand and denied the charge while the defendant in the case at bar did not testify. But, it is well settled that a conviction must stand on the strength of the State's case and not upon the weakness of the defense. People v. Benson, 19 Ill.2d 50, 61, 166 N.E.2d 80 (1960); People v. Boyd, 17 Ill.2d 321, 328, 161 N.E.2d 311 (1959).
The pronouncement of Lukoszus was applied in People v. Krejewski, 332 Ill. 120, page 123, 163 N.E. 438, page 439 (1928) when the court said:
Prior to the calling Novak as the court's witness the prosecution called two police officers and interrogated them as to statement made...
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