People v. Dunning

410 N.E.2d 1052, 88 Ill. App. 3d 706, 43 Ill. Dec. 919, 1980 Ill. App. LEXIS 3643
CourtAppellate Court of Illinois
DecidedSeptember 16, 1980
Docket79-1774
StatusPublished
Cited by15 cases

This text of 410 N.E.2d 1052 (People v. Dunning) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Dunning, 410 N.E.2d 1052, 88 Ill. App. 3d 706, 43 Ill. Dec. 919, 1980 Ill. App. LEXIS 3643 (Ill. Ct. App. 1980).

Opinion

Mr. JUSTICE HARTMAN

delivered the opinion of the court:

Defendant Kelly Dunning, charged by information with attempt murder, armed robbery and aggravated battery, was convicted of the latter two offenses in a jury trial and sentenced to 7 years for armed robbery and 4 years for aggravated battery, to run concurrently. A co-defendant, Gerald Lucena, was tried separately and is not a party to this proceeding. Defendant asserts on appeal that identification hearsay testimony was improperly admitted, a Doyle violation occurred, the prosecutor failed to offer rebuttal evidence after initiating impeachment of defendant during cross-examination, the prosecutor made several prejudicial comments during closing argument, and the prosecutor improperly sought defendant’s opinion on the veracity of State’s witnesses. For the reasons set forth below, we affirm.

George Stoker testified for the State that on December 31, 1977, at 8 p.m., while working at a pizza carry-out business which he owned, he observed defendant, whom he identified in court, and a companion (later determined to be Gerald Lucena) enter the restaurant. He recognized both men immediately as former customers and had seen defendant on 20 or 30 previous occasions. After entering, Lucena jumped over the counter while wielding a pistol, and began wrestling with James Dietiker, the restaurant manager. Stoker ran into the office to phone the police and, as he closed the officer door, he heard a gunshot. He looked through the office window, a “one-way mirror,” and observed Lucena taking money from the cash register while defendant was in the kitchen pointing a gun at Linda Johnson, a cook employed by the restaurant. After both assailants ran out of the restaurant, Stoker went to help Dietiker, who was shot as he struggled with Lucena for the pistol. When the police arrived, Stoker discussed the robbery with them and Dietiker was taken to the hospital. The police left and returned 15 minutes later with a white male whom Stoker identified as defendant’s companion. After another 20 minutes the police returned with a black male identified by Stoker as the other assailant, defendant.

Linda Johnson testified that at about 7 p.m. on December 31, Dietiker sent her to buy milk at a local grocery store a few doors away. There she saw a man she had previously seen around the neighborhood arguing with the owner. The owner told him to leave and to “take this stuff out of there.” She identified defendant as this man in court. Johnson then returned to the restaurant and at about 8 p.m., while working in the kitchen, she heard a gunshot. As she turned, defendant appeared with a double-barreled, sawed-off shotgun, pointed it at her, and told her not to move. About a minute later, defendant departed.

The testimony of James Dietiker corroborated that of Stoker and Johnson. He also recognized both assailants when they entered the restaurant, had seen defendant 30 or 40 times before, and identified him in court. Johnson was then called by the defense for further cross-examination and denied telling a police investigator that defendant was wearing a mask during the robbery.

Chicago police officer Ralph Culver testified that on the night of December 31,1977, he and his partner responded to a robbery-in-progress call and, while proceeding to the area, received a description of the robbers over the radio. When they arrived at the scene, they met a man who identified himself as Billy Erwin. After speaking to him, a group of police officers went with Erwin to a second floor apartment in a nearby apartment building. A woman who answered the door allowed them to enter and search the apartment during which he observed a man in a rear bedroom. When the prosecutor asked if Erwin then said anything, defendant objected. The court advised Culver that he could answer whether Erwin had spoken, but specifically directed that he not relate the substance of what was said. Despite this admonition, Culver stated that Erwin identified the man as defendant’s accomplice. Defendant objected, and the court instructed the jury to disregard this testimony. Culver testified that he learned that the man’s name was Gerald Lucena. When he searched Lucena, he found a .25-caliber pistol. Erwin, Culver, and several other police officers then went to a third-floor apartment where they observed a number of people including defendant. Culver and Erwin went into the hall and after a conversation with Erwin, Culver re-entered the apartment and arrested defendant. The substance of the hallway conversation was not revealed.

The State advised the court that Erwin was unable to appear because he had just undergone an appendectomy. A stipulation was read to the jury indicating that in the opinion of a ballistics expert, the bullet that struck Dietiker was fired from the pistol found on Lucena. The State rested.

Thomas Graney, an investigator for the public defender, testified for defendant that when he interviewed Linda Johnson on April 5, 1978, she indicated that the man who held a gun on her was wearing a mask during the robbery. Defendant then testified that he did not rob the restaurant and was at a New Year’s Eve party when the police arrested him. The cross-examination of defendant relevant to this appeal will be discussed later in this opinion.

Defendant argues that Culver’s testimony included two hearsay identifications: first, that Erwin identified Lucena as one of the robbers; and second, that Culver testified that he had a conversation with Erwin in the hall and, although the substance of the conversation was not given, the inference was clear that Erwin had there made an identification. The State maintains that neither statement was elicted as' hearsay identification but merely as a presentation of the circumstances under which the arrests were made. As to the testimony concerning defendant, we agree. Culver simply testified that a conversation took place and that he subsequently acted thereon, without revealing the substance of the conversation. Such testimony was based on his personal knowledge and is competent to show the officer’s investigatory procedure. (People v. Daliege (1976), 40 Ill. App. 3d 706, 709, 352 N.E.2d 247; People v. Thomas (1975), 25 Ill. App. 3d 88, 322 N.E.2d 597; People v. Coleman (1974), 17 Ill. App. 3d 421, 308 N.E.2d 364.) In contrast, Culver’s earlier statement that Erwin had identified Lucena as defendant’s accomplice was inadmissible hearsay; however, an objection to this statement was sustained and an instruction promptly given to the jury to disregard the evidence, thereby curing error. (People v. Lindsay (1978), 67 Ill. App. 3d 638, 654, 384 N.E.2d 793.) Significantly, the statement by Culver was not responsive to the question and was made contrary to the court’s admonition to refrain from revealing the substance of the conversation. See People v. Kirkwood (1959), 17 Ill. 2d 23, 160 N.E.2d 766, cert. denied (1960), 363 U.S. 847, 4 L. Ed. 2d 1730, 80 S. Ct. 1623.

Defendant next asserts that inquiry was improperly made into his post-arrest silence, requiring reversal under Doyle v.

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Bluebook (online)
410 N.E.2d 1052, 88 Ill. App. 3d 706, 43 Ill. Dec. 919, 1980 Ill. App. LEXIS 3643, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-dunning-illappct-1980.