People v. Fain

355 N.E.2d 61, 41 Ill. App. 3d 872, 1976 Ill. App. LEXIS 3036
CourtAppellate Court of Illinois
DecidedAugust 24, 1976
DocketNo. 61866
StatusPublished
Cited by15 cases

This text of 355 N.E.2d 61 (People v. Fain) 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. Fain, 355 N.E.2d 61, 41 Ill. App. 3d 872, 1976 Ill. App. LEXIS 3036 (Ill. Ct. App. 1976).

Opinion

Mr. JUSTICE DOWNING

delivered the opinion of the court:

Ezell Fain and Edward Brown (defendants) were found guilty by a jury of attempt murder, two counts of aggravated battery, and armed robbery. Fain was sentenced for concurrent terms of 15-75 years for attempt murder and armed robbery, and 3-10 years for aggravated battery; Brown was sentenced for concurrent terms of 10-50 years for attempt murder and armed robbery, and 3-10 years for aggravated battery.

While defendants were represented by separate counsel at trial, they are represented by the same counsel on appeal and raise the following issues for review:

(1) did the trial court err in allowing the State to introduce testimony and argument from which the jury might infer certain persons who did not testify had seen Brown commit the charged offenses;

(2) did the trial court err in sustaining general objections without explaining the grounds for its rulings;

(3) did the trial court err in allowing the State to introduce a rebuttal witness who had not been disclosed;

(4) were defendants proved guilty beyond a reasonable doubt; and

(5) was it error to convict defendants of more than one offense arising out of a single act.

On the evening of February 5, 1973, Gillie and Fannie Horton, while leaving Englewood Hospital (60th & Green, Chicago, Illinois), were approached by three black youths. Fannie’s pocketbook was taken; Gillie was held at gunpoint and searched, and then shot. Defendants were charged with being two of the persons who committed these crimes.

At trial, John McLeod, a Chicago police officer, testified that in response to an assignment about 9:45 p.m. on February 5,1973, he went to Englewood Hospital where he met Fannie Horton outside the emergency room. He testified that she was in an upset condition; and that her husband, Gillie Horton, was in the emergency room unable to converse at that time. After talking with Fannie, McLeod accompanied her to the scene of the incident. Fannie then returned to the hospital. McLeod went to visit some of the homes in the area. McLeod then returned to the police station where he obtained six or seven photographs which he brought back to the hospital to show Fannie, who viewed the photographs and from them she identified Brown as one of the offenders. McLeod also testified that at a lineup the following day, February 6, 1973, Fannie identified defendants Brown and Fain as two of the persons who had attacked her and her husband the prior evening. Defendant Fain wore a white coat with four brown stains at the time of the lineup. McLeod took this coat from Fain and had tests conducted on the stains. The coat was admitted into evidence.

Gillie Horton testified he went to Englewood Hospital about 6:55 p.m. on February 5, 1973, to visit his brother where he met his wife, Fannie, and his sister-in-law, Lola Horton. Leaving together at about 8:05 p.m., Gillie and Fannie walked down the east side of Green toward 60th where their car was parked, while Lola went the other way to obtain her car. As Gillie and Fannie walked to their car, they noticed three boys standing on the east side of Green Street. The Hortons crossed the street to their car, and as Gillie was attempting to open the car door, Gillie heard Fannie say her pocketbook was gone, and then heard one of the boys announce, “This is a stick-up.” Gillie did not notice which boy said this, but he did notice the boy to the left of him was holding a gun at his head. Gillie made an in-court identification of Brown as the person holding the gun. Gillie also identified Fain in court as the person who searched him while Brown held the gun. Gillie testified that the lighting in the area was good; and that he had an opportunity to view the faces of his assailants for about five minutes. Gillie had been wearing two pair of pants at the time of the incident, and the persons searching him could not get to his wallet. Gillie kept moving around, and the robber told him that if he did not stand still he would be shot. The boy with the gun fired a shot hitting Gillie’s left side, then said, “Let’s get out of here,” and the boys then ran toward Halsted Street. In Gillie’s opinion the whole incident took about 12 minutes. Gillie was taken to the emergency room of Englewood Hospital and did not recall talking to any police officers until about four weeks after the incident when he was shown some pictures from which he identified the defendants as his assailants. He claimed he never saw either of the defendants before, but then admitted previously seeing defendant Brown in the neighborhood, although he did not know his name. He identified the white coat as similar to one worn by the person who searched him for a wallet.

Fannie Horton testified to the same series of events. She also made in-court identifications of Brown as the boy holding the gun and Fain as the one who searched Gillie. She also testified the lighting in the area was good and that she had a good opportunity to view the assailants. After Gillie was shot, Fannie saw Lola’s car coming down the street. She flagged Lola down and they took Gillie to the emergency room. Gillie was hospitalized for 12 days and remained at home for five weeks as a result of the wound inflicted by the bullet. Fannie recalled seeing Officer McLeod the same night that the incident took place and recounted giving the officer the following description of the offenders:

“The one had the gun, he was wearing dark clothes and had bushy hair. And had a large nose and big lips. The tall one had on a light, long coat, and he was wearing a black cap and he was tall and skinny.”

She further testified she identified Brown in a photograph which was shown to her later that evening at the hospital. She noted Fain’s picture was not among those shown to her. She viewed a lineup the following day, February 6, 1973, and identified both defendants as the offenders. Her testimony indicated the incident took place about 8:15 p.m. and continued until 8:20 or 8:25. Fannie also admitted to having seen Brown in the neighborhood prior to the offense, and that she had not mentioned this fact to any of the investigating officers.

Officer James Moylan testified regarding the events which took place on February 6,1973, a day after the occurrence, surrounding defendants’ arrests. Moylan, a Chicago police officer, was called to investigate an automobile at 60th and Wallace. When he and his partner arrived at this location, they saw a blue Pontiac with no license plates and open doors. The officers noticed six male Negroes across the street. One was tall and slender wearing a white coat and black hat. During the investigation of the auto, the officers received a call on their radio to go to the scene of a family disturbance. They left the Pontiac and went to the family disturbance. When they returned to the location of the Pontiac, it was gone. Moylan radioed communications to see if the car had been towed, but it had not. While cruising the area, Moylan spotted the Pontiac in an alley near 5938 S. Emerald.1 The police went around the block, and as they approached the Pontiac, six boys ran from the car. Five ran west toward Union Street, and the one boy in a white coat and black hat ran east toward Halsted.

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Cite This Page — Counsel Stack

Bluebook (online)
355 N.E.2d 61, 41 Ill. App. 3d 872, 1976 Ill. App. LEXIS 3036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-fain-illappct-1976.