People v. Galloway

303 N.E.2d 231, 14 Ill. App. 3d 863, 1973 Ill. App. LEXIS 1934
CourtAppellate Court of Illinois
DecidedOctober 1, 1973
DocketNo. 56960
StatusPublished
Cited by2 cases

This text of 303 N.E.2d 231 (People v. Galloway) 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. Galloway, 303 N.E.2d 231, 14 Ill. App. 3d 863, 1973 Ill. App. LEXIS 1934 (Ill. Ct. App. 1973).

Opinions

Mr. PRESIDING JUSTICE BURKE

delivered the opinion of the court:

The defendant was found guilty by a jury of the unlawful sale of a narcotic drug (Ill. Rev. Stat. 1967, ch. 38, par. 22 — 3). He was sentenced to ten to twenty years imprisonment in the State Penitentiary. He appeals from that conviction on the following grounds: that the prosecutor’s questions concerning the reporting of his business income were prejudicial, that he was deprived of a fair trial by the court’s failure to give an instruction on an element of the crime charged and by the prosecutor’s improper argument, that the restriction of cross-examination of the State’s informer denied him his sixth amendment rights, and that reversal is required because of false testimony by the informer and suppression of her criminal record.

On July 23, 1968, Augustus Stanfield, a Chicago policeman, arranged a controlled sale of narcotics with one Sylvia Carter (known by him to use several aliases), who was a drug addict and former prostitute. She told Officer Stanfield that the defendant would sell narcotics to her and, after making a phone call, she announced that she had arranged a $40 purchase. After she had been searched for narcotics by a policewoman, the woman was given $40 by Officer Stanfield, who had recorded the numbers of the bills. The woman was then taken by Officers Stanfield and Nance to the vicinity of a tavern where she said she had arranged by phone to meet the defendant. Officer Stanfield left the police car and positioned himself across the street from the tavern entrance. He observed the woman walk to the tavern entrance and signal someone inside. A man came out and the officer saw their hands come together twice. After making a prearranged sign that the sale had been made, the woman returned to the police car, where Officer Nance was sitting. She gave him a packet which he field-tested for heroin. The test was positive and he and Officer Stanfield then entered the tavern and arrested the defendant. The defendant had $172 on his person, $40 of which was the money given to the woman. The defendant testified that he had responded to a call from the bartender in the tavern, who placed an order for barbecued food from the store which the defendant owned, and that, after arriving at the tavern with his wife and delivering the order, the defendant remained inside until the police arrived.

The defendant first contends that a series of questions on cross-examination of him by the State constituted admission of evidence of a crime for which he was not charged. The challenged testimony consisted of questions as to the dollar amount of sales at the defendant’s barbecue store. The defendant’s responses indicated he kept no income records and he could only guess at the average sales figures. The crux of the defendant’s challenge to this testimony is the following exchange:

“Q. Did you pay any income tax that year? [1968]
A. No, sir, the man that we got the barbecue place from was taking care of all that, because he owned the barbecue place before we got there, understand.
Q. All right, now, do you know that people pay income tax on money that they make?
A. Yes, sir.
■ Q. Did you make out any income tax returns for the year 1968?
MR. MISSIRLIAN: Your Honor, I am going to object.
THE WITNESS: The man that owned the tavern was taking care of that.
THE COURT: I am going to sustain the objection.
THE WITNESS: The one that owned the barbecue—
THE COURT: You don’t have to answer.
MR. DRISCOLL: Q. You don’t have any idea how much money you made that year?
THE WITNESS: A. No, sir, I don’t.
Q. You kept no records?
A. No, sir, we didn’t keep any records, because we was just starting.
Q. You started in September, 1967, is that right?
A. Yes, sir, he turned the barbecue place over to me and my wife, and he was paying the taxes, or whatever it was.
Q. All right, you have answered my question. Now, you had been in operation for ten months, is that right?
A. That’s right.
Q. You had no records of any of the amounts of sales or transactions that you made in the ten months that you were in operation?
A. Only nightly, that is all I can say.
Q. I am sorry, I didn’t hear what your answer was?
A. I say I could only answer that would be nightly, because we take in maybe $100 or $150, so we figured pretty good, that’s all.”

The defendant claims that this is evidence of the crime of income tax evasion, the admission of which was so prejudicial as to require reversal. We cannot agree. In the first place, we find in the quoted testimony no indication that taxes were evaded. The defendant testified that someone else paid them. Even if it were possible to draw an inference of income tax evasion from the cross-examination, we would not find such an inference prejudicial. Such an inference could not have affected the result in this case in view of the overwhelming evidence of the defendant’ s guilt. (People v. Scott, 52 Ill.2d 432, 288 N.E.2d 478; People v. Johnson, 2 Ill.App.3d 1067, 278 N.E.2d 177.) The cases cited by the defendant do not compel a different conclusion.

The defendant also challenges comments made by the prosecutor in closing argument on the ground that they prejudiced his case. In thé first of these comments, the prosecutor accused the defendant of being a dope pusher. This, the defendant argues, was equivalent to accusing him of committing crimes other than the one charged, because it implies that he sold narcotics to others. The contention is without merit. A single illegal sale of narcotics makes the seller a pusher, and that was the offense with which the defendant was charged.

The defendant goes on to allege that the prosecutors comments in argument were so inflammatory as to be prejudicial. Specifically, he refers to the characterization of the female informer as a walking corpse and of the defendant as a ghoul. The claim is made that the cumulative effect of these statements amounts to plain error, requiring reversal. But the general rule is that it is always proper to argue the evil results of a crime, urge the fearless administration of justice and denounce the accused’s wickedness if such statements have a basis in the facts in evidence or may fairly be inferred therefrom. (People v. Durso, 40 Ill.2d 242, 239 N.E.2d 842.) Even if this test had not been met, the comments would not be grounds for reversal, in light of the overwhelming evidence of guilt. People v.

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Related

People v. Holland
327 N.E.2d 597 (Appellate Court of Illinois, 1975)
People v. Galloway
319 N.E.2d 498 (Illinois Supreme Court, 1974)

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Bluebook (online)
303 N.E.2d 231, 14 Ill. App. 3d 863, 1973 Ill. App. LEXIS 1934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-galloway-illappct-1973.