People v. Jones

402 N.E.2d 746, 82 Ill. App. 3d 386, 37 Ill. Dec. 744, 1980 Ill. App. LEXIS 2547
Appellate Court of Illinois·Decided March 14, 1980·No. 78-1796·Published·Cited by 20 cases

Opinion

Mr. JUSTICE MEJDA

delivered the opinion of the court:

Henry and Edward Jones were each indicted for four counts of armed robbery. (Ill. Rev. Stat. 1975, ch. 38, par. 18 — 2.) Two of the counts were stricken with leave to reinstate upon the State’s motion. A jury found both defendants guilty on the remaining counts. Henry was sentenced to a term of 4 to 6 years while Edward received 5 to 12 years. On appeal, they contend that: (1) testimony concerning threats allegedly made by Edward was erroneously admitted at trial; (2) the prosecutor violated his promise to introduce only an excised statement at trial; (3) they were prejudiced by the complainants’ testimony that they were afraid to testify; (4) Henry was denied effective assistance of counsel; (5) the trial judge should have ordered a severance sua sponte; and (6) they were not proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.

On September 4,1976, there was a dice game on a third floor landing in a public housing project. At about 7:15 p.m. three men robbed the participants at gunpoint. Defendants were arrested and indicted for four counts of armed robbery. On motion of the State, two counts were stricken with leave to reinstate.

In its answer to discovery the State indicated that it intended to introduce at trial statements made by Edward Jones, the contents of which were contained in a police report. Prior to trial, Edward’s counsel stated that the police reports referred only to statements made by Edward to Percy Thomas and that he had just learned that the State intended to use statements made by Edward to another complaining witness, Acie Matthews. Counsel requested that the State inform him of the contents of such conversations.

The State responded that the statement made to Matthews was identical to the one made to Thomas and that an excised statement would be used at trial omitting any reference to Henry Jones contained in the original. As an offer of proof, the State stated that it expected that Matthews would testify that he, Edward Jones and Percy Thomas were in the latter’s bedroom. After he spoke to Thomas, Edward told Matthews:

“Sit down. I want you to hear this too. If you cooperate, nothing is going to happen and I will try to get money back. If you don’t cooperate, I will get you. If I can’t get you, I will get your family. If I can’t get your family, I will blow up your house. If something happens to me, my friends will take over.”

Edward’s counsel made a motion in limine to bar the introduction of the statement since it was evidence of another crime, intimidation. Henry’s counsel joined in the motion. The State argued that the statement showed identity and guilty knowledge on Edward’s part and the motion was denied.

On the first day of trial the two complaining witnesses, Acie Matthews and Dan Adams, failed to appear in court pursuant to their subpoenas. Warrants for their arrest were issued to insure their presence for the following day.

The State’s evidence at trial showed the following. At about 6:30 p.m. on September 4, 1976, Acie Matthews joined a dice game which was already in progress on a third floor landing. Matthews testified that the landing was well fit. Dan Adams and another victim, Percy Thomas, testified that they arrived at about 7 p.m. and others joined in the game. Matthews said that two women were present, but Thomas testified that there was only one. Matthews also testified that he saw Bobby McCall for about 5 minutes while Adams testified that he did not see McCall that night. Bobby Chester also watched the game for a short time and then left.

Matthews testified that at one point during the game Alvin Jordan and Henry Jones came down the staircase. Matthews had seen both of the men previously. Dan Adams asked, “[W]hat is happening?” to which Jordan replied, “What is the beef, punk?” and the two continued downstairs. Percy Thomas corroborated Matthews’ account of this incident, but Dan Adams stated that Edward Jones was also with Jordan and Henry Jones.

The game was about to end at about 7:15 p.m. when Bobby Chester returned and encouraged its continuance. Several minutes later Henry Jones and Alvin Jordan came down the stairs. Henry Jones announced a stickup and told Bobby Chester to leave. Henry had a snub-nose revolver and Jordan had a switchblade. Matthews and Adams dropped their money and Matthews began backing down the stairs when his head bumped into a gun. He turned and saw Edward Jones holding a .357 magnum pistol. Edward told him to turn around or he would blow his head off. Matthews looked at Edward for 10 seconds. From a distance of about 5 feet, Dan Adams saw Matthews bump into Edward’s gun. Contrary to his earlier testimony, on cross-examination Adams testified that this was the first time he saw Edward that evening. Percy Thomas also saw Edward for 4 or 5 seconds.

Edward stood at the top of the stairs while Henry blocked the door to the third floor and Jordan searched the victims’ pockets. Jordan took various amounts of cash from the three men. Edward told Jordan to get it all and Jordan searched them again. Edward removed a watch from Matthews’ arm, enabling him to see Edward’s face a second time. After the robbery the victims were told to run up the stairs and not to look back.

None of the witnesses had ever seen Edward Jones before the robbery. Matthews testified that he viewed Edward for a total of about one minute. Adams viewed Edward for less than a minute while Thomas saw him for only a few seconds. All of the witnesses had seen Henry Jones on previous occasions.

Matthews called the police from his apartment, and Chicago police officers Kalemba and Seiiise responded to the call. Matthews told the police that he knew Jordan and gave them his address. He described the other two men as: (1) 5'7" tall, 135 pounds, approximately 21 years old, wearing a red tank top, jeans and a sun visor; and (2) 5'9" tall, 150 pounds, with his hair curled in the back, wearing a light-colored shirt and dark blue jeans. Adams and Thomas gave similar descriptions of the two other men. The three witnesses were taken to a police station where they identified Bobby Chester at a lineup.

Officers Kalemba and Senise drove the witnesses in an unmarked squad car for about 15 minutes before stopping at a street comer. Matthews and Adams testified that Thomas said he saw one of the robbers in a group of about 15 men. A lineup was conducted on the street and all three witnesses identified Henry Jones who was wearing a red tank top. At trial Matthews and Adams identified Henry Jones as one of the robbers and the man they picked out on the comer. Percy Thomas testified at trial that he was sure of his identification of Henry and Edward Jones, although he had earlier expressed concern that he may have misidentified Edward. He also stated that he saw both Henry and Edward on the street comer and saw Henry but not Edward arrested.

At about 11 a.m. the following day Edward Jones went to Percy Thomas’ house. Thomas testified that he was in his bedroom when Edward came in and told him that he had the wrong man in jail. He warned Thomas about not cooperating with him when Matthews came into the room.

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People v. Jones, 402 N.E.2d 746, 82 Ill. App. 3d 386, 37 Ill. Dec. 744, 1980 Ill. App. LEXIS 2547 (Ill. Ct. App. 1980).

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