People v. Miller

349 N.E.2d 103, 39 Ill. App. 3d 714, 1976 Ill. App. LEXIS 2638
Appellate Court of Illinois·Decided June 9, 1976·No. 75-15·Published·Cited by 4 cases

Opinion

Mr. PRESIDING JUSTICE ALLOY

delivered the opinion of the court:

Defendant Shelby Miller appeals from a conviction for armed robbery and aggravated battery, pursuant to which he was sentenced to a term of 4 to 8 years in the penitentiary. He was originally indicted for attempted murder, as well as armed robbery and aggravated battery. A jury found him guilty of the charges of armed robbery and aggravated battery but not of attempted murder. The charges arose out of an incident in which Willie Estes was shot and robbed of *81 while sitting in an automobile in Rock Island in the late evening of July 23, 1974.

On appeal in this court, defendant Miller claims he was denied a fair trial because of evidence concerning prior misdemeanor convictions and because of certain comments by the prosecutor in closing argument. He also asserts that the aggravated battery conviction must be vacated since it stemmed from the same conduct which produced the armed robbery conviction.

The record discloses that Estes testified that he was drinking at Woody’s Clover Club on July 23, 1974, and left the premises with a man he did not know and in an automobile owned by that man. While he originally said that no one was with them, on redirect he testified they were also accompanied by a woman. The car was driven to a house where Estes’ companions told him to wait while they entered the house. While Estes was waiting in the car, another man approached and told Estes to move over and produced a gun. As the man opened the door he shot Estes once in the side near the waist and told Estes to give him his wallet. Estes gave him his wallet and the robber left.

Estes then walked up to the house where his companions had entered and knocked on the door and it was answered by an occupant. He told the people that he had been shot and robbed, but then told them that he did not know who his assailant was. The man and woman who originally drove Estes to the house then drove him to the hospital. When he arrived there, Estes told police officers that a man he knew as “Shelby” had been the attacker.

After having been supplied the name and description given by the victim, the police went to defendant Miller’s home but were there directed to the home of Miller’s girlfriend nearby. They inquired if Miller was there, and Miller’s girlfriend, Mary Race, said he was not. She did, however, allow the officers to search, and they found the defendant nude under Mary Race’s bed.

At the trial defendant testified that he had been in the Race home since about 7 p.m. on the night in question and had gone to bed a little after 10 p.m. He said he hid under the bed when the police came because they had come once before when he and his girlfriend were arguing. The alibi which defendant presented was corroborated by his girlfriend, Mary Race, by defendant’s sister, and by his 14-year-old step-niece.

Estes testified that he knew who Miller was, although they had never met formally and that he had drinks with Miller before. He said he knew him only by the name “Shelby” and not by “Redeye,” the defendant’s nickname. Defendant denied knowing Estes and stated that everyone called him by his nickname. Two men called for rebuttal by the State testified that they had seen both Miller and Estes in the presence of each other before at the Clover Club. Estes also explained his original statement to the people in the house to the effect that he did not know who shot him, by saying that he was afraid the people were part of a group, including the attacker who shot him, and that he might have been “set up.” He also confirmed that he was confronted by his assailant whom he identified as Miller for almost 4 minutes and saw him clearly. He made a positive identification of Miller at the trial.

When officers checked the house where the incident occurred they found no one there, and no further investigation was made of the house or of the people who took Estes to the place. The clothing on the floor in the Race house which was put on by defendant after his arrest, did not match the description given by Estes. The gun, and Estes’ wallet and money, were never recovered.

Defendant’s first assignment of error relates to evidence of prior convictions which had been elicited during the trial. Defendant Miller on direct examination testified that he had never owned a gun. On cross-examination the prosecutor explored this statement, and Miller admitted that many years earlier he once had a shotgun, but that it belonged to a friend of his. On redirect questioning, Miller also admitted having been arrested a year prior, in connection with guns, but he said that the guns belonged to his brother-in-law. The State then, on recross, had Miller admit that he pleaded guilty to an unlawful use of weapons charge when he was with his brother-in-law, and that there were two weapons with them at the time. He then volunteered that he had also pleaded guilty to resisting arrest and to possession of marijuana, although no question was put to him with respect to such matters.

Defendant argues that the eliciting of such information from him at the trial violated the longstanding principle enunciated in People v. Gregory (1961), 22 Ill. 2d 601, 603, 177 N.E.2d 120, to the effect that every defendant is entitled to have his guilt or innocence determined solely with reference to the crime with which he is charged, and that evidence of other offenses unrelated to the crime for which defendant is on trial is incompetent. There are exceptions to such rule including evidence tending to show commission of other crimes by a defendant which could be admissible where it is relevant in proving the crime charged (People v. Hall (1967), 38 Ill. 2d 308, 315, 231 N.E.2d 416) and where it shows identity, design, motive, knowledge, or proximity to the crime in time or place. (People v. Cage (1966), 34 Ill. 2d 530, 533, 216 N.E.2d 805.) Evidence of prior crimes may also be used generally to impeach the credibility of the defendant when he has taken the witness stand. (People v. Helm (1968), 40 Ill. 2d 39, 45, 237 N.E.2d 433; Ill. Rev. Stat. 1975, ch. 38, par. 155 — 1.) Such convictions are shown by introducing the authenticated record and should involve convictions for infamous crimes.

Another exception to the rule, which is applicable in this case, is that the State has a right to cross-examine the defendant on matters raised in his direct testimony, in an attempt to explain, modify, discredit or contradict the direct testimony. As applied to the issue before us, this aspect of the adversary system, results in an exception that the State may cross-examine a defendant concerning his past criminal activities, within limits, when he testifies about those activities on direct questioning from his attorney. People ex rel. Walker v. Pate (1973), 53 Ill. 2d 485, 500, 292 N.E.2d 387; People v. Bey (1969), 42 Ill. 2d 139, 147-48, 246 N.E.2d 287.

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People v. Miller, 349 N.E.2d 103, 39 Ill. App. 3d 714, 1976 Ill. App. LEXIS 2638 (Ill. Ct. App. 1976).

349 N.E.2d 103 (People v. Miller) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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