People v. Morrow

628 N.E.2d 550, 256 Ill. App. 3d 392, 195 Ill. Dec. 86, 1993 Ill. App. LEXIS 1766
CourtAppellate Court of Illinois
DecidedNovember 30, 1993
Docket1-92-1827
StatusPublished
Cited by31 cases

This text of 628 N.E.2d 550 (People v. Morrow) 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. Morrow, 628 N.E.2d 550, 256 Ill. App. 3d 392, 195 Ill. Dec. 86, 1993 Ill. App. LEXIS 1766 (Ill. Ct. App. 1993).

Opinion

JUSTICE SCARIANO

delivered the opinion of the court:

In the afternoon of October 31, 1989, two armed men robbed the family-owned Jalisco Food Market in Chicago while two other men stood watch outside. Sofia Medina and her mother, Aida, were working in the store at the time of the robbery; Sofia was in the front of the store at the cash register and Aida was in the rear at the meat counter. No customers were present. Sofia recognized the men as they entered because they had made some purchases earlier in the day. One of the men, whom Sofia identified as defendant, went to the back of the store and held a "long gun” on Aida. He was about 10 feet away from Sofia. The other man, who was also armed, demanded money from Sofia, and she gave him about $50 from the cash register. Both men fired shots in the air before exiting the store; they then fled along with the two other men who had stood outside.

The next day, the police arrested defendant at his home and seized several guns and some shells they found in a search of the house. Defendant was charged with armed robbery and unlawful use of weapons, but the State subsequently nol-prossed the unlawful use of weapons charge. That same day, Sofia identified defendant in a lineup; Aida, however, was unable to identify anyone in the lineup. Sofia testified at trial, where she again identified defendant.

Defendant attempted to establish an alibi by introducing into evidence two documents purporting to show that he was working as a cook at a Bakers Square restaurant from noon until 11 p.m. on the day of the robbery. The first document was a photocopy of a "recap slip.” James Carrington, a store manager, testified that Bakers Square utilized an NCR computer system for keeping track of employees’ hours. Each employee punches in his or her social security number, job code and employee number, and the computer generates a receipt, i.e., the recap slip, displaying the employee’s name, number, the date, starting and ending times, and the total hours worked. This information is stored in a computer at the restaurant and at the company’s parent corporation in Denver, until it is discarded. Carrington, who did not work at the restaurant where defendant was employed at the time of the robbery, had no personal knowledge that the person who caused the recap slip to be made had any knowledge of the facts contained in it; nor did Carrington have any personal knowledge of how the recap slip was generated.

The trial court sustained the State’s objection to admitting the recap slip into evidence. Defendant argued that the slip qualified as a business record and was therefore admissible as an exception to the rule against hearsay. The court disagreed, noting that Carrington had no personal knowledge of the events recorded therein and that he was not a supervisor of the person who made the record. Because defendant failed to establish the unavailability of a witness with personal knowledge of how the slip was generated and its contents, the court held that the document lacked an adequate foundation. Defendant withdrew the exhibit, reserving the right to reintroduce it.

Defendant later made a formal offer of proof outside the jury’s presence regarding a photocopy of a shift operations checklist prepared on October 31, 1989, indicating that a "James” worked that day from noon until closing. Carrington testified that generally store managers filled out such forms in the normal course of business at Bakers Square. He further testified that managers kept the checklists for varying lengths of time and then stored or discarded them. The State, in arguing against the admissibility of the checklist, informed the court that in response to its subpoena requesting all of defendant’s employment records, Bakers Square’s parent corporation indicated that all employee records dating from before January 1, 1991, had been destroyed. Defense counsel explained that he had received the photocopy of the checklist from defendant, who had obtained it from a former store manager.

Defendant also made an offer of proof regarding the testimony of Robert Carbello, manager of the store where defendant worked at the time of the robbery, who would have testified that defendant was the only "James” working at the restaurant at the time the checklist was prepared. However, Carbello would have been unable to testify that he personally remembered defendant’s having worked in the restaurant on October 31, nor could he recall scheduling defendant to work on that day. After the judge concluded that Carbello’s testimony would be of no assistance to defendant in laying a foundation for the documents, defendant declined to call Carbello to testify.

Still outside the jury’s presence, defendant tried to reintroduce the recap slip and again questioned Carrington, who stated that the first time he saw the slip was when defendant showed it to him. The trial court again refused to admit the recap slip and ruled that the operations checklist was also inadmissible, noting that both came from defendant, not the corporation, and defendant had ample motive to alter them. In the court’s view, defendant failed to lay the requisite foundation for either document.

On the second day of trial, a juror informed the court that she had received six hang-up phone calls between the previous evening and that morning. When the trial court questioned her in camera, she stated that she was convinced the calls were related to the trial because, during voir dire, she revealed the name of the suburb where she lived and she was the only person in that suburb with her last name. Additionally, she had never before received such a pattern of calls. She further informed the court that she told other members of the jury about the calls; one juror stated the calls could have been merely coincidental, and another juror told her to tell the judge. After she indicated to the judge that she could no longer be impartial, he discharged her. The court subsequently polled the jury at defendant’s request, asking each individually whether he or she had any conversations with the discharged juror and, if so, whether that would have any impact on his or her ability to be fair and impartial. Seven jurors had heard about the calls from the discharged juror and two others were vaguely aware that the juror had been discharged. All of the jurors, including those who heard about the calls and knew of the juror’s discharge, stated that they could be fair and impartial. Defendant moved for a mistrial, arguing that the jury was tainted, but the court denied the motion.

The court revoked defendant’s bond after interviewing the juror. The court felt that there was sufficient evidence to draw an inference that defendant made the calls, or caused them to be made, despite defense counsel’s assurance that defendant had been with him during all of the previous evening.

Defendant testified at trial that he began work in the afternoon, starting before 2 p.m., until about 11 p.m. on the day of the robbery. However, when questioned by police on November 1, he had told them he was on his way to work at the time of the robbery. Defendant was not questioned regarding the inconsistency apparent from the statements he made on the day after the robbery and the documents he had attempted to have admitted into evidence which indicated he began work at noon. He also testified that he placed in his bedroom the live shells that the police found.

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Cite This Page — Counsel Stack

Bluebook (online)
628 N.E.2d 550, 256 Ill. App. 3d 392, 195 Ill. Dec. 86, 1993 Ill. App. LEXIS 1766, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-morrow-illappct-1993.