People v. Reese

208 N.E.2d 399, 58 Ill. App. 2d 443, 1965 Ill. App. LEXIS 821

• Court: Appellate Court of Illinois
• Decided: May 6, 1965
• Docket: Gen. No. 49,836
• Status: Published

Opinions

MR. JUSTICE ENGLISH

delivered the opinion of the court.

Defendant appeals from his conviction for the crime of attempt (to commit robbery) and a sentence of two to six years after a bench trial.¹ Ill Rev Stats 1963, c 38, § 8-4. He contends that the evidence did not prove his guilt beyond a reasonable doubt.

The complainant, Dr. Max Roseman, testified that he was an optometrist with an office at 3718 West 16th Street. As set forth in the abstract he described what happened:

On December 19, 1963 around 5:00 or 5:30, two men walked into my office and I asked if I could help them. I was at my desk writing. I see one of the men who came into my office that day. It is defendant Reese. I walked up to him and he said, “This is a stickup.” He had his hand in his pocket. He turned me around when I walked to the back of the office. He was right with me. When I got to the back of the office, I yelled, “John.” I had a porter back there in the office working in the back room and his name is John, and I yelled “John” and John grabbed a gun, John took over from there and shot Mr. Reese. After the shot was fired, Mr. Reese fell to the floor. John’s real name is John Henry Dale. After Reese fell on the floor, the other man ran out of the office.

I then called the police. The police subsequently arrived on the scene. They took Reese away ■with bim in an ambulance. Defendant Reese was struck by the shot by John. He was hit in the right temple. After he was struck he was laying on the floor unconscious.

On cross-examination he stated:

On December 19, 1963 when the two men came into this office they came in together. The first man turned around and spoke to the second man and then turned around and faced me, so evidently they both knew each other. They came in almost simultaneously. I had never seen Reese prior to that occasion. I do not recall him ever to coming and asking me the price of glasses. I never talked to him before.

Defendant, twenty-three years old, testified that his house is approximately five blocks from the doctor’s office and that he had lived in the vicinity for about thirteen years; that he had been in the doctor’s office about a month prior to December 19 because he needed glasses in his tailoring business, but he did not purchase any; that he had talked to the doctor about pricing eyeglass frames; that on December 19 he went to purchase glasses; that he had $25 in his wallet and $3.33 in his back pants pocket. He further testified:

When I walked in the store I had a conversation with Dr. Roseman. I asked him would it be possible for me to purchase a pair of glasses. Dr. Roseman answered me. He told me to go around to his office. The store is built in three sections. As we went around to his office, evidently someone else had come into the doctor’s office. I did see someone else coming in. Actually, he maybe had come in, he must have been sitting in the front office, got up and came around. The guy announced the stickup. After that he pushed me into the doctor and the fellow came ont shooting. The other guy pnshed me into the doctor. I did not tell the doctor it was a stickup. I did not attempt to stick np the doctor. I did not attempt to rob the doctor.

I had never been with the other person prior to this occurrence. I did not know the other person. I did not have any weapon- on me that day. Yes, I heard the doctor testify that there was some other person by the name of Dale that shot me. I do know Dale personally. I knew Dale since about 1956. About seven years. I don’t know if he was in the store the last time I was there. I had never had a conversation with Dale at any time in any enterprise or business office. I just knew him as a neighbor. I know that he knew me. He had talked to me before. I had heard him call me Jerry before. That is what everyone in the neighborhood calls me. I never went out socially with Dale. He is definitely not in my age bracket.

I saw Dale immediately prior to the shooting when he emerged from the back. He had a gun in his hand. He appeared to be intoxicated. "What I mean by that he wasn’t acting normal at all. He came out, he was in a wild frenzy, you know, just went to shooting.

John Henry Dale was called as defendant’s witness. His testimony was rambling but in essence he testified that he was working for the doctor; that on December 19 he was in the back of the store; that he heard “stickup” and picked up a gun from a dresser; that when he came to the front of the store defendant was holding the doctor with both hands and pushing him back with both hands; that another fellow was in back of defendant; that he reached over the doctor and shot at the other fellow who he figured had a gun; that he missed; that the doctor was in front of defendant and when defendant moved his head, the witness shot him; and that defendant was a foot or foot and a half away when witness shot him. Dale also testified that he had seen defendant before but did not know him except by sight; that he (Dale) had not been drinking; that he gave a statement to the police; that he was not arrested.

Lawrence Herron, a police officer, testified that when he arrived on the scene Dr. Roseman was there and defendant was on the floor, bleeding; that he searched defendant and found nothing in his pockets; that he was informed that a bag on the floor containing some raw material for clothing belonged to defendant; that defendant was not wearing glasses.

Officer Bryan Connolly testified that when defendant was receiving first aid at Mt. Sinai Hospital defendant stated that he “wanted to buy glasses.” He further testified, however, that at 10 p. m. that evening at Cook County Hospital defendant stated:

... he had been walking along the street and an unknown colored man came up behind him, placed an object in his back and told him to walk ahead of him into the store. He said he didn’t know what was going to happen or anything else. When they got in the store the other fellow said going to hold it up.

After the finding of guilty, in a hearing on aggravation and mitigation, the court was advised that defendant in 1960 was charged with burglary, found guilty on a reduced charge of malicious mischief and put on one year’s probation; that prior to the expiration of his probation, he was convicted of burglary and sentenced to the penitentiary for a term of one to two years; that sixty days after his release from the penitentiary he was convicted of larceny and sentenced to one year in the House of Correction.

Defendant bases his appeal on the premise that the testimony of Dale, defendant’s witness, is so incredible that there exists reasonable doubt as to defendant’s guilt. He refers to the doctor’s testimony that Dale was worried that he might be jailed, and contends that for that reason Dale’s testimony is unworthy of credence. But Dale was defendant’s witness and it does not help the defendant to show, to the extent that he may have done so, that the testimony of his own witness was an insufficient basis for conviction.

Defendant also stresses as unbelievable that defendant would try to hold up a place where he was known by an employee. A complete answer to this argument is the fact that there is no evidence that defendant was well enough acquainted with Dale to know his place of employment or that defendant had any reason to expect to see Dale at the doctor’s office. Nor is there any credit to defendant’s argument on account of the fact that he lived not far from the scene of the crime, because the doctor testified that he had never seen the defendant before.

Next it is claimed as improbable and contrary to human experience that a man would shoot at another when the target was shielded by the innocent employer. The trial judge could, however, believe from the evidence that when the defendant moved his head, Dale, only a foot or foot and a half away, could with reasonable assurance reach over the doctor and fire at defendant without endangering the doctor.

There is no dispute that there was an attempted robbery and that defendant was present. The only question is whether defendant was a participant or an innocent bystander.

The testimony .of the doctor was definite as to defendant’s actions as the principal actor in the holdup.

Defendant’s denial of implication is also contradicted by evidence of inconsistent statements made by tbe defendant as to where the third man came from and when he came into the store. Defendant’s own testimony was also internally inconsistent on this point. Further, defendant’s testimony that he was pushed into the doctor, was contradicted by his own witness who stated that defendant held the doctor with both hands and was pushing him.

Apparently for the purpose of showing that he was not in need of money, defendant testified that he had a wallet with $25 in it and $3.33 in his pocket. The police search of defendant at the scene, however, produced no money, and the doctor testified that the search had been made in his presence and that nothing was removed from defendant’s pockets.

Defendant testified that he went to the doctor’s office because he needed glasses for his work. Yet he was not wearing glasses, nor did he have any in his possession.

Although defendant’s witness (Dale) testified that he had been “seeing him” in the neighborhood, even defendant stated that he “never went out socially with Dale. He is definitely not in my age bracket.” Defendant’s counsel asked for the production of any written statements that the State had. The State answered that they had no written statements but that they had police reports. The report of Officer Herron, a summary report of Officer Herron and Detective Connolly and a police report of Detective Connolly were produced and marked People’s Exhibits 1, 2 and 3. They were turned over to the defense for inspection, but they were not introduced into evidence nor was there any cross-examination based on them. It is evident that the police officers did not see fit to charge Dale with any crime even though it appeared at that time that defendant was critically wounded.

In People v. Mercado, 26 Ill2d 244, 186 NE2d 256, there was no question of identification hut there was conflicting evidence as to the actual participation in the crime. The court said at page 246:

The testimony on behalf of the People, if believed by the trial judge, was clearly sufficient to sustain the finding of guilt. Thus, the real issue is not the sufficiency of the evidence, but the credibility of the witnesses. We have repeatedly held that when a case is tried without a jury, it is primarily for the trial judge, who saw and heard the witnesses, to determine the credibility of the witnesses and the weight to be accorded their testimony, and that this court will not set aside a conviction which depends on such matters unless it is necessary to prevent apparent injustice.

In People v. Dogan, 25 Ill2d 30, 182 NE2d 695, defendant claimed he was an innocent bystander during a robbery. The court held that the testimony of the complainant was sufficient to establish the guilt of the defendant beyond a reasonable doubt.

The case of People v. Dawson, 22 Ill2d 260, 264, 174 NE2d 817, is cited by defendant.² We agree with the principle enunciated therein:

The burden is always upon the State to prove the defendant guilty beyond a reasonable doubt and a judgment of conviction can be sustained only on credible evidence which removes all reasonable doubt of defendant’s guilt. "Where the State’s evidence is improbable, unconvincing and contrary to human experience, we have not hesitated to reverse the judgments of conviction.

We cannot say, however, that the State’s evidence in the instant case was “improbable,” “unconvincing” or “contrary to human experience,” and the trial judge was in a better position than we to evaluate the credibility of the witnesses. The People v. Clark, 30 Ill2d 216, 219, 195 NE2d 631; People v. Bonner, 43 Ill App2d 42, 47, 192 NE2d 568.

The judgment of the Circuit Court is affirmed.

Affirmed.

DRUCKER, J., concurs.

1 The indictment against Ronald Cox, a codefendant, was nolle prossed.

2 We distinguish this case on the facts. The court reversed the Dawson conviction, stating at page 265: “It is simply incredible to believe that the defendant, a person of good character and reputation, would go into an office where he was well known and in the presence of many witnesses, demand money from Baker at gunpoint after identifying himself to Baker by showing him his badge. The testimony that the defendant committed this alleged robbery in the presence of all the witnesses, threatened to call the police (although he was himself a police officer), and then returned most of the money is not of the clear and convincing character required to sustain a conviction of the serious charge of armed robbery.”