People v. Smith

285 N.E.2d 460, 6 Ill. App. 3d 259, 1972 Ill. App. LEXIS 2481
Appellate Court of Illinois·Decided June 13, 1972·No. 54821·Published·Cited by 46 cases

Opinion

Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Defendant Clayton Veroy Smith, and a Carl D. Stanley, were jointly indicted for aggravated battery, attempt rape and armed robbery. Defendant alone was tried by a jury. He was convicted. The court sentenced him to serve concurrent terms of two to three years for aggravated battery, five to ten for attempt rape, five to ten for aimed robbery. In the trial court, defendant did not testify nor did he call any witness. In this court, he does not question the sufficiency of the evidence that convicted him. Therefore, the facts are uncontradicted.

These show that the complaining witness was a 47-year old woman who lived alone in Evanston, Illinois. At about 1:30 A.M. in the morning of January 6, 1969, she was aroused by a pounding on her front door. She answered. It was the defendant. The woman knew him because he had worked for her as a handyman. Defendant told the woman that his truck had broken down and asked to use her telephone to call for assistance. When the woman let defendant in, she discovered that Carl Stanley was with him. She knew Stanley because on one occasion he had worked as defendant’s helper. Defendant used the telephone. As the two men were about to leave defendant suddenly struck the woman in the face and knocked her to the floor. He and Stanley demanded that she give them $36,000 which they claimed she had in the house. When she denied having the money, the two men, with defendant flourishing a knife, began ransacking the home. Then, while Stanley continued to search parts of the house alone, defendant compelled the woman to disrobe. He tried to insert his penis into her vagina but did not succeed.

A short time later, the two men found some champagne, wine and whiskey which they drank. This gave the woman an opportunity to escape. She ran to the home of a neighbor and reported the attack. The police were called. Ten minutes later, defendant and Stanley were arrested at a nearby elevated station. Later that morning an Evanston policeman, accompanied by Stanley, returned to the station where he recovered two watches, two rings and some money taken by defendant and Stanley from the woman’s home.

From these facts and from questions raised at his trial, defendant contends that (1) he was denied a fair and impartial trial because on direct examination of the complaining witness, the prosecuting attorney purposely elicited testimony that defendant told her that he had spent five years in prison, a prejudicial disclosure which told the jury of defendant’s prior conviction for an unrelated crime; (2) the prosecuting attorney engaged in improper conduct during closing argument when he expressed his personal belief in defendant’s guilt and characterized defendant in language that was inflammatory and derogatory; (3) the State’s evidence did not prove that what he did to the complaining witness was "great bodily harm,” an essential element of the offense of aggravated battery; and (4) his conviction for aggravated battery must be reversed because that offense and the armed robbery and attempt rape resulted from the same conduct.

Defendant’s first contention is based on a question asked of and answered by the complaining witness:

"Q. Now, did he indicate to you that he had any fear or didn’t have any fear of assuming this type of activity?

The Witness: A. Yes, he did. He told me that he had been in prison for five years and he had nothing to lose.”

Defendant argues that the question deliberately elicited testimony which the trial court allowed to stand and which cast him, in the minds of the jurors, as a criminal who had been convicted and sentenced for another crime. In support of this argument, defendant cites a long fine of cases, all representing application of the rule against admission of evidence that proves a defendant committed another offense.

These cases, in our judgment, are not in point. Defendant’s invocation of them discloses a failure to understand the reason for the question and the relevancy of the answer. The question apparently was asked because the complaining witness had reported that defendant, contemporaneous with his criminal acts, made a declaration that revealed his thought processes. The question was proper. (Watt v. People, 128 Ill. 9, 18 N.E. 340; compare People v. Colletti, 101 Ill.App.2d 51, 242 N.E.2d 63.) The answer was relevant because it proved defendant’s mental state: his intent. This was admissible evidence. People v. New-some, 291 Ill. 11, 125 N.E. 735; compare Cunningham v. State, Ind. (1971), 267 N.E.2d 181; see People v. Costea, 19 Mich. App. 166, 172 N.W.2d 488.

The fact that the answer also suggested defendant’s conviction of another crime did not make it inadmissible. Evidence that proves commission of an unrelated crime is admissible to show, by immediate inference, malice, deliberation, ill-will or the intent required for the offense charged. (McCormick, Law of Evidence, § 157 (1954).) When evidence is admissible on other grounds, it is not objectionable because it also discloses other offenses. (People v. King, 276 Ill. 138, 145, 114 N.E. 601; see People v. Dewey, 42 Ill.2d 148, 157, 246 N.E.2d 232; People v. Aughinhaugh, 131 Ill.App.2d 581, 266 N.E.2d 530.) Therefore, the first contention is without merit.

Defendant’s second contention is based on the argument of the prosecuting attorney. Defendant contends that he was prejudiced in his right to a fair Mai by an argument to the jmy in which the prosecutor expressed personal belief in defendant’s guilt and in his accountability for the conduct of Stanley. It was a prejudicial closing argument, defendant insists, because the prosecutor used highly inflammatory and derogatory language.

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People v. Smith, 285 N.E.2d 460, 6 Ill. App. 3d 259, 1972 Ill. App. LEXIS 2481 (Ill. Ct. App. 1972).

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