People v. Smith

375 N.E.2d 941, 59 Ill. App. 3d 480, 16 Ill. Dec. 834, 1978 Ill. App. LEXIS 2506
Appellate Court of Illinois·Decided April 20, 1978·No. 62980·Published·Cited by 27 cases

Opinion

Mr. JUSTICE LINN

delivered the opinion of the court:

Following a jury trial, defendants Johnny Smith and Hardy Lewis were each convicted of two counts of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9 — 1), one count of attempt murder (Ill. Rev. Stat. 1973, ch. 38, pars. 8 — 4 and 9 — 1), three counts of attempt armed robbery (Ill. Rev. Stat. 1973, ch. 38, pars. 8 — 4 and 18 — 2), and one count of aggravated battery (Ill. Rev. Stat. 1973, ch. 38, par. 12 — 4). Both defendants were sentenced to terms of 100 to 200 years for each murder count; terms of 10 to 100 years for attempt murder; and terms of 6 years, 8 months to 20 years for each count of attempt armed robbery, all sentences to run concurrently. The defendants were not sentenced on the aggravated battery count.

On appeals consolidated for review, defendants raise eight issues for our consideration: (1) whether there is sufficient evidence to sustain the convictions; (2) whether the State improperly used police testimony to bolster the identification made by the eyewitness; (3) whether the tendering of an admissions instruction was improper; (4) whether the State introduced improper rebuttal testimony; (5) whether the trial court erred in denying defendants’ motion for a new trial; (6) whether the introduction of pictures of the murder scene was error; (7) whether defendants were improperly convicted of both attempt murder and aggravated battery; and (8) whether the sentences are excessive.

We affirm defendants’ convictions and sentences for murder, attempt murder and attempt armed robbery but vacate the defendants’ aggravated battery convictions.

A review of the evidence establishes that shortly before noon on April 20, 1974, Henry Johnson and Joseph Garrett were shot and killed and Delois Johnson was shot and injured in the Johnson apartment located at 1742 West 77th Street in Chicago, Illinois.

At trial, the State’s principle witness, Delois Johnson, gave this eyewitness account of the incident. At approximately 11:40 a.m., on the morning of April 20,1974, Delois Johnson returned from an errand to the apartment where she lived with her husband, Henry Johnson, and her daughter. Just as she reached her second floor apartment she heard the front hallway buzzer. She called down and asked who it was. A voice answered, “Joe.” Delois Johnson then informed her husband, Henry, who was inside the apartment, that it was a person whom she recognized as Joseph Garrett at the door. Henry told her to buzz Garrett in. Garrett entered the apartment followed by two men whom she had never seen before but subsequently identified as defendants, Smith and Lewis.

After entering the apartment the defendants, to Garrett’s apparent surprise, produced handguns and ordered Garrett, Delois and Henry Johnson to lie on the couches. Lewis asked Henry Johnson where the money was and began searching the apartment while Smith held a gun on the others. Lewis again asked for money but Henry Johnson reiterated that he had none.

Grabbing an electric iron and extension cord Lewis ordered Garrett and the Johnsons into the bathroom. They were told to place their faces and hands into the half-filled tub. Lewis wrapped the extension cord around their bodies and told them he was going to electrocute them. Lewis then threw the iron into the bathtub and a shot went off, hitting Henry Johnson. A second shot struck Delois Johnson in the back of the head and a third hit Garrett, killing him.

Delois Johnson, who had not been killed, feigned death. She heard Smith yell at Lewis, “What you doing man, what you doing.” Before the defendants left the apartment a fourth shot was fired into the shoulder of Delois Johnson, who then blacked out. The defendants had been in the apartment about 20 minutes. Delois Johnson testified that during that time the defendants did not attempt to conceal their identities.

Upon regaining consciousness Delois Johnson called her mother, whom she told to call the police. In response to this call her brother-in-law, Cedell Johnson, and his wife arrived at the apartment. Approximately five minutes later police officer Baker arrived at the scene. Officers Meany and Sherwood arrived and transported Delois Johnson to the hospital.

Officer Meany testified that enroute to the hospital, Delois Johnson gave the following general description of the assailants: “two unknown, male black men, one about 5T1", medium build, 20 to 25 years old, wearing a black leather three-quarter length coat and green tarn; the other about 5T0" to 5T1", wearing dark prescription glasses, a short natural haircut and a blue peacoat.” Meany also stated that Delois Johnson told him that she had met Garrett and the other two men as they arrived at the apartment building and had walked up the stairs with them.

From her hospital bed, Delois Johnson identified Hardy Lewis from a picture in a Tilden High School yearbook. The next day she picked both defendants’ pictures from a group of police photographs. On May 21, 1974, after being released from the hospital, she picked Lewis and Smith out of two separate five-man police lineups.

On cross-examination Delois Johnson admitted that her husband was a user and seller of heroin. She again stated that she had never seen the defendants before that day. She denied walking upstairs to her apartment with a different man about the time of the incident and denied that any men had visited her apartment that day prior to the defendants and Garrett. She also testified that at the time she was shown the Tilden High School yearbook she was unaware that Jenny Smith had previously identified Lewis from his picture in the yearbook.

On redirect, Mrs. Johnson testified that she looked through many pages of the yearbook before choosing a picture of Lewis and that the police had not started her on the page containing his picture. At trial there was a tear on the page near Lewis’s picture but Mrs. Johnson stated she did not know whether it had been there when she first identified the picture and that it had not influenced her identification. She further asserted that her identification of the defendants from police photographs and in the lineups had been made without suggestive comment from the police.

Jenny Smith, who is not related to defendant Smith but is a cousin of defendant Lewis, testified that she lived with Joseph Garrett and her three children; that at 11:10 a.m., on the morning of April 20, 1974, her cousin Hardy Lewis and another man came to her apartment to see Garrett; that, although she was in the bathroom, she heard the men talking in the dining room; that she later saw the defendants and exchanged greetings with them; and that Garrett told her he was going with Lewis and Johnny Smith, to Henry Johnson’s apartment. She stated that she was positive that the three men left at 11:15 a.m., because she looked at the clock.

Later that afternoon she was called at work and informed of Garrett’s death. Around 10:30 p.m. that evening she accompanied police officers to Tilden High School, where she identified a picture of defendant Lewis after examining three yearbooks. She identified both defendants at trial as the men who had visited her apartment that morning.

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People v. Smith, 375 N.E.2d 941, 59 Ill. App. 3d 480, 16 Ill. Dec. 834, 1978 Ill. App. LEXIS 2506 (Ill. Ct. App. 1978).

375 N.E.2d 941 (People v. Smith) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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