People v. Smith

520 N.E.2d 841, 165 Ill. App. 3d 905, 117 Ill. Dec. 490, 1988 Ill. App. LEXIS 8
CourtAppellate Court of Illinois
DecidedJanuary 11, 1988
Docket85-3496
StatusPublished
Cited by6 cases

This text of 520 N.E.2d 841 (People v. Smith) 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. Smith, 520 N.E.2d 841, 165 Ill. App. 3d 905, 117 Ill. Dec. 490, 1988 Ill. App. LEXIS 8 (Ill. Ct. App. 1988).

Opinion

JUSTICE MANNING

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant Kerry Smith (a/k/a Kerry Jackson) was found guilty of aggravated battery, attempted murder and armed robbery of Homer Rouse. He was subsequently sentenced to serve concurrent extended terms of 55 years for attempted murder and 55 years for armed robbery. The trial court reasoned that this sentence was imposed due to the viciousness of the crime and because the victim was over the age of 60. The defense counsel filed a motion for a new trial objecting to the in-court identification and the improper comments of the prosecution regarding the defendant’s failure to testify. The motion was denied by the trial court and the defendant filed this appeal.

In this appeal the defendant contends that: (1) he was not proven guilty of attempted murder and armed robbery beyond a reasonable doubt; (2) the trial court abused its discretion in allowing the prosecution to elicit testimony that the complainant had made prior consistent statements of the defendant’s guilt to third parties; (3) his constitutional right to remain silent was violated; and (4) the concurrent 55-year extended-term sentences were excessive.

Homer Rouse, the victim, testified that during the morning of April 2, 1983, he walked to the currency exchange on 61st Street to pay a utility bill. On his way back home he encountered the defendant, Kerry Jackson (a/k/a Kerry Smith). Mr. Rouse had known the defendant for two years prior to the April 2, 1983, attack and the defendant actually lived with Mr. Rouse for approximately two months prior to April 2,1983.

Subsequent to the street encounter, the defendant went to Mr. Rouse’s apartment and was allowed in by Mr. Rouse. Mr. Rouse lay down and went to sleep. However, he was awakened by the defendant tying his legs together with an extension cord. While Mr. Rouse was cutting the cord from his legs, the defendant asked him if he had any money. Mr. Rouse replied that he had $80 and proceeded into the living room. The defendant followed Mr. Rouse into the living room, ripped his pocket and took the money. The defendant then pulled out a six-inch scalpel-edged knife and stabbed Mr. Rouse repeatedly in the stomach, head, arms, and cut him in the eye, which resulted in the loss of vision in that eye.

Mr. Rouse “blacked out” and upon awakening, he discovered that his neck and hands were tied. Since he was unable to stand upright, he crawled across the hall to where the janitor, Alonzo DeLoach, lived and bumped his head against the door until it was opened. When Mr. DeLoach came to the door he asked Mr. Rouse, “What happened?” and “Who did this?” Mr. Rouse responded that “Kerry did it.” Mr. Rouse further testified that he told the police when they arrived that Kerry Jackson robbed and stabbed him.

Alonzo DeLoach, the janitor in Mr. Rouse’s building, testified that he lived across the hall from Mr. Rouse and that Kerry Smith lived with Mr. Rouse for approximately two months. On April 2, 1983, Mr. Rouse bumped against Mr. DeLoach’s door and when the door was opened Mr. Rouse was bleeding and tied up. When he asked Mr. Rouse, “Who did this?” he responded, “Kerry Smith.”

Officer Cleveland also testified that upon arrival to the victim’s apartment, when he asked Mr. Rouse what had happened, he responded that “Kerry Jackson did this to me.”

Mr. Rouse was taken to Jackson Park Hospital and transferred to Cook County Hospital, where he stayed approximately two weeks. Upon release, he was taken to a nursing home and he subsequently moved to Indianapolis, Indiana.

The defendant contends that the prosecution failed to sustain its burden of proving him guilty of attempted murder and armed robbery beyond a reasonable doubt since the in-court identification was prompted by the prosecutor. The defendant further contends that “the assistant State’s Attorney practically pointed to the defendant” when Mr. Rouse was having difficulty identifying his attacker in the courtroom. Moreover, in response to the defense counsel’s objection to these actions, the trial judge stated, “The jury saw what happened. The record may reflect an in-court identification of the defendant.”

The State maintains that the defendant was correctly identified and proven guilty beyond a reasonable doubt. The admissibility of identification testimony is determined by its reliability. (Manson v. Brathwaite (1977), 432 U.S. 98, 114, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253.) Reliability is determined by, “the opportunity of the witness to view the criminal at the time of the crime, the witness’ degree of attention, the accuracy of his prior description of the criminal, the level of certainty demonstrated at the confrontation, and the time between the crime and the confrontation.” 432 U.S. at 114, 53 L. Ed. 2d at 154, 97 S. Ct. at 2253, citing Neil v. Biggers (1972), 409 U.S. 188, 199-200, 34 L. Ed. 2d 401, 411-12, 93 S. Ct. 375, 382-83.

The most important factor in evaluating the reliability of an in-court identification is the victim’s opportunity to view the perpetrator. (People v. Moore (1983), 115 Ill. App. 3d 266, 270, 450 N.E.2d 855.) Moreover, a criminal conviction will not be set aside unless the evidence is so unreasonable, improbable or unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. People v. Shum (1987), 117 Ill. 2d 317, 356, 512 N.E.2d 1183; People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267.

It is the responsibility of the trier of fact to determine the credibility of witnesses and draw conclusions after reviewing all of the evidence. (People v. Titone (1986), 115 Ill. 2d 413, 422, 505 N.E.2d 300; People v. Cheek (1982), 93 Ill. 2d 82, 94, 442 N.E.2d 877.) Moreover, a reviewing court will not substitute its judgment for that of the trier of fact regarding the credibility of the witness and the weight of the evidence. People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.

The United States Supreme Court succinctly expounded the role of the jury in Manson v. Brathwaite. The Court reasoned that, if there was a defect in the in-court identification, the defect goes to the weight and not to substance. (Manson v. Brathwaite (1977), 432 U.S. 98, 117, 53 L. Ed. 2d 140, 155, 97 S. Ct. 2243, 2254.) “We are content to rely upon the good sense and judgment of American juries, for evidence with some element of untrustworthiness is customary grist for the jury mill. Juries are not so susceptible that they cannot measure intelligently the weight of identification testimony that has some questionable feature.” (432 U.S. at 116, 53 L. Ed. 2d at 155, 97 S. Ct. at 2254.) In the case at bar, the jury saw the identification and deemed it to be credible.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

People v. Calderon
859 N.E.2d 1163 (Appellate Court of Illinois, 2006)
People v. Herrera
629 N.E.2d 546 (Appellate Court of Illinois, 1994)
People v. Williams
593 N.E.2d 968 (Appellate Court of Illinois, 1992)
People v. Govin
572 N.E.2d 450 (Appellate Court of Illinois, 1991)
People v. Corder
570 N.E.2d 1187 (Appellate Court of Illinois, 1991)

Cite This Page — Counsel Stack

Bluebook (online)
520 N.E.2d 841, 165 Ill. App. 3d 905, 117 Ill. Dec. 490, 1988 Ill. App. LEXIS 8, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-smith-illappct-1988.