{ "id": 1578905, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Richard Payton (Impleaded), Defendant-Appellant", "name_abbreviation": "People v. Payton", "decision_date": "1970-04-22", "docket_number": "Gen. No. 53,215", "first_page": "78", "last_page": "91", "citations": [ { "type": "official", "cite": "124 Ill. App. 2d 78" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "384 US 436", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12046400 ], "opinion_index": 0, "case_paths": [ "/us/384/0436-01" ] }, { "cite": "277 Ill 238", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4862430 ], "opinion_index": 0, "case_paths": [ "/ill/277/0238-01" ] }, { "cite": "150 Ill 66", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5472095 ], "opinion_index": 0, "case_paths": [ "/ill/150/0066-01" ] }, { "cite": "298 Ill 286", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5032308 ], "opinion_index": 0, "case_paths": [ "/ill/298/0286-01" ] }, { "cite": "136 NE2d 817", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill2d 92", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320071 ], "pin_cites": [ { "page": "98" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0092-01" ] }, { "cite": "128 NE 489", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "294 Ill 390", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5077254 ], "opinion_index": 0, "case_paths": [ "/ill/294/0390-01" ] }, { "cite": "228 NE2d 123", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill App2d 423", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2556626 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0423-01" ] }, { "cite": "164 NE2d 70", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "18 Ill2d 272", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5327980 ], "opinion_index": 0, "case_paths": [ "/ill-2d/18/0272-01" ] }, { "cite": "221 NE2d 227", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill2d 552", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380069 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0552-01" ] }, { "cite": "35 Ill2d 516", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378323 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0516-01" ] }, { "cite": "223 NE2d 117", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill2d 320", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5377150 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0320-01" ] }, { "cite": "256 NE2d 835", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill2d 33", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896594 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0033-01" ] }, { "cite": "246 NE2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill2d 139", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847545 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0139-01" ] }, { "cite": "257 NE2d 190", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill App2d 76", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582625 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0076-01" ] }, { "cite": "250 NE2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill2d 508", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848428 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0508-01" ] }, { "cite": "252 NE2d 29", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill App2d 231", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1589954 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/113/0231-01" ] } ], "analysis": { "cardinality": 845, "char_count": 20571, "ocr_confidence": 0.597, "pagerank": { "raw": 1.0547801384503952e-07, "percentile": 0.5550605460009445 }, "sha256": "942d74b96047185cfb919aca598d6bd2365291646f5d8576bbe1df7b13fb71e6", "simhash": "1:e2cde2ec7f1cc7cf", "word_count": 3584 }, "last_updated": "2023-07-14T21:19:07.974938+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Richard Payton (Impleaded), Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE DRUCKER\ndelivered the opinion of the court.\nDefendant was convicted after a bench trial of the offense of armed robbery. He was sentenced to a term of five to ten years. Defendant raises three points on appeal: (1) the method used for identification was so highly suggestive and conducive to mistaken identity as to require reversal; (2) it was error to introduce into evidence a gun which was never connected with him; and (3) it was error to consider a police officer\u2019s testimony as to defendant\u2019s statements obtained in violation of his constitutional rights, even though defense counsel did not raise any objection at the time the officer testified.\nTestimony of Fred G. Anderson, complaining witness, for the State:\nHe lives at 2355 East 74th Street in Chicago. On May 24, 1967, he was working as a bartender at the South Side Swedish Club. He finished working at 1:00 a. m. on May 25, 1967. He drove home and parked his car about a quarter of a block from his home. When he got in front of his house two men, a tall one and a shorter one, came down the street towards him. As they approached him they separated and the little one (defendant) got hold of his arm and started twisting it up. The taller man (Erman Haskins) grabbed him by the throat and started to pistol-whip him. The taller man had the weapon. He required nine stitches to close the wounds. His wallet with his paycheck for $180 was taken during the robbery by the defendant.\nHe started to holler and his wife and neighbors heard the commotion and called the police. Several minutes later a squad car came by with two police officers, Beam and Schultz. They asked him to get in the car and describe his assailants, which he did. The squad car then drove west on 74th Street and down Crandon between 71st and 72nd. He pointed out the two suspects as the ones who robbed him. He was told to stay in the car. The taller assailant ducked into a gangway and the officers followed him. After that he heard shots.\nHe saw the defendant at 2:00 or 2:15 a. m. in Billings Memorial Hospital. A police officer later gave him back his wallet with the paycheck still inside it.\nOn the morning of May 25 the lighting conditions in front of his house were good. He uses hundred watt bulbs in the entrance on the first and second floors of his building to light up the front. He could see the defendant \u201cplain then and there.\u201d His assailants came around the corner on Yates and walked towards him. When he got in front of his doorway they separated and grabbed him from the back.\nHe had never seen the defendant before. The taller man (Haskins) was wearing a light gray topcoat with a tarn or beret. He was a Negro of light complexion and was about six feet or six feet one in height. The shorter man (defendant) was also a Negro and he was wearing a three-quarter length dark brown coat. He was not wearing a hat. He did not notice the color of their trousers. He knew the taller man had a gun because he saw it. The taller man had a gun in his hand and he saw \u201ca flash of chrome\u201d as he was hit. He identified the gun at the police station.\nAfter he was taken to the hospital, he identified a man in the emergency room as the taller man who had robbed him, Erman Haskins. This man had been shot by the police. \u201cThe police didn\u2019t put nothing in my head\u201d as to who the man was.\nHe saw the shorter man (defendant) when the police brought him into the hospital. The man was handcuffed. The police said, \u201cWe brought in a suspect.\u201d He was thirty feet away when he first saw the defendant at the hospital and he moved closer to him to take a good look. He identified him as the other robber.\nHe identified defendant in court as one of the men who robbed him. He also identified a gun as the one used to pistol-whip him.\nTestimony of Alfred Schultz, for the State:\nHe is a police officer. On May 25,1967, his partner and he responded to a call at approximately 1:20 a, m, of a man needing assistance at 2355 East 74th Street. When they arrived they observed a white man standing there, bleeding from the head. The man identified himself as Fred Anderson. They placed him in the back of the squad car.\nThey drove westbound on 74th and then turned northbound on Crandon. Between 72nd and 71st \u201cMr. Anderson called to us and pointed out one of the offenders that was walking down the street.\u201d Mr. Anderson remained in the squad car and they chased the man down an alley. Another car had responded to the \u201clookout message\u201d they had made immediately after Mr. Anderson was placed in the squad car. They ordered the man to halt. They noticed a nickel-plated revolver in his hand and they opened fire. The man fell to the ground. They took the gun from him and called for a wagon. They had a conversation with the man, Erman Haskins, and then put out another lookout message giving a full description and name of the second offender, Rick Payton. They took Mr. Anderson to Billings Hospital.\nThey were in full uniform when they gave chase to Erman Haskins. Mr. Anderson described Haskins as \u201ca male Negro, approximately six foot, approximately 185 to 190, a light complexion, wearing a brown coat, dark pants and a tan hat.\u201d Mr. Anderson described the defendant as \u201ca male Negro, approximately 5,8 to 5,10, between 165 and 175, wearing dark pants.\u201d He was also wearing a light colored coat and a cap.\nMr. Anderson observed Haskins as they were wheeling him into the hospital. Mr. Anderson stated that \u201cthat was the man that attacked him.\u201d He never told Mr. Anderson that Haskins was a suspect.\nHe identified the gun introduced into evidence as the one seized from Haskins.\nTestimony of Gerald Beam, for the State:\nHe is a police officer. He corroborated the testimony of his partner, Alfred Schultz. He also identified the gun as the one taken from Haskins after he had been shot. The gun was unloaded when they took it from Haskins.\nTestimony of Richard Grublesky, for the State:\nHe is a police officer. He was on duty the evening of May 24, 1967, with his partner, Robert Ford. At approximately 2:15 a. m. he arrested the defendant at 2205 East 71st Street. The defendant told him that he was coming from work after he had stopped at a friend\u2019s house. Defendant stated that his friend lived down the street, but he did not give an address. He searched the defendant and found a wallet containing Fred Anderson\u2019s identification and a check made payable to Fred Anderson for $180. The defendant also had his own wallet. At the time of his arrest, approximately fifty-five minutes after the robbery, defendant was wearing dark trousers and a light color tan coat. He was arrested about three and one-half blocks from the scene of the robbery.\nDefendant was taken to the hospital approximately fifteen minutes after his arrest. Mr. Anderson identified the defendant as one of the assailants. He never told Mr. Anderson that he had a suspect. Defendant was handcuffed when Mr. Anderson identified him.\nIn court he identified the defendant as the man he arrested.\nTestimony of Robert Ford, for the State:\nHe is a police officer. He corroborated the testimony of Officer Grublesky. He also identified the defendant as the man his partner and he arrested.\nDuring his direct examination defense counsel objected to his describing a conversation with defendant at the time of his arrest. He objected on the ground that the defendant had not been given the Miranda warnings and asked the court to strike Officer Ford\u2019s testimony as well as Officer Grublesky\u2019s testimony. The court sustained counsel\u2019s objection as to Officer Ford\u2019s testimony dealing with the defendant\u2019s statements made to him after his arrest. The court overruled the motion to strike Officer Grublesky\u2019s testimony as it was not made in apt time.\nHe did not notify Mr. Anderson that he had a suspect before Mr. Anderson identified the defendant at the hospital. Mr. Anderson never said, \u201cI can\u2019t be sure\u201d when he identified defendant.\nTestimony of Richard Payton, defendant, in his own behalf:\nPrior to his arrest he never knew Erman Haskins. He was not with him on May 25, 1967. The first time he saw Haskins was at Billings Hospital. On the night of his arrest he was coming from the License Lounge at 2338 East 71st Street. He heard gunshots while he was inside the lounge and came outside with some other people. He stayed there about ten minutes and started walking down the street. He was going down to the Pumpkin Room at 2015 East 71st Street. He found a wallet on the sidewalk by 71st and Crandon. He never told the police that he was coming from a friend\u2019s house or from work.\nOn cross-examination he testified that he is also known by the name of Alfonso Willoughby. He knew several people at the lounge by their faces but he did not know their names. He goes to this lounge about every week. He did not know the lady tending bar.\nAfter the officers searched him and found Mr. Anderson\u2019s wallet, he told them he had just picked it up on the previous corner. He told Officer Grublesky he was on his way to the Pumpkin Room. He had never seen Mr. Anderson before his arrest. He never robbed Mr. Anderson.\nTestimony of Erman Haskins, for the defense:\nHe had pleaded guilty to the robbery of Fred Anderson but had not been sentenced. He waived his privilege against self-incrimination.\n\u201c(O)n the night of May 24,1 had just left my job and I was on my way home. I was living at 6914 South Cornell. And I stopped in a lounge to have a drink. And in doing so, I met a friend. To you he\u2019s Mr. X.\u201d This friend was not the defendant.\nBoth his friend and he needed money and they went to his house to plan the robbery. They dressed alike, each wearing a gray coat, tan hat and sunglasses. He took his father\u2019s .25 automatic pistol. They left the house and proceeded to 71st Street. \u201cAs I made this turn, the fellow that was with me said, \u2018There\u2019s a fellow getting out of a car.\u2019 I said, \u2018Yes.\u2019 He said, \u2018Let\u2019s see what he\u2019s going to do.\u2019 \u201d\nThey then proceeded to rob Mr. Anderson and he began to holler. They split up and fled the scene. He ran into an alley with the police in pursuit. He attempted to throw the wallet away but did not have a chance. The officers then shot him. He passed out after ten minutes. He never mentioned Rick or Richard Payton.\nHe first saw Payton about a month after his recovery from the bullet wounds.\nOn cross-examination he testified that he had been convicted for two prior felonies, robbery and the Dyer Act (the transportation of stolen motor vehicles in interstate or foreign commerce).\nWhen asked to tell his friend\u2019s name he answered, \u201cBig John.\u201d He did not know his address. He described him as a male Negro, light complexion, six-one in height and weighing 195 to 200 pounds. He had known Big John for quite some time. On the night of the robbery he met Big John at the Tropicana Lounge. Other people saw him there. He took Mr. Anderson\u2019s wallet but he never pistol-whipped him. Big John never pistol-whipped him either, but Big John did hit Mr. Anderson with his fist.\nAs he was fleeing from the police he tried to get rid of the wallet and he dropped it or \u201cthrowed it.\u201d He never made any statement to the police about Rick Payton.\nTestimony of Samuel Brewster, in rebuttal for the State:\nHe is a police officer. On March 24, 1964, he arrested a man named Alphonso Willoughby.\nA conviction statement of one Alphonso Willoughby was then admitted into evidence. It showed that he had pleaded guilty to the offense of robbery and had been sentenced to one to five years.\nTestimony of Alfred Schultz, in rebuttal for the State:\nErman Haskins was shot on the southwest corner of 71st and Crandon. At no time did he observe Haskins throw a wallet from his person.\nOpinion\nDefendant contends that the method used for identification was so highly suggestive and conducive to mistaken identity as to require a reversal of his conviction. During direct examination complainant identified defendant as one of the men who robbed and beat him. On cross-examination he testified that while he was at the hospital receiving treatment for his wounds the police brought in a man who was handcuffed. The police told him that they brought in a suspect and to take a good look at him. He identified this man as one of the assailants. The identification took place approximately forty-five to sixty minutes after the robbery.\nFrom these facts and circumstances we believe this pretrial identification may well have been unnecessarily suggestive and that a properly conducted lineup could have been arranged at a later time. People v. Cook, 113 Ill App2d 231, 252 NE2d 29. However, in Cook, supra, 236, this court found that:\nWhere a defendant does present sufficient evidence to establish the unfairness of the pretrial identification confrontation, an in-court identification may nevertheless be admissible if it is shown, by clear and convincing evidence, that the courtroom identification had an independent origin, arising from an earlier uninfluenced observation of the defendant. See People v. Blumenshine, 42 Ill2d 508, 250 NE2d 152; and People v. McMath, supra.\nThe complainant had previously observed his assailants at the time of the crime and he gave a description of them to the police while he was in the squad car. The sidewalk in front of his doorway was well lighted. Defendant calls attention to the discrepancies between the complainant\u2019s testimony concerning descriptions of his assailants and the testimony of the police officers in which they related those descriptions. Although complainant testified that the descriptions he gave the police were sparse, nevertheless he immediately pointed out Haskins on the street and was positive in his identification of defendant at trial. He also testified that when he saw the defendant on 74th Street in front of his doorway he \u201ccould see him plain right then and there.\u201d\nIt should be noted also that Officers Beam and Schultz radioed in a full description of the defendant, including his name, after capturing Haskins. In addition, there is independent corroborating evidence in the form of complainant\u2019s wallet which was found in the defendant\u2019s possession when arrested by Officers Grublesky and Ford. People v. Cook, supra; People v. Hampton, 121 Ill App2d 76, 257 NE2d 190; and People v. Bey, 42 Ill2d 139, 246 NE2d 287. See also People v. McMath, 45 Ill2d 33, 256 NE2d 835.\nWe find that there was a sufficient opportunity for the complainant to observe the defendant as one of his assailants at the time of the crime, and that this prior uninfluenced observation constituted an independent and adequate basis to support his in-court identification.\nDefendant also contends that it was error to introduce into evidence a gun which was never connected with him. In People v. Aughinbaugh, 36 Ill2d 320, 223 NE2d 117 (reversed and remanded on other grounds), the defendant also claimed that a gun identified as similar in size, shape, weight and color to the one used by defendant\u2019s accomplice should not have been admitted into evidence. The complainant testified that defendant\u2019s accomplice pointed a gun at him during a robbery and there was testimony that this same gun was taken from defendant\u2019s accomplice by a police officer at the time of his arrest. The court, at page 326, found that:\nEven though not used by defendant personally, this was sufficient evidence to connect the gun with the crime in which defendant participated. (People v. Johnson, 35 Ill2d 516; People v. McCasle, 35 Ill2d 552, 221 NE2d 227.) It did possess probative value in that its possession by the accomplice when arrested corroborated the State\u2019s witnesses, and we find no error in its admission.\nSee also People v. Ashley, 18 Ill2d 272, 164 NE2d 70, and People v. Givans, 83 Ill App2d 423, 228 NE2d 123.\nIn the instant case complainant testified that he was pistol-whipped. The gun taken from Haskins at the time of his arrest was identified by the complainant and by the arresting police officers. Therefore, we find that where it appears that a defendant participated in a crime in which a weapon was used, this weapon may be admitted into evidence even though he himself did not wield or possess it. People v. Ashley, supra, and People v. Maciejewski, 294 Ill 390, 128 NE 489.\nDefendant also argues that it was error to consider a police officer\u2019s testimony as to his admissions obtained in violation of his constitutional rights even though his counsel did not raise any objection until after the testimony was given. Defendant was arrested approximately one hour after the robbery of Mr. Anderson and three and one-half blocks away from the scene of the crime. Officers Grublesky and Ford testified that they began questioning the defendant immediately after they arrested him. They asked him where he was coming from and where he was going at this late hour. Each officer testified that the defendant told them he was coming from work after stopping at a friend\u2019s house somewhere down the street. Neither officer testified as to informing defendant of the Miranda warnings before they began questioning him.\nDefendant denied making the alleged statements to the officers. He testified that when Officer Grublesky asked him where he was coming from he told him that he was coming from the License Lounge and was on his way to the Pumpkin Room. Furthermore, when Officer Grublesky asked him where he got Mr. Anderson\u2019s wallet, he told the officer he just picked it up on the previous corner.\nDuring the direct examination of Officer Ford, defense counsel objected to his relating the contents of the conversation with defendant made after his arrest. Counsel objected on the ground that defendant had not been given the Miranda warnings subsequent to his arrest. He moved that the testimony of both Officers Ford and Grublesky relating to this conversation with the defendant be stricken. The court sustained counsel\u2019s objection and motion to strike Officer Ford\u2019s testimony but overruled the motion to strike Officer Grublesky\u2019s testimony. No objection was made during Officer Grublesky\u2019s testimony as to the failure to give the Miranda warnings, and the court found that objection to the testimony and the motion to strike were not made in apt time.\nIn People v. Trefonas, 9 Ill2d 92, 98, 136 NE2d 817, the court found that:\nThe function of the objection is, first, to signify there is an issue of law, and, secondly, to give notice of the terms of the issue. An objection to the admission of evidence, to be available, must be made in apt time, or it will be regarded as waived. The general rule is that the admission of incompetent evidence must be objected to, if at all, at the time of its admission. . . . Failure to make proper and timely objection to the admission of evidence claimed to be incompetent or otherwise objectionable or to move to strike it out after its admission, giving specific reason for the objection or motion to strike out such evidence generally constitutes a waiver of the right to object and cures the error, if any. ... A party cannot sit by and permit evidence to be introduced without objection and upon appeal urge an objection which might have been obviated if made at the trial.\nWhile the accused has the right to insist that only competent evidence shall be introduced against him, yet he may waive such right and does do so by failure to interpose in apt time proper objections. (People v. Jennings, 298 Ill 286; Simons v. People, 150 Ill 66.) Objections to evidence may be waived even though based on constitutional grounds for the defendant may by a plea of guilty or a confession waive the production of all evidence of his guilt. People v. Schultz-Knighten, 277 Ill 238.\nIn the instant case we find no reversible error in the court\u2019s refusal to strike the testimony of Officer Grublesky.\nWe would note that neither the defense nor the prosecution made any further reference during closing argument to the statements testified to by Officer Grublesky.\nThe judgment is affirmed.\nAffirmed.\nENGLISH and LEIGHTON, JJ., concur.\nMiranda v. Arizona, 384 US 436.", "type": "majority", "author": "MR. JUSTICE DRUCKER" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.", "Edward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. McGee, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Richard Payton (Impleaded), Defendant-Appellant.\nGen. No. 53,215.\nFirst District, Fourth Division.\nApril 22, 1970.\nGerald W. Getty, Public Defender of Cook County, of Chicago (Shelvin Singer and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.\nEdward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. McGee, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0078-01", "first_page_order": 84, "last_page_order": 97 }