{ "id": 2911458, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Grady Kimbrough, a/k/a James Campbell, Defendant-Appellant", "name_abbreviation": "People v. Kimbrough", "decision_date": "1970-12-14", "docket_number": "No. 53403", "first_page": "36", "last_page": "45", "citations": [ { "type": "official", "cite": "131 Ill. App. 2d 36" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "177 N.E.2d 112", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "22 Ill.2d 592", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2790508 ], "opinion_index": 0, "case_paths": [ "/ill-2d/22/0592-01" ] }, { "cite": "190 N.E.2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1961, "opinion_index": 0 }, { "cite": "28 Ill.2d 154", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5362589 ], "year": 1961, "opinion_index": 0, "case_paths": [ "/ill-2d/28/0154-01" ] }, { "cite": "191 N.E. 264", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "357 Ill. 141", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5281220 ], "opinion_index": 0, "case_paths": [ "/ill/357/0141-01" ] }, { "cite": "235 N.E.2d 625", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1934, "opinion_index": 0 }, { "cite": "39 Ill.2d 265", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857618 ], "year": 1934, "opinion_index": 0, "case_paths": [ "/ill-2d/39/0265-01" ] }, { "cite": "161 N.E.2d 300", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill.2d 160", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334974 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0160-01" ] }, { "cite": "122 N.E.2d 568", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "4 Ill.2d 244", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2700365 ], "opinion_index": 0, "case_paths": [ "/ill-2d/4/0244-01" ] } ], "analysis": { "cardinality": 892, "char_count": 21769, "ocr_confidence": 0.751, "pagerank": { "raw": 2.04407945226891e-07, "percentile": 0.7480789420541506 }, "sha256": "fef427704ae8a5a60d7fb6d5c9e129aaaaa8de98e5b8e1e82a367d4094d3daa1", "simhash": "1:b7c2d00b202511fc", "word_count": 3788 }, "last_updated": "2023-07-14T19:11:16.150777+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "The People of the State of Illinois, Plaintiff-Appellee, v. Grady Kimbrough, a/k/a James Campbell, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE LYONS\ndelivered the opinion of the court:\nThe defendant, Grady Kimbrough, was indicted for murder. After a trial by jury, he was found guilty and was sentenced to the Illinois State Penitentiary for not less than twenty nor more than thirty years. On appeal, the defendant contends: (1) that the trial court erred by admitting into evidence hearsay testimony of a highly prejudicial nature; (2) that the motion to suppress physical evidence, i.e., a .38 caliber pistol, was erroneously denied; (3) that the evidence was insufficient to establish his guilt beyond a reasonable doubt; and (4) that the trial court erred by permitting a gun to be introduced into evidence.\nPrior to trial a hearing was held concerning defendant\u2019s motion to suppress the alleged murder weapon. At this hearing, Officer Wesley Broderson of the Chicago Police Department testified that he had been assigned to conduct a follow-up investigation in the murder of J. D. Davis. Davis had been shot to death on September 18,1966, in the Smoot Village Tavern, 2658 W. Van Bur\u00e9n Street, Chicago. During the course of his investigation in the early morning hours of September 19th, Officer Broderson was informed by one Joyce Brown, an alleged eyewitness to the offense, that the perpetrator was a man named \u201cSweets.\u201d Miss Brown led Officer Broderson to \u201cSweets\u2019 \u201d employer where the officer determined the identity of the defendant. Broderson then proceeded to 2732 West 26th Street, an address indicated on the defendant\u2019s employment records, and had a conversation with one Anita Roman, the defendant\u2019s sister. Miss Roman told Broderson that the defendant did not reside with her and she denied any knowledge of the defendant\u2019s whereabouts. Broderson then searched the apartment and encountered five or six children. From one of these children the officer obtained an address of 6831 South Stony Island Avenue, the address of defendant\u2019s mother. The officer proceeded with haste to the Stony Island address and knocked at the door of a third floor apartment. A woman answered and asked Broderson what he wanted. Broderson identified himself and explained his purpose. The woman asked him to wait a moment. The officer testified that he then heard the sound of running and other loud noises from within the apartment. He tiren pushed in the door and ran through the apartment to the back porch. He heard footsteps going down the back stairs and he ran down to the second floor porch. He indicated that he then observed a shape moving across the roofs which were adjacent to the porch. He saw this shape go over the edge of the third roof and heard \u201cwhat sounded like feet landing in the alley,\u201d followed by the sound of running.\nOfficer Broderson stated that he returned to the third floor apartment and conversed with the woman who was there. He learned that she was Nora Evans, the defendants common-law wife. According to Broderson, Miss Evans then told him that she didn\u2019t open the door right away because she feared that someone would get shot. The officer further testified that he was informed by Miss Evans that the defendant, Grady Kimbrough, had been in the apartment and had left a gun there. Broderson stated that he noticed a purse lying on a desk and asked Miss Evans if the gun was in the purse. She replied that it was and Broderson opened the purse and removed a \u201c38 caliber police special revolver with five five cartridges and one empty that had been fired.\u201d Miss Evans was then taken to the police station for additional questioning. Broderson stated that he had no search warrant for the premises at 6831 South Stony Island.\nAnna M. Jones testified that she was the defendant\u2019s mother and was residing alone at 6831 South Stony Island during September 1966. Mrs. Jones was unable to recall specific dates, but stated that Nora Evans had stayed overnight with her on one occasion during September 1966. The next morning Mrs. Jones left for work about 6:00 A.M. and Nora Evans remained in the apartment. When she returned from work about 4:00 P.M., Mrs. Jones found that Miss Evans was gone, the doors were wide open and the apartment was \u201cramshackled.\u201d Miss Evans informed her the next day that the police had searched the apartment. Mrs. Jones was not present during the search and gave no consent for the search. She indicated that she was awakened by police about 3:00 A.M. on a morning subsequent to the search and was taken to the police station.\nUpon the foregoing evidence, the court denied the defendant\u2019s motion to suppress the alleged murder weapon. The court found that Officer Broderson had reasonable grounds to believe that Grady Kimbrough had committed the crime, that Kimbrough was within the premises at 6831 South Stony Island Avenue, when he arrived there and that a weapon, which was an instrument involved in the crime, was within the premises. Thus, the court concluded that the search was reasonable under the circumstances of the case. The court also noted that the defendant did have standing to challenge the legality of the search.\nAt trial, the State\u2019s first witness was Henry Robinson. Mr. Robinson testified that he arrived at the Smoot Village Tavern about 4:00 P.M. on September 18th. He drank a beer and then played pool. About 5:30 P.M. he went to the bar and ordered another beer. The deceased was sitting at the bar and a young man with two women was standing nearby. Robinson noticed the young man put some money in the juke box- and Robinson asked him \u201cto punch a number for me.\u201d The young man gave Robinson a quarter and told him to play what he wanted. Then, according to Robinson, a woman came over to him and started cursing at him. Robinson told her to get back and she ran over to another man who was sitting on a radiator near the door. The woman put her hand in the mans shirt and Robinson \u201crushed to him and pushed both of them out of the door.\u201d Robinson stated that he started for the men\u2019s room and \u201c[t]hen I heard someone scream and I looked back and when I looked back toward the door, I seen an arm go up and at that particular time I jumped over the bar.\u201d He then heard a shot. At the time he heard the shot, Robinson was laying on the floor behind the bar. When he got up several minutes later he saw the deceased lying on the floor. Robinson did not see who fired the shot which killed J. D. Davis and was unable to identify anyone in the courtroom as the man with whom he had altercated.\nNellie Diggs, a part-time waitress at the Smoot Village Tavern, testified that there were about twelve or thirteen people in the tavern at 6:45 P.M., September 18, 1966. A Puerto Rican man and two Negro women came into the tavern and, shortly thereafter, a fellow wearing a trench coat entered. The fellow wearing the trench coat ordered a beer and went over to sit on a radiator. The Puerto Rican man and the two women played the juke box and danced. The witness saw Henry Robinson go over to the juke box and overheard Robinson quarreling with one of tile women. Miss Diggs stated that she heard Robinson call the woman a dirty name and then saw the woman go over to Kimbrough, the man in the trench coat. Robinson followed her and a brief scuffle ensued among the woman and two men. The three went out the door into the vestibule. Miss Diggs indicated that she then saw Robinson reenter the tavern and run toward the men\u2019s room. She saw Kimbrough, who had a gun in his hand, run back into the tavern and fire across the bar at Robinson. After the shot was fired, Miss Diggs stated that she saw a man, who had been sitting at the bar drinking, fall off his stool onto his back. Most of the tavern patrons then ran from the premises.\nThe witness was shown a gun (People\u2019s Exhibit No. 1) by the prosecutor and was asked if she had ever seen it before. She responded: \u201cThe handle looks familiar, the handle was the same color. I don\u2019t know whether it is the same gun, but the handle was the same color.\u201d The witness was then asked to demonstrate how the defendant walked into the tavern with the gun and fired across the bar. After doing so, she testified that the deceased had been shot between the eyes.\nAfter the testimony of Charles Davis, an uncle, who served as the life and death witness, the State requested that Nora Evans be called as a court\u2019s witness because the State could not vouch for her veracity. The prosecutor indicated that Miss Evans had significantly changed the story which she had told the police shortly after the offense. The court denied the State\u2019s request and suggested that she be called as a State witness \u201cuntil showing is made that there is just cause for the calling of her as the court\u2019s witness.\u201d\nDr. Eugene Tapia, Assistant Director of Pathology at the Cook County Coroner\u2019s Morgue, testified that J. D. Davis died of a close range bullet wound in the brain. The pellet was removed from the deceased\u2019s brain and was given to the police.\nOfficer Wesley Broderson testified substantially the same as he had at the motion to suppress hearing. The prosecutor showed him People\u2019s Exhibit No. 1 and the officer indicated that it was the same gun which he had removed from Nora Evans\u2019 purse.\nDetective Anton BielsM testified that Officer Broderson gave him a gun which he took to the Crime Detection Laboratory. He identified People\u2019s Exhibit No. 1 as being the same weapon. The officer also took the pellet which was taken from the deceased\u2019s brain to the crime laboratory.\nBert Nielson, a firearms identification technician employed with the Chicago Police Department Crime Laboratory, testified that he was unable to identify People\u2019s Exhibit No. 1 as the gun which fired the pellet recovered from the deceased\u2019s brain.\nNora Evans appeared as a State witness and testified that she was babysitting with Nita Roman at 2732 West 26th Street on the evening of September 18, 1966. She left about 8:00 P.M. and went to the apartment of Anna Mae Jones, the defendant\u2019s mother, where she stayed the night. Miss Evans stated that the police came to the apartment about 6:00 A.M. after Mrs. Jones had left. She indicated further that she had not seen Grady Kimbrough the night of September 18th, had not conversed with Kimbrough and did not observe the police remove a pistol from her purse.\nAt this point, the State moved to have Nora Evans called as a court\u2019s witness because \u201cshe has testified contrary to the statement she had made to Wes Broderson, a police officer * * * which is contained in the police report.\u201d Defense counsel vigorously objected to the State\u2019s motion but, after a closed hearing in which Officer Broderson testified that Nora Evans had given him a contrary story when he spoke with her shortly after the time of the offense, the court overruled the objection. The court then instructed the jury that Nora Evans was being called as a court witness because she might have information material to the issues in the case and because the State could not vouch for her veracity.\nNow appearing as a court witness, Miss Evans testified on direct examination that she had a conversation with Officer Broderson on September 19, 1966, at the defendant\u2019s mother\u2019s apartment. She indicated that she was asked many questions but did not answer those questions and, in fact, said nothing at all to the officer. The court at this point admonished the jury that anything Miss Evans said to Officer Broderson outside the presence of the defendant was being admitted solely \u201cfor the purpose of bearing upon her veracity, her credibility, and is no evidence whatsoever of the guilt or innocence of the defendant, Grady Kimbrough.\u201d The following dialogue then ensued between the prosecutor and the witness:\nQ. \u201cIsn\u2019t it a fact that you told Detective Broderson while you were at Anita\u2019s apartment * * \u00b0 the defendant, Grady Kimbrough came to that apartment?\nA. No.\nQ. Isn\u2019t it a fact that you told Detective Broderson that the defendant came to the apartment and stated to you that he had shot a man in a tavern, but that the man had pointed a knife at him and * * * that he changed his story and said that he missed the man with the knife and hit a stranger who was not involved?\nA. No.\nQ. You did not say that to Officer Broderson?\nA. No.\nQ. Isn\u2019t it a fact that you told Officer Broderson that Grady Kimbrough gave you * * * a pistol to put in your purse?\nA. No, I did not tell him that.\nQ. And isn\u2019t it a fact that you told Officer Broderson that you called Grady Kimbrough\u2019s mother and she came and got you and Grady Kimbrough and took the two of you back to her apartment on Stony Island?\nA. No, sir, I did not tell him that.\nQ. Isn\u2019t it a fact that you told Officer Broderson that Grady Kimbrough was in the apartment with you on Stony Island?\nA. No.\u201d\nOn cross-examination, Miss Evans testified that Grady Kimbrough was not in his mother\u2019s apartment on September 19, 1966, and that she had not seen him for the three or four weeks prior to that date. She indicated that Officer Broderson came to the apartment about 6:00 A.M. on September 19, 1966, and took her to the police station for questioning. She recalled having signed something at the station that morning. She stated that she was called to the station for questioning about ten times after September 19th. She denied having ever made any statements contrary to her trial testimony.\nOfficer Wesley Broderson was recalled as a State witness and testified that he had a conversation with Nora Evans in the early morning hours of September 19, 1966, at the apartment of defendant\u2019s mother. Defense counsel objected at this point to any conversation that the officer had with Nora Evans unless the State could prove that the defendant was present. The court overruled the objection and admonished the jury that the officer would be aHowed to testify concerning the alleged conversation for the sole purpose of reflecting upon the credib\u00fcity of Nora Evans. Broderson then testified as follows concerning the conversation of September 19, 1966:\nI asked Nora Evans did Grady take the gun with him, and she answered no, he didn\u2019t have a chance. I asked her why didn\u2019t you let me in when I first knocked at the door, and she said Grady had another gun and she was afraid someone would get, I don\u2019t remember if she said hurt or shot. I then pointed out a purse to her that was lying on a desk along the south waH of the apartment, and I asked her if that was her purse and as I did so, I picked up the purse and she said, Tes, it is,\u2019 and I said, \u2018Nora, is the gun in the purse\u2019? She said, Tes, it is.\u2019 And after I had removed the gun from the purse, I asked her, \u2018Did you bring the gun here, or did Grady\u2019?\nShe then told me that she had been at Nita\u2019s house and that Grady came there, she didn\u2019t say what time, but that he was aU excited and he said he had shot somebody that was pointing a knife at him in a tavern. She said that they talked about it and later he changed and stated that he didn\u2019t shoot the man who pointed the knife at him, but that he hit a bystander in the tavern.\nShe said that while they were at Nita\u2019s apartment, she called Anna Mae Jones and she talked to Anna Mae and that Grady talked to her and that they asked her to come and get him out of there, and that later Anna Mae showed up (sic) her car and that she had this gun in her purse at the time and that Anna Mae drove her and Grady Kimbrough to the house at 6831 South Stony Island.\u201d\nDetective William Looney testified that he checked the registration of People\u2019s Exhibit No. 1 and determined that the weapon was not registered.\nPolice Officer Cornelius Johnson testified concerning the circumstances of defendant\u2019s arrest and stated that he recovered a .32 cafiber revolver from the defendant at the time of arrest.\nPeople\u2019s Exhibit No. 1 was admitted into evidence over the objection of defense counsel. Officer Broderson was recaUed and testified that in his opinion the defendant was 30 years of age.\nFor his first contention, defendant urges that it was reversible error to call Nora Evans as a court\u2019s witness, to permit Broderson to testify as he did and to permit the prosecutor to ask questions containing statements allegedly made by Nora Evans which incriminated the defendant. We are in agreement with defendant on this point.\nIt is the well established law of this State that where the State\u2019s Attorney, for a sufficient reason which he shows to the court, doubts the integrity or veracity of an adverse witness, he is not required to call him as a witness for the People and vouch for his testimony, but such witness may be made the court\u2019s witness and may be cross-examined by either side. The purpose of this rule is to prevent a miscarriage of justice by having an eyewitness to the crime, for whose veracity neither party will vouch, fail to testify. But such a witness should be an eyewitness to the crime, and the cross-examination should be strictly limited to the direct issues and not be permitted on collateral matters. See People v. Hundley (1954), 4 Ill.2d 244, 122 N.E.2d 568, and the cases cited therein. We are doubtful that Miss Evans\u2019 relationship to the offense was so substantial as to bring her within the general rule enunciated in the Hundley case.\nMoreover, suspicion attaches from the prosecutor\u2019s action in bringing each and every detail of Nora Evans\u2019 unsworn statement to the attention of the jury that he was not motivated by a purpose of impeachment alone, but rather sought under the guise of impeachment to get before the jury Miss Evans\u2019 statement that the defendant admitted the commission of the crime. Fundamental justice, however, will not countenance accomplishment by indirection of that which it will not permit directly. People v. Tunstall (1959), 17 Ill.2d 160, 161 N.E.2d 300.\nThe purpose of impeachment is to destroy credibility, not to prove the facts stated in the impeaching statement. What the witness stated out of court and out of the defendant\u2019s presence is pure hearsay and incompetent. Legally it is not evidence of defendant\u2019s guilt and cannot be received as proof of any fact at issue. (People v. McKee (1968), 39 Ill.2d 265, 235 N.E.2d 625.) As was stated in People v. Grigsby (1934), 357 Ill. 141, 191 N.E. 264, and restated in the McKee case: \u201cIf the witness admitted making the previous statement, it would prove nothing except that he, an admittedly unreliable witness, had said so. If the witness denied making the statement the matter would necessarily end there, because to pursue it further would be trying a collateral issue rather than a fact material under the indictment. The defendant would thus be hopelessly enmeshed in a prejudicial situation without anyone having assumed responsibility or liability for perjury.\u201d To permit the prosecutor to prove by way of impeachment that the witness said that the defendant said certain things would be dangerous in the extreme. It would make it possible for anyone, in effect, to confess for a defendant without any liability for perjury.\nWe hold, therefore, that the admission of Officer Brodersons testimony concerning what he was told by Nora Evans, used for the alleged purpose of impeachment, bore too heavily upon defendant\u2019s guilt or innocence to allow its admission. We do not believe that the prejudicial effect of such evidence upon the jury could be effectively controlled by the court\u2019s admonitions that such evidence was being introduced solely for impeachment purposes. Under these circumstances, we can only conclude that the jury\u2019s finding was based in part on incompetent evidence which was so highly prejudicial to the defendant as to deny him his right to a fair and impartial trial. We believe that justice will be better served in a new trial, free from such error, and we remand the case for that purpose.\nHaving thus decided, we need consider only one additional issue: whether the alleged murder weapon (People\u2019s Exhibit No. 1) was properly introduced into evidence at trial. The general rule which governs this issue is that a weapon is admissible into evidence only where there is sufficient proof to connect it to the defendant and the crime. (People v. Germany (1963), 28 Ill.2d 154, 190 N.E.2d 713; People v Jones (1961), 22 Ill.2d 592, 177 N.E.2d 112.) The resolution of this issue involves, therefore, a close examination of the evidence bearing on a connection between the weapon and the defendant. The evidence in this case, which we have presented in great detail, shows only that officer Broderson removed People\u2019s Exhibit No. 1 from Miss Evans\u2019 purse, that the defendant apparently gave that weapon to Miss Evans and, according to Nellie Diggs, that its handle was similar to the one she saw in the tavern. There is no reliable evidence which indicates that the defendant was in possession of the particular weapon at the time of the offense, that it was the weapon used in the crime or that it did, in fact, belong to the defendant. We are, therefore, of the opinion that a sufficient connection between the weapon and the defendant was not established. The admission of the weapon into evidence was erroneous.\nThe judgment is reversed and the cause remanded for further proceedings not inconsistent with this opinion.\nReversed and cause remanded with directions.\nMcCORMICK, P. J., and BURKE, J., concur.", "type": "majority", "author": "Mr. JUSTICE LYONS" } ], "attorneys": [ "Gerald W. Getty, Public Defender, of Chicago, (Mary Cahill and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.", "Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (Robert A. Novelle and James H. Feldman, Assistant State\u2019s Attorneys, of counsel,) for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Grady Kimbrough, a/k/a James Campbell, Defendant-Appellant.\n(No. 53403;\nFirst District\nDecember 14, 1970.\nRehearing denied January 13, 1971.\nGerald W. Getty, Public Defender, of Chicago, (Mary Cahill and James J. Doherty, Assistant Public Defenders, of counsel,) for appellant.\nEdward V. Hanrahan, State\u2019s Attorney, of Chicago, (Robert A. Novelle and James H. Feldman, Assistant State\u2019s Attorneys, of counsel,) for the People." }, "file_name": "0036-01", "first_page_order": 56, "last_page_order": 65 }