{ "id": 5293999, "name": "People of the State of Illinois, Plaintiff-Appellee, v. James Lee Ervine, Defendant-Appellant", "name_abbreviation": "People v. Ervine", "decision_date": "1965-09-24", "docket_number": "Gen. No. 49,841", "first_page": "82", "last_page": "90", "citations": [ { "type": "official", "cite": "64 Ill. App. 2d 82" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "203 NE2d 716", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill App2d 457", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5282393 ], "pin_cites": [ { "page": "460-462" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/54/0457-01" ] }, { "cite": "201 NE2d 405", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill2d 214", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2833833 ], "pin_cites": [ { "page": "218" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0214-01" ] }, { "cite": "197 NE2d 22", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill2d 415", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826661 ], "pin_cites": [ { "page": "417" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0415-01" ] }, { "cite": "31 Ill2d 236", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2834223 ], "pin_cites": [ { "page": "240" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/31/0236-01" ] }, { "cite": "207 NE2d 76", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill2d 441", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841109 ], "pin_cites": [ { "page": "443, 444" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0441-01" ] }, { "cite": "187 NE2d 679", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill2d 11", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5361814 ], "pin_cites": [ { "page": "17, 18" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0011-01" ] }, { "cite": "412 Ill 555", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2664850 ], "opinion_index": 0, "case_paths": [ "/ill/412/0555-01" ] }, { "cite": "186 NE2d 259", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill2d 207", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5357671 ], "pin_cites": [ { "page": "210" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0207-01" ] }, { "cite": "189 NE2d 253", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill2d 342", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358053 ], "pin_cites": [ { "page": "343" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0342-01" ] }, { "cite": "189 NE2d 290", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill2d 298", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5358334 ], "pin_cites": [ { "page": "300" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0298-01" ] }, { "cite": "192 NE2d 920", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill2d 505", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5363068 ], "pin_cites": [ { "page": "509" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0505-01" ] }, { "cite": "190 NE2d 802", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill2d 100", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5364854 ], "pin_cites": [ { "page": "103" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/28/0100-01" ] } ], "analysis": { "cardinality": 760, "char_count": 13317, "ocr_confidence": 0.573, "pagerank": { "raw": 2.1291912469395872e-07, "percentile": 0.7655845958586774 }, "sha256": "5ddac0c1443cb4d84518aeeb6c7e631edc9a61ee2584d2ea287ed8ce1dd0fc4b", "simhash": "1:ae6da4a3f2e82fbb", "word_count": 2287 }, "last_updated": "2023-07-14T21:35:57.055657+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "MCCORMICK, P. J. and DRUCKER, J., concur." ], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. James Lee Ervine, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nThe indictment charges defendant with robbery (Count I) and aggravated battery (Count II). Ill Rev Stats (1961), ch 38, \u00a7\u00a718-1 and 12-4. After a bench trial defendant was found guilty on both counts and was sentenced to the penitentiary for seven to ten years. Defendant appeals on the grounds that the State failed to prove his identification beyond a reasonable doubt; and that the court admitted expert testimony which was incompetent, or, in any event, was outweighed by expert testimony on defendant\u2019s behalf. On the basis of these grounds defendant seeks a reversal. In the alternative he asks for a new trial because of the court\u2019s refusal to grant certain discovery requested by defendant during the trial.\nThe evidence relating to the occurrence of the crimes is not in dispute. On May 24, 1963 Mabel Gaskell was walking on North Shore Avenue at about 5:45 a. m. on her way to work. It was daylight. A man walking in the opposite direction on the same sidewalk was approaching her. As he passed he grabbed her across the mouth with his left hand and threw her to the ground. He said, \u201cIf you scream, I\u2019ll kill you.\u201d Mrs. Gaskell was on her back on the sidewalk in a position to see the man, and did watch him as he bent over her in working with his right hand to free her purse from her arm. The shoulder-type purse contained money, cigarettes, keys, etc. The man managed to get possession of her shoulder bag, stomped on her face, and ran away. She screamed for help.\nBen Levitsky heard the scream as he was sitting at breakfast in his kitchen. He went to the back porch of his second-floor apartment. There he saw a man run through a gangway to the alley. He stopped at the gate, looked up the alley in both directions and, while doing so, stuffed something under his jacket. Then he ran across the alley and through another gangway where he got into the driver\u2019s seat of a blue car and drove away.\nThe police were called and they and Levitsky arrived at the scene within a few minutes. Mrs. Gaskell related the occurrence to the police; said she had been robbed of $40 to $45; and gave a description of her. assailant. The police were also given a description of the automobile Levitsky had seen.\nAt 6:45 a. m. defendant was arrested in his 1954 blue Chevrolet. He was searched, and $47 was found on his person. He had a red smear on the palm of his left hand. Later that morning, in a lineup of three men, Mrs. Gaskell identified defendant as her robber. She made a similar positive identification at the trial. Defendant did not take the stand, but his wife testified that he left home that morning at about 5:30 a. m. After judgment of guilty, at a presentence hearing on matters in mitigation and aggravation, it was disclosed that defendant had five previous felony convictions.\nAs will be explained later in this opinion, the only essential point to be considered is defendant\u2019s argument that the proof of defendant\u2019s identification as the robber was not established beyond a reasonable doubt.\nLevitsky testified that he saw the running man only from the back and did not see his face. He described his hair as black, straight, long and slick.\nMrs. Gaskell testified that at the scene of the crime she told officer Walsh that her robber had \u201cblack, straight, long hair.\u201d She also testified that his hair was long when she saw him in the lineup. However, when she was shown a police picture of defendant, taken at the station after his arrest but before the lineup, she said it showed him to have shorter hair than on the two occasions when she had seen him that day. She also said that in the picture defendant\u2019s hair was \u201ccombed different\u201d; that at the time of the robbery \u201cit was up in \u00e1 pompadour and a heavy bush.\u201d\nOfficer Walsh testified that at the scene Mrs. Gaskell had told him that her assailant had \u201csort of an odd accent, other than Chicago.\u201d He said further, \u201cWe couldn\u2019t pin down what type it was.\u201d He, therefore, noted in his report that the offender.\u201chad a foreign voice.\u201d At the trial Mrs. Gaskell denied having said that the robber had a \u201cforeign voice.\u201d She testified that when he had said to her, \u201cIf you scream I\u2019ll kill you\u201d (the only time she heard him talk) he spoke with approximately the same accent as she did. Since, as has been mentioned, defendant did not testify, it was not established at the trial whether defendant did or did not have a strange accent. Under that circumstance, the point raised by defendant-as bearing on the question of identification does not, in fact, do so. It bears only upon the credibility of Mrs. Gaskell as a witness.\nFurther on the matter of identification, both Levitsky and Mrs. Gaskell had given to the police descriptions of the robber\u2019s clothing (light jacket, dark trousers) which accurately described the clothes defendant was wearing when arrested. The description given to the police also included: height, 5' 8\"; age, 19 to 25 years; weight, 145 pounds; automobile, old and blue. As to each of these matters the description was also borne out in fact.\nEvidence was also introduced by State witnesses to show that three samples of the red smear taken from defendant\u2019s left palm and one from Mrs. Gaskell\u2019s lipstick were tested in the Police Department Crime Laboratory. The State\u2019s expert witness testified without objection that in his opinion all four samples were lipstick, and that they were all similar in physical properties and in color. On cross-examination the witness conceded that the physical appearance, waxy nature, and brilliant color (produced by eosin dyes) of the substances could have been present in materials other than lipstick. He also conceded that there could be many brands of lipstick with properties which would test similar to the scrapings from defendant\u2019s hand. These concessions, however, do not, in our opinion, weaken substantially the evidence that the red smear on defendant\u2019s palm could have been acquired while holding his hand over Mrs. Gaskell\u2019s mouth in the course of the robbery. This would have been consistent with her description of the crime.\nAn interesting parallel may be found in the minimum of specificity required in the admissibility of testimony identifying a gun as the one used in a robbery. For example, in People v. Pittman, 28 Ill2d 100, 103,190 NE2d 802 the court said:\nThe complaining witness testified that the gun offered in evidence looked like the \u201csilvery object\u201d which one of the robbers pointed at him and one of the arresting officers identified the gun as the one he picked up at the time defendants were arrested. This was sufficient to connect the gun with the defendants and with the crime and to make it admissible in evidence.\nIt should be remembered that all the items which we have discussed in regard to identification are matters which are collateral to the fact of Mrs. Gaskell\u2019s positive identification of defendant. Most of these matters were in corroboration; her description of his hair was not. But it is contrary to human experience to make an identification by noticing first the separate features, hair, or clothes of a person, and then, somehow, running off a total to determine recognition or non-recognition. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal. People v. Boney, 28 Ill2d 505, 509, 192 NE2d 920; People v. Prochut, 27 Ill2d 298, 300, 189 NE2d 290. The essentials were present in the victim\u2019s opportunity to observe, and her positive identification, the sufficiency of the recognition being a question of fact for the trial court. People v. Reed, 27 Ill2d 342, 343, 189 NE2d 253; People v. Washington, 26 Ill2d 207, 210, 186 NE2d 259. In this case the conscientious trial judge made the following statement at a hearing on the motion for new trial:\nShe may be uncertain as to his voice and uncertain as to the look of his hair but there still would be no uncertainty about her identification. I heard the entire record and I went into it very carefully, and I think there is no doubt at all but what this man was properly identified. An accused is entitled to a fair trial, which includes competent representation. This does not mean, however, an accused is denied competent counsel because his court appointed counsel chooses a course of action which in retrospect proves to be less desirable than an alternate, nor even because he errs. Incompetency of counsel such as to constitute denial of an accused\u2019s right to counsel is conduct of such defective character as to make the defense a farce (People v. Reeves, 412 Ill 555); substantial prejudice must be visited on defendant because of the alleged errors of court-appointed counsel. (People v. Morris, 3 Ull2d 437).\nWe cannot say that the State\u2019s proof was so unsatisfactory as to justify a reasonable doubt of guilt or to require a reversal of the trial court\u2019s conclusion. People v. Means, 27 Ill2d 11, 17, 18, 187 NE2d 679.\nDefendant\u2019s second ground for reversal is that the court admitted incompetent testimony of the State\u2019s chemist who testified as an expert in regard to the lipstick smear. There are two answers to this contention, both valid in our opinion.\nFirst, the point was not made in defendant\u2019s written motion for a new trial filed in the trial court. It was thus waived and is not available to defendant upon review. People v. Irwin, 32 Ill2d 441, 443, 444, 207 NE2d 76; People v. Touhy, 31 Ill2d 236, 240; People v. Greer, 30 Ill2d 415, 417, 197 NE2d 22. Defendant says that this salutary rule does not apply here because defendant\u2019s counsel had been appointed by the court and there can be no waiver by appointed counsel, citing People v. Dean, 31 Ill2d 214, 218, 201 NE2d 405. We think defendant misreads the Dean case. In our opinion that case involves the question of whether appointed counsel was so incompetent as to impinge upon defendant\u2019s right to legal representation. The court said:\nWe do not believe that defendant was prejudiced at all by the waiver of this point, nor do we believe that it is a plain error which can be reviewed without preservation in the record. People v. Fleming, 54 Ill App2d 457, 460-462, 203 NE2d 716. Furthermore, this court takes notice of the fact that defendant\u2019s attorney, far from being incompetent, is one of the abler practitioners in this area.\nSecondly, we have examined the record on this point, anyway, and find that the State\u2019s expert witness was competent to testify as he did. As to whether his qualifications and opinions should be considered as outweighed by those of defendant\u2019s expert witness, those are matters left to the trier of facts.\nFinally, defendant contends that the court erred in not granting him discovery as to certain grand jury testimony and a copy of a police teletype message allegedly broadcast over the radio as the basis on which defendant was arrested.\nThe reason given to the judge for wanting to see the grand.jury testimony of Mrs. Gaskell was to impeach her in regard to her description of her assailant\u2019s hair and voice. By questioning on an offer of proof, however, the witness testified that she had not told the grand jury anything about the man\u2019s voice, and that she had told the grand jury that his hair was black and slick. It was then stipulated by the State\u2019s Attorney that the answers given in the offer of proof might be considered as in evidence, and the judge so ordered. Defendant\u2019s counsel thereupon stated, \u201cAll right.\u201d\nAs to the teletype message, the State\u2019s Attorney informed the court that, in response to defendant\u2019s subpoena duces tecum, the police had made a search and found \u201cthere was no teletype message sent on this case.\u201d Whereupon defendant\u2019s attorney said, \u201cAll right. Thank you very much.\u201d\nUnder the circumstances, it is our conclusion that defendant was not prejudiced in either of these instances, and that the court, in fact, did not commit error in regard thereto. Furthermore, neither contention was mentioned in the written motion for new trial.\nThe judgment and sentence of the Criminal Court are affirmed.\nAffirmed.\nMCCORMICK, P. J. and DRUCKER, J., concur.\nTrial court indictment number 63-1578. The record includes a notice of motion for the furnishing of free transcripts of proceedings in indictments 63-1578, 63-1579 and 63-1580. We are without further information as to the latter two indictments, however, and only the first mentioned is involved in this appeal.\nObjection was made that there was a mixup between the two State\u2019s witnesses (the one who took the samples and the one who made the tests) as to which of two samples taken from defendant had been on a dry swab and which on an alcohol swab. Since the test results were the same as to both, we consider this objection to have been inconsequential.", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Marshall Patner and Roy Hofer, both of Chicago, for appellant.", "Daniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. James Lee Ervine, Defendant-Appellant.\nGen. No. 49,841.\nFirst District, Fourth Division.\nSeptember 24, 1965.\nRehearing denied October 20, 1965.\nMarshall Patner and Roy Hofer, both of Chicago, for appellant.\nDaniel P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Matthew J. Moran, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0082-01", "first_page_order": 94, "last_page_order": 102 }