{ "id": 2580672, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Otha B. Smith, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1966-09-13", "docket_number": "Gen. No. 51,043", "first_page": "458", "last_page": "466", "citations": [ { "type": "official", "cite": "74 Ill. App. 2d 458" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "103 NE 589", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "261 Ill 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4739602 ], "pin_cites": [ { "page": "15" } ], "opinion_index": 0, "case_paths": [ "/ill/261/0011-01" ] }, { "cite": "145 NE 149", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "313 Ill 312", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2434981 ], "pin_cites": [ { "page": "319, 320" } ], "opinion_index": 0, "case_paths": [ "/ill/313/0312-01" ] }, { "cite": "102 NE2d 152", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "410 Ill 235", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5311234 ], "pin_cites": [ { "page": "241" } ], "opinion_index": 0, "case_paths": [ "/ill/410/0235-01" ] }, { "cite": "53 NE2d 923", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "386 Ill 167", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2493149 ], "pin_cites": [ { "page": "179" } ], "opinion_index": 0, "case_paths": [ "/ill/386/0167-01" ] }, { "cite": "77 NE2d 195", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "399 Ill 57", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2460547 ], "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill/399/0057-01" ] }, { "cite": "170 NE2d 529", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2738166 ], "pin_cites": [ { "page": "441" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/20/0437-01" ] }, { "cite": "137 NE2d 246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill2d 224", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5319969 ], "pin_cites": [ { "page": "231, 232" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0224-01" ] }, { "cite": "74 Ill App2d 450", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2579991 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0450-01" ] }, { "cite": "7 NE2d 890", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "366 Ill 195", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2579900 ], "pin_cites": [ { "page": "198" } ], "opinion_index": 0, "case_paths": [ "/ill/366/0195-01" ] }, { "cite": "117 NE 286", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "280 Ill 32", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4890968 ], "pin_cites": [ { "page": "42" } ], "opinion_index": 0, "case_paths": [ "/ill/280/0032-01" ] } ], "analysis": { "cardinality": 645, "char_count": 11210, "ocr_confidence": 0.624, "pagerank": { "raw": 5.630350438306413e-07, "percentile": 0.9484877303657472 }, "sha256": "d3b1a08145b798728b24a607076764a31a7d65c53b3721c67f620063de5b293c", "simhash": "1:81aa506cf29e39c2", "word_count": 1916 }, "last_updated": "2023-07-14T19:21:29.887226+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Otha B. Smith, Defendant-Appellant." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nCharge\nArmed robbery.\nDefense at Trial Alibi.\nJudgment\nAfter a jury verdict finding defendant guilty, the court imposed a sentence of three to seven years.\nPoints Raised on Appeal\n(1) The State\u2019s Attorney commented unfairly on the absence of an additional alibi witness.\n(2) The State\u2019s Attorney improperly questioned a defense witness concerning his arrest record.\n(3) The State\u2019s Attorney asked improper impeachment questions of a defense witness.\n(4) Defendant was not proved guilty beyond a reasonable doubt.\nEvidence on Behalf of the State\nJohn Kannell, a grocery store owner, testified that defendant robbed him at gunpoint on December 12, 1964, at 10:30 a. m. He made an unequivocal identification of defendant in a police lineup.\nAnother witness did not see the robbery, but identified defendant as a man he had seen at the time of the robbery leaving the grocery store in great haste.\nA police officer testified to his apprehension of defendant through tracing of defendant\u2019s automobile license plate which had been observed by Kannell. He also testified concerning Kannell\u2019s identification of defendant at a lineup.\nEvidence on Behalf of Defendant\nEugene Griggs\nHe had known defendant for three or four years. On December 12, 1964, defendant lived in the same apartment building with Griggs and his wife. On that date, at about 9:15 a. m., defendant gave Griggs and his wife permission to borrow defendant\u2019s car to go shopping. Approximately forty-five minutes to an hour later they completed their shopping, and upon returning to the car, found that it would not start. After phoning defendant to inform him of the situation, they took a cab home, arriving there at about 10:00 or 10:15 a. m. Defendant was in his apartment when they arrived. Defendant then called someone to assist him with his car and left the apartment when that person came by.\nOn cross-examination the State\u2019s Attorney elicited the fact that defendant had talked to both Griggs and his wife about the robbery charge. (Mrs. Griggs did not testify.) Griggs stated that he had told defendant he would testify if needed. In answer to a question as to whether his wife also had said she would testify. Griggs stated that she would have testified but that he didn\u2019t think they would both be needed and she was working that day. Also on cross-examination Griggs was questioned about his arrest record. Objection to this line of questioning was sustained, and the jury was instructed to disregard it.\nNora Steele\nHe was employed as a mechanic. On December 12, 1964, he was called by defendant who asked him for assistance in the repair of his car. He went to meet defendant at about 10:30 or 10:45 a. m. and the two men worked on the car until almost noon.\nOtha Smith, defendant\nHe admitted that he had been convicted of a burglary in 1953 and placed on five years\u2019 probation. He denied that he was guilty of the robbery in question. Between August and October of 1964 he had been employed as a bartender at the Schooner Inn, and during that period he had seen Kannell in the tavern.\nRobert Salley\nHe was the manager of the Schooner Inn. Defendant had worked at that tavern under his supervision in August, September and October, 1964, and had had access to the cash register. Kannell frequented the tavern during this period, at which time defendant was the only-bartender.\nOn cross-examination the witness was questioned as follows:\nQ. When Smith was in the tavern was he ever there with a person by the name of Bonnie Page?\nA. Bonnie Page?\nQ. Also known as Bonnie Smith ?\nA. I have seen her in there.\nQ. Would you describe her to us, please ?\nA. She weighed about 160 or 170 pounds, blonde hair . . .\nQ. Have you seen her recently ?\nA. No, I haven\u2019t seen her since, oh . . .\n[Defense counsel]: Judge, I object to any further line of interrogation.\nThe Court: Obj ection sustained.\nQ. Do you know whether or not he was living with Bonnie Page?\n[Defense counsel] : Object, this beyond the scope\nOpinion\n(1) The closing argument of the State\u2019s Attorney included the following statement:\n. . . you can\u2019t tell me Mrs. Griggs who, unquestionably, would be the most honorable of the defense witnesses who testified, if Mrs. Griggs had in fact been there and could say it was that day, the 12th of December, if she could say absolutely, positively it was that day, the 12th day, she would have been here, no question about that, there is subpoena power, the judge would issue a subpoena and bring her in and put her on the stand, no question about it, if Mr. Engelland [defense counsel] desired, no question in the world. But she didn\u2019t come in here.\nWe think this comment was unjustified and highly prejudicial to the defense. It is now well settled that the failure of a defendant to call as witnesses those persons who are aware of facts material to the question of his guilt or innocence creates no presumption of law that, if the witnesses were called, adverse testimony would result, unless \u201cit is manifest that it is within the power of the accused to produce such witnesses and that such witnesses are not accessible to the prosecution.\u201d People v. Munday, 280 Ill 32, 42, 117 NE 286. Although in the Munday case the witnesses referred to by the State were codefendants who were to be tried separately, and therefore obviously accessible to the State, a later case applied the same rule to disinterested witnesses. In People v. Rubin, 366 Ill 195, 198, 7 NE2d 890, defendant was charged with receiving stolen property. In his closing argument the prosecutor commented on defendant\u2019s failure to call his employees. After observing that the record did not show that the employees were less accessible to the State than to defendant, the court quoted with approval the following passage from the Mun-day case:\nNo duty devolved upon plaintiff in error to call anyone as a witness. It was his privilege to produce witnesses and to make a defense or not, as he chose. The duty devolved upon the People to prove his guilt beyond all reasonable doubt before a jury were warranted in convicting him. The duty did devolve upon plaintiff in error not to put it without the power of the People to produce any material witness, and if he did so, the People had the right to show that fact as a circumstance against him. No such situation is presented here.\nIn the instant case there is also no showing that Mrs. Griggs was not accessible to the State as a witness. When the State\u2019s Attorney became aware of the existence of Mrs. Griggs as a possible witness (or, to use his phraseology, \u201cthe most honorable of the defense witnesses\u201d), he himself could have employed the subpoena power to bring her to the stand. Therefore, not only was it unfair for the State to infer that, if called, Mrs. Griggs\u2019 testimony would be injurious to the defense, but there was also far less than the candor required of an attorney in the implicit implication that the State was without power to bring in this witness.\nWhile it is true that no objection was raised at the trial to the impropriety of this closing argument, we are of the opinion that the result was of sufficient gravity to affect the substantial right of defendant to a fair jury consideration of his alibi defense. In this circumstance we are permitted on review to find reversible error regardless of the absence of timely objection, and we so find. Ill Rev Stats (1963), ch 38, \u00a7 121-9; People v. Davis, 74 Ill App2d 450; People v. Moore, 9 Ill2d 224, 231, 232, 137 NE2d 246; People v. Morgan, 20 Ill2d 437, 441,170 NE2d 529.\n(2) Our attention is next drawn to the following cross-examination of defense witness Griggs:\nQ. Mr. Griggs have you ever been arrested by the police ?\nA. Yes sir.\nQ. Approximately how many occasions ?\nA. Oh, I don\u2019t know, six or seven times, maybe more, I don\u2019t know.\nQ. Could it be ten times ?\nA. It\u2019s possible.\nQ. Were you ever convicted ?\nA. No.\nMr. Engelland: At this time I\u2019m going to object to any reference to this and I\u2019ll make a motion outside the presence of the jury. (Objection sustained, motion for mistrial denied.)\nFor purposes of impeachment by criminal record, a witness can be required to testify only as to convictions of infamous crimes and it is error to inquire as to prior arrests or indictments. People v. Hoffman, 399 Ill 57, 63, 77 NE2d 195. The reason underlying this rule is that the credibility of a witness cannot be presumed tainted by proof of anything less than an infamous crime conviction. People v. Halkens, 386 Ill 167, 179, 53 NE2d 923. Although the court sustained defense counsel\u2019s objection to the questions and answers regarding Griggs\u2019 contact with the police, and admonished the jury to disregard them, the prejudice to defendant was already accomplished. Once informed, the jury could not erase from their minds the knowledge that Griggs had a history of a large number of police arrests. Nor did the State\u2019s Attorney permit them to do so. That portion of the State\u2019s closing argument which exalted the absent Mrs. Griggs as a witness who, if called, would be the \u201cmost honorable of the defense witnesses,\u201d had the effect of reminding the jury of her husband\u2019s arrest record. No general instruction to the jury that they should disregard stricken testimony could cure this prejudicial result.\n(3) We find further prejudicial error in that part of the cross-examination of defense witness Salley which questioned defendant\u2019s inferentially illicit relationship with a woman known as Bonnie, apparently a person of a different race from that of defendant. Because there was no basis found in the direct examination of the witness for such a line of inquiry, its only effect was to attack improperly the character of the defendant. The State\u2019s explanation that it was attempting to bring to the jury\u2019s attention the absence of a \u201cpossible\u201d alibi witness far from justifies this marked departure from proper cross-examination. Furthermore, although an initial objection to interrogation on this subject matter was sustained, counsel for the State persisted with the most damaging question of whether or not defendant was living with Bonnie.\n(4) While we are not prepared to say that, clear of error, the record would not support a finding of defendant\u2019s guilt beyond a reasonable doubt, we do conclude that defendant is entitled to a new trial in which his defense may be considered upon the merits of his witnesses\u2019 testimony free from improper and unfair disparagement and aspersions by the State. People v. Gougas, 410 Ill 235, 241, 102 NE2d 152; People v. Lewis, 313 Ill 312, 319, 320, 145 NE 149; People v. Newman, 261 Ill 11,15,103 NE 589.\nDecision\nThe judgment of the Circuit Court is reversed and the cause is remanded for a new trial.\nReversed and remanded.\nDRUCKER, P. J. and McCORMICK, J., concur.", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Harry S. Weber, of Chicago, for appellant.", "Danield P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Otha B. Smith, Defendant-Appellant.\nGen. No. 51,043.\nFirst District, Fourth Division.\nSeptember 13, 1966.\nHarry S. Weber, of Chicago, for appellant.\nDanield P. Ward, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Morton E. Friedman, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0458-01", "first_page_order": 464, "last_page_order": 472 }