{ "id": 3557191, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VITTORIO CAMPBELL, Defendant-Appellant", "name_abbreviation": "People v. Campbell", "decision_date": "1983-06-21", "docket_number": "No. 81\u2014629", "first_page": "631", "last_page": "638", "citations": [ { "type": "official", "cite": "115 Ill. App. 3d 631" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "309 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404456 ], "pin_cites": [ { "page": "532-33" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0523-01" ] }, { "cite": "428 N.E.2d 924", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "101 Ill. App. 3d 857", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3080395 ], "pin_cites": [ { "page": "872" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/101/0857-01" ] }, { "cite": "220 N.E.2d 432", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. 2d 467", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378433 ], "pin_cites": [ { "page": "471" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0467-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 15, "pin_cites": [ { "page": "128" }, { "page": "480" }, { "page": "1623" }, { "page": "128" }, { "page": "480" }, { "page": "1623" }, { "page": "136" }, { "page": "485" }, { "page": "1628" }, { "page": "136" }, { "page": "485" }, { "page": "1628" } ], "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] }, { "cite": "425 N.E.2d 1333", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "99 Ill. App. 3d 952", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3103010 ], "pin_cites": [ { "page": "954-55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/99/0952-01" ] } ], "analysis": { "cardinality": 781, "char_count": 15634, "ocr_confidence": 0.759, "pagerank": { "raw": 1.985409241850742e-07, "percentile": 0.7410908898549684 }, "sha256": "f6d456d0ca71ee733b284105e48a5b9fdeb30e28486910b0291e8bafc24d5f18", "simhash": "1:92672627d10ac940", "word_count": 2558 }, "last_updated": "2023-07-14T19:16:24.783716+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. VITTORIO CAMPBELL, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE PERLIN\ndelivered the opinion of the court:\nIn a jury trial, defendant, Vittorio Campbell, was found guilty of armed robbery and aggravated battery and was sentenced to serve two concurrent eight-year terms of imprisonment in the Illinois Department of Corrections. On appeal, defendant contends that he was not proved guilty beyond a reasonable doubt; that he was prejudiced by evidence suggesting that an accomplice had implicated him and by the prosecutor\u2019s repeated reference to this matter in closing argument; and that the trial court improperly restricted his direct examination. For the reasons hereinafter stated, we reverse defendant\u2019s convictions and remand the cause for a new trial.\nMiller Tan testified to the following:\nAt 12:30 a.m. on June 3, 1980, Tan was driving his Ford pickup truck north on Halsted Street in Chicago. Approximately 100 feet north of the intersection of Halsted and 72nd Street, two young women \u201cflagged\u201d Tan. After he parked his truck, a man identified by Tan as Dwayne Robertson approached him and asked him if he \u201cwanted a date, a young lady.\u201d Robertson and Tan agreed to a price of $20 but Tan refused to pay him until he saw the woman. Robertson walked across the street to a vehicle which was parked on the west side of Halsted and spoke briefly with a young black woman who was standing outside the car. The woman crossed the street, entered Tan\u2019s truck and \"quoted\u201d a price of $20 to spend the day with her. Tan accepted and suggested that they go to a motel. The woman said that she first had to go to her home. She exited the truck, walked across the street, appeared to have a conversation with Robertson and then returned to Tan\u2019s vehicle.\nThe woman told Tan to stop at a Clark gas station located at 68th and Halsted and asked him for $5 so that she could buy a \u201cnickle [sic] bag of marijuana.\u201d Tan gave her the money, stating that he would owe her only $15 after their \u201cbusiness was transacted.\u201d The woman took the $5, walked to a blue Buick parked at the station and returned to Tan\u2019s truck. Tan and the woman then proceeded to 61st and Wallace where he parked his truck and left the motor running. The woman exited his truck and returned alone a few minutes later.\nAfter she reentered his vehicle, Tan looked into his mirror and noticed Robertson \u201ccreeping\u201d along the driver side of his truck. Robertson, who had a cast on his right arm, reached into the truck and placed his right hand across Tan\u2019s face, knocking Tan\u2019s prescription glasses from his face. Another man, whom Tan identified as defendant, pulled the woman out of the truck, entered the vehicle on the passenger side and thrust a sawed-off shotgun into his right side.\nDefendant hit Tan on the side of his head with a shotgun, stating that he always wanted to kill \u201ca pig.\u201d Tan protested that he was not a policeman but defendant kept repeating that he wanted to kill \u201ca pig,\u201d and pushed the shotgun into Tan\u2019s rib cage. Robertson, who was standing outside of the truck on the driver side, struck Tan several times on the left side of his forehead with his cast.\nDefendant and Robertson took Tan\u2019s bracelet, his watch and between $40 and $50 in currency. They then forced Tan to the floorboard of the truck and defendant hit Tan with the shotgun on the left side of his head behind the ear. Robertson entered the truck, stepped over Tan and drove the truck approximately 75 feet. Defendant and Robertson then exited the truck, threw the keys onto the floorboard and fled from the scene. There was a third black man standing behind Robertson but Tan saw him only momentarily. After the robbery, Tan drove to the police station located at 51st and Wentworth where he reported the incident. He later spoke with several other police officers at 61st and Racine.\nTan estimated that six to eight minutes had elapsed from when he first saw Robertson in the mirror until he was forced to the floorboard. He thought that there was a street lamp approximately five feet in front of the truck and there was some additional illumination from a nearby railroad crossing. Since defendant failed to close the passenger side door when he entered the truck, the inside dome light remained on for the entire time defendant was inside the vehicle. Tan was compelled to look in defendant\u2019s direction because Robertson had placed his casted arm on Tan\u2019s face. Although Tan had lost his glasses, he experienced no difficulty seeing defendant who was only two feet away from him.\nOn cross-examination, Tan testified that he was beaten so badly that he was bleeding from several different places on his head. Yet, he did not seek medical attention for several days. Although, at trial, Tan testified that he had not been knocked unconscious, he admitted that at the preliminary hearing he had testified that he became unconscious when defendant struck him on the side of his head with the shotgun. Tan explained that he had been \u201cdazed.\u201d\nOn June 4, 1980, the day following the robbery, at approximately 4:30 p.m., Tan identified Robertson in a lineup. Ten days later, on June 14, 1980, sometime between 3:30 a.m. and 4:30 a.m., Tan selected defendant\u2019s photograph from an array of seven photographs of black men which the police showed to him at his home. The defendant was the only person depicted who had a beard. He then accompanied the officers to 61st and Racine where he also identified defendant in a lineup.\nIn his testimony, defendant denied any involvement in the armed robbery and aggravated battery of Miller Tan. Defendant stated that at the time of the offenses, he was playing pool, drinking and watching television in a lounge at 71st and Halsted.\nI\nDefendant contends that he was not proved guilty beyond a reasonable doubt. In the first part of his argument, defendant submits that Tan\u2019s out-of-court identification of defendant\u2019s photograph was unnecessary, because defendant was already in custody, and impermissibly suggestive, because he was the only person depicted who had a beard. Defendant has waived consideration of this matter, however, since he made no motion to suppress either Tan\u2019s out-of-court identifications or his in-court identification.\nDefendant also maintains that the evidence was insufficient to establish his guilt. We have set forth the evidence presented at trial and will not restate that evidence here. We have reviewed the entire record and are satisfied that there was sufficient credible evidence from which the jury could have concluded that defendant was guilty of armed robbery and aggravated battery.\nII\nDefendant next contends that he was prejudiced by evidence suggesting that an accomplice had implicated him and by the prosecutor\u2019s repeated reference to this matter in closing argument.\nAt trial, Chicago police officer Stan Salabura testified that after Tan identified Dwayne Robertson in the lineup held on June 4, 1980, Salabura and his partner, John Sehr, spoke with Robertson. As a result of that conversation, the officers reviewed their files looking for someone who used the name \u201cVick.\u201d Salabura stated that the officers found the name of a person who was known as \u201cVick.\u201d Defense counsel objected to this reference. The trial court sustained the objection, struck all testimony concerning \u201cVick,\u201d instructed the jury to disregard such testimony and directed the prosecutor not to pursue this line of questioning.\nSalabura then testified that he and his partner left the station and drove to the defendant\u2019s residence at 5743 West 65th Place where they spoke with a woman who identified herself as Mrs. Campbell. At the conclusion of Salabura\u2019s direct examination, the prosecutor asked:\n\u201cBefore you talked to Dwayne Robertson in the early hours of 4th June, 1980, did you know where Vittorio Campbell lived?\u201d\nDefense counsel\u2019s objection to this question was sustained.\nOn cross-examination by defense counsel, Salabura stated that Tan did not mention the name \u201cVick\u201d to him. On redirect, the prosecutor attempted to elicit from Salabura the fact that Robertson had in fact provided him with the name \u201cVick.\u201d The trial court sustained defense counsel\u2019s objection on the grounds that Robertson\u2019s statements to Salabura were hearsay and that \u201cthe statements of a codefendant are not admissible against a princip[al] defendant who is on trial.\u201d The court announced that it would \u201cnot permit the State to elicit evidence that the co-defendant in this case implicated this Defendant.\u201d\nDuring rebuttal closing argument, the prosecutor commented:\n\u201cI agree with counsel, it was only after the police talked to Dwayne Rober[t]son that they started looking for Vittorio Campbell.\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Objection\u2019s overruled.\n[THE PROSECUTOR]: You have got to use your common sense. Where do you think the police got the name of Vittorio Campbell? They got it from Dwayne Rober[t]son.\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Objection is sustained, the jury is instructed to disregard the last remarks of counsel.\n[THE PROSECUTOR]: Ladies and gentlemen, use your common sense. The police didn\u2019t know about Vittorio Campbell before Dwayne Rober[t]son got arrested, after Dwayne Rober[t]son put in the line-up and there is an interview with Dwayne Rober[t]son\u2014\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Objection is sustained, counsel you are instructed to change your line of argument now.\n[THE PROSECUTOR]: The first thing the officer did was to go to Vittorio Campbell\u2019s house, then you heard evidence, Officer [Salabura] ordered a picture of Vittorio Campbell. Why, why Vittorio Campbell of all the people in the world, why did he order a picture of Vittorio Campbell? Use your common sense.\nThe officer ordered the picture of Vittorio Campbell because the officer learned Vittorio Campbell was involved in this case and the officer was going to show Vittorio Campbell\u2019s picture to the victim Miller Tan.\n[DEFENSE COUNSEL]: Objection.\nTHE COURT: Objection is sustained, the jury is instructed to disregard the last remarks of counsel.\u201d\nDefendant contends that the testimony of Salabura and the comments of the prosecutor in closing argument injected prejudicial and inadmissible hearsay into the trial and violated defendant\u2019s sixth amendment right to confront and to cross-examine his putative accuser, Dwayne Robertson. The State initially responds that defendant has waived this contention because he failed to include this issue in his post-trial motion.\nGenerally, a defendant must specifically raise an issue in his post-trial motion or it will be deemed waived. (People v. Andino (1981), 99 Ill. App. 3d 952, 954-55, 425 N.E.2d 1333.) Supreme Court Rule 615(a), however, provides that \u201cPlain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.\u201d (87 Ill. 2d R. 615(a).) In the instant case, we believe that the plain error rule is applicable and we reach the merits of this issue.\nIn Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, two defendants, Bruton and Evans, were tried jointly, but Evans chose not to testify. Evans\u2019 confession, including statements implicating Bruton, were admitted into evidence. The Supreme Court reversed Bruton\u2019s conviction because the confession constituted inadmissible hearsay which \u201cadded substantial, perhaps even critical, weight to the Government\u2019s case in a form not subject to cross-examination, since Evans did not take the stand.\u201d (391 U.S. 123, 128, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623.) The court thus held that Bruton had been denied his constitutional right of confrontation. 391 U.S. 123, 128, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623.\nIn our judgment, the defendant in the instant case was also denied his right of confrontation. Although defendant\u2019s case was severed from Robertson\u2019s, the prosecutors, in defiance of the trial court\u2019s explicit instructions, insisted upon repeatedly informing the jury that Robertson had implicated the defendant. Such implications are \u201cdevastating to the defendant\u201d and \u201ctheir credibility is inevitably suspect.\u201d (Bruton v. United States (1968), 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628.) \u201cThe unreliability of such evidence is intolerably compounded when the alleged accomplice *** does not testify and cannot be tested by cross-examination.\u201d 391 U.S. 123, 136, 20 L. Ed. 2d 476, 485, 88 S. Ct. 1620, 1628.\nThe State\u2019s argument that in examining Salabura and in closing argument the prosecution was merely trying to explain why Salabura arrested defendant is not borne out by the record. We note that the prosecutor declined the court\u2019s offer to strike the evidence that defendant had been arrested without a warrant or to admonish the jury that the legality of the defendant\u2019s arrest \u201cshould play no part in any decision that they make in this case.\u201d The prosecutor also refused to suggest any other method of referring to the defendant\u2019s arrest which would not have disclosed Robertson\u2019s implication of defendant. In our opinion, the prosecutor\u2019s examination of Salabura and comments in closing argument were evidently calculated to urge the jury to convict defendant because Robertson had incriminated him in the robbery. While the trial court sustained virtually all of defense counsel\u2019s objections to the prosecutor\u2019s examination and comments, the salutary effect of these rulings was undermined by the repetition of the objectionable remarks. (People v. Weinstein (1966), 35 Ill. 2d 467, 471, 220 N.E.2d 432.) Finally, we find no basis in the record to support the State\u2019s contention that the prosecutor\u2019s comments in closing argument were invited by defense counsel\u2019s cross-examination of Officer Salabura or by his closing argument.\nAfter carefully examining the record, we are constrained to conclude that the defendant was deprived of his right to a fair and impartial trial. Although the State\u2019s evidence was sufficient to sustain defendant\u2019s convictions in a trial free from prejudicial error, when considered as a whole, we cannot say that the questions and comments complained of were harmless beyond a reasonable doubt or did not contribute to defendant\u2019s convictions. (People v. Weinger (1981), 101 Ill. App. 3d 857, 872, 428 N.E.2d 924.) Defendant therefore must be granted a new trial. In light of our disposition of this issue, it is unnecessary to consider defendant\u2019s remaining contention.\nFor the foregoing reasons, the judgments of defendant\u2019s convictions are reversed and the cause is remanded to the circuit court of Cook County for a new trial.\nReversed and remanded.\nDOWNING, P.J., and HARTMAN, J., concur.\nThe State\u2019s reliance on People v. Wright (1974), 56 Ill. 2d 523, 532-33, 309 N.E.2d 537, is misplaced. In Wright, our supreme court held that no Bruton problem arose where the cases of two defendants were severed and the confessing defendant already had been tried, convicted and sentenced and was apparently available to the nonconfessing defendant to bring into court for cross-examination at the time of his trial. Here, there is no evidence that Robertson had been tried prior to defendant and that he would have been available for cross-examination.", "type": "majority", "author": "JUSTICE PERLIN" } ], "attorneys": [ "Steven Clark and Karen Michels, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. VITTORIO CAMPBELL, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 81\u2014629\nOpinion filed June 21, 1983.\nSteven Clark and Karen Michels, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0631-01", "first_page_order": 653, "last_page_order": 660 }