{ "id": 2852200, "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Tommie Lee Smith, Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1973-06-21", "docket_number": "No. 57050", "first_page": "1037", "last_page": "1041", "citations": [ { "type": "official", "cite": "12 Ill. App. 3d 1037" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "273 N.E.2d 664", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill.App.3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5312894 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0120-01" ] }, { "cite": "113 N.E. 713", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1971, "opinion_index": 0 }, { "cite": "274 Ill. 435", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2406316 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill/274/0435-01" ] }, { "cite": "177 N.E.2d 120", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1916, "opinion_index": 0 }, { "cite": "22 Ill.2d 601", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2790543 ], "year": 1916, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0601-01" ] } ], "analysis": { "cardinality": 441, "char_count": 7125, "ocr_confidence": 0.762, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.08508526945007218 }, "sha256": "54bf231f4431c339958f0b64d73be0397b2debe557485da582b2634bdf1ca760", "simhash": "1:290f4182a1d7c5a9", "word_count": 1255 }, "last_updated": "2023-07-14T15:56:16.526311+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. Tommie Lee Smith, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DEMPSEY\ndelivered the opinion of the court: \u2022\nA jury found the defendant, Tommie Smith, guilty of burglary and he was sentenced to the penitentiary for a term of three to eight years. He contends that he did not receive a fair trial and that an oral statement made by him while in custody should not have been received in evidence.\nSmith was arrested by two Chicago police officers about 9:30 P.M. on the night of December 20, 1970. The officers received two radio reports that burglaries were in progress in the 1800 block of South Ridge-way Avenue, which was in the area they were patrolling. They spoke to residents at the addresses given in the reports and were given a description of a man who had attempted to break into one apartment. Upon returning to their squad car they received a third message of a burglary attempt on South Lawndale Avenue \u2014 less than a block away and across the alley from the first two addresses. They hurried into the alley and saw Smith running in their direction. They apprehended him and as they did so he pulled a gun from his pocket; they threw him to the ground and handcuffed him. The gun proved to be a starter pistol which used blank cartridges. Smith answered the description they had just received; he was searched and a portable radio was recovered from under his jacket. He said the radio was his. It had the name \u201cVickie Parks\u201d inscribed on the inside of the back cover. A subsequent investigation revealed that it had been stolen that night from her home, 1811 South Ridgeway.\nThe police officers, Frank Corcoran and Rochelle McClain testified at the defendant\u2019s trial. After Corcoran related the events of the night of December 20th and the details of the arrest, the prosecutor asked him about a conversation with the defendant at the police station:\n\u201cQ. What, if anything, did you say to the defendant?\nA. I just kept asking where he got the radio.\nQ. Did the defendant speak to you in response to questions being made by you and the other officers?\nA. He told me, directly to me, that it was his own radio. He said it was his radio.\nQ. Did he tell you his name, the defendant? Did he tell you his name?\nA. Yes, sir, he did.\nQ. What name did he tell you?\nA. Tommie Lee Smith.\nQ. Did he say anything else to you?\nA. He said he had been smoking reefers and drinking wine.\nQ. After he said that did he say anything else to you?\nA. He said something to the effect, when I do a job I do it well.\u2019\nQ. Do you know what he meant by doing a job?\nDefense Attorney: Object.\nThe Court: Sustained.\nProsecutor: How many jobs were mentioned?\nA. At that time I think it was about 6 jobs.\nDefense Attorney: Your Honor, I object.\nThe Court: Sustain the objection. Let\u2019s go on with it.\nQ. What, if anything, did the defendant say after that?\nA. I don\u2019t recall.\u201d\nMcClain was also questioned about talking to the defendant at the station:\n\u201cQ. Where did you see him?\nA. In the squad room.\nQ. Did you have any conversation with Mr. Tommie Lee Smith at that time?\nA. Yes, sir, I did.\nQ. What, if \u00e1nything, did you say to Mr. Smith?\nA. I asked Mr. Smith if it was his radio.\nQ. What, if anything, did he say?\nA. He said it was his radio.\nQ. Did he say anything else to you?\nA. He said that he had puUed 4 jobs\u2014\nDefense Attorney: Your Honor, I object.\nThe Court: Sustain the objection.\nProsecutor: What if anything did you say to Mr. Scott [sic] after he indicated the radio was his?\nA. I asked him what he was doing in the neighborhood.\nQ. What, if anything, was said?\nA. He said he was visiting friends.\nQ. What, if anything, else did he say?\nA. He said he just got out of jail, he was on probation.\nDefense Attorney: Your Honor, I object.\nThe Court: Sustain the objection.\nDefendant Attorney: Can I be heard?\nThe Court: Sustain the objection. The answer is stricken and the jury is instructed to disregard it.\u201d\nThe answers to the prosecutor\u2019s questions: \u201cAt that time I think it was about 6 jobs,\u201d \u201cHe said he had pulled 4 jobs\u201d and \u201cHe said he just got out of jail, he was on probation\u201d were extremely prejudicial. The answers were elicited by the prosecutor and w\u00e9re responsive to his questions.\nAn unwritten rule of trial practice is not to ask a witness a question on direct examination unless you know what the answer will be, and its corollary is not to ask a question on cross-examination unless you are reasonably sure what the answer will be. The corollary is often not observed because of the eagerness of the cross-examiner or his willingness to gamble; but there is no excuse for violating the primary rule. We must assume that the prosecutor talked to his witnesses before he called them to the stand and that he anticipated the answers by his persistence in asking Officer Corcoran the repetitive questions: \u201cDid he say anything else to you?\u201d and \u201cAfter he said that did he say anything else to you?\u201d The prosecutor\u2019s intention to extract damaging testimony is disclosed by his asking Corcoran these follow-up questions: \u201cDo you know what he meant by doing a job?\u201d and \u201cHow many jobs were mentioned?\u201d Further confirmation of his purpose can be seen in his directing, despite the objections previously sustained by the court, identical questions to Officer McClain: \u201cDid he say anything else to you?\u201d, \u201cWhat, if anything, was said?\u201d and \u201cWhat, if anything, else did he say?\u201d If the prosecutor had been surprised by Corcoran\u2019s responses, he certainly was not by McClain\u2019s. The questions asked McClain were deliberate and the solicited responses could not have been unexpected.\nWhen prejudicial testimony has been heard by a jury the harm to a defendant cannot always be prevented by sustaining objections and cannot always be removed by striking it from the record and instructing the jury orally or in writing to disregard it. See: People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120; People v. Buckminster (1916), 274 Ill. 435, 113 N.E. 713; People v. Pitts (1971), 1 Ill.App.3d 120, 273 N.E.2d 664.\nThe cumulative damage to the defendant resulting from the prosecutor\u2019s probing questions and the replies forced out of the officers, was not cured by the court\u2019s rulings and cautionary instructions. The defendant\u2019s motion for a mistrial should have been granted. He did not receive a fair trial and, despite clear evidence of guilt, his conviction must be reversed and the cause remanded for a new trial.\nIn view of this conclusion, it is unnecessary to consider the defendant\u2019s second point or the motion made in oral argument to reduce his minimum sentence in accordance with section 1005 \u2014 8 \u2014 lc(3) of the Illinois Unified Code of Corrections.\nReversed and remanded with directions.\nMcNAMARA and McGLOON, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE DEMPSEY" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago, (Donald S. Honchell and Michael Weininger, Assistant Public Defenders, of counsel,) for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago, (Robin Auld and Thomas White, Assistant State\u2019s Attorneys, of counsel,) for the People." ], "corrections": "", "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Tommie Lee Smith, Defendant-Appellant.\n(No. 57050;\nFirst District (3rd Division)\nJune 21, 1973.\nJames J. Doherty, Public Defender, of Chicago, (Donald S. Honchell and Michael Weininger, Assistant Public Defenders, of counsel,) for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago, (Robin Auld and Thomas White, Assistant State\u2019s Attorneys, of counsel,) for the People." }, "file_name": "1037-02", "first_page_order": 1057, "last_page_order": 1061 }