{
  "id": 5344026,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. James Greer, Jr., Defendant-Appellant",
  "name_abbreviation": "People v. Greer",
  "decision_date": "1973-08-20",
  "docket_number": "No. 72-32",
  "first_page": "1062",
  "last_page": "1069",
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      "cite": "13 Ill. App. 3d 1062"
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    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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    "name_long": "Illinois",
    "name": "Ill."
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      "reporter": "N.E.2d",
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    {
      "cite": "245 N.E.2d 771",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 1
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    {
      "cite": "42 Ill.2d 91",
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      "case_paths": [
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    {
      "cite": "264 N.E.2d 140",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 1
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    {
      "cite": "46 Ill.2d 554",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2900728
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  "last_updated": "2023-07-14T21:56:28.394088+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. James Greer, Jr., Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThe defendant, James Greer, Jr., has brought this appeal from a judgment entered upon his conviction for the offense of murder by the Circuit Court of St. Clair County. The case was tried before a jury. Upon corn viction the defendant was sentenced to the penitentiary for a term of from 14 to 45 years.\nDuring the early morning hours of September 22, 1969, the events of this case began to unfold. A female, Yvonne Davis, was having a drink at a lounge in East St. Louis and the defendant came into the lounge and joined with Yvonne Davis in having a drink. The two of them decided to leave the premises and pick up Theresa Dowell, who was a mutual friend and the eventual decedent and victim of the murder.\nThe defendant and Yvonne Davis left in the defendant\u2019s mother\u2019s car, a then new 1969 model, picked up Mrs. Dowell and went to the We Three Lounge also located in East St. Louis. At the We Three Lounge Yvonne Davis and the defendant went in and had a couple of drinks, bringing Mrs. Dowell\u2019s drinks to her out in the car because Mrs. Dowell was not dressed appropriately to enter the establishment. After about 30 or 40 minutes, the trio, who had been friends for more than a year, left the We Three Lounge and drove to the B & F Lounge, also located in East St. Louis. The time of arrival was at 1:00 A.M. or shortly thereafter. The B & F was not crowded, there being only three other people in the place when the threesome arrived. The lounge contained a Mr. Ben J. Roby, tire manager, Clentis Hickman, a patron, and Atiene Stevens, a barmaid. All three in addition to Miss Davis were called as State\u2019s witnesses.\nThe B & F Lounge is located on the south side of State Street in East St, Louis. When the three walked into the bar, they sat at the south end of the bar. The defendant sat next to Mrs. Dowell, with Yvonne Davis sitting next to Mrs. Dowell. The defendant sat facing Mrs. Dowell while Yvonne Davis was talking with Clentis Hickman. Atiene Stevens, the barmaid, was behind the bar. Ben Roby was sitting at the other end of the bar, but had left and was across the room at the stereo; the music was playing.\nThe evidence is uncontradicted that the decedent had a gun in her purse, a gun the property of defendant which she had pawned and recovered and that there was discussion between defendant and decedent about the gun which defendant wanted. The defendant had turned on the bar stool as had the decedent so that the two were facing with Mrs. Dowell\u2019s legs between the defendant\u2019s knees and her back toward Miss Davis who was in turn facing toward Hickman. Defendant and decedent had been keeping company with each other for more than a year; they had no argument that evening and were not arguing or raising their voices; no one saw any signs of violence between them. All witnesses heard what they thought was a shot where defendant and decedent were seated. No witness saw the shooting except the defendant who stated that decedent accidently shot herself with it, and that he never touched the gun. No witness testified that he did although Miss Davis testified that decedent said \u201cshe had been shot\u201d and that after decedent had walked around the end of the bar and collapsed defendant arose with a gun in his hand but did not know which hand.\nNone of the other State\u2019s witnesses ever saw the gun and the gun was not presented at the trial nor was inquiry made concerning its disposition; the others all testified that they did not at any time see defendant have a gun. Miss Davis took charge of decedent\u2019s purse and admittedly removed some of its contents, which she gave to decedent\u2019s husband, before eventually delivering a purse to the prosecution which was admitted into evidence on the basis of Miss Davis testifying it was the purse Mrs. Dowell had there that evening. Defendant testified that it was not the purse decedent had and that defendant believed she either had the gun back in the purse or was putting it back in when it was fired. No one else testified it was the purse decedent had there that evening. No one contradicts that it was in her lap and would have been inches from where the bullet entered her body whether fired at close proximity by defendant or by decedent; it apparently showed no powder bums, or bullet hole. Her testimony as to what was said or done immediately after the shooting was contradicted by other State\u2019s witnesses. All five gathered around decedent when she collapsed, most were agreed that she stated \u201cI have been shot.\u201d She testified that defendant at the time made a threatening remark to her which caused her to flee to the bathroom, but she did not know what those remarks were.\nShe testified that after decedent had been taken out and placed in defendant\u2019s car, by defendant and Roby, to take decedent to a hospital, that defendant returned hammered on the bathroom door and shouted \u201cCome on out, you are next.\u201d None of the other witnesses supported this but testified that defendant came back in, paid for the drinks, went to the bathroom door, tapped on it and told her to come on. They denied that he hammered, shouted or made threats against her. Upon defendant\u2019s driving away she came out of the bathroom, telephoned defendant\u2019s mother and a lady friend asking the latter to send a taxi for her which she did. She then went to the lady friend\u2019s home where she remained the rest of the night without further inquiry or report concerning her friend, Mrs. Dowell. No one at any time called an ambulance or reported the incident to the police.\nRoby testified decedent said, \u201cHe shot me\u201d when she arose and went toward the end of the bar, but when asked, still on direct, to whom she said that, answered, \u201cWell, she didn\u2019t say who \u2014 she said, just said \u2018I was shot\u2019 I don\u2019t know.\u201d He proceeded to testify then that while the witnesses were gathered around decedent he asked defendant \u201cDid you shoot her?\u201d and that defendant answered \u201cI am trying to kill her.\u201d When admonished to speak louder he testified, \u201cExactly I don\u2019t know exactly how he said what he said I don\u2019t know exactly, but he was talking he said 1 am going to kill her I am going to do something, I don\u2019t know the exact words he used.\u201d The prosecutor by a question then suggested that defendant had said \u201cI am going to kill her, I am going to shoot her, is that what he said?\u201d to which the witness answered, \u201cHe threatened her things like that, words like that.\u201d He then testified, \u201cI said Let\u2019s get her to the hospital, you shot her\u201d and that he then \u201ccaught hold of her. I was trying to help him get out, I didn\u2019t see where she was shot. I thought she might have fainted or she got scared or something. I said, Will you take her to the hospital, he said, Yes I will take her to the hospital.\u201d\nOn cross examination he admitted testifying in St. Louis a short time after the incident \u201cI asked what happened \u2014 did he shoot her and someone said yes.\u201d He admitted that he never saw a gun and that in answer to the question \u201cDid you hear James make any statement after the shooting\u201d in a previous hearing, he testified \u201cNo, he said this is my thing, something like that. I don\u2019t know if he said it is his wife or his woman, I don\u2019t know what he said\u201d and admitted that in the previous hearing in St. Louis, he had never in response to the request to testify to what happened, testified to any threats by defendant to decedent and concluded that \u201cHe was saying a lot of things; I don\u2019t remember exactly what that was\u201d and stated specifically that he never did see defendant with a gun.\nApparently attempting to anticipate defendant\u2019s testimony the prosecutor on redirect then asked whether the witness ever heard defendant say \u201cI didn\u2019t mean to shoot her; please call the ambulance; please call the police\u201d to which the witness answered \u201cNo.\u201d There is nothing in the record from which it could even be inferred that defendant ever said \u201cI didn\u2019t mean to shoot her.\u201d\nOn direct examination the barmaid Ailene Stevens testified that Roby asked defendant \u201cDid you shoot her\u201d and defendant answered \u201cyes\u201d admitting that after the woman collapsed she was so excited that she did not know what was said, on cross examination. On cross she admitted testifying previously that Roby asked \u201cDid he shoot her\u201d and she then testified \u201cI was so upset \u2014 I think he said yes.\u201d\nNone of the other witnesses heard the incriminating statements to which Roby had testified although all were right there together.\nWhen Hickman, the patron who was present, testified as to what was said immediately after the incident the prosecutor attempted to manufacture evidence to support his opening statement that defendant said \u201cLet her lie there and die.\u201d After testifying that defendant started around to decedent when she had faHen he stated that defendant said \u201cLeave her lie there.\u201d The witness thought the decedent was just playing although he had heard what he thought was a shot. He did not indicate whether defendant\u2019s statement was made out of compassion or disgust. He testified then that when Roby came up defendant said, \u201cHelp me put her in my car; I will carry her to the hospital.\u201d Then after testimony as to what occurred after the decedent had been taken to the car, the prosecutor asked the witness,\n\u201cNow, how far away were you from Mr. Greer when he said, Let her He there and die?\u201d\nCounsel immediately objected that that was not what the witness had said. The court agreed \u201cNo he didn\u2019t.\u201d The prosecutor said \u201cI am sorry\u201d and defense counsel asked that the remarks of the State\u2019s Attorney be stricken. The court ruled \u201cStricken. I think the jury heard what the witness said.\u201d Subsequently the prosecutor returned to the matter by inquiry of the distance between the witness and defendant, \u201cWhen he said let her lie there or something like that?\u201d The witness ignored the question and answered, \u201cHe said let her He there.\u2019 \u201d\nStanding as a single incident, the errors in conduct of the State\u2019s Attorney in attempting to impress the jury with the callousness of the defendant by leading them to believe that defendant had said \u201cLet her He there and die\u201d when there was absolutely no evidence that defendant ever made that statement, but only evidence that he said \u201cLet her He there\u201d, would have been cured by the court\u2019s remark and ruling as well as the impressive correction by the witness of the prosecutor. However, the incident is here recited as one that displayed a calculated attempt to give credence to the false statement in the opening statement, and to prejudice the jury and deprive the defendant of the fair trial which the prosecutor was obHgated by law to afford him.\nDefendant here contends that he was prejudiced by tire prosecutor\u2019s opening argument coupled with the questioning of the witness, Hickm\u00e1n, with reference to what defendant said immediately after the decedent had collapsed. He told the jury that there would be testimony to the effect that,\n\u201cGreer said \u2018Let her die. I shot her.\u2019 \u201d\nNo witness ever testified that defendant said \u201cLet her die,\u201d nor that defendant said \u201cI shot her.\u201d\nDefendant also pointed out that in the opening statement the prosecutor told the jury, \u201cthe next morning the police apprehended the defendant, Mr. Greer\u201d and that the evidence is uncontroverted that defendant voluntarily went to the police' station and surrendered himself.\n' In the rebuttal argument the prosecutor told the jury:\n\u201cWell, if he is acquitted he is going to be back on the street. The State has one opportunity to try someone. We don\u2019t have the right of appeal; this is our one and only opportunity.\u201d\nDefense counsel promptly objected, asked that a juror be withdrawn and a mistrial declared. The court, \u201coverruled\u201d and the prosecutor, concluded his argument. In the argument of defense counsel we find nothing that invited those remarks made in rebuttal.\nWe particularly note the last three sentences and the fact that by overruling the objection the court placed his sanction upon them. There is no question that error was committed by the prosecutor and by the trial court, who should have sustained the objection, ordered the remarks stricken and instructed the jury to disregard them in the interest of providing defendant a fair trial. At the least it was a subtle attempt to infer to the jury that if there was doubt in their minds of defendant\u2019s guilt they should convict because the State had only one opportunity and no right to appeal. While the statement did not specifically state that any mistake the jury made could be corrected because defendant could appeal, it inferred as much. The inferences were magnified and given credence by the action of the trial judge. In 23A C.J.S., Criminal Law \u00a7 1101, it is pointed out that it is improper to point out that the State has no right to appeal, although it may not warrant reversal. In a case in which there is or may be reasonable doubt, because of the sufficiency or clarity of the evidence, of the defendant\u2019s guilt, and there is a likelihood that the remark was calculated to and did or may have had an influence upon the jury against the defendant, such argument sanctioned by the court constitutes a ground for setting aside the conviction, particularly when it is coupled with other conduct of the prosecutor indicating an indifference to defendant\u2019s right to a fair trial.\nDefendant was not entitled to a perfect trial, but he was entitled to a fair one. From a careful reading of the entire record, we have determined that the evidence is extremely close and whether reasonable men would have found defendant guilty of the murder with which he was charged, had he been given a fair trial, is open to question. We therefore arrive at the conclusion that defendant is entitled to a new trial.\nReversed and remanded.\nG. MORAN, J., concurs.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE EBERSPACHER"
      },
      {
        "text": "Mr. JUSTICE JONES\ndissenting:\nI respectfully dissent.\nAlthough it was error for the prosecutor to attribute a statement to defendant (\u201cLet her he there and die\u201d) which he did not in fact make, under the circumstances in which the matter was presented and handled in this case it did not, in my opinion, influence or sway the jury and therefore did not prejudice defendant or prevent him from receiving a fair trial. When witness Hickman was asked by the prosecutor \u201cNow, how far away were you from Mr. Greer, when he said, \u2018Let her lie there and die?\u2019 \u201d the defendant\u2019s objection was sustained and the court stated that the witness had not so testified. Later the witness testified on two occasions during his direct examination that defendant had said \u201cLet her lie there.\u201d When the prosecutor later asked witness Hickman how far away he was when he heard defendant say \u201cLet her he there or something like that,\u201d this can by no means be construed as an attempt to rephrase the offensive question; it was a legitimate attempt to establish the distance between the witness and defendant to show that he was within easy hearing distance.\nThe prosecutor commenced his opening statement by saying:\n\u201cNow, before I start this opening statement once again I would like to advise you to please listen to what the witnesses say. If you cannot hear what they say please let us know, so that you will have all the evidence.\nAs I said when I talked to you before the trial began, what they say is the evidence, not what I say in this instance here or during the course of the trial or what Mr. Hoban may say. If I say something now in opening statement and later you find out in evidence it happened or didn\u2019t happen, then you will take that evidence in making your decision.\u201d\nRepeating the admonition, the prosecutor prefaced his closing argument with this language:\n\u201cThe purpose of the State in closing argument is to inform you as to the facts \u2014 as to what we believe the State has proven. If,during my argument to you I should state something you don\u2019t believe happened, you use your own recollection in recalling to mind what the witnesses said.\nAgain I want to caution you that what the witnesses say is the evidence, not anything I may say during the closing argument or anything Mr. Hoban may say; just what the witnesses have testified to.\u2019\nFurthermore, at least four different times during the closing argument the prosecutor stated that witness Hickman had testified that defendant said only \u201cLet her lay there.\u201d In view of the correction of the testimony attributed to defendant by the prosecutor by both the court and the witness, and the repeated admonitions to the jury that they were to take the evidence only as given by the witnesses and the statement by the prosecutor on four different occasions in his closing argument that the witness had said \u201cLet her lay there,\u201d it is inconceivable that the jury could be misled or influenced in any degree by the remark of the prosecutor in his opening statement and the inference carried by his question, or that the defendant would be prejudiced in any way from receiving a fair trial because of the appearance of the offensive remark and question during the trial.\nI also do not believe that prejudice resulted to defendant because the prosecutor remarked in his closing argument that the State did not have a right to appeal. The remark was improper and the trial court was in error in overruling defendant\u2019s objection. However, in view of what I view as strong evidence of defendant\u2019s guilt this remark should not constitute reversible error. This is conceded by the majority in their opinion and the holding of the cases referred to in the C.J.S. citation.\nAlthough a prosecutor\u2019s remarks may be subject to criticism, unless they constitute a material factor in the conviction or are such that prejudice to the defendant is the probable result, the verdict will not be disturbed (People v. Davis, 46 Ill.2d 554, 264 N.E.2d 140; People v. Nicholls, 42 Ill.2d 91, 245 N.E.2d 771.) This rule was followed by this District in People v. Lyons, 8 Ill.App.3d 695, 290 N.E.2d 313. In my opinion the remarks of the prosecutor cannot be said to constitute a material factor in the conviction of the defendant and accordingly are not reversible error.",
        "type": "dissent",
        "author": "Mr. JUSTICE JONES"
      }
    ],
    "attorneys": [
      "Linda West Conley, of Defender Project; of Chicago, for appellant.",
      "Robert H. Rice, State\u2019s Attorney, of Belleville, (Philip G. Feder, Assistant State\u2019s Attorney, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. James Greer, Jr., Defendant-Appellant.\n(No. 72-32;\nFifth District \u2014\nAugust 20, 1973.\nRehearing denied October 12,1973.\nJONES, J., dissenting.\nLinda West Conley, of Defender Project; of Chicago, for appellant.\nRobert H. Rice, State\u2019s Attorney, of Belleville, (Philip G. Feder, Assistant State\u2019s Attorney, of counsel,) for the People."
  },
  "file_name": "1062-01",
  "first_page_order": 1084,
  "last_page_order": 1091
}