{ "id": 5668455, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD POLK et al., Defendants-Appellants", "name_abbreviation": "People v. Polk", "decision_date": "1986-05-09", "docket_number": "No. 84-0004", "first_page": "698", "last_page": "716", "citations": [ { "type": "official", "cite": "143 Ill. App. 3d 698" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "387 N.E.2d 901", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "70 Ill. App. 3d 250", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5574513 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/70/0250-01" ] }, { "cite": "379 N.E.2d 641", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "62 Ill. 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App. 2d", "case_ids": [ 2473932 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/127/0383-01" ] }, { "cite": "93 S. Ct. 62", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "34 L. Ed. 2d 94", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "409 U.S. 851", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6234305, 6232709, 6235657, 6233998, 6233008, 6235025, 6232402, 6233716, 6234616, 6235354, 6233372, 6235965 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/409/0851-07", "/us/409/0851-02", "/us/409/0851-11", "/us/409/0851-06", "/us/409/0851-03", "/us/409/0851-09", "/us/409/0851-01", "/us/409/0851-05", "/us/409/0851-08", "/us/409/0851-10", "/us/409/0851-04", "/us/409/0851-12" ] }, { "cite": "278 N.E.2d 128", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "2 Ill. 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Ed. 2d", "opinion_index": 0 }, { "cite": "447 U.S. 925", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6235587, 6235299, 6234339, 6234950, 6236808, 6233739, 6234065, 6235858, 6237141, 6236469, 6233461, 6237463, 6234655 ], "opinion_index": 0, "case_paths": [ "/us/447/0925-08", "/us/447/0925-07", "/us/447/0925-04", "/us/447/0925-06", "/us/447/0925-11", "/us/447/0925-02", "/us/447/0925-03", "/us/447/0925-09", "/us/447/0925-12", "/us/447/0925-10", "/us/447/0925-01", "/us/447/0925-13", "/us/447/0925-05" ] }, { "cite": "394 N.E.2d 1212", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1980, "opinion_index": 0 }, { "cite": "76 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3277860 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-app-3d/76/0459-01" ] }, { "cite": "334 N.E.2d 872", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "31 Ill. 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App. 2d 765", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2287576 ], "year": 1955, "opinion_index": 1, "case_paths": [ "/cal-app-2d/102/0765-01" ] }, { "cite": "129 N.E.2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 1 }, { "cite": "6 Ill. 2d 559", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2708397 ], "weight": 4, "pin_cites": [ { "page": "562" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/6/0559-01" ] }, { "cite": "158 Pac. 233", "category": "reporters:state_regional", "reporter": "P.", "case_ids": [ 2321088, 2321054 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/idaho/29/0248-01", "/idaho/29/0070-01" ] }, { "cite": "29 Idaho, 248", "category": "reporters:state", "reporter": "Idaho", "case_ids": [ 2321088 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/idaho/29/0248-01" ] }, { "cite": "125 N.E.2d 615", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "opinion_index": 1 }, { "cite": "5 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2703390 ], "weight": 7, "pin_cites": [ { "page": "255-56" }, { "page": "256" }, { "page": "261-62" }, { "page": "261" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/5/0251-01" ] }, { "cite": "368 N.E.2d 1091", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1095" } ], "opinion_index": 1 }, { "cite": "54 Ill. App. 3d 550", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3398505 ], "pin_cites": [ { "page": "555" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/54/0550-01" ] } ], "analysis": { "cardinality": 1383, "char_count": 47415, "ocr_confidence": 0.746, "pagerank": { "raw": 4.8795769627028896e-08, "percentile": 0.30655841325112004 }, "sha256": "35b68934c3ba5e6c99904ec800d2bf386c9bd389da14d5273aac9dfc293cd30f", "simhash": "1:b645bc25fac0ade4", "word_count": 8072 }, "last_updated": "2023-07-14T15:11:23.440803+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. BERNARD POLK et al., Defendants-Appellants." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial defendants Bernard Polk and Albert Cox were convicted of murder and aggravated kidnaping. Both defendants received concurrent prison terms of 25 years for murder and 20 years for aggravated kidnaping. On appeal defendants contend: (1) a pretrial identification of the defendants was conducted under such suggestive circumstances as to render that identification and subsequent in-court identifications unreliable; (2) it was reversible error for the trial court to refuse to accept a defense instruction concerning the credibility of drug addicts; (3) the failure of defendants\u2019 trial counsel to move to quash defendants\u2019 arrests denied them due process of law and constituted ineffective assistance of counsel.\nWe affirm.\nAt trial the following pertinent evidence was introduced. Victoria Green testified that on July 18, 1982, she was living in a third-floor apartment at 914 St. Charles, Maywood, with her brother, Peter Green, and Guy McCoats, the victim. At about noon a tan car pulled up and two men emerged. At the time Victoria did not know who they were, although she had seen Cox once at a store. In court she identified them as the defendants. Both men came upstairs to her apartment door with defendant Cox holding an 18- to 24-inch pipe. As Victoria stood outside her door Guy McCoats approached and asked the defendants if they wanted to see him. They said yes and all three men entered the apartment, leaving Victoria outside. Victoria then heard a gunshot from inside the apartment where she telephoned the police. From that apartment she saw the defendants getting into their car with McCoats. Before they drove away she heard defendant Cox say that McCoats would not be seen alive again if anybody reported this.\nThe police arrived 45 to 60 minutes later (Victoria had told them to come over without reporting what had happened). As Victoria was telling them what she had seen defendant Cox returned to the scene. Victoria pointed him out to the police, who arrested him. Trial testimony from other witnesses established that Cox was released later that afternoon because the police did not initially find any witnesses to corroborate Victoria\u2019s account. At about 3 p.m. Victoria again spoke to the police and drove through the neighborhood with them in search of McCoats, accompanied by Peter Green.\nMcCoats\u2019 body was found in a forest preserve at about 4 p.m. He had been shot three times in the head and once in the chest. The defendants were arrested some time after 6 p.m. Victoria testified that later that evening she viewed a lineup and identified both defendants as the men she had seen abduct McCoats. However, two officers who were present at the lineup testified she only identified Cox.\nPeter Green testified that he was sleeping on a couch inside their studio apartment when a slamming door awakened him. He saw McCoats and two other men, identified by him in court as the defendants. Defendant Cox was holding an 18-inch pipe. The defendants began arguing with McCoats, with Cox asking McCoats, \u201cwhere is my dope at.\u201d McCoats said he did not have it. Cox then struck McCoats about the head and shoulders with the pipe. The man began fighting and defendant Polk pulled out a gun and shot toward the ceiling. Defendants grabbed McCoats in a headlock and moved toward the door. Polk asked Peter if he had eight dollars. When Peter said he did not, Polk told him he should get the money if he wanted to see McCoats alive.\nAccording to Peter the defendants then dragged McCoats downstairs and put him in a light brown car. Polk yelled out that McCoats would be freed for eight dollars, also threatening that McCoats would not be seen again if anybody told what had happened. They then drove off with McCoats.\nPeter admitted that when the police arrived at 1:15 or 1:30 p.m. he did not tell them what he had seen. He did tell the police at 3:30 what had happened, and when he viewed the lineup that evening he identified the two defendants.\nBrenda Williams, who lived in the same building as the Greens, testified that between 12 and 12:30 p.m. on the occurrence date she saw Guy McCoats going up to the third floor with two men. One of those men had a 15- to 18-inch pipe in his hand. She also noticed a brown and beige Buick in the parking lot. After walking to a nearby store and buying some wine she went to a park. She then saw the same car, containing McCoats and the two men, drive toward the forest preserve.\nCheryl Davis testified that in the early evening the day before the occurrence she bought a \u201cone-and-one\u201d (a street drug composed of Talwin and Pyribenzamine, also known as T\u2019s and Blues) from defendant Polk for eight dollars in a second-floor apartment at 15th and Railroad in Maywood. She could hear the voice of defendant Cox in another room of the apartment. Guy McCoats then entered and obtained the same drug from Polk. However, McCoats did not have the eight dollars. When Polk told him he had better give him the money McCoats ran down the stairs, saying he would pay that night or the next day. Polk followed him down, saying, \u201cYou will see I don\u2019t take that s \u2014 . You are going to give me my eight dollars. You\u2019ll see.\u201d\nDavis returned to the same apartment that evening. Defendant Polk was there alone, armed with a gun. He told her to tell McCoats if he did not pay he would come over there at noon and kill him. Later that evening Davis told McCoats this.\nDavis further testified that at noon the next day, while standing on a third-floor balcony at 914 St. Charles, she saw the defendants exiting a yellowish-tan Buick that she recognized as belonging to Cox. Cox was carrying an 18- to 24-inch pipe. When Davis saw them going to the Greens\u2019 apartment she ran to the outside of that door. She heard McCoats screaming and pleading with the defendants and then heard a shot. The defendants brought McCoats out and put him in their car. McCoats unsuccessfully asked people on the scene for eight dollars. When a bystander produced less than that it was refused. Cox stated that without eight dollars McCoats would not be seen again. Polk stated that a call to the police would also mean McCoats would not be seen again.\nOn cross-examination Davis admitted that the day of her testimony was the first time she had told any official what had happened. She explained that she had been afraid of the defendants. Davis, who had previously been convicted for misdemeanor theft, admitted that she was, at the time of trial, in the custody of Du Page County on pending theft charges. She denied that the prosecutors had promised to inform the Du Page prosecutors of her cooperation. However, it was stipulated at trial that if called to testify, Assistant State\u2019s Attorney William Walters would state that prior to her testimony Davis was told that the Du Page prosecutors would be informed that she had testified for the prosecution in a murder trial.\nDavis also admitted that she had formerly used narcotics (T\u2019s and Blues) for two or three years, but denied being an addict, stating that during that period she \u201cgot high maybe twice a week.\u201d She took that drug orally, not by injection. She denied using heroin, but stated that she had used cocaine and had injected that drug four or five times. She stated that a line-shaped scar on the back of her left hand was the result of these cocaine injections. She also admitted that she occasionally stole to get money for cocaine.\nDavis denied having used any narcotics on the day she witnessed the abduction. She admitted to having taken T\u2019s and Blues on the two occasions she saw defendant Polk the evening before (actually by her testimony the second occasion was at 1:30 or 2 a.m. on the morning of the abduction). However, she also testified that the effects of this drug lasted for only an hour.\nMaywood police officer Charles Gunn confirmed that when he first spoke to Victoria and Peter Green at about 1:20 p.m. at the apartment building Victoria told him what she had seen, but Peter told him he knew nothing about it. At that time Brenda Williams and Cheryl Davis also denied any knowledge of the incident with Davis saying she did not wish to get involved. However, the second time Gunn spoke to Peter, at about 3 p.m., he did receive information about the incident.\nOfficer Gunn also testified that defendant Cox\u2019 car was located at about 2:30 a.m. the day after the incident. No blood was found in the car. However, it was established at trial that a box of .38 Special bullets was recovered from the trunk of the car. It was stipulated that if called to testify a forensic scientist who examined the four bullets recovered from the victim would testify that they were the same caliber as those recovered from the car.\nDefendant Cox took the stand and denied knowing the victim, Cheryl Davis, Vicky Green, or Peter Green. At the time of the occurrence he lived at 6 South 15th Avenue in Maywood (located five minutes by car from the victim\u2019s apartment). He testified that from 5 p.m. the day before the occurrence he was at the apartment of a friend on the west side of Chicago. He returned to his apartment at 10 a.m. the next day, leaving at noon to go to the apartment of a neighbor, Dorothy Harris, to use the phone. He remained on the phone for half an hour, spoke to Harris for five to 10 minutes, went to the grocery store and brought back items for her, and then drove to a friend\u2019s house where he was initially arrested. At that time he told the police his alibi. Cox admitted to having been convicted of a burglary in 1977. On cross-examination he identified his car from a photograph previously identified by State witnesses as the one they saw at the time of the occurrence outside the victim\u2019s building.\nDorothy Harris also testified that Cox came to her apartment about noon on the day of the occurrence. He stayed on the phone 30 to 45 minutes, went to the grocery store for her and returned in 15 to 20 minutes, talked to her for 10 minutes and then left. Harris also testified that the victim\u2019s building was five blocks away. It was stipulated that if called to testify Assistant State\u2019s Attorney Walters would have testified that Harris had told him Cox was at her apartment from 11:45 a.m. to 12:15 p.m. and she next saw him in a squad car at 1 p.m.\nWe first consider defendants\u2019 contentions concerning an allegedly suggestive lineup viewed by Victoria and Peter Green. Testimony adduced at the hearing on defendants\u2019 motion to suppress identification testimony and at trial established that on the evening of the occurrence Victoria and Peter separately viewed the same eight-man lineup. Aside from the defendants three of the men in the lineup were known to Victoria and Peter as being from their building. According to Officer Gunn\u2019s lineup report the three other men who were not known to defendants were 6 feet 2 inches, 5 feet 10 inches, and 6 feet 2 inches, weighing, respectively, 235, 185, and 215 pounds. Defendants Polk and Cox were, respectively, 5 feet 9 inches, 185 pounds, and 5 feet 11 inches, 185 pounds. Defendants cite to arrest cards indicating that defendant Polk was 5 feet 7 inches or 5 feet 8 inches and 175 pounds and defendant Cox was 5 feet 10 inches, 175 pounds. However that information was apparently not presented in the pretrial or trial proceedings below, unlike the evidence we have cited. The evidence does establish that the Greens had described the defendants as 5 feet 9 inches and 5 feet 11 inches. Defendants also flatly assert that two of the individuals not known to the Greens were 6 feet 5 inches. However, this assertion is based on equivocal responses by the Greens to leading questions concerning their opinion of the height of these two men. The testimony of Officer Gunn as well as that of Investigator Edward Adams, who was also present at the lineup, establishes that the two tallest men were 6 feet 2 inches.\nWhen the three men known to the Greens are eliminated it is then apparent that the Greens in effect viewed a five-man lineup consisting of men ranging in height from 5 feet 9 inches to 6 feet 2 inches and in weight from 185 to 235 pounds. As to these men defendants object only to the alleged height discrepancies. Defendants have not included the lineup photograph in the record on appeal, although it was considered by the trial court. Nor have defendants asserted that any other distinctive physical characteristics or clothing differences marred this lineup.\nA reviewing court must look at the totality of the circumstances surrounding a pretrial identification in determining whether it was unnecessarily suggestive. (People v. Hamilton (1977), 54 Ill. App. 3d 215, 369 N.E.2d 377.) Certainly the mere fact that the effective numerical composition of the lineup was reduced from eight to five did not render the lineup defective. (People v. Kinzie (1975), 31 Ill. App. 3d 832, 334 N.E.2d 872, defendant in lineup with only one other man; People v. Kirk (1979), 76 Ill. App. 3d 459, 394 N.E.2d 1212, cert, denied (1980), 447 U.S. 925, 65 L. Ed. 2d 118, 100 S. Ct. 3019, witness recognized three or four of the men standing with the defendant in a six-man lineup.) Nor do we find that the differences in height were such as to render the identification procedures unnecessarily suggestive. The police are not required to place physically identical men in a lineup and minor differences in size are not deemed to create improperly suggestive conditions. (People v. Prignano (1971), 2 Ill. App. 3d 163, 278 N.E.2d 128, cert, denied (1972), 409 U.S. 851, 34 L. Ed. 2d 94, 93 S. Ct. 62; People v. Keane (1970), 127 Ill. App. 2d 383, 262 N.E.2d 364.) Moreover in this cause both witnesses testified that they picked out the defendants because of their faces. Under these circumstances we find that the trial court did not err in denying defendants\u2019 motion to suppress their identification testimony.\nDefendants next contend that the trial court erred in refusing to tender to the jury the following non-IPI instruction:\n\u201cYou may consider evidence that a witness was addicted to drugs at the time of the crime in judging that witness\u2019 credibility.\u201d\nThe determination of whether to give a non-IPI instruction rests within the sound discretion of the trial judge. (People v. Blackwell (1979), 76 Ill. App. 3d 371, 394 N.E.2d 1329.) In this instance we find that the trial court properly exercised its discretion in refusing the instruction. Contrary to defendants\u2019 contention on appeal the evidence at trial did not establish that Cheryl Davis was ever a narcotics addict. She admitted having previously taken T\u2019s and Blues, but stated that she had taken the drug orally, using it to become high twice a week, and she specifically denied having been a drug addict. Under these circumstances the court was clearly correct in refusing an instruction which suggested that the witness had been proved to be an addict. (People v. Winfield (1983), 113 Ill. App. 3d 818, 447 N.E.2d 1029; People v. Thorns (1978), 62 Ill. App. 3d 1028, 379 N.E.2d 641; People v. Smith (1979), 70 Ill. App. 3d 250, 387 N.E.2d 901.) Furthermore, the trial court noted that the evidence of Davis\u2019 drug use would be a proper subject of comment to the jury in final argument. This factor was drawn to the jury\u2019s attention in final argument and of course had already been brought out through extensive cross-examination.\nIn supplementary pro se briefs submitted to this court defendants have also contended that the failure of their trial counsel to move to quash their arrests denied them due process of law and constituted ineffective assistance of counsel. The record suggests that trial counsel withdrew a motion to quash the arrests after the State agreed not to use any of the evidence which would have been suppressed had the motion been successful. But in any event because defendants support their contentions with matters that are dehors the record before us and because their appellate counsel has advised us that this same issue is to be argued in post-conviction proceedings below, we find no basis for properly considering the issue in this appeal.\nThe judgment of the trial court is affirmed.\nAffirmed.\nMEJDA, P.J., concurs.\nThis opinion was concurred in prior to Presiding Justice James J. Mejda\u2019s retirement from the court.", "type": "majority", "author": "JUSTICE LORENZ" }, { "text": "JUSTICE PINCHAM,\ndissenting:\nI dissent. Cheryl Davis was an extremely important and essential prosecution witness in this aggravated kidnaping and murder trial. Her presence at the various scenes of the criminal episodes enabled her to convincingly and successfully put the pieces of the crime puzzle together for the jury and to identify the defendant as one of the perpetrators. Cheryl Davis had used narcotic drugs over a period of three years prior to trial and was using drugs at the very time she allegedly witnessed the occurrences about which she testified. It was reversible error, therefore, for the trial court to refuse defendants\u2019 jury instruction that in judging a witness\u2019 credibility, the jury may consider a witness\u2019 drug use at the time of the incident about which the witness testified.\nThe first episode Cheryl Davis testified about was that on her birthday, July 17, 1982, in the early morning hours, she was in the second-floor apartment at 15th and Railroad, where she talked to the defendant, Bernard Polk, and heard the voice of the defendant, Albert Cox. Pursuant to her request, Polk gave Davis drugs, \u201cone-and-one\u201d \u2014 T\u2019s and Blues (Talwin and Pyribenzamine) \u2014 for which Davis paid Polk $8. Ray McCoats, the deceased, entered the apartment and requested from Polk an identical drug order, which Polk filled. McCoats did not have $8 for the drugs and told Polk that he would pay him that night or the following morning. Cheryl Davis went downstairs and got in the car in which she rode with Charlotte McGee and the driver to the apartment building. McCoats ran down the stairs to the car, which stopped. McCoats entered the car. Polk ran down the stairs to the car and said to McCoats, \u201cAre you going to give me my $8? You will see I don\u2019t take that s-t. You are going to give me by $8. You\u2019ll see.\u201d Thus, Cheryl Davis witnessed the motive for McCoats\u2019 subsequent kidnaping by Polk.\nThe second episode about which Cheryl Davis testified was as follows. Davis said she returned with Charlotte McGee to 15th and Railroad later that evening and reentered the second-floor apartment. Polk had a gun which he pulled out and said to Davis, \u2019\u2019That m~ f~ that was with you, you tell him that he don\u2019t do me like that. If he don\u2019t give me my money, I am going to kill him.\u201d Polk asked Davis if McCoats was with her when they came earlier. When Davis told Polk that McCoats was not with her, Polk told her, \u201cYou better be glad because I was going to do something to you, too. ***. You tell Ray [McCoats] that if he don\u2019t give me my money, that I am going to be over there at 12:00 and I\u2019m going to kill him because he don\u2019t pull that s-t with me.\u201d Davis then left. Polk\u2019s conversation expressed to Davis his motive for killing McCoats. Polk also displayed a gun to Davis, told Davis the place where he would commit the offenses and told her the time he would commit them.\nThe third episode about which Cheryl Davis testified was that when she left 15th and Railroad, she went to an apartment building at 914 St. Charles Road, where she later told Ray McCoats what Polk had said. Thus, Cheryl Davis communicated to McCoats the motive for his murder as well as the identity of his murderer.\nThe fourth episode about which Cheryl Davis testified was that at about noon on the following day, July 18, 1982, while Davis was standing on the third-floor balcony at 914 St. Charles Road, at the very hour and place previously designated by Polk, she saw Polk and Cox get out of a parked yellowish-tan Buick car, which Davis knew was owned by Cox. Cox had a pipe which was 18 to 24 inches long and an inch and one-half wide in his hand. Polk and Cox entered the third-floor rear apartment, where McCoats and Vicky Green lived. Davis ran and stood beside McCoats\u2019 apartment door. Davis heard McCoats scream, \u201cPlease, no, don\u2019t, don\u2019t do me like this.\u201d Davis then heard a gunshot in McCoats\u2019 apartment. A few minutes later Polk and Cox brought McCoats out of the apartment and approached their car. McCoats was bloody and beaten. As they approached the car, Davis heard McCoats ask, \u201cDoes anybody have $8?\u201d No one had $8 to give McCoats. He then asked Charlotte McGee (the same person who was with Davis at Polk\u2019s house the day before) if she had $8. McGee had only $6, but Polk and Cox \u201cwouldn\u2019t take that.\u201d Cheryl Davis then heard Cox say, \u201cIf he doesn\u2019t have $8, ain\u2019t nobody ever going to see him again.\u201d McCoats said, \u201cPlease, don\u2019t anybody have $8?\u201d Polk and Cox put McCoats in their car. Polk said, \u201cIf anybody calls the police, you won\u2019t see him again.\u201d They drove off and that was the last time Davis saw McCoats.\nOn October 21, 1983, Davis was brought to the Cook County State\u2019s Attorney\u2019s office from the Du Page County jail, where she was lodged pending trial on a felony theft indictment and a bail-jumping indictment. It was at this time in the State\u2019s Attorney\u2019s office that Davis first revealed to the police and the assistant State\u2019s Attorney what she said she witnessed on July 17 and 18 of the preceding year. Davis was then called as a State\u2019s witness. ?\nOn cross-examination Cheryl Davis testified that she never told the police, any law enforcement officer or assistant State\u2019s Attorney any of the foregoing episodes because she was afraid, even though she knew that Polk and Cox had been in jail since their arrest in July 1982.\nDavis testified that she was not a narcotics addict, but that she had been using narcotics for about two or three years. She did not use heroin. She used T\u2019s and Blues, a heroin substitute. She had used cocaine four or five times by injection, which is a more pure form of ingesting cocaine than \u201csnorting\u201d it. Davis said that injection gives \u201cmore of a high.\u201d She had marks and lines on her hand from injecting cocaine. She obtained some of her money to purchase drugs by stealing clothes and selling them. Davis got high on drugs \u201cmaybe twice a week.\u201d She got high on the T\u2019s and Blues she obtained on July 17,1982, and later returned for more.\nCharles Gunn, an 18-year Maywood police officer, testified that he interviewed Cheryl Davis at the 914 St. Charles Road apartment building at about 1:30 p.m. on July 18, 1982, that Davis told him that she did not know anything and that when he thereafter saw Davis from time to time in Maywood, Davis never told him that she knew anything about the kidnaping and murder.\nThe evidence established that Mctioats \u2019 bullet-riddled body was discovered at about 4 p.m. on July 18, 1982, in a forest preserve. Polk and Cox were arrested later that night. Cox denied any involvement in the offenses and told the officers where and with whom he was at the time the offenses were committed. At trial, Cox denied committing the offenses and presented an alibi, which his witness, Dorothy Harris, corroborated.\nAn issue for the jury to determine was the credibility of the witnesses. Defense counsel requested the court to instruct the jury:\n\u201cYou may consider evidence that a witness was addicted to drugs at the time of the crime in judging that witness\u2019 credibility.\u201d\nDefense counsel stated to the court in support of his request for giving the instruction, \u201c[T]he record is complete with people who have admitted to drugs or ingesting drugs during the time of this occurrence and, therefore, there should be some mention about their credibility.\u201d The assistant State\u2019s Attorney objected to the giving of the instruction, but he failed to assign a basis or grounds for his objection. After stating that it had read the committee notes to Illinois Pattern Jury Instruction, Criminal, No. 1.02 (2d ed. 1981), People v. Phillips and People v. Collins , the court then stated, \u201c[Tjhere will be arguments to the fact, since there was evidence through testimony in the trial that one of them had been taking drugs, one of the witnesses who testified, in their arguments they may argue this.\u201d The court did not otherwise state its reason for refusing the requested instruction.\nIPI Criminal 2d No. 1.02 informs the jury that, \u201c[y]ou are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them. In considering the testimony of any witness you may take into account his ability and opportunity to observe, [his age], his memory, his manner while testifying, any interest, bias, or prejudice he may have, and the reasonableness of his testimony considered in the light of all the evidence in the case.\u201d The committee note to this instruction states, \u201cWhile this instruction contains most of the usual elements of believability, the Committee recognizes that the evidence in a particular case could call for the insertion of additional elements. For example, in a case involving eyewitness identification, the trial judge may add factors such as the witness\u2019 degree of attention at the time of the offense ***. [Citations.] See also People v. Franz (1977), 54 Ill. App. 3d 550, 555, 368 N.E.2d 1091, 1095, where the court held: \u2018An instruction informing the jury that it could consider the evidence that a witness was addicted to drugs at the time of the crime in judging that witness\u2019 credibility would have been proper.\u2019 \u201d IPI Criminal 2d No. 1.02, Committee Note, at 6.\nThe identification of the defendants in the case at bar was a crucial and decisive issue. The defendants contend before this court that the identifications of them by Victoria Green and Pete Green as McCoats\u2019 assailants were tarnished by the unfavorable circumstances at the crime scene where they viewed the assailants. Unlike the witness Cheryl Davis, neither Victoria Green nor Pete Green knew either defendant. The lineup in which they identified the defendants was unusual. Three of the men in the lineup were personal acquaintances and neighbors of Victoria and Pete Green and lived in the same apartment building. This, certainly at least to some degree, adversely affected the credibility of their lineup identifications.\nConversely, Cheryl Davis\u2019 identification of the defendants, according to her testimony, was predicated on her prior knowledge of and personal acquaintance with the defendants. Her testimony furnished the motive for the offenses and the possible means via which the offenses were committed, which also established the defendants as the offenders. Cheryl Davis\u2019 credibility was crucial to the State\u2019s case.\nThe majority holds that the trial court properly refused the tendered defense instruction that the jury may consider a witness\u2019 narcotics addiction in judging that witness\u2019 credibility because \u201cthe evidence at trial did not establish that Cheryl Davis was even a narcotics addict. *** [S]he specifically denied having been a drug addict. Under these circumstances the court was clearly correct in refusing an instruction which suggested that the witness had been proved to be an addict.\u201d\nAs before stated, the State did not express its basis for objecting to the instruction and the trial court did not state its grounds for refusing it. Before this court, however, the State does not urge that the instruction was properly refused because the evidence did not establish that Cheryl Davis was a drug addict. To the contrary, the State admits that Cheryl Davis was a narcotics addict. The State\u2019s brief states, \u201c[I]t was brought out by the witness that she was a drug addict ***. The fact that Ms. Davis was a narcotics addict was openly admitted to the jury during both direct and cross-examination of the witness.\u201d The trial court\u2019s refusal to give the requested narcotics addict instruction therefore cannot be justified on the ground that the evidence did not establish that Cheryl Davis was addicted to drugs or on the ground that she denied being a drug addict. Even if the evidence did not establish that Cheryl Davis was a narcotics addict, her testimony about her drug use warranted the trial court in giving an instruction that the jury may consider the repeated and prolonged use of drugs before and at the time of the crime in determining a witness\u2019 credibility.\nThe trial court\u2019s refusal to give the instruction cannot be properly upheld on the ground that Davis\u2019 drug use \u201chad already been brought out through extensive cross-examination.\u201d Nor can refusal to give the instruction be upheld because the trial judge permitted defense counsel to comment on Davis\u2019 drug use to the jury in closing argument. The defendants had the right, through cross-examination, to bring Davis\u2019 drug use to the jury\u2019s attention. They likewise had the right to comment on her drug use in their argument to the jury. The trial court did not confer any special privilege on the defendants in allowing them to do so. Defendants had the right to have the jury instructed, as a matter of law, that the jury may consider Davis\u2019 drug use in judging her credibility. Defense counsel\u2019s jury argument was not an adequate substitute for an admonition to the jury in an instruction from the court.\nOver 30 years ago, our supreme court was first presented the question of whether a witness\u2019 narcotics addiction was appropriate for the jury to consider in determining the witness\u2019 credibility. In People v. Crump (1955), 5 Ill. 2d 251, 125 N.E.2d 615, Crump was convicted by a jury of a robbery and murder. At trial, an accomplice\u2019s testimony for the State implicated Crump in committing the robbery and murder. The supreme court pointed out that the accomplice\u2019s testimony \u201cwas therefore of great importance. *** If his testimony was fully believed by the jury, it would have had a substantial bearing on the jury\u2019s findings ***.\u201d 5 Ill. 2d 251, 255-56,125 N.E.2d 615.\nAs a ground for reversal, Crump assigned as error the trial court\u2019s sustainment of objections to questions to the accomplice on cross-examination as to whether he was a narcotics addict or user. The supreme court stated, \u201cThe error assigned presents a clear-cut question of first impression in this State as to whether or not an accomplice witness can be property cross-examined as to the witness\u2019s drug addiction for the purpose of impeaching the witness\u2019s credibility.\u201d People v. Crump (1955), 5 Ill. 2d 251, 256, 125 N.E.2d 615.\nThe State conceded before the supreme court in Crump that the questions about the accomplice\u2019s drug addiction were proper, but urged that the trial court\u2019s exclusion of the testimony was harmless because the jury was properly instructed by the court as to the weight to be given an accomplice\u2019s testimony and because the State\u2019s evidence, without the testimony of the accomplice, conclusively established Crump\u2019s guilt. After reviewing authorities from various jurisdictions, the supreme court held:\n\u201cIn State v. Fong Loon, 29 Idaho, 248, 158 Pac. 233, it is stated \u2018Habitual users of opium or other like narcotics become notorious liars. The chronic morphinomaniac is often a confirmed liar \u2014 the truth is not in him. The capacity of a witness to observe and to receive accurate impressions, to retain them in his memory, and to correctly relate them, also his power and inclination to be truthful, are all subjects which to go the credibility of a witness.\u2019\nIn our opinion, the jury was entitled to know whether Tillman, the accomplice witness, was or had been a drug addict or had used narcotics on the day of the alleged crime, it being a very important factor going to the general reliability of his testimony. The refusal of the court in this case to permit cross-examination along such lines was prejudicial and reversible error.\u201d (Emphasis added.) People v. Crump (1955), 5 Ill. 2d 251, 261-62, 125 N.E.2d 615.\nFollowing Crump, the supreme court decided People v. Hamby (1955), 6 Ill. 2d 559, 129 N.E.2d 746. In Hamby, the defendant was found guilty following a bench trial of the unlawful sale of heroin to Vivian Barrymore, an admitted narcotics addict. The evidence established that Barrymore, while under the surveillance of police officers who had searched her and found her to be free of narcotics and who had furnished her with five marked one dollar bills to purchase narcotics, entered Hamby\u2019s apartment, returned and gave the narcotics she purchased from Hamby to the waiting surveilling officers. Discussing the effect of narcotics addiction on a witness\u2019 credibility, the supreme court stated in Hamby:\n\u201cIt is true that Vivian Barrymore was, by her own testimony, a narcotics addict, and that fact has an important bearing upon her credibility. (People v. Crump, 5 Ill. 2d 251, 261.) It is also true that while she was not technically an accomplice (People v. Abair, 102 Cal. App. 2d 765, 228 Pac. 2d 336,) her situation was sufficiently similar to that of an accomplice to warrant close scrutiny of her testimony for that additional reason.\u201d People v. Hamby (1955), 6 Ill. 2d 559, 562, 129 N.E.2d 746.\nIn People v. Boyd (1959), 17 Ill. 2d 321, 161 N.E.2d 311, the defendant was found guilty following a bench trial of selling narcotic drugs. Jeff Andrews and William Dantzler, the two persons to whom the defendant allegedly sold the drugs, were the State\u2019s two principal witnesses. Both witnesses admittedly were former drug addicts. The defendant\u2019s sole contention on appeal for reversal was that because the State\u2019s witnesses lacked credibility, the State\u2019s evidence did not establish the defendant\u2019s guilt beyond a reasonable doubt. The defendant\u2019s conviction was reversed by the supreme court, and in so doing, the court stated:\n\u201cIt is apparent that the judgment of conviction must stand or fall upon the testimony of Andrews and Dantzler. We have previously had occasion to consider the weight to be given the testimony of a narcotics addict who is a police informer. In People v. Hamby, 6 Ill. 2d 559, we held that the fact that a witness is also a narcotics addict has an important bearing upon the credibility of the witness and likewise held that while, technically speaking, a police informer who co-operates with the police to arrange for a sale of narcotics is not an accomplice, the situation of such a witness is sufficiently similar to that of an accomplice to warrant close scrutiny of the witness\u2019s testimony. In People v. Crump, 5 Ill. 2d 251, we quoted with approval the following language from State v. Fong Loon, 29 Idaho 248, 158 Pac. 233: \u2018Habitual users of opium or other like narcotics become notorious liars. The chronic morphino-maniac is often a confirmed liar \u2014 the truth is not in him. The capacity of a witness to observe and to receive accurate impressions, to retain them in his memory, and to correctly relate them, also his power and inclination to be truthful, are all subjects which go to the credibility of a witness.\u2019 \u201d (Emphasis added.) People v. Boyd (1959), 17 Ill. 2d 321, 326, 161 N.E.2d 311.\nJohn Lenier was searched and found to be free of narcotics by Chicago police officers in People v. Bazemore (1962), 25 Ill. 2d 74, 182 N.E.2d 649. The officers gave Lenier $10 in currency after recording the serial numbers. Lenier went to a pool hall and, he testified, purchased narcotics from the defendant. Lenier testified further that he returned to the officers and gave them the narcotics. The officers went to the pool hall to arrest the defendant but did not find him. The defendant was arrested two months later, charged with selling drugs to Lenier and was found guilty.\nThe supreme court stated that the issue presented was whether the uncorroborated testimony of a narcotics addict was sufficient to convict. The supreme court pointed out that because Lenier was admittedly an addict \u201cHe was thus subject to the moral depravity commonly associated with narcotics addiction.\u201d (Emphasis added.) (People v. Bazemore (1962), 25 Ill. 2d 74, 77-78, 182 N.E.2d 649.) Reversing the defendant\u2019s conviction, the court held:\n\u201cWhere, as here, the State\u2019s case rests solely upon the credibility of an admitted narcotics addict, a trial court, and in the final analysis this court, must carefully and closely scrutinize the testimony of the witness. (People v. Boyd, 17 Ill. 2d 321; People v. Hamby 6 Ill. 2d 559.) Although it does not necessarily follow that his testimony must be disbelieved, (People v. Barney, 15 Ill. 2d 503,) the fact that a witness is a narcotics addict has an important bearing on his credibility. (People v. Crump, 5 Ill. 2d 251.) Nor, as the People assert, is credibility affected only when it is shown that the witness was under the influence of narcotics at the time of the occurrence to which he testifies, or at the time of trial. For in addition to the effect addiction may have on capacity of the witness to observe, to receive accurate impressions and to retain them in his memory, the courts may consider, too, the effect of addiction upon the power and the inclination of the witness to be truthful. (People v. Boyd, 17 Ill. 2d 321.)\u201d (Emphasis added.) People v. Bazemore (1962), 25 Ill. 2d 74, 76-77,182 N.E.2d 649.\nIn People v. Phillips (1970), 126 Ill. App. 2d 179, 261 N.E.2d 469, the officers observed the defendant with George Lincoln, whom the officers had previously searched and found free of narcotics and to whom the officers had given $10 in marked and recorded currency. Lincoln testified that the defendant sold him narcotics for the $10, $9 of which was found on the defendant when he was arrested shortly after he departed from Lincoln.\nThe officers testified that the defendant admitted the sale when he was questioned at police headquarters. A jury convicted the defendant and on appeal, one of his assignments of error for reversal was that his tendered instruction on the credibility of the narcotics addict witness (Lincoln) was improperly refused. Lincoln testified at trial that he had not used drugs within six months prior to trial. He admitted using narcotics during the month the events to which he testified allegedly occurred. Although the court stated that an instruction on the credibility of Lincoln was clearly proper, the court held that the defendant\u2019s tendered instruction was properly refused because it incorrectly instructed the jury to find the defendant not guilty if the testimony of the narcotics addict did not convince them beyond all reasonable doubt of the defendant\u2019s guilt.\nThe court pointed out that in determining guilt or innocence, the jury was not confined to a consideration of only the addict\u2019s testimony, but that the jury should also consider all the evidence \u2014 the officers\u2019 corroborative testimony, the defendant\u2019s admission and the recovery of the marked currency from the defendant. The court held that the limiting language of the defendant\u2019s tendered instruction rendered it improper and that the trial court correctly refused it. The court further held:\n\u201cMoreover the court gave a proper instruction on that phase of the case. It instructed the jury that the testimony of an addict is to be scrutinized with great caution and if the jury were to find that a witness was an addict or used narcotics at about the time of the alleged crime, such finding would be an important factor going to the general reliability of the addict. People v. Perkins, 26 Ill. 2d 230, 186 N.E.2d 330; People v. Bazemore, 25 Ill. 2d 74, 182 N.E.2d 649.\u201d People v. Phillips (1970), 126 Ill. App. 2d 179, 187, 261 N.E.2d 469.\nThe trial court in the case at bar should have similarly instructed the jury. It was reversible error for it not to have done so. In refusing the defendants\u2019 tendered instruction, the trial court stated that it had read the Phillips opinion. However, it is apparent from the above stated language in Phillips that the defendants\u2019 tendered instruction in this case that \u201cyou may consider evidence that a witness was addicted to drugs in judging that witness\u2019 credibility\u201d was proper and should have been given.\nThe trial judge also stated in refusing the defendants\u2019 tendered instruction that he had read Collins. There are two Collins decisions, People v. Collins (1977), 48 Ill. App. 3d 643, 362 N.E.2d 1118 (Collins I) and People v. Collins (1977), 51 Ill. App. 3d 993, 367 N.E.2d 504 (Collins II). The trial judge did not specify which Collins he had read.\nIn Collins I, a jury found the defendant guilty of the felony theft of various articles which were in plain view in the defendant\u2019s record shop. The articles had been stolen in numerous residential burglaries. One of the State\u2019s witnesses was addicted to drugs. The defendant tendered a modified IPI Criminal No. 3.17, which inserted the word \u201caddict\u201d in place of \u201caccomplice.\u201d The court stated that \u201cthe tendered instruction sought to inform the jury that the testimony of a narcotics addict should be scrutinized carefully and that the drug addiction is an important factor affecting the addict\u2019s general reliability. A similar instruction in People v. Phillips (1970), 126 Ill. App. 2d 179, 261 N.E.2d 469, was held to be overbroad and properly refused.\u201d People v. Collins (1977), 48 Ill. App. 3d 643, 650, 362 N.E.2d 1118.\nBut the court did not refuse a similar instruction in Phillips. The defendant\u2019s tendered instruction which the court disapproved in Phillips was that \u201c[t]he jury must look upon the testimony of a narcotic addict with great suspicion, and act upon it with great caution, and unless the jury is satisfied from such evidence of the guilt of the defendant beyond all reasonable doubt, it is the sworn duty of the jury to return a verdict of not guilty.\u201d (Emphasis in original.) People v. Phillips (1970), 126 Ill. App. 2d 179,186, 261 N.E.2d 469.\nIt was not because this instruction was \u201coverbroad\u201d that the court in Phillips held that it was properly refused. Rather, the court so held because the instruction directed the jury \u201cto find the defendant not guilty if the testimony of the addict [did] not convince them beyond all reasonable doubt of the defendant\u2019s guilt,\u201d where there was additional evidence to the addict\u2019s testimony for the jury to consider and on which it could find the defendant guilty. The could held in Phillips that it was this \u201climiting language of the instruction in question [which] rendered it improper.\u201d People v. Phillips (1970), 126 Ill. App. 2d 179, 186-87, 261 N.E.2d 469.\nIn Phillips, the trial court gave an instruction practically identical to the refused tendered instruction in Collins I. This instruction was upheld by the appellate court, which stated, \u201cMoreover the court gave a proper instruction on that phase of the case. It instructed the jury that the testimony of an addict is to be scrutinized with great caution and if the jury were to find that a witness was an addict or used narcotics at about the time of the alleged crime, such finding would be an important factor going to the general reliability of the addict.\u201d People v. Phillips (1970), 126 Ill. App. 2d 179,187, 261 N.E.2d 469.\nThe court held in Collins I that the defendant\u2019s tendered instruction that the testimony of a narcotics addict should be scrutinized carefully and that drug addiction is an important factor affecting the addict\u2019s general reliability was overbroad because it would unreasonably single out the testimony of the addict. (People v. Collins (1977), 48 Ill. App. 3d 643, 650, 362 N.E.2d 1118.) This language, however, is irreconcilable with the language in Crump, Hamby, Boyd, Bazemore and Phillips. Those cases held that a defendant has a right via an instruction to single out the testimony of a narcotics addict. Additionally, the court\u2019s language in Collins I that the instruction \u201cwould unreasonably single out the testimony of the addict [witness]\u201d is irreconcilable with IPI Criminal No. 3.17, which singles out the testimony of an accomplice witness.\nThe defendants\u2019 tendered instruction in the case at bar simply told the jury that \u201c[y]ou may consider evidence that a witness was addicted to drugs at the time of the crime in judging that witness\u2019 credibility.\u201d This instruction does not \u201cunreasonably single out the testimony of the addict,\u201d rather, it reasonably and correctly instructs the jury that it may properly consider narcotics addiction in judging a witness\u2019 credibility.\nIn People v. Collins (1977), 51 Ill. App. 3d 993, 367 N.E.2d 504, Collins II, the defendant was found guilty by a jury of the theft of a microwave oven. The trial judge refused the defendant\u2019s tendered instruction that \u201c[y]ou have before you testimony from a witness who admits having been addicted to drugs. The testimony of such a witness is subject to suspicion, and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.\u201d (51 Ill. App. 3d 993, 998, 367 N.E.2d 504.) Rejecting the defendant\u2019s contention that refusal to give this instruction was reversible error, the appellate court summarily stated:\n\u201cIt is the contention of the defendant that the giving of an instruction cautioning the jury against the use of the testimony of a drug addict is required by a reading of People v. Phillips (1st Dist. 1970), 126 Ill. App. 2d 179, 261 N.E.2d 469. This court considered this same issue in the defendant\u2019s appeal of a previous conviction. Therein we determined that the trial court properly refused the defendant\u2019s tendered instruction (People v. Collins (3d Dist. 1977), 48 Ill. App. 3d 643, 362 N.E.2d 1118), and we find nothing in this case which would warrant a different result.\u201d People v. Collins (1977), 51 Ill. App. 3d 993, 998, 367 N.E.2d 504.\nIt should be again noted that the defendants\u2019 tendered instruction in the case at bar did not inform the jury that the testimony of an addict witness is subject to suspicion or should be considered by the jury with caution or that it should be carefully examined. The defendants requested simply that the jury be instructed that it could consider evidence that a witness was addicted to drugs in judging that witness\u2019 credibility. As the court stated in People v. Franz (1977), 54Ill. App. 3d 550, 555, 368 N.E.2d 1091, \u201cAn instruction informing the jury that it could consider the evidence that a witness was addicted to drugs at the time of the crime in judging that witness\u2019 credibility would have been proper. (People v. Phillips (1970), 126 Ill. App. 2d 179, 261 N.E.2d 469.)\u201d\nFor the reasons stated, I am of the opinion that the trial court committed reversible error when it refused the defendants\u2019 instruction. I would therefore reverse the defendants\u2019 convictions and remand the cause for a new trial.\nIt seems that the trial judge was referring to People v. Phillips (1970), 126 Ill. App. 2d 179, 261 N.E.2d 469, and either People v. Collins (1977), 51 Ill. App. 3d 993, 367 N.E.2d 504, or People v. Collins (1977), 48 Ill. App. 3d 643, 362 N.E.2d 1118.", "type": "dissent", "author": "JUSTICE PINCHAM," } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Donald L. Bertell, Assistant Public Defender, of counsel), for appellants.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Patrick J. Foley, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD POLK et al., Defendants-Appellants.\nFirst District (5th Division)\nNo. 84 \u2014 0004\nOpinion filed May 9, 1986.\nPINCHAM, J., dissenting.\nJames J. Doherty, Public Defender, of Chicago (Donald L. Bertell, Assistant Public Defender, of counsel), for appellants.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat and Patrick J. Foley, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0698-01", "first_page_order": 720, "last_page_order": 738 }