{ "id": 2807787, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD LEWIS, Defendant-Appellant", "name_abbreviation": "People v. Lewis", "decision_date": "1976-05-20", "docket_number": "No. 60731", "first_page": "995", "last_page": "1000", "citations": [ { "type": "official", "cite": "38 Ill. App. 3d 995" } ], "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 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 461", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405143 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0461-01" ] }, { "cite": "187 N.E.2d 694", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. 2d 533", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356307 ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0533-01" ] }, { "cite": "340 N.E.2d 171", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "34 Ill. App. 3d 570", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2961126 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/34/0570-01" ] }, { "cite": "290 N.E.2d 691", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. App. 3d 299", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2761221 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/8/0299-01" ] }, { "cite": "305 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 127", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2515939 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/16/0127-01" ] }, { "cite": "285 N.E.2d 242", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 129", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2468968 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0129-01" ] }, { "cite": "263 N.E.2d 840", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "46 Ill. 2d 348", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2899528 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-2d/46/0348-01" ] }, { "cite": "228 N.E.2d 106", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "83 Ill. App. 2d 466", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2557763 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/83/0466-01" ] }, { "cite": "90 N.E.2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "405 Ill. 281", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2628356 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/ill/405/0281-01" ] } ], "analysis": { "cardinality": 636, "char_count": 10029, "ocr_confidence": 0.829, "pagerank": { "raw": 2.578325915116221e-07, "percentile": 0.8169437677640665 }, "sha256": "fc22ba29629f26cb08ea7d5fe96da94c8f1b5ceacadd4c2e551e7356fc52afc7", "simhash": "1:ba91f0ff701287bb", "word_count": 1723 }, "last_updated": "2023-07-14T15:32:42.628819+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 LEWIS, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE DEMPSEY\ndelivered the opinion of the court:\nThe defendant, Bernard Lewis, was indicted for the offenses of attempt murder (Ill. Rev. Stat. 1973, ch. 38, par. 8 \u2014 4, 9 \u2014 1) and aggravated battery. (Ill. Rev. Stat. 1973, ch. 38, par. 12 \u2014 4(b)(1).) A jury found him guilty and he was sentenced from 6 to 18 years in the penitentiary. He appeals this conviction, contending that the trial court erred in excluding proffered testimony and that the prosecutor\u2019s misconduct deprived him of a fair trial.\nMelvin Hicks, 18 years old, was shot in the back by Lewis and permanently paralyzed. He testified that on January 16, 1973, he was visiting his grandfather who lived in an apartment building located at 4120 South Prairie Avenue, Chicago. As he was waiting for an elevator to go to his grandfather\u2019s apartment he was approached by Lewis who said: \u201c[P]unk, where is my money?\u201d Hicks asked Lewis how much money he owed him and Lewis replied, \u201c$10.00.\u201d Hicks offered him $3. Lewis refused to accept this amount, so Hicks put the $3 back in his pocket. Lewis then grabbed Hicks by the collar and a fight ensued.\nBoth men landed several punches with Hicks striking the last blow which caused Lewis to stagger backwards. Hicks stood his ground for a few moments and as he did so he saw Lewis reach into his pocket; but he then turned his back on Lewis and walked toward the elevator.\nWhile he was walking away he was warned by Catherine Larrue, who had witnessed the fight, that Lewis had pulled out a gun. Hicks looked over his shoulder, saw the weapon and began to run. Larrue and two other residents of the neighborhood, Shirleen Brown and Curtis Williams, saw Lewis stretch out his right hand and fire the gun in Hicks\u2019 direction. Hicks tripped and fell face forward. While he was lying on the ground, Lewis walked up to him, shot him in the back and ran away.\nLarrue and Williams aided Hicks, and Williams called the police. The police searched the area where Lewis had fled, but did not recover the weapon used in the shooting. Lewis was arrested that evening in his father\u2019s apartment in the same building. The officer who made the arrest testified that Lewis admitted fighting with Hicks but denied shooting him.\nLewis repeated the admission and the denial at his trial. He also denied having a weapon in his possession. He stated that he saw Hicks, whom he knew from seeing him entering and leaving the building, as he got off an elevator. Hicks asked him for money and when he refused to give him any, a fight started during which Hicks grabbed his shirt, punched hm in the eye and knocked him against a wall where he stumbled and fell. He said the fight lasted about five minutes and took place in the presence of three or four youths. As he was trying to pick himself up, he heard two shots. Immediately after hearing the shots, his girlfriend, Linda Webster, came to his aid and the two of them ran up the stairway to his apartment. He said that he attempted to phone the police, but could not because the line was busy and the police arrived just a few minutes later.\nThe trial court would not allow Lewis to testify that Hicks was a member of a street gang and would not allow him to relate that portion of his conversation with Hicks that carried an implication of gang membership. In a conference with the court, the defendant\u2019s attorney said that Hicks was a member of a gang known as the Disciples, and that he and other gang members had threatened Lewis. The attorney argued that such testimony was relevant because the fist fight was the result of Hicks\u2019 attempts to coerce Lewis into joining the gang.\nWe believe that the court was correct in excluding direct testimony of gang involvement, but incorrect in excluding Lewis\u2019 version of the conversation. A trial court has the right to refuse evidence which will serve no useful purpose or which is incompetent to prove a material issue. (Stenwall v. Bergstrom (1950), 405 Ill. 281, 90 N.E.2d 778; Dinschel v. United States Gypsum Co. (1967), 83 Ill. App. 2d 466, 228 N.E.2d 106.) Evidence of gang membership is admissible only if there is sufficient proof to show that such membership is related to the crime charged or if the evidence of membership has probative value in reference to an issue properly in dispute. (People v. Hairston (1970), 46 Ill. 2d 348, 263 N.E.2d 840; People v. McMurray (1972), 6 Ill. App. 3d 129, 285 N.E.2d 242.) The ultimate issue in this case was whether Lewis shot Hicks. Lewis did not try to justify the shooting, he denied it. Therefore, Hicks\u2019 alleged gang affiliation was immaterial to the ultimate issue. On the other hand, both the victim and the defendant testified that the dispute started over money owed by one or the other, and since Hicks had been allowed to testify fully about the conversation, Lewis should have been permitted to do so too.\nAdditionally, the court would not permit Lewis to testify why he ran from the scene of the crime. This was a mistake. Since evidence of Lewis\u2019 flight could be considered with all the other evidence tending to prove his guilt, he should have been given the opportunity to explain his reason for running away. People v. Montgomery (1973), 16 Ill. App. 3d 127, 305 N.E.2d 627.\nLewis, however, was not harmed by either ruling. He was able to testify, before an objection was sustained to further testimony on the subject, that when he encountered Hicks after getting off the elevator, Hicks demanded the dues he said Lewis owed to \u201cthe gang.\u201d Similarly, in reference to his fleeing, Lewis testified on cross-examination that he ran up 14 flights of stairs to his parents\u2019 apartment because he feared for his life. And his friend, Linda Webster, who basically corroborated his story of the shooting, testified that they fled because of the two shots they heard. Thus, despite the court\u2019s earlier exclusions, Lewis was able to get before the jury testimony which implied that Hicks was a member of a gang and that he was collecting for it, and he was also able to explain to the jury his reasons for running away.\nThe contention that the conduct of the prosecutor deprived the defendant of a fair trial, is concentrated on allegedly prejudicial remarks made by him during his closing argument. We will not consider those to which no objection was made nor those to which objection was sustained. The former are deemed to be waived (People v. Weaver (1972), 8 Ill. App. 3d 299, 290 N.E.2d 691) and sustaining objections to the latter cured their minor impropriety.\nIn his argument the prosecutor stated that the police department\u2019s crime laboratory was not called into the case because \u201cthis kind of shooting would not leave powder burns.\u201d This comment was not based on evidence and was therefore improper, however it was far from prejudicial.\nLinda Webster, the defendant\u2019s girlfriend, did not substantiate his story of the shooting until she appeared as his witness, although the shooting had taken place more than a year before the trial and she had had various opportunities to talk to police department investigators. In commenting upon her veracity the prosecutor said:\n\u201cA girlfriend, Linda Webster, sat on that witness stand and told you that here she is up in the apartment just witnessed a shooting, there are policemen coming up to the apartment. She also finds out that her boyfriend is being charged with the shooting and she doesn\u2019t bother to tell anybody, any of the policemen around that her boyfriend couldn\u2019t have done the shooting because she is picking him off a wall when the shooting happens. She waited a year and a half for this spectacular piece of information just to be given to you twelve jurors as she took the stand. That is ridiculous, she is a liar, there are no two ways about that.\nDefendant\u2019s attorney: Objection.\nThe court: Argument.\nThe prosecutor: She lied on that witness stand.\u201d\nIt is not reversible error for a prosecutor to say that a witness lied if his statement is founded on the evidence. (People v. Clark (1975), 34 Ill. App. 3d 570, 340 N.E.2d 171.) The prosecutor\u2019s characterization, while harsh, was not without an evidentiary basis.\nThe defendant\u2019s most strenuous criticism is directed to the prosecutor\u2019s repeated references to Hicks\u2019 paralysis. Despite the fact that the defense stipulated that Hicks was permanently paralyzed, the prosecutor commented upon his physical condition seven times during his closing argument. The defendant argues that this was nothing more than an impermissible appeal to the sympathy of the jury. The extent of Hicks\u2019 injury was relevant to the crimes for which the defendant was on trial, attempt murder and aggravated battery (People v. Coolidge (1963), 26 Ill. 2d 533, 187 N.E.2d 694) but the severity of his injury was not in issue and the repetitious references to his condition were uncalled for.\nEvery defendant, regardless of the nature of the proof against him, is entitled to a trial that is free from improper comments that engender prejudice. (People v. Stock (1974), 56 Ill. 2d 461, 309 N.E.2d 19.) However, where it appears that the improper remarks do not constitute a material factor in the conviction, or that prejudice to the defendant is not their probable result, the verdict will not be disturbed. We do not believe that the cumulative comments deprived the defendant of a fair trial or were a factor in his conviction. There was no evidence\u2014 although Lewis sought to intimate as much \u2014 that Hicks was shot by some third person. Three disinterested witnesses saw Lewis shoot Hicks and the proof of his guilt was overwhelming.\nThe judgment is affirmed.\nAffirmed.\nMcNAMARA and McGLOON, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE DEMPSEY" } ], "attorneys": [ "Adam Bourgeois and Allan A. Ackerman, both of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Kevin Sweeney, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BERNARD LEWIS, Defendant-Appellant.\nFirst District (3rd Division)\nNo. 60731\nOpinion filed May 20, 1976.\nAdam Bourgeois and Allan A. Ackerman, both of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon and Kevin Sweeney, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0995-01", "first_page_order": 1023, "last_page_order": 1028 }