{ "id": 5540457, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL KELLY, Defendant-Appellant", "name_abbreviation": "People v. Kelly", "decision_date": "1980-09-30", "docket_number": "No. 78-1202", "first_page": "400", "last_page": "406", "citations": [ { "type": "official", "cite": "89 Ill. App. 3d 400" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "316 N.E.2d 121", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill. App. 3d 747", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5378485 ], "pin_cites": [ { "page": "750" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/21/0747-01" ] }, { "cite": "307 N.E.2d 188", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "16 Ill. App. 3d 1006", "category": "reporters:state", "reporter": "Ill. 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App. 3d 133", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5640980 ], "pin_cites": [ { "page": "142" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/50/0133-01" ] }, { "cite": "390 N.E.2d 571", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "72 Ill. App. 3d 239", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5581869 ], "year": 1977, "pin_cites": [ { "page": "243" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/72/0239-01" ] }, { "cite": "98 S. Ct. 411", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1979, "opinion_index": 0 }, { "cite": "54 L. Ed. 2d 287", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "434 U.S. 927", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6431553, 6431714, 6432426, 6432203, 6432076, 6432528, 6432753, 6432854, 6431959, 6432633, 6431835, 6432956, 6432317 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/434/0927-01", "/us/434/0927-02", "/us/434/0927-08", "/us/434/0927-06", "/us/434/0927-05", "/us/434/0927-09", "/us/434/0927-11", "/us/434/0927-12", "/us/434/0927-04", "/us/434/0927-10", "/us/434/0927-03", "/us/434/0927-13", "/us/434/0927-07" ] }, { "cite": "364 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "67 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811436 ], "year": 1977, "pin_cites": [ { "page": "8" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0001-01" ] }, { "cite": "396 N.E.2d 595", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill. App. 3d 791", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3290519 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0791-01" ] }, { "cite": "408 N.E.2d 1150", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "87 Ill. App. 3d 142", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179607 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0142-01" ] }, { "cite": "329 N.E.2d 504", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "28 Ill. App. 3d 784", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5406831 ], "pin_cites": [ { "page": "785" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0784-01" ] }, { "cite": "325 N.E.2d 336", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill. App. 3d 691", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2783339 ], "pin_cites": [ { "page": "703" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/0691-01" ] }, { "cite": "258 N.E.2d 793", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 227", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895978 ], "pin_cites": [ { "page": "236" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0227-01" ] } ], "analysis": { "cardinality": 843, "char_count": 15847, "ocr_confidence": 0.896, "pagerank": { "raw": 9.461155342754756e-08, "percentile": 0.5174824864306761 }, "sha256": "4eff8145816e9875105bbf68850349de25333d5cbfbbf174aa0d4e099f6b2348", "simhash": "1:22e45922b207b5ee", "word_count": 2635 }, "last_updated": "2023-07-14T20:16:28.821099+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. RUSSELL KELLY, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE HARTMAN\ndelivered the opinion of the court:\nDefendant was charged by information with armed robbery under section 18\u20142 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 18\u20142). Following a jury trial he was convicted of the lesser included offense of robbery and was sentenced to a term of 6 years in the penitentiary. His appeal raises as issues whether he was proved guilty beyond a reasonable doubt and whether the trial court abused its discretion in responding to a question tendered to it by the jury. For the following reasons, we affirm.\nThe State\u2019s evidence revealed that on August 11, 1977, at 3 a.m. one James Campana, employed by the Belmont Hotel, was sitting at a desk located behind a counter on the first floor working on books. He felt something being sprayed into his face and observed defendant and another identified as Allen Tinsley, in front of him. Tinsley was spraying a substance from a canister into his face while jumping over the counter, and defendant was standing right next to him. One of the men announced that it was a robbery. While defendant restrained Campana, Tinsley went to the money drawer under the counter. After his assailants left, Campana went into the back room and telephoned the police; he then checked the money drawer and found $54 missing. When the police arrived he went outside to meet them and observed defendant, Tinsley and two others being placed in a squadrol. He observed scratch marks on the lock of the hotel doors which had not previously been there.\nPursuant to a radio report of an armed robbery in progress at the Belmont Hotel, two officers in a squadrol arrived at that location at 3:05 to 3:07 a.m., one standing at the front door while the other went around to the side. When the latter shouted that \u201cthey\u2019re getting away,\u201d the first one picked up his partner in the squadrol and gave chase to a 1970 maroon Chevrolet automobile containing four occupants, including defendant and Tinsley, which had left the scene at a high rate of speed. Curbing the vehicle at Belmont and Cambridge, police ordered the occupants out of the car and placed them in a squadrol. Fifty-four dollars in cash was found in the car. Defendant and the others were then returned to the Belmont Hotel, where Campana identified defendant and Tinsley as the two men who robbed him. After being given Miranda warnings, Tinsley informed the police that he had thrown the canister in the grass. It was later found and placed in evidence as People\u2019s Exhibit No. 1.\nInvestigator Gary Baranowski testified that on August 11, 1977, at about 3:30 a.m. he talked with defendant, whom he identified in court, and Tinsley. After receiving Miranda warnings, defendant told Baranowski that he and another entered the Belmont Hotel and approached the desk clerk. While his accomplice sprayed Mace into the clerk\u2019s face, jumping over the counter at the same time, defendant assisted by jumping over the counter and holding the victim while the other took money out of the cash register, whereupon both fled from the hotel.\nDefendant testified on his own behalf that on August 11,1977, at 2:30 a.m., after playing pool with William Klee and Larry McKeown at Bensinger\u2019s Pool Room at Clark and Diversey, they met Tinsley, an \u201cacquaintance\u201d whom defendant had seen about twenty times during the last four or five months. Tinsley asked Klee to drive him to a friend\u2019s apartment in the Belmont Hotel, so that he could pick up some clothes. Defendant, Tinsley, McKeown and Klee, in a 1970 Chevrolet, drove to the hotel where Klee parked the car westbound in an alley. Tinsley asked defendant to go with him to help in carrying the clothes. Defendant and Tinsley entered the hotel through the front door, which Tinsley opened. Defendant was not sure how he opened it but believed he used a key.\nTinsley started running towards the desk, defendant stated, and he also walked towards the desk to see what was happening. He observed Tinsley spraying something from a canister into the victim\u2019s face. During this time defendant remained standing on the outside of the desk. He heard Tinsley say it was a \u201cstick-up\u201d and saw him knock the desk clerk to the floor. Defendant then left through the side door and went straight to the car. He told Klee that Tinsley was robbing the hotel, and that he wanted him to drive away at once. Klee argued about leaving without Tinsley, who then came running around the corner and jumped into the car. Tinsley told Klee what he had done and that they should leave. Defendant was sitting in the front seat. They drove westbound on Belmont Avenue until they were curbed by the police and ordered out of the car at Cambridge Street.\nDefendant testified that one of the policemen, Officer Alex Horstein, walked up to him and said, \u201cnow I got you.\u201d He had been arrested for attempt burglary by that officer in March of 1977 and was placed on probation. After that proceeding defendant saw Horstein on the street and when defendant told him he was on probation, Horstein told defendant not to give him a reason to arrest him or he would put him in the penitentiary. Defendant denied making any statement to police regarding the incident at the Belmont Hotel.\nDefendant\u2019s motion for a directed verdict was denied and the jury found defendant guilty of the lesser included offense of robbery. While presentence investigation was being discussed, defendant was held in contempt for vulgar language directed at the court and jury and sentenced to 5 months and 29 days for contempt. Defendant\u2019s motion for a new trial was denied, and he was sentenced as first noted above.\nDefendant claims that the State failed to establish his guilt beyond a reasonable doubt, focusing on the evidence of his inculpatory statements to Investigator Baranowski and James Campana\u2019s testimony regarding his involvement in the crime. He posits a reasonable doubt that the statements were ever made, pointing to testimony of Officer Richard Simon, one of the arresting officers, at the preliminary hearing held five days after the occurrence, that defendant \u201crefused to make a statement.\u201d The question to which Officer Simon was responding, however, was whether defendant had made any statement \u201cto him\u201d; the explanation of his response given by Simon at trial emphasized he had meant only that defendant had made no statement to him personally. He also relies on Investigator Baranowski\u2019s failure to testify at that hearing, where evidence that defendant made a confession to him would have been probative of probable cause, suggesting that the investigator was attesting to a manufactured story at trial. Defendant also assigns Baranowski\u2019s initial confusion as to defendant\u2019s identity at the hearing on the motion to suppress as an additional reason supporting his thesis. There is no evidence supporting defendant\u2019s imputation of false witness to Baranowski except his own uncorroborated testimony; even accepting it arguendo, it fails to account for why the same testimony could not as easily have been given at the preliminary hearing as at the suppression hearing or at trial, or why the ostensibly manufactured confession evidence could not have been tailored to allow one of the officers present at the earlier hearing to offer it. The jury had the responsibility to determine the weight and credibility of confession evidence (People v. Bernette (1970), 45 Ill. 2d 227, 236, 258 N.E.2d 793), and to resolve conflicts in the evidence (People v. Dee (1975), 26 Ill. App. 3d 691,703,325 N.E.2d 336). Baranowski\u2019s initial failure to recognize defendant visually nine months after his initial contact with him does not cast such doubt upon his substantive testimony as to preclude reliance thereon by the fact finder.\nDefendant argues James Campana\u2019s trial testimony that defendant restrained him during the robbery was directly contradicted by his testimony at the preliminary hearing, when he had said \u201c[defendant] didn\u2019t do anything or say anything.\u201d The latter statement was made in response to a question which, by defense counsel\u2019s own quotation of it at trial, was addressed to what defendant was doing \u201cduring the time [he was] being sprayed by the other individual [Tinsley].\u201d Campana emphasized on redirect examination that it was \u201cat the beginning\u201d defendant was inactive. Any contradiction in Campana\u2019s respective accounts of defendant\u2019s involvement was therefore partial and equivocal at most. His trial testimony that defendant subdued him while Tinsley took the money was corroborated by Investigator Baranowski, who stated defendant confessed to doing exactly that. The infirmities urged by defendant in the relevant evidence of both witnesses are insufficient to render it a nullity.\nDefendant suggests that mere presence at the scene of a crime does not make a person accountable for the criminal acts of another (People v. Banks (1975), 28 Ill. App. 3d 784, 785, 329 N.E.2d 504); however, proof of a common design can be drawn from the circumstances surrounding commission of the act (People v. Gray (1980), 87 Ill. App. 3d 142, 408 N.E.2d 1150; People v. Mertens (1979), 77 Ill. App. 3d 791, 396 N.E.2d 595). Even disregarding the evidence of defendant\u2019s active restraint of Campana, the jury could have inferred his participation in the crime from the character of his presence and other attendant circumstances, including his affiliation with Tinsley and the others in the group (People v. Morgan (1977), 67 Ill. 2d 1, 8, 364 N.E.2d 56, cert, denied (1977), 434 U.S. 927, 54 L. Ed. 2d 287, 98 S. Ct. 411; People v. Crutcher (1979), 72 Ill. App. 3d 239, 243, 390 N.E.2d 571; People v. Cole (1977), 50 Ill. App. 3d 133, 142, 365 N.E.2d 133). We find no basis for reversal on this ground.\nDefendant\u2019s second argument is that the trial court abused its discretion in responding to the following question submitted by the jury during its deliberations:\n\u201cSome of us believe there was a significant discrepancy in the testimony of the victim. Some believe he did not place Mr. Kelly behind the counter a few days after the occurrence. But, said he was behind the counter several months later. Others believed you ruled no inconsistancies [sic] * * *. Does this mean the victim claimed Mr. Kelly was behind the counter at the first hearing and at this trial and it is, as I understand \u201d \u00b0\nMention in that question of a ruling that there were \u201cno inconsistencies\u201d apparently referred to an in camera determination during the trial that a certain \u201cquestion sought to be posed was not inconsistent\u201d; there was, therefore, no ruling on a point of law .of which the jury needed to be apprised. Acknowledging the trial court correctly determined it could not answer the jury\u2019s question directly without encroaching on their role as fact finder, defendant avers nevertheless that, by failing to instruct the jury that inconsistencies in the testimony were for them to determine and that any prior ruling by the court was not relevant to their deliberations, the court allowed them to make one of at least three \u201cimpermissible inferences\u201d: that it refused to answer the question because there were no inconsistencies in Campana\u2019s testimony; that it had ruled on the facts but simply refused to tell the jury what its ruling was; or that the question posed was irrelevant to defendant\u2019s guilt or innocence. Thus, he concludes, the jury\u2019s initial confusion evident in the question was aggravated as to the \u201ccrucial factual area\u201d of defendant\u2019s involvement in the crime as reflected in Campana\u2019s trial and prior testimony.\nThe perimeters of the trial court\u2019s authority in responding to inquiries from the jury were traced by our supreme court in People v. Queen (1974), 56 Ill. 2d 560, 565, 310 N.E.2d 166, which held that it was within the trial court\u2019s discretion to allow or refuse a jury\u2019s request for a review of testimony. Error occurs when a trial court refuses to exercise discretion in the erroneous belief that it has no discretion as to the question presented. (People ex rel. Chesapeake & Ohio Ry. Co. v. Donovan (1964), 30 Ill. 2d 178,195 N.E.2d 634.) The trial court remarked to counsel that \u201cthe jury is seeking answers which calls [sic] for facts which the court is not called upon to decide but rather it is in the province of the jury; that the court feels that a response should be given to the jury * * and observed \u201cthat there is no transcript available of the testimony that was adduced.\u201d In response to the jury\u2019s question, the court gave the following answer in writing: \u201cThe court has carefully considered your request for information set forth in your question and does refuse the request * * \u00b0. Kindly continue with your deliberations.\u201d Defendant objected to this answer. Defendant maintains the trial court\u2019s remarks suggest a belief that it could not give the jury any guidance, even as to matters properly the subject of instruction. Our reading of the trial court\u2019s comments is otherwise. The court simply revealed that it felt precluded only from resolving a factual issue. Insofar as the information requested by the jury involved such an action, the court could not in any event have erred by supposing it had no discretion to provide it. People v. Williams (1975), 60 Ill. 2d 1,12-13, 322 N.E.2d 819.\nThe kernel of defendant\u2019s argument appears to be, however, that irrespective of what it felt to be within its discretion the court was required to provide the jury with supplementary instruction that did not answer the question posed directly but dispelled any confusion evinced by it. In People v. Callahan (1974), 16 Ill. App. 3d 1006,1007, 307 N.E.2d 188, the defendant assigned error to the trial court\u2019s failure to respond to irrelevant jury questions because \u201cthey indicated confusion and an instruction should have been given to clear up their confusion.\u201d No abuse of discretion or reversible error was found to have occurred where the jury was simply reminded that they had already heard all the pertinent evidence and received instruction in the applicable law. In the case at bar no such reminder accompanied the court\u2019s refusal to answer the question, but the jurors had already been instructed at length that they were to be the sole judges of the credibility of the witnesses and the weight to be accorded their testimony, and that \u201c[ejvidence that on some former occasion a witness made a statement inconsistent with his testimony in this case may be considered by you in deciding the weight to be given to the testimony * \u2022 \u00ab \u201d Defendant\u2019s position in this respect must therefore necessarily be that it was error for the trial court not to reiterate instruction that had already been given; while such a course of action might have been helpful to the jury, it was not an abuse of discretion to simply refuse to answer an improper question and direct them to continue their deliberations. In People v. Briggman (1974), 21 Ill. App. 3d 747, 750, 316 N.E.2d 121, relied upon by defendant, the jury requested a review of a crucial part of the testimony, not, as here, the resolution of a factual inconsistency, and the court replied that \u201c \u2018there is no answer to the question.\u2019 \u201d We find Briggman inapposite to the instant circumstances.\nIn light of the foregoing considerations, defendant\u2019s conviction by the jury cannot be disturbed and is affirmed.\nAffirmed.\nSTAMOS and DOWNING, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE HARTMAN" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Kathleen War-nick, and Susan Ruscitti Grussel, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. RUSSELL KELLY, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 78-1202\nOpinion filed September 30, 1980.\nJames J. Doherty, Public Defender, of Chicago (John Lanahan, Assistant Public Defender, of counsel), for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Kathleen War-nick, and Susan Ruscitti Grussel, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0400-01", "first_page_order": 422, "last_page_order": 428 }