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People v. Mcelroy

OCTOBER 18, 1965.




Appeal from the Circuit Court of Cook County, Criminal Division; the Hon. HERBERT R. FRIEDLUND, Judge, presiding. Affirmed.

MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT. After a jury trial, defendant, Olee McElroy, was found guilty of armed robbery and was sentenced to the penitentiary for a term of from three to six years. On appeal, defendant contends that the evidence was insufficient to prove him guilty beyond a reasonable doubt. Defendant also complains of (1) the refusal of the court to instruct the jury on evidence of prior good character; (2) the striking of relevant evidence relating to defendant's alibi on the ground that the same was an effort to impeach his own witness; and (3) the court's abuse of discretion in failing to give the jury an adequate opportunity to compare defendant's handwriting exhibits.

On February 29, 1964, at 5:30 p.m., three armed men entered an A & P grocery store at 5833 South Wentworth Avenue, in Chicago. There were about 20 customers in the store, of whom about eight were in the area of the four check-out counters. As the first armed man entered, a store guard, Willie Stevenson, observed him from the back as he passed swiftly through the second or third check-out aisle and proceeded toward the manager's office. Stevenson saw the man's face for five to ten seconds from a distance of about six feet. Then a second man pressed a gun at his head from the rear and said, "Don't move." As Stevenson turned to his right, he noticed a third man at the door, with a sawed-off shotgun pointed toward him and the customers in the store. Stevenson was ordered to lie on the floor by the latter two men, who took his revolver and the cash from four cash registers. He was then ordered to the rear of the store, where he remained until the men left.

A woman customer, who was standing about seven feet east of the manager's office, heard the first man say, "All right, all right." She recognized the voice and turned and looked at him. He was walking toward her, and she looked at his face first. He was looking right at her. She also saw that he had a gun. She stood there momentarily, and then saw the defendant kick open the door to the office and heard him say, "You had better not push the alarm." She then ran to the back of the store because she thought he had recognized her.

The first man entered the manager's office and held the manager, Henry Eklund, and the bookkeeper, Marion Brunner, at gun point. He stood face to face with Eklund, about a foot apart. Eklund opened the safe at his direction, and the man emptied it of its cash contents and left. The three men were in the store from five to fifteen minutes, and when they ran out, no one pursued them or observed their flight. The woman customer then told the manager and the police that she had known the first armed man for over two years and by the name of "Boone." He was a waiter at Fred's Tavern at 1015 East 43rd Street.

On the evening of the robbery, the woman customer and Willie Stevenson, escorted by police officers, proceeded to Fred's Tavern at 1015 East 43rd Street. When the defendant came in, the customer heard him say to a bartender, "I made a piece of change today." After a given signal by her, defendant was taken into custody. The police officers searched defendant, the tavern premises and defendant's living quarters at 4413 South Ellis Avenue and found no gun or money. Neither did they find outer clothing similar to that described as worn by the defendant at the time of the robbery. Later that night defendant was placed in a "line up" at the police station and viewed by the store manager, the bookkeeper and Stevenson, the guard, and of these three who viewed the line up, Stevenson was the only one who identified the defendant.

At the trial, the State's witnesses consisted of (a) the woman customer and the private guard, both of whom identified defendant; (b) the store manager, who was unable to identify defendant beyond stating that he "resembles the man who was in the cage"; and (c) the arresting police officer, who testified that he was present at the tavern when defendant entered, and that he heard defendant say to one of the bartenders, "I made a touch of some money," or words to that effect.

The defense witnesses included (a) the defendant; (b) a hotel clerk; (c) a police officer who interrogated defendant at the police station subsequent to his arrest; (d) defendant's employer, who testified that defendant's general reputation for truth and veracity was good; and (e) two fellow employees (bartenders), who denied hearing him say to them, "I just made me some money today," or words to that effect.

Initially, we consider defendant's contention that the evidence was insufficient to establish his guilt beyond a reasonable doubt. Defendant argues that the certainty of the identification of the two State's witnesses was diminished because (a) Eklund, the store manager, had at least five minutes to observe the man in his office and "could not identify McElroy as the robber but significantly testified that defendant resembled the robber. Marion Brunner viewed the lineup the next morning at 3:00 a.m. and was unable to identify defendant as the robber. The State failed to call her as a witness"; (b) the descriptions given by the woman customer, the guard and the manager differ as to defendant's appearance and clothing worn at the time of the occurrence; and (c) four or more cashiers and check-out personnel and eight customers at the check-out counters did not view the lineup and did not testify. These persons were at the front of the store facing the three armed men and had a greater opportunity for observation of the men than the woman customer and Stevenson, and "the failure of the state to call these witnesses is positive evidence for the accused. So too is it evidence in favor of the accused that Eklund and Brunner did not identify defendant." Cited is People v. Kidd, 410 Ill. 271, 102 N.E.2d 141 (1951), where the court said (p 278):

"The unfavorable circumstances under which this witness was able to view and identify McClellan must . . . be considered in the light of the testimony of the other prosecution witnesses who were unable to identify him although given a more favorable opportunity to view the perpetrators of the crime."

[1-3] As argued by the State, "Positive identification by one witness, who has ample opportunity for observation, may be sufficient to support a conviction" (People v. Mack, 25 Ill.2d 416, 421, 185 N.E.2d 154 (1962)), and minor discrepancies in testimony do not destroy the credibility of eyewitnesses but only go to the weight to be given the testimony, and in the instant case, "these alleged discrepancies were fully brought out before the jury, whose function it was to determine the credibility of the witness." People v. Morgan, 28 Ill.2d 55, 62, 190 N.E.2d 755 (1963).

As to identification, the woman customer testified that for a period of about a month during the two years she had known defendant, she had seen him at Fred's Tavern every night. She had gone to a hotel with him, the last time being in 1963. She further testified that she had seen him three weeks before the robbery, and at that time they were "on friendly terms as always," and "I have no doubt in my mind that the defendant is the person I saw in that A & P on that day."

Stevenson, the guard, testified in detail as to the robbery. On the evening of the robbery, he went to a tavern on 43rd Street. "Close to 9:00, if not after, I saw a person come in the tavern whom I had seen earlier that day. . . . this gentlemen in court today. When he came in, I was sitting still and Officer Seaberry was there. Seaberry was standing behind me. I looked at him and nodded my head and he walked away. I nodded my head in a `yes' manner." Stevenson also identified defendant in the lineup at the police station.

We conclude the positive identification of defendant as one of the three men who committed the robbery, by the customer and Stevenson, the guard, was based upon "ample opportunity for observation."

Defendant testified that he lived at 4413 South Ellis Avenue, about two blocks from the tavern, in a room in the basement. At about 2:00 p.m., he left home and went to Fred's 1015 Club, and he met a girl whom he had seen in the tavern two or three times. The girl's first name was Jean, and she was married. He did not know her last name or her address. They talked and drank until about 5:00 p.m., and walked to the Mercury Hotel at 800 East 44th Street. He registered at the hotel, signed a registration card, paid the clerk, Rita Wheat, $2.50, and went with Jean to room 203. He and Jean remained in the room until 9:30 p.m. He turned in his key and walked Jean to a southbound bus. He then walked to the tavern on East 43rd Street, where he changed clothes and ...

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