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People v. Trice

JULY 21, 1970.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

JAMES E. TRICE (IMPLEADED), ROBERT L. FAIR (IMPLEADED, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. MEL R. JIGANTI, Judge, presiding. Affirmed.

MR. PRESIDING JUSTICE MCCORMICK DELIVERED THE OPINION OF THE COURT.

These appeals are from convictions for armed robbery. After a jury trial both defendants were sentenced; Robert Fair to three to fifteen years in the Illinois State Penitentiary, and James Trice to two to ten years.

On December 20, 1967, William Minor was working his paper route on the south side of Chicago. At about 6:00 p.m. he noticed two men following him, so he turned into a hallway of a building and rang some doorbells in an unsuccessful attempt to gain entrance to the building. Defendant Trice followed him into the building, after which defendant Fair entered and placed a pistol against Minor's head. Fair then put the gun in his pocket and the three walked to an adjoining gangway, where the defendants took a watch, jacket, gloves and $3 from Minor. They then gave him instructions as to how long he should remain and what he should tell the police. Minor immediately reported the robbery and gave the police a general description of the men.

Two days later, when Minor was sitting in a restaurant at about 5:00 p.m., he saw the two defendants walking past the restaurant. He ran outside to a police car parked two doors away, informed the officers of the robbery and said he thought he had just seen the men who robbed him. After driving with the police to a place near the defendants, Minor stayed in the car while the officers walked over to the two men. When they returned to the car Minor identified the defendants as the men who had robbed him. He further identified the coat and gloves defendant Trice was wearing as those which were taken from him in the robbery. A search of the two defendants revealed that each had a .22-caliber starter pistol in his possession. At the trial Minor identified People's Exhibit No. 2 — the pistol recovered from Fair — as similar to the one used in the robbery.

On June 6, 1968, a jury was impaneled for the joint trial of Fair and Trice, but no evidence was heard that day. The following morning Trice was absent from court. A defense motion for a continuance on the ground of his absence was denied, and a hearing was then held on the joint motion of the co-defendants to suppress the pistols seized at the time of the arrest. That motion was denied. On that same day the State put Minor on for direct examination, and defense counsel began his cross-examination.

Trice was present on the next court date and presented a motion for mistrial because of the ex parte nature of the proceedings of the last court date. The motion was denied and the trial proceeded. Both men were found guilty of armed robbery.

Both defendants argue that they were not proved guilty beyond a reasonable doubt, and that the prosecutor's closing argument was so prejudicial as to require reversal. Defendant Trice also argues that he was denied his right to appear and defend in person and to confront the witnesses, and that it was error to have admitted into evidence the pistol taken from him. Defendant Fair argues that the record does not substantiate the use of a "dangerous weapon," one of the elements of the crime of armed robbery.

Both defendants argue that they were not proved guilty beyond a reasonable doubt because they were not properly identified as the assailants. Defendant Fair argues that the only eyewitness to the robbery — William Minor — offered identification testimony which was thoroughly impeached through his testimony at the preliminary hearing; and that his testimony must therefore be considered so vague and uncertain that the conviction must be reversed.

At the trial Minor testified unequivocally that Fair was the second man to walk into the well-lit hallway, and that he stood just one foot from him when putting the gun to his head. He also stated that Fair did not camouflage his face when he entered the hallway, and added that "as he came over to my right side he passed in front of my face." Minor testified that when the defendants took him into the gangway which was "fairly well lit," Fair "squatted down so that his face was about one foot from mine," and told Minor that if anyone asked him he was to say that he had been robbed by the Blackstone Rangers.

Defendant Fair's contention is that Minor's identification of Trice was impeached and that, therefore, his entire testimony concerning identification of either party should be rejected. However, we must consider that a reversal on the basis of testimony offered concerning a co-defendant could only prevail where the State's evidence was shown to be so unbelievable that none of the testimony could be accepted. That situation does not appear in the instant case, and Minor's identification of Fair was clear and convincing.

The pockmarks on Fair's face were the only feature which Minor admitted he did not recall and had not testified to. It is impossible for us to attach any great importance to this fact without knowing more about the size and nature of the marks. We cannot reverse a conviction simply because a witness fails to account for every detail of the appearance of his assailant. Minor testified that Fair did not attempt to cover his face when he stood one foot from him and put a gun to his head, and that when Fair kneeled next to him Minor got another look at him. The jury was justified in basing the conviction upon such testimony.

Trice's complaint regarding Minor's identification of him is far more direct. He argues that a comparison of the testimony given by Minor at the preliminary hearing with his testimony at the trial is conflicting with regard to the identification of Trice. He urges that Minor was impeached at the trial through use of the preliminary hearing proceedings when he said he never saw the first man's face — the man he now claims was Trice.

At the trial Minor identified Trice as the first man to enter the hallway when he said, ". . . the defendant Trice walked into the hallway with his hand over his hat and his head bowed. He had on a long grey coat and a blue hat. There was a light on in the hallway at that time. I saw Mr. Trice's face when he first entered the hallway." Later in his testimony Minor said, "Trice told me to stop looking at him." He also added, referring to the incident in the gangway, "Trice then stooped down so that his face was about one foot from mine and told me to lie there for ten minutes and to turn my head the other way."

On cross-examination, defense counsel made much of the testimony Minor had given at the preliminary hearing when he said, "See, what it was, he told me [referring to Trice] don't look at them. The first time when I do a little like that he slapped me like that and said don't look at him, and I just turned my head down like that. He started taking me in the gangway like this." This is consistent with his testimony at the trial that "Trice told me to stop looking at him." At the preliminary hearing, again referring to Trice, Minor said, "Yes, I seen them as they were approaching the hall as they were coming in. He had came in with his head down like that [indicating], with his hat and hand over it like that ...


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