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People v. Holland

DECEMBER 28, 1972.




APPEAL from the Circuit Court of Cook County; the Hon. JAMES H. FELT, Judge, presiding.


Defendant was charged with armed robbery. (Ill. Rev. Stat. 1969, ch. 38, par. 18-2.) After a bench trial, he was found guilty and sentenced to five to nine years. Defendant raises five issues on appeal: (1) that the trial court erred in its summary refusal to reconsider defendant's motion to suppress evidence; (2) that the court erred in refusing to suppress an identification; (3) that the court improperly restricted defendant's examination of a witness during the hearing on the motion to suppress the identification; (4) that the court improperly considered evidence of other crimes committed by defendant; and (5) that he was not proved guilty beyond a reasonable doubt.

Certain facts are undisputed. On January 7, 1970, at approximately 5:30 P.M., Adolph Hicks' grocery store was robbed. The cash register was rifled, and a change box and Hicks' wallet were taken. Shortly thereafter, in the immediate area of the robbery, two Chicago police officers observed two men on the sidewalk attempting to conceal something. When approached, the two men fled; the officers gave chase, but the men escaped. During the chase, one of the men dropped an object which proved to be Hicks' change box. Defendant was arrested the following day; Hicks identified him as one of the robbers, and the police officers identified him as one of the men they had pursued.

Prior to trial, the trial court conducted a hearing on defendant's motion to suppress the identification testimony of Adolph Hicks. At the hearing Hicks testified that the day following the robbery, he was called to the police station to view two suspects. At the station Hicks viewed a line-up of six male Negroes of approximately the same age. He recognized and identified defendant as one of the robbers. His identification was made on the basis of defendant's fur coat, hair, face, and a small scar above his eye. Hicks stated that the police did nothing suggestive during the line-up, that he was 74 years old and wore glasses to read.

Officer Andrew Rodack testified at the hearing that after arresting defendant and John Washington he brought them to the police station and called Hicks informing him that a car was being sent to bring him to view a line-up. Defendant and Washington were placed in a line-up of six persons, but only defendant was identified by Hicks. After the testimony of Hicks and Officer Rodack, the trial judge denied defendant's motion to strike Hicks' identification testimony.

At trial, the following testimony was adduced. Hicks testified that defendant and another man entered his grocery store, located at 6358 South Champlain in Chicago. Both men produced guns, and the other man stated, "this is a stickup." Defendant, while pointing his gun, warned Hicks not to move. Defendant then removed $68 from the cash register and took a cash box full of change. Handing these items to the other man, he then forced Hicks to a back room where he took his wallet containing $80. When Hicks resisted, defendant struck him on the side of the head with his pistol. Hicks further testified that, although the back room was not lighted, the front area of his store was well lighted and the back room was thereby indirectly lighted. Hicks stated that defendant was wearing a dark fur coat, but wore neither a hat nor a mask. The robbery took between 10 to 15 minutes. On the same evening, Hicks had his change cash box returned to him by the police. Hicks identified a .25 caliber automatic as appearing to be the gun held by the other man, while he described the gun defendant used as a .25 or .38 caliber blue steel revolver.

Officer Rodack's and Officer Jeffrey Beilke's testimony was substantially the same. As they patrolled Champlain Avenue in their unmarked squad car on January 7, they observed two men walking, one of whom was attempting to conceal an object. When the officers exited their vehicle and identified themselves, the two men split up and took flight. The officers gave chase, but the men escaped. Beilke testified that, while pursuing one of the men in a well-lighted area, the man, about 15 feet from Beilke, looked around several times.

Upon returning to their squad car, the officers received a report of the Hicks' robbery and a description of the two robbers. The men whom they had pursued corresponded to these descriptions.

The following day, while patrolling about six blocks from the robbery, the officers observed defendant and Washington. Officer Beilke recognized defendant as the man he had pursued the previous day. Although Washington corresponded to the description of one of the robbers, the officers could not positively identify him as the other individual whom they had chased. Officer Rodack stated that as the officers approached the men to make the arrests, defendant and Washington each discarded an object. A .25 automatic pistol and a .38 caliber blue steel revolver were found on the ground near the men. The .25 caliber weapon was introduced into evidence at trial; Officer Beilke stated that the other weapon was "returned to a citizen."

Defendant testified that, although he had been in the Hicks' grocery store on previous occasions, he was neither involved in the robbery, nor was he chased by the police on January 7. When he was arrested on January 8, the officers questioned him about the possession of narcotics. Regarding the line-up, defendant asserted that initially Hicks identified another man who was in the line-up after having been arrested for a traffic offense. Defendant further testified that, although he was the only person in the line-up wearing a fur coat, all the members of the line-up were black, between the ages of 22 and 30, and between 5'7" and 5'9". The police did not instruct defendant to wear the fur coat during the line-up.

Officer Rodack testified for the State in rebuttal that initially at the line-up Hicks identified Washington who was arrested with defendant as the second robber; however he was unsure of this identification. The person in the line-up who had been arrested for a traffic offense was selected, not by Hicks, but by another witness on another matter.

• 1 Defendant's initial contention on appeal is that the trial court improperly refused to allow him to renew his motion to suppress evidence. At a preliminary hearing involving the same charge as the instant indictment, a judge heard and denied a motion to suppress the same evidence. When the cause came up for trial, defendant sought to renew his motion to suppress the physical evidence. After hearing argument, the trial judge held that the motion to suppress, having been ruled on, could not be renewed at trial and that he was bound by the determination of the judge at the preliminary hearing. The trial judge reached this conclusion because of a certain amendment to the Code of Criminal Procedure made by the legislature in 1969. Prior to 1969, section 114-12(d) of the Code (Ill. Rev. Stat. ch. 38, par. 114-12(d)), provided as follows:

"(d) The motion [to suppress the evidence] shall be made only before a court with jurisdiction to try the offense and the motion may be renewed if the trial takes place before a judge other than the one who heard the motion."

In 1969 the portion of the above section providing for the renewal of the motion was deleted. This court subsequently implied that the statutory change dispensed with defendant's right to renew his motion to suppress the evidence at trial after its earlier denial at a preliminary hearing. (People v. Theo, 133 Ill. App.2d 684, 273 N.E.2d 498.) Defendant, however, maintains that certain statutory amendments to the Code of Criminal Procedure in 1967 authorized the State to relitigate at trial a motion to suppress which had been granted at a preliminary ...

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