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People v. Mccray

JUNE 13, 1973.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

DEZELL MCCRAY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.

MR. JUSTICE ADESKO DELIVERED THE OPINION OF THE COURT:

Defendant, Dezell McCray, was charged with robbery. Following a bench trial, defendant was found guilty and sentenced to four years probation, the first nine months of probation to be served in the House of Correction. On appeal defendant contends that:

(1) The single identification of the defendant was vague;

(2) The victim's highly emotional state precluded adequate observation of the offender;

(3) One-man showup of defendant while in police custody denied him due process of law; and

(4) The trial court failed to consider his alibi.

On February 23, 1971, at 9:00 P.M., Mrs. Antoinette Brannigan drove her car into her garage. As she got out of the car she noticed a man standing near the doorway. Mrs. Brannigan testified that the man stood facing her two feet away. She further testified that the man pushed her to the ground and crouched over her for several minutes with his face directly over her face. She testified that she screamed as the assailant was choking her with one hand and trying to pull down her underclothes with the other. Suddenly the assailant got up, took Mrs. Brannigan's purse from the car and fled. The purse was later found at 1048 West Garfield Boulevard. In further testimony, Mrs. Brannigan stated that the lighting conditions in the garage were very good. Mrs. Brannigan viewed approximately ten photographs and picked out defendant's picture. Later, Mrs. Brannigan went to the police station and positively identified the defendant as the assailant. Defendant lived at 1052 West Garfield Boulevard, which is next door to where the stolen purse was found.

Allen Smith, a defense witness, corroborated defendant's alibi testimony that they were at the Amber Lounge when the robbery occurred. Smith also testified that defendant wore a moustache and goatee on February 23, 1971.

• 1, 2 Defendant's first contention on appeal was that his identification by a single witness was vague. Positive identification by a single witness who had ample opportunity for observation is sufficient to support a conviction. (People v. Clarke, 50 Ill.2d 104, 110, 277 N.E.2d 866.) The cases relied upon by the defendant (People v. Marshall, 74 Ill. App.2d 483, 221 N.E.2d 133; People v. Martin, 95 Ill. App.2d 457, 238 N.E.2d 205; People v. Kincy, 72 Ill. App.2d 419, 219 N.E.2d 662 and People v. Reed, 103 Ill. App.2d 342, 243 N.E.2d 628) differ significantly from the case at bar. In Marshall, Kincy and Reed, the witnesses did not have a chance to, or failed to observe, the face of the perpetrator of the offense. In Martin the lighting conditions were poor at the site of the crime and the witness described one of the defendants as being about 5 feet 7 inches tall, while the defendant in question was actually 6 feet 4 inches tall.

In the case at bar, the complaining witness had an excellent opportunity to view the assailant's face during the robbery. Mrs. Brannigan testified that the lighting conditions in the garage were very good. She stated that the two overhead garage lights were on when the robbery took place. She also testified that the robber stood facing her two feet away and that she stared at her assailant's face for the few minutes he was on top of her.

Defendant and Smith testified that defendant had a moustache and goatee at the time the robbery occurred. Mrs. Brannigan testified that her assailant was clean shaven. This conflict in testimony over whether defendant had a moustache and goatee at the time of the robbery is a credibility question for the trier of fact. (People v. Jones, 4 Ill. App.3d 888, 891, 282 N.E.2d 273.) Furthermore, this is just one of the factors to be taken into consideration in analyzing the identification.

We find that the identification testimony of the complaining witness was clear and positive and therefore could not characterize defendant's identification by this witness as vague or uncertain.

Defendant's second contention on appeal was that the victim's highly emotional state precluded adequate observation of the offender. Upon reviewing the record we find that there is no evidence to support this contention.

• 3-6 Defendant's third contention on appeal was that the one-man showup of defendant while in police custody denied him due process of the law. In People v. Sanders, 5 Ill. ...


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