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People v. Tolefree

SEPTEMBER 25, 1973.

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

v.

ROGER TOLEFREE ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County, the Hon. LOUIS B. GARIPPO, Judge, presiding.

MR. JUSTICE HAYES DELIVERED THE OPINION OF THE COURT:

Indictment No. 69-2689 charged Roger Tolefree and James Williams with the crime of armed robbery in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1967, ch. 38, sec. 18-2). After a trial before a jury, both defendants were found guilty. Tolefree, who was free on pretrial bond on another unrelated robbery indictment at the time of the commission of the instant offense, was sentenced to a term of not less than five nor more than twenty years in the penitentiary. Williams, who had prior felony convictions for armed robbery, rape, and unlawful use of weapons, was sentenced to a term of not less than eight nor more than twenty years. Both defendants appeal.

At around 1:00 A.M. on the morning of 13 June 1969, a tan 1962 or 1963 Chevrolet automobile with a blue door on the driver's side pulled into a Clark service station at 5200 S. Western Avenue in Chicago. The man sitting in the front passenger seat of the automobile asked the attendant, Harry Kapitanek, to check the oil. As the attendant was doing so, the same man, who was wearing a dark slipover jacket and was later identified as defendant Tolefree, approached the attendant with a small revolver in his hand. Tolefree ordered the attendant into the station and called to the driver of the vehicle. The driver was wearing a gold shirt and was later identified as defendant Williams. Williams was armed with a .45 caliber pistol. Inside the station, the two assailants took the attendant's money, money belt, and money changer. Before they left, Tolefree hit the attendant over the head with his weapon, injuring him, but not rendering him unconscious. As the assailants were leaving, they picked up a number of cartons of Kool cigarettes. A subsequent inventory showed that seven cartons had been taken.

The police were summoned to the service station shortly after the robbery. Upon their arrival, the attendant gave them a detailed description of the automobile used by the assailants and of the items taken in the robbery, but described the assailants themselves merely as "two coloreds". Thereafter, one of the police cars was dispatched to take the attendant to a hospital to receive treatment for his scalp wound.

At approximately 1:40 A.M., a police officer driving a police patrol car observed a tan Chevrolet with a blue door on the driver's side run a stop light at 22nd and Kedzie. The vehicle was proceeding north on Kedzie. The officer pursued the vehicle and, while he was doing so, he received a radio communication describing the vehicle involving in the robbery. The officer called for assistance, and with the help of two other squad cars succeeded in stopping the fleeing vehicle. The occupants were ordered out of their car, after which the officer saw a .45 caliber automatic and a .22 caliber revolver on the front seat. The .45 caliber was closer to the driver's side while the .22 was closer to the passenger's side. On the back seat were approximately seven cartons of Kool cigarettes together with a coin changer on a belt. The driver of the car was defendant Williams, and the passenger, defendant Tolefree.

As the service station attendant was being driven to the hospital, he was asked over the police car radio whether he was able to come to the police station first. He said that he was. Upon arriving at the police station, and while he was still outside, the attendant saw police officers take two men into the station. He could see only that the arrested men were two "coloreds", but could not see who they were. He admitted that he overheard a police officer say that the two were suspects in his case. After the police decided that there would be some delay in arranging a lineup, the attendant was taken to the hospital for treatment.

After having received six stitches in his head and some medication, the attendant was returned to the police station at about 2:30 A.M. Upon his return to the police station, the attendant gave a description of he clothing worn by his two assailants, and told where each man was seated in the automobile and which man held which weapon. Thereafter, he was taken to view a lineup of four black men, from among whom he immediately identified Tolefree and Williams.

Defendant Tolefree, testifying in his own behalf, stated that he had been at a pool hall until shortly before 1:00 A.M. on the morning of 13 June 1969. After leaving the hall, he found a dice game in a hallway a few doors from the pool hall. The game had gone on for a short time when the players were joined by two men not known to Tolefree, but known to others in the group as "Big Red" and "Henry". Tolefree stated that he had won the cartons of cigarettes and the money changer from those two men in the dice game. Tolefree then testified that Big Red told him where he might sell the cigarettes at that hour and loaned him his (Big Red's) car to go there.

While on the way to the suggested location, Tolefree testified that he saw defendant Williams leaving an elevated train station. He asked Williams if he would like a ride and if he (Williams) would like to drive the car. Shortly thereafter, they were stopped by the police. Tolefree testified that, as Williams applied the brakes, the two guns slid from under the front seat of the car. They picked up the guns, laid them on the seat, and then obeyed the police order to get out of the car.

OPINION

Defendants' first contention is that their in-court identification was tainted by a suggestive lineup. They argue that the victim of the robbery (the service station attendant) was unable initially, to describe his assailants to the police. Defendants predicate this argument on the victim's testimony that he did not initially give to the police a detailed physical description of the two assailants. They further argue that the lineup was tainted because the victim may have seen the defendants at or in the police station before the lineup.

• 1 The burden is upon the defendants to establish that the circumstances attending the lineup were so suggestive as to give rise to a very substantial likelihood of irreparable misidentification. (People v. Pagan (1972), 52 Ill.2d 525, 288 N.E.2d 102; People v. Brown (1972), 52 Ill.2d 94, 285 N.E.2d 1.) We cannot say from an examination of this record that this burden has been sustained.

• 2 The record does not show that the victim was unable to describe the assailants, but rather that he was not asked to do so at the time of the initial interview with the police, at the service station. Because the assailants had left the scene of the crime in a tan automobile with the distinctive characteristic of a blue door on the driver's side, the police may well have believed, at that point, that a quick location of the automobile would be more likely to result in the arrest of the offenders than would their physical description. Another factor is that the victim was bleeding from his head wound. The police may well have thought that, since they had such a detailed description of the assailants' car, a detailed description of the assailants could wait until after the victim had received medical attention. Later, at the police station, the victim described the clothing worn by the assailants, the seat location of each person within the car, which one held the .45 automatic, and which one held the small caliber revolver. It is clear that the victim had an adequate opportunity to observe defendants at the service station prior to and independent of the lineup, which opportunity was itself sufficient to support the victim's in-court identification of defendants. (See, People v. Hayes (1972), 52 Ill.2d 170, 287 N.E.2d 465; People v. Catlett (1971), 48 Ill.2d 56, 268 N.E.2d 378.)

We find no merit in defendants' argument that the lineup was impermissibly tainted because the witness may have seen defendants at or in the police station before the lineup. On cross-examination, the victim testified that, while he was outside the police station, he saw the police bring in two persons and overheard a police officer say that the two were suspects in his case. The victim, however, could not see who those two persons were. He could only see that they were two "coloreds". Such a coincidental observation, if indeed those persons were the defendants, is not so likely to taint the witness' lineup identification or to demonstrate a police effort toward creating a suggestive lineup procedure as to call for reversal. (People v. Canale (1972), 52 Ill.2d 107, 285 N.E.2d 133.) The victim immediately identified the two defendants from among the four black men in the lineup.

Defendants next contend that the prosecutor's closing arguments were prejudicial in two instances. The first alleged impropriety was in the ...


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