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People v. Turner

APRIL 24, 1974.

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

v.

WILLIAM TURNER ET AL., DEFENDANTS-APPELLANTS.



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

MR. JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

William Turner, James H. Green, and Bobby Davis were found guilty in a bench trial of two counts of armed robbery. Turner was also found guilty of unlawful use of a weapon. Davis and Green received 5-to-8-year concurrent sentences on the robbery counts. Turner was sentenced to concurrent terms of 6 to 12 years for armed robbery and 1 to 5 years for unlawful use of a weapon.

James H. Green and William Turner have brought the present appeal. The issues presented for our review are whether the identification of Green was sufficient to establish his guilt beyond a reasonable doubt and whether the sentences imposed by the court were excessive.

The trial testimony established that, at approximately 1:15 A.M. on December 19, 1971, three men entered a tavern at 3000 South Canal. One of the men carried a sawed-off shotgun and the other two were armed with revolvers. After emptying the cash register of its contents, the three men herded the patrons toward the rear of the tavern. One of the patrons, Carmen Megaro, said that he was hit over the head with a gun when he moved slowly. Another patron, Willard Olson, stated that he slipped out of the tavern and called the police from a nearby house.

Carole Diehl testified that, 5 minutes prior to the robbery, she went outside the tavern to get her dog from the car and saw a white Ford 1961 to 1964 station wagon with large taillights parked in front of her car. According to Mrs. Diehl, three males were sitting in the car.

Police Officer Charles Parrillo testified that he responded to a robbery in progress call and arrived at the tavern by approximately 1:22 A.M. The officer obtained a description of the three men and the station wagon observed near the tavern and then sent a flash message to other police cars located in the zone that three males believed to be in a white Ford station wagon, year 1961 to 1964, with large taillights, were wanted for armed robbery.

Police Officer Dennis McGuire testified that he stopped a vehicle which matched the description of the station wagon in the flash message at 51st Street and Princeton at about 1:25 A.M. According to Officer McGuire, a revolver was found in the right coat pocket of the driver, whom the officer subsequently identified as defendant James H. Green. The officer identified defendants William Turner and Bobby Davis as the other occupants of the station wagon. A sawed-off shotgun and one expended shell were taken from the station wagon.

Police Officer Edward Knizer testified that he was patrolling in the squad car with Officer McGuire when they stopped the station wagon in which the defendants were riding. The officer further stated that he observed a shotgun on the front seat when Turner exited from the station wagon. According to Officer Knizer, five shotgun shells were found on Turner, and a cigar box containing some money and checks were recovered from the station wagon.

At trial, Leo Janush, the owner-bartender of the tavern, identified William Turner as the man who carried the shotgun during the robbery. Janush testified further that the cigar box recovered from the station wagon looked like the one taken from his tavern and that a check found inside the cigar box was one he had cashed earlier for a patron.

Carmen Megaro identified Turner as the man who hit him on the head with the shotgun. Turner was also identified as a participant in the robbery by Robert Neuman, Carole Diehl, and James Diehl, all of whom were tavern patrons present during the robbery. Neuman also identified Bobby Davis as a participant in the crime.

James Diehl was the only tavern patron who identified James H. Green. Diehl testified that he asked Green's permission to hold his dog during the robbery so that the dog would not be shot and Green replied, "Yes, hold the dog." Diehl further stated that Green was armed with a gun during this conversation, that Green then jumped behind the bar, pointed the gun at Janush and demanded the cash. Janush replied that he didn't have it, according to Diehl, and Green then came back around the bar and ordered everyone to the rear of the tavern.

Defendants contend in this appeal that the evidence identifying Green as a participant in the robbery was insufficient to establish his guilt beyond a reasonable doubt. They note that Green was identified by only one eyewitness, James Diehl, and argue that it is "likely" Diehl was focused upon the gun pointed at him and the safety of his dog rather than the characteristics of the assailant.

• 1 It is well settled in Illinois that the testimony of one witness is sufficient to convict provided that the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. People v. Stringer (1972), 52 Ill.2d 564, 569, 289 N.E.2d 631, 634; People v. Brinkley (1965), 33 Ill.2d 403, 406, 211 N.E.2d 730, 732; People v. Washington (1962), 26 Ill.2d 207, 210, 186 N.E.2d 259, 261; People v. Mack (1962), 25 Ill.2d 416, 421, 185 N.E.2d 154, 156; People v. Cox (1961), 22 Ill.2d 534, 539, 177 N.E.2d 211, 214.

Our review of the record in this case reveals that the testimony of the sole identifying witness, James Diehl, was consistent and unimpeached. The witness had an ample opportunity to view the accused since Diehl testified that he had a brief conversation with Green and that he observed the defendant climb across the bar, point a gun at Janush, demand money and then come back around to the other side of the bar. According to Diehl, he was less than 2 feet away from Green when these events occurred. Moreover Diehl's ability to observe was supported by ...


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