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People v. Ellis

DECEMBER 30, 1974.

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

v.

JOHNNIE L. ELLIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. ROBERT M. BELL, Judge, presiding.

MR. JUSTICE DIXON DELIVERED THE OPINION OF THE COURT:

After a jury trial the defendant was found guilty of armed robbery and sentenced by the Circuit Court of Rock Island County to a term of not less than 4 nor more than 5 years. He appeals contending (1) that the identification procedures denied him a fair trial and (2) that the State failed to prove him guilty beyond a reasonable doubt.

On February 3, 1973, at about 7 A.M., Randy Carnithan, a 17-year-old high-school senior, who was working alone as an attendant on the 12-midnight-until-8-in-the-morning shift at the Clark gasoline service station located on 7th Avenue between 26th and 27th Streets, in the city of Rock Island, Rock Island County, Illinois, was robbed of approximately $40 which he had in his front pocket, and, in addition, about seven rolls of pennies and some loose quarters, dimes, and nickels were taken from a desk drawer.

At the time of trial, Randy Carnithan testified, describing the robber as being a black person, a little shorter than he, and heavier than he, wearing a light overcoat and a purple-colored shirt and colored designs in his pants; that the pants were different colors. The robber's hair was neat, and he had something in his mouth like cotton or a handkerchief stuck up under his lip. The robber was armed with a black revolver, with a barrel 2 or 3 inches long. The man said, "Get in the back room", asked for the money, and upon being given $40 asked if there was anything more, and was told there wasn't. He then told Randy Carnithan to lay down on the floor, which Randy did. The robber then put the money in a brown paper bag, like a lunch bag, which he had in his pocket, closed the door between the front and back room of the service station, and left. When Randy Carnithan heard the front door close, he opened the inner door, ran to the door, looked out and saw the robber running away to the east and behind the gas station. Randy Carnithan then called the police. He saw the robber, whom he identified at trial as the defendant, in the back of the police car about 15 or 30 minutes later and identified the defendant right away as being the robber, without the police asking him anything.

Randy Carnithan testified that the robber did not have a moustache; that at the time the trial was held, the defendant looked the same except for his moustache and clothes.

Randy Carnithan further testified that, when he had called the police station to report the robbery, he said that the robber was black; about 6 feet tall, weighing about 160-165 Ibs., had on a long white coat, purple-color shirt and print colored pants. On cross-examination, Randy Carnithan stated that the robber seemed to weigh 160 to 165, could not have been 260 or 200 or 225 Ibs; that he had neat, short hair; that Randy Carnithan had no trouble seeing the moustache of defendant as shown by a picture taken of the defendant on February 6, 1973.

When Randy Carnithan first identified the defendant as the robber, when the defendant sat in the back seat of the police squad car, he was 6 feet away from him and 3 feet away from the automobile. The defendant at that time did not have cotton in his mouth.

The denomination of the money taken, as testified to by Randy Carnithan, was: quite a few ones; two or three fives, one or two tens, and about seven rolls of pennies.

Freeman Hunter, a butcher employed at the A & P, was waiting in his car in the parking lot of A & P to go to work at 7 A.M. on February 3, 1973. His car was parked facing north. While he sat there, a car went past on his left side, through the parking lot, toward the town of Rock Island, at about 40 to 45 miles per hour. The car had a black top and was goldish, with a dent in the front right fender on the passenger side. It did not stop at the driveway before proceeding out on the street. The car went west from the east. Mr. Hunter did not see the occupants. When he was later shown a car by the police officer, he told him that he was not sure whether or not that was the car. He doesn't know whether he is color blind or not. He is a little bit nearsighted.

Kathryn Wise, the Rock Island police clerk, testified that she took the original complaint over the phone on an IBM card; that the robber's plaid pants were shown on the card in parentheses as being yellow, black, tan, but that is a mistake; that those colors refer to the color of the car. She later that same day typed up the information from the original card on a card, People's exhibit 5, but does not know how long the original cards are kept; that she did not realize that "yellow, black or brown" was the wrong color for the pants, until after it was called to her attention by Detective Coleman before a hearing held in the latter part of May.

Larry Requet, a Rock Island police officer, testified that he was alone in a squad car on February 3, 1973, at approximately 30th Street and 14th Avenue, in Rock Island, when he received a message over the radio that there had been an armed robbery at the Clark service station at 7th Avenue and 27th Street; that he was told to look for a gold-color car with a dent in the fender; that the description of the robber, which he had, was a male Negro, wearing a brown coat, purple shirt and plaid pants. Officer Requet saw a car of that description driven by a person matching this description at 9th Street and 6th Avenue in the city of Rock Island. There were two Negroes in the car. He followed the car, and pulled alongside it at a stoplight to observe the dent in the right side fender. The car he was following, then went to 910 14th Avenue. The driver got out and went in the house for about 30 seconds, and Officer Requet, who had parked his squad car on 14th Avenue, west of 9th Street, went past the car to 10th Street and 14th Avenue, and stopped and waited until the driver came out of the house and got in the car and drove east on 14th Avenue to 10th Street, made a left on 10th Street in front of the squad car, and the squad car followed it. The car headed west on 13th Avenue toward 9th Street, and made a right-hand turn on 9th Street and 13th Avenue, going through a stop sign. Officer Requet followed the car from there to 9th Street and 3rd Avenue, where the car turned east to go to 11th Street and pulled over. Officer Requet testified that he pulled his squad car in behind the car he had been following, and placed the driver under arrest for running a stop sign. Two other squad cars also pulled up there, one driven by Sergeant Ferguson and the other by Hartman. Sergeant Ferguson then got into the squad car with the defendant, Johnnie L. Ellis, and Officer Requet, and they headed east down 3rd Avenue. Sergeant Ferguson advised the defendant orally of his Miranda rights. They then headed for Clark service station, and as they pulled up, the attendant ran out to the car and yelled, "They got him." Officer Requet testified that the attendant, he believes, was yelling to someone else, another attendant. At this point, Sergeant Ferguson, Officer Requet testified, placed the man under arrest for armed robbery. Then Officer Requet testified that he got out of the car and asked the fellow to be positive. He looked in and said, "Yes, this is the man." The defendant was then taken to the police station and booked. People's exhibits 2, 3 and 4 are the clothes taken from the defendant.

On cross-examination, Officer Requet testified that at 7th Avenue and 9th Street he was sure he had the right car, but he was not sure he had the right person until the person got out of the car at 14th Avenue and he saw his clothes. At an earlier hearing, Officer Requet said he didn't make the arrest at that time because he was alone. When Mr. Ellis pulled up in front of the house on 14th Avenue and got out of his car and went into the house, Officer Requet parked his squad car on the same street to watch him, and another squad car, his backup car, pulled up behind Officer Requet. Before Mr. Ellis came out of the house, there were two policemen there, two squad cars. Officer Requet testified that in his squad car, he then followed Mr. Ellis from 9th Street and 13th Avenue to 3rd Avenue and 11th Street, where Mr. Ellis stopped and got out of his car, before Officer Requet arrested him for passing a stop sign at 9th Street and 13th Avenue. The defendant was wearing a hat when he was arrested. Officer Requet testified that he did not see defendant carry anything into the house at 910 14th Avenue.

There is no testimony that any search was ever made of the house into which defendant went, for any evidence from the robbery. At the time of defendant's arrest, he was driving the car and accompanied by another black person. The other person was not placed under arrest. He was left there. Officer Requet testified that Mr. Ellis was taken over to the gas station to see if the victim could identify him. Mr. Ellis was not put in a lineup before he was taken over for Randy Carnithan to see him. Officer Requet testified that he does not know if there were any fingerprints taken from the cash drawer or any other part of the gas station. There were no other black persons in the squad car other than Mr. Ellis at the time that Mr. Carnithan said "They got him." He doesn't know if Mr. Ellis was wearing a hat at the time the police pulled in in the squad car. Sergeant Ferguson was in the back seat with Mr. Ellis. Mr. Boyd, who was with the defendant at the time of defendant's arrest, did not fit any description that Officer Request had received concerning this armed robbery. Officer Requet testified that the reason he did not make an arrest before he did was that he was waiting instructions from his Sergeant, Ferguson, who was behind him. He was in radio contact with him.

On redirect examination, Officer Requet testified that he was not afraid when he was alone at the time he saw the defendant leave the car and enter the residence, but he didn't want to get hurt, and he wasn't sure ...


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