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People v. Porter

JUNE 24, 1975.




APPEAL from the Circuit Court of Madison County; the Hon. VICTOR J. MOSELE, Judge, presiding.


This is an appeal by the defendant, David Paul Porter, from a judgment of conviction entered on a jury verdict of guilty to the offense of armed robbery by the circuit court of Madison County and the imposition of a sentence of not less than 4 nor more than 6 years' imprisonment.

The issues raised on appeal are: (1) whether the defendant was proven guilty beyond a reasonable doubt where his conviction allegedly "turned upon the identification of only one witness, who had but a fleeting opportunity to observe the robber leaving the store"; and (2) whether "the trial court erred in precluding the defendant from eliciting testimony concerning a subsequent robbery at the same store."

The undisputed facts which gave rise to the charges in the instant case were as follows. At approximately 8:40 P.M. on February 12, 1974, the Farm Fresh Store in Alton, Illinois, was the subject of an armed robbery. The proprietor, Mrs. Geraldine Mueller, was alone in the store when a young white male with a "sock hat" entered the store, pulled out a gun, and ordered her to remove the money from the cash register and place it in a paper sack. Once the money was placed in the sack, the perpetrator ordered Geraldine Mueller to turn around, keep her head down, and stay that way for "a few minutes." Geraldine Mueller complied with these commands. She heard the door to the store open and close, and then open again a few seconds later. She looked up and saw that Lester Graham, a regular customer, had entered the store. She yelled that she had been robbed and Graham gave chase. Mildred Leonard, a store employee, entered the store a "second" after Graham had left in pursuit of the fleeing felon.

Lester Graham testified that he came to the store at approximately 9 P.M. on Friday, February 12, 1974. As the witness approached the corner of the building a car pulled up at the other end of the building carrying Mildred Leonard, a store employee. The witness then testified:

"At this point the car drove up and someone came out the door. He came out the door and turned toward the car hesitated and turned back toward me and came this way. And as he started coming back toward me, he took about three steps and noticed me and sort of hesitated."

After he hesitated:

"He just kept coming but he speeded up and as he came out here, he made like he was going across Milton Road and turned his head to me and then came back around behind me, and as he came behind me, I turned and looked at him and he was looking at me."

The witness testified that this subject came within "[t]hree, four, [or] six feet" of him. The witness also testified that he viewed the subject's face for "About five seconds, maybe ten" in an area that was "very well lit." The witness did not know the store had been robbed at the time he viewed the subject exit from the store. The witness was able to describe the subject's clothing, "a blue stocking cap, dark pants, a blue and white navy CPO jacket" and the subject's general physical characteristics, "five, ten, had brown hair" and "a pointed chin," to the police.

Edgar McClary, an Alton police officer, testified that he observed the defendant exit an establishment called the Red Bird Smoke Shop around 11 or 11:30 P.M. on February 12. The defendant drove off in a car with three other individuals. Officer McClary stopped the car because the defendant fit the description of the robber of the Farm Fresh Store. The officer acquired the name and address of the defendant and then released him pending further investigation.

As a result of Officer McClary's information a picture of the defendant was obtained. According to James Casper, another police officer, he took 10 photographs to Graham's house on February 14. Graham "thumbed through" the photographs and indicated that the second or third photograph depicted the man he had observed outside the Farm Fresh Store. Graham testified that he was shown three photographs, one of which he identified. Graham had previously viewed numerous photographs but was unable to identify any; nor was he able to identify either of the two suspects the police had picked up on the night of the armed robbery.

David Whipple, an Alton police officer, arrested the defendant on February 16, 1974. At the time of his arrest, the defendant was wearing a blue and white (or gray) "CPO" jacket. This jacket was retained by the police as evidence.

Officer McClary conducted a lineup on February 19, 1974. Both Geraldine Mueller and Lester Graham viewed the lineup. While Mrs. Mueller was unable to make an identification, Lester Graham identified the defendant as the man he had seen outside the Farm Fresh Store on the night in question. The defendant was not wearing the "CPO" jacket during the lineup proceedings.

At the trial Lester Graham again identified the defendant as the person he observed exiting from the Farm Fresh Store on the night in question. He also identified the "CPO" jacket the police had taken from the defendant as the same jacket he had observed on the man who had exited the Farm ...

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