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People v. Kinzie

AUGUST 18, 1975.




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


The defendants, Bennie Kinzie and Jerry Winn, were convicted of robbery after a bench trial and sentenced to the Illinois Department of Corrections for two to eight years.

Shortly before midnight on June 12, 1973, Robert Jackson left Sportsman's Park Race Track in Cicero where he was employed as a cashier. He was carrying approximately $200 in cash as he approached his car in the parking lot which was well lighted. His car was a 1973 green Chevrolet, license plate number BP 8227. As he attempted to put his key in the door lock, two men approached him from the front, and one of them said, "This is a stick-up." The light in the parking lot reflected on their faces. Jackson later identified both defendants as the two men. The defendant, Winn, was holding a "shiny object" in his hand. Suddenly, Winn put his arm around Jackson's neck and threw him to the ground; then Winn "rammed his knee" in Jackson's ribs more than once and proceeded to choke him. Jackson was almost rendered unconscious, and both men went through his pockets. They took $200 in cash, his wrist watch and car keys; they then drove off in Jackson's car leaving him lying on the ground. The entire robbery, according to Jackson's estimate, took approximately five to ten minutes.

Minutes later, Officers Swanson and Vrtis of the Chicago Police Department were in a squad car at 4450 West 26th Street, approximately one mile from Sportsman's Park Race Track, when they observed a 1973 Chevrolet approaching from the rear without headlights. The Chevrolet passed the squad car, and Officer Vrtis observed the two occupants. The officers followed the Chevrolet and signaled the driver to pull over. After traveling several more blocks, the Chevrolet slowed down and its two occupants alighted and fled in opposite directions. Swanson pursued the passenger of the Chevrolet on foot coming within six to eight feet of him before losing him in an alley. Swanson later identified the defendant Winn as the passenger whom he had chased. Swanson put out a radio call that he needed assistance and was in pursuit of a male Negro in the vicinity of 25th Street.

Officer Richard Oswald and his partner were in a police car at 25th and Kostner when they heard Swanson's radio message. About a minute later, Oswald saw the defendant Winn running through a gangway southbound, approximately one-half block from the location of the radio call for assistance. Oswald placed Winn under arrest and took him to Swanson's squad car.

In the meantime, Officer Vrtis arrested the driver of the Chevrolet after a chase of "a matter of seconds." The man he apprehended was the defendant Kinzie. The license number of the 1973 Chevrolet that they had followed was BP 8227. Kinzie was searched and Jackson's wrist watch was found in his pocket. No weapons nor any money were recovered from either defendant.

Approximately 12 hours later, Jackson identified both defendants in a line-up consisting of three black males at the Cicero police station.

Neither defendant testified; but two witnesses testified that Winn was in a restaurant at 4134 West 16th Street in Chicago and left between 11:45 p.m. and midnight.

• 1 The defendants first contend that they were not proved guilty beyond a reasonable doubt. The evidence against Kinzie is overwhelming. The evidence against Winn consists of identification by Jackson as the man who robbed him, the identification by Swanson as a passenger in Jackson's car, and the arrest by Oswald as Winn was "running through a gangway" a short distance from the stolen car. Although Winn submitted two alibi witnesses, the trier of fact was not required to believe them. (People v. Huey, 17 Ill. App.3d 245, 249, 307 N.E.2d 767. Both defendants were proved guilty beyond a reasonable doubt.) People v. Scott, 20 Ill. App.3d 880, 314 N.E.2d 671.

The defendants also contend that the suggestive line-up procedures employed by the police, the failure to make a photographic record of the line-up and the State's failure to name or call any officer present for the line-up were circumstances that denied the defendants due process of law.

• 2 The burden of proving that a pretrial line-up procedure is unfair rests with the defendants. (People v. Blumenshine, 42 Ill.2d 508, 511, 250 N.E.2d 152.) When Jackson was asked if the police told him they had the two men that had robbed him, he testified: "They said they had a line-up for me to look at and see if I could pick them out, which I did." This case is factually inapposite to People v. Lee, 54 Ill.2d 111, 295 N.E.2d 449, cited by the defendants, in which the police called the witness and told him they "had the guys who did it. Come on down and identify them." When the witness arrived at the police station, the defendant was brought in handcuffed to a suspect whom the witness had previously identified.

• 3 People v. Irons, 20 Ill. App.3d 125, 312 N.E.2d 664, is a clear answer to the defendants' contention that the three-man line-up containing the two defendants was in and of itself impressively suggestive. The court said (20 Ill. App.3d 125 at 129):

"Here, it is true that only one other man appeared in the line-up with defendants, but a line-up is not rendered defective or prejudicial merely because of its numerical composition or the manner in which it is conducted as such matters go ...

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