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People v. Mays

OPINION FILED MAY 14, 1976.

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

v.

TERRY GENE MAYS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Rock Island County; the Hon. CHARLES J. SMITH, Judge, presiding.

MR. PRESIDING JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Defendant Terry Mays appeals from a conviction of uttering a forged instrument, following a jury trial, and he was sentenced as a result to serve a term of 2 to 6 years in the penitentiary (Ill. Rev. Stat. 1975, ch. 38, par. 17-3(a)(2)).

On appeal in this court defendant contends that the indictment was insufficient to charge the crime of forgery; that he was deprived of due process when the prosecution withheld information favorable to him; and that the evidence failed to prove, beyond a reasonable doubt that he was the person who passed the forged instrument.

From the record it appears that a check was drawn on the account of Jane Miller of East Moline in the amount of $55, payable to Eagle Discount Center. The check was presented at an Eagle Food Store in Moline by a young man at about 6 p.m. on May 28, 1974, purportedly signed by Jane Miller. When the cashier questioned the check, the young man told her that he was buying a case of Pepsi for his boss and that she had given him the check. The store's co-manager was called in and he asked to see some identification. The man produced a draft card bearing the name of Sammie Ralston and at the direction of the co-manager, the young man signed the check with that name as co-maker on the front and as an endorser on the back. Both of the store employees had several minutes to observe the man in good light and at close range.

Several days later the check was returned. Jane Miller contended she had not written the check nor authorized anyone else to write it. She subsequently told police that the check was one of a book of 25 checks which was missing. At the trial, Sammie Ralston appeared and testified that his wallet (including his draft card) was stolen sometime in May 1974. He testified that he did not sign the check and said that while the imitation of his signature on the back was fair, the one on the front of the check did not look like his writing at all.

A few days after the incident, police showed pictures of six or seven persons to the store employees. The cashier immediately identified a 6-year-old picture of the defendant, Mays, while the co-manager could not make an identification. Thereafter the police showed the two witnesses the same group of pictures and substituted a recent picture of defendant for the old one. This time both the cashier and the co-manager picked out the defendant's picture. The co-manager also later made identification again from a second set of photographs. In addition to the photographic identification, both witnesses positively identified the defendant at the trial. An FBI agent testified also that three fingerprints identified as those of defendant, were found on the back side of the check.

Jane Miller, on whose account the bad check was drawn, testified that defendant was her boyfriend and was living with her at the time of the incident. She testified that Mays had been with her during the afternoon and evening of the day in question, although apparently between 4 and 8 p.m. he was in a neighboring apartment.

The principal argument made by defendant was that the evidence was insufficient to identify him as the person who passed the forged check. He points to discrepancies and contradictions in original descriptions given by the store employees as to his characteristics and to the suggestive nature of the photographic identification procedures. He also asserts that his alibi was not impeached.

• 1 The general rule for evaluating the identification evidence and a conflicting alibi has been stated in People v. McGee (1961), 21 Ill.2d 440, 444, 173 N.E.2d 434, and in People v. Gardner (1966), 35 Ill.2d 564, 571, 221 N.E.2d 232, to the effect that:

"In a criminal case it is incumbent upon the prosecution to prove beyond a reasonable doubt not only the commission of the crime charged but also its perpetration by the accused. * * * And while the identification and whereabouts of the defendant at the time of the crime are questions for the jury, yet, where from the entire record there is a reasonable doubt as to the guilt of the accused, a judgment of conviction will not be permitted to stand. * * * Where the conviction of a defendant rests upon identification which is doubtful, vague and uncertain, and which does not produce an abiding conviction of guilt, it will be reversed. * * * Neither can we disregard the evidence of alibi where the sole and only evidence contradicting it rests upon the identity of the defendant as the man who committed the crime."

Mays contends specifically that the identifications made of him are doubtful and uncertain because neither of the witnesses included in their descriptions to the police two prominent physical characteristics of Mays, to-wit: (1) that he had a number of missing teeth and (2) that he had a 2 1/2inch tattoo on his forearm. He also refers to descriptions given by the grocery employee that showed him as being shorter than he was actually and right-handed rather than left-handed. While it is true that failure of a witness to include a certain distinctive physical characteristic in an original description of the offender may affect the credibility of the description (People v. King (1st Dist. 1973), 10 Ill. App.3d 652, 655, 295 N.E.2d 258), the important factor is the ability of the witness to make a positive identification after having had an adequate opportunity to view the offender at the time of the crime. (People v. Nichols (1st Dist. 1975), 32 Ill. App.3d 265, 268, 336 N.E.2d 194.) Where a witness makes a positive identification, precise accuracy in preliminary description is not necessary. (People v. Ellis (3rd Dist. 1974), 24 Ill. App.3d 870, 882, 321 N.E.2d 722.) The discrepancies, if any, go to the weight of the identification testimony and are to be evaluated by the trier of fact. People v. Chatman (1st Dist. 1975), 32 Ill. App.3d 506, 510, 336 N.E.2d 153; People v. Jones (5th Dist. 1972), 4 Ill. App.3d 888, 891, 282 N.E.2d 273.

In the instant case, the circumstances of viewing the defendant were good, as the store was well lit and the forger spent several minutes directly confronting the store personnel in trying to get the check cashed. Each witness separately viewed photographs of several suspects under conditions that do not appear suggestive and each made an identification. Each witness positively identified the defendant at the trial. We had in this case two separate and positive identifications based on an adequate opportunity to observe the offender at the time of the crime. Failure to notice missing teeth or tattoo, and the discrepancies in original description of height are factors to be evaluated by the jury in reaching their verdict. We conclude that they certainly were not so important as to raise a reasonable doubt as to defendant's guilt, in view of a direct and unquestioned identification by both of the employees in court, as we have noted.

Defendant's emphasis also on the "unimpeached alibi" that he was with Miss Miller, when examined carefully indicates that Jane Miller testified that Mays was with her most of the day, but was in the next apartment between 4 and 8 p.m. The check was passed about 6 p.m. so that she did not specifically account for his presence at the time the check was being cashed. There was also the circumstance that the credibility of Miss Miller, as a result of her association with defendant and her testimony, may have been limited in the eyes of the jury. Mays sought to account for the reason his fingerprints were found on the back of the check by raising the possibility that he could have handled the check in the Miller apartment. As a result of a review of the evidence, we believe there was sufficient evidence to support the jury verdict of guilty.

Defendant also claims that he was denied due process by the failure of the State to turn over to him, prior to trial, a handwriting analysis made by the FBI. The possible existence of the analysis came to light during the testimony of Detective James Williams, the investigator who sent the check to the FBI for fingerprint testing. Williams testified that no handwriting analysis had been requested of the FBI but that according to their standard procedure, one probably was made comparing the handwriting on the check to the signature on two or three fingerprint cards. He indicated that there was in fact no analysis or report sent back to him. The FBI agent who testified confirmed that it was standard procedure for the FBI to attempt some handwriting analysis in a forgery case, and that such probably may have been made. He had, however, no copy of any such report. It was also apparent that the prosecutor's ...


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