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People v. Crotty

OPINION FILED DECEMBER 2, 1976.

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

v.

JAMES CROTTY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. PHILIP ROMITI, Judge, presiding.

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

Defendants, James Crotty and Walter Racinowski, were indicted for the offense of armed robbery (Ill. Rev. Stat. 1969, ch. 38, par. 18-2). Crotty was also indicted for the offense of unlawful use of weapons (Ill. Rev. Stat. 1969, ch. 38, par. 24-1(a-4). Both defendants were tried together, and a jury found them guilty on all counts. Racinowski was sentenced to a term of 10 to 30 years for armed robbery, and to a term of 3 to 9 years for unlawful use of weapons, the sentences to run concurrently. Defendants brought separate appeals which have been consolidated for review. They contend that the identification testimony at trial was so vague, doubtful and uncertain as to be insufficient to establish guilt beyond a reasonable doubt; that references made at trial to Crotty's arrest for a second unrelated robbery were prejudicial error denying both defendants a fair trial; and that the admission into evidence of live ammunition recovered from Racinowski more than a month after the offense constituted prejudicial error.

We affirm. The pertinent facts follow.

At about 8 p.m. on November 29, 1971, two men entered the Breakers Motel in Chicago and forced the desk clerk at gunpoint to give them the motel's cash. The clerk, David Anderson, was the principal witness for the State at trial, and testified as follows. On the night of the incident he was seated behind the desk counter reading when a man appeared in front of him and asked for the motel's money. At trial Anderson identified the man as defendant Crotty. Crotty pointed a gun at him and Anderson started to get the money out of the cash drawer. As he was counting the money a second man entered and stood at the end of the counter. This man (whom Anderson identified at trial as defendant Racinowski) also pointed a gun at him. At this point Crotty was about a foot and a half away from Anderson and Racinowski was about five feet away. Crotty told Anderson to hurry and Racinowski shook his gun at Anderson. Anderson took his time in placing the money on the counter in order to get a good look at the men who left together by the same door they had entered six or eight minutes earlier. The lighting in the motel lobby was good. Anderson waited about three minutes, then called the police who arrived within 10 or 15 minutes. Anderson further testified that he identified Crotty in a lineup and viewed a second lineup where he identified Racinowski. The revolver taken from Crotty at his arrest was shown to Anderson who recognized it to be like the gun held by Crotty during the robbery.

On cross-examination Anderson testified that he had concentrated on the men's faces and their weapons so that he could later identify them. The second man to enter did not wear a hat or gloves. Anderson described him to the police on the night of the robbery as 5 feet 5 inches tall, weight 140 pounds, and a ruddy complexion. Anderson further testified on cross-examination that he could not reach the cash drawer without getting up from his seat, but if the transcript of the preliminary hearing held two and a half years before stated that he never rose from his seat, he must have said that at the time.

Officer Clark testified to the arrest of Crotty. At about 10:30 p.m. on December 28, 1971, he received a radio communication with a description. He and his partner then started to the Breakers Motel and en route they saw a man fitting the description they had received. When they stopped him the man's hand was in his right coat pocket and a revolver was found there. Clark identified Crotty as the man they stopped. The weapon was loaded, and at trial the gun and live shells were identified by the officer as those recovered from Crotty.

Officer Kelly testified to the arrest of Racinowski. Pursuant to his assignment to a robbery investigation he went to Racinowski's home where he arrested and searched the suspect. Three live bullets were recovered.

Officer Sihocky, the investigating officer of the November 29 robbery, testified that the complaining witness Anderson had stated on the night in question that the first man to enter stood at the counter and the second man stayed at the door. The officer estimated that the door was 5 or 6 feet from the counter. He also testified that Anderson described the second man as having a pale complexion and weighing about 170 pounds. Sihocky stated that the first offender was described that night by Anderson as having a ruddy complexion.

Eugene Racinowski, brother of the defendant, testified that Walter Racinowski had tattoos between the knuckles of both hands; they were dark blue and spelled "Love Mary."

I.

• 1 Defendants argue that they were not proved guilty beyond a reasonable doubt because the identification testimony of Anderson was doubtful and uncertain, containing serious discrepancies. It is the function of the jury to weigh testimony, judge credibility of witnesses and determine factual matters, and a reviewing court will not disturb the jury's determination unless it is so unsatisfactory as to raise a reasonable doubt of defendants' guilt. (People v. Peto (1967), 38 Ill.2d 45, 230 N.E.2d 236.) The testimony of one credible witness is sufficient to convict. (People v. Mikka (1955), 7 Ill.2d 454, 131 N.E.2d 79.) It is not necessary for a witness to give a precise and accurate description of a defendant's facial characteristics; however, the trier of fact, in evaluating the reliability and credibility of an identification, must consider the failure of a witness to observe and report a clearly visible feature. People v. Henderson (1971), 133 Ill. App.2d 336, 273 N.E.2d 244.

In this respect defendants first argue that Anderson stated that while they were in his presence he was not only looking at their faces but at their guns as well, and that he was also counting money at the same time; further, that the men were positioned so that he could not look at them simultaneously. We find that it was for the jury as the finders of fact to determine Anderson's credibility. Here, Anderson testified that the robbery took six to eight minutes and occurred in a well-lit lobby. The fact that he could not see them both at the same time does not mean that he was not able to adequately observe each one to make positive identifications. He also positively identified both defendants in pretrial lineups. We find that a jury could have reasonably found that Anderson identified defendants sufficiently to support his testimony.

• 2 Defendants also state that Anderson's testimony is undermined by discrepancies in the descriptions he gave at the time of the incident, at the time of trial, and as compared with defendants' actual appearance. Racinowski contends that he has blue tattoos between his knuckles and that such markings would have been noticeable on a hand holding a gun in a well-lighted area. Anderson, however, testified that the second man to enter, whom he later identified as Racinowski, bore no unusual characteristics and that he wore no gloves. He also testified at trial that he described the second man to officers as a man in his late 40's or early 50's, 5 feet 5 inches tall, 140 pounds, with a ruddy complexion. Officer Sihocky, the investigating officer, testified that on the night of the incident Anderson described the second man as 5 feet 5 inches tall, 170 pounds, and having a pale complexion. The evidence clearly shows that Anderson observed the men alternately for a period of six to eight minutes in a well-lit lobby. We note that three years had passed from the time of the robbery to the time of trial, and further, that all of these discrepancies were argued before the jury and were before them during their deliberations. In light of the positive nature of Anderson's identification, we cannot say that the testimony was so doubtful and uncertain as to raise a reasonable doubt of guilt.

• 3 Defendants further assert that there is doubt as to Anderson's ability to recall the incident accurately in that at trial he stated he could not reach the cash drawer without getting up from his sitting position; yet at the preliminary hearing he testified that he never left his seat. Defendants also argue that at trial Anderson testified that the second man to enter stood at the end of the counter, whereas Officer Sihocky stated that Anderson had told him on the night of the incident that the second man stayed at the door. Again, we note that three years had passed between the night of the robbery and the trial, and that the preliminary hearing took place two years before trial. We find that the discrepancies argued by defendants were minor in ...


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