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People v. Rosa

OPINION FILED MAY 24, 1977.

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

v.

SALVATORE ROSA, DEFENDANT-APPELLANT.



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

MR. JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:

Defendant, Salvatore Rosa, was charged by indictment with the offense of armed robbery in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1969, ch. 38, par. 18-2). Upon a jury trial defendant was found to be guilty as charged. Judgment was entered on the verdict and defendant was sentenced to serve a term of confinement of 3 to 6 years in the Illinois State Penitentiary.

From entry of the judgment of conviction defendant appeals contending (1) that the trial court erred in precluding defendant from introducing into evidence testimony regarding crimes other than that charged in the instant indictment; (2) that the trial court erred in refusing to compel the production of a composite drawing; (3) that certain remarks by the trial court to the jury constituted improper instruction; and (4) that certain statements by the prosecution in its closing argument were improper and served to deny defendant a fair trial.

A review of the evidence adduced in the case at bar reveals that at approximately 2:30 p.m. on July 3, 1970, a lone gunman entered the Archer-Cicero Currency Exchange located at 6354 1/2 South Archer Avenue in Chicago, Illinois. While holding a customer hostage and at gunpoint, the assailant passed a handwritten note to the teller, Marcy Schuth. The note read, "I want $3000. Hurry and no one will get hurt." Thereafter, apparently alarmed at the slow pace at which the robbery was progressing, the gunman ordered Schuth to "Hurry up" or he would shoot the hostage. Schuth complied with his demands and the robber fled the scene. Police assistance was summoned and the holdup note was recovered and delivered to the Chicago Crime Laboratory for analysis.

Schuth testified that at the time of the robbery the currency exchange was illuminated by several fluorescent lights and that during the course of the 8-10 minutes required to complete the robbery she enjoyed an unobstructed view of the gunman's facial features from a distance of 3-4 feet. Schuth described the gunman as a clean-shaven male caucasian, 25-30 years of age, approximately 6 feet tall, weighing 180-200 pounds and sporting brown hair and eyeglasses.

Approximately 6 months after the robbery, Schuth viewed a police lineup and, based upon her observation of his physical appearance as well as his voice characteristics, identified defendant, Salvatore Rosa, as the man who had robbed her place of employment on July 3, 1970. It appears that prior to the date of this lineup Schuth also had occasion to view 400-600 police photographs as well as a composite drawing of an individual wanted in connection with other currency exchange robberies. However, Schuth had been unable to identify the perpetrator by these procedures.

During the course of their investigation, the Chicago Police Department subjected the aforementioned holdup note to both handwriting and fingerprint analysis. Within the former context, David J. Purtell, an expert in the field of document identification, testified that based upon his prior experience and his examination of the note in comparison with an exemplar of defendant's handwriting, he was of the opinion that both documents had been prepared by the same hand. During cross-examination, defense counsel presented Purtell with three additional notes which had apparently been prepared and utilized in other robberies. Purtell indicated that he had previously compared these notes with that recovered from Mary Schuth and concluded that all four had been prepared by the same individual.

Officer Joseph Mortimer of the Chicago Police Department, an expert fingerprint technician, testified that he had occasion to examine the Schuth note for latent fingerprints. Based upon his prior experience and his examination of a latent fingerprint discovered upon the Schuth note in comparison with defendant's fingerprints, Officer Mortimer proffered the opinion that the latent fingerprint on the Schuth note was made by the left middle finger of defendant, Salvatore Rosa.

Defendant testified in his own behalf and denied having participated in the robbery of the Archer-Cicero Currency Exchange. He indicated that on July 3, 1970, he was self-employed and that his place of business was his mother's garage located at 6426 South LaCrosse Avenue in Chicago, Illinois. On the morning of the date in question, defendant accompanied one Don Ryan to a currency exchange located at 35th Street and Archer Avenue and subsequently to an auto parts store where defendant purchased the equipment necessary to complete certain repairs on Ryan's automobile. Defendant indicated that they returned to the garage by 10 a.m. where defendant worked on the car in the presence of Ryan and one Roger Tolston for a period of 3-3 1/2 hours. Defendant testified that he remained in the garage until approximately 4 p.m. at which time he departed with certain members of his family for a dragstrip in Indiana.

Defendant, however, admitted that he had personally executed the hold-up note recovered from Mary Schuth as well as the three additional notes. In this connection, defendant testified that on an unspecified date in May 1970, he had occasion to spend a period of time in the company of an individual known to defendant as Archie Hessler and another person identified only as "Gary." On this occasion the topic of conversation turned to robbery. Defendant's companions, according to defendant, inquired as to how defendant would perfect such an endeavor, suggesting that an armed robbery was a means of obtaining "easy money."

Defendant corrected this misconception, pointing out that "something like that [armed robbery] was violent" and, if caught, "chances are you would get shot down." Defendant concluded, "You would be better off just trying to scare somebody out of the money."

Defendant's companions apparently accepted this analysis and the conversation shifted to the art of drafting suitably threatening notes. Defendant testified that on his own suggestion he drafted several such notes and the group critiqued and edited them so as to concisely convey the bearer's intention. Defendant also testified that he was thoroughly amused by this pastime and that it occasioned considerable laughter and good fellowship.

When questioned on cross-examination as to what had become of the pen used to write the notes, Rosa indicated that it was left on a workbench in the garage in which the notes had been drafted. Defendant agreed, upon examination of the notes at trial, that they had been written by at least two different pens. Defendant also testified that it was not until after he had been arrested that he discovered that the notes had been used in connection with an armed robbery.

Upon his arrest, defendant was confronted with at least one of these notes by investigating officers. Defendant refused to admit or deny that he had written the notes without advice of counsel. Defendant subsequently had occasion to speak to other members of his family, including his brother. ...


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