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People v. Whitley

OPINION FILED JUNE 2, 1977.

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

v.

EDDIE WHITLEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

Following a jury trial the defendant, Eddie Whitley, was found guilty of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2), and was sentenced to a term of six to 30 years in the Illinois State Penitentiary. On appeal the defendant makes the following contentions: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court erred in failing to determine whether the jury had any specific questions where the foreman requested a copy of the minutes of the proceedings; (3) the hearsay testimony of a police officer that he observed the identification made by the complaining witness denied the defendant a fair trial; (4) portions of the State's closing argument were so prejudicial as to deny the defendant a fair trial.

We affirm the conviction and sentence.

The complaining witness, Mrs. Margo Coulter, testified that on February 4, 1974, between 8:15 p.m. and 8:30 p.m. she got off a bus at 69th and Normal in Chicago and walked south on Normal towards her home at 71st and Normal. About 10 feet from her front gate a man whom she identified in court as the defendant approached her from behind and told her to drop her purse. Mrs. Coulter turned and faced the man whom she described as being black, about 5 feet 10 inches tall, weighing about 155 to 165 pounds, about 19 to 22 years old, with a mustache and goatee and wearing a brown corduroy coat with fleece on the lapels. In his left hand the man held a silver plated revolver which he pointed at her right temple. He searched her coat pockets, put his hand down the front of her sweater and searched the cups of her bra, then took her purse and ran. The man was in Mrs. Coulter's presence about three to four minutes. While he searched her she looked up into his face. He was close enough to her that she could have reached out and touched him. The area was illuminated by four high intensity street lamps. The light was behind Mrs. Coulter and the man was facing her and the light. She testified that it was light enough that one could have read a paper there. Mrs. Coulter than went to her home and called the police. When the police arrived she gave them a description of the man. On February 7 Investigators Edward Brown and Carl Malik came to Mrs. Coulter's home and showed her about 200 to 250 photographs of black men, none of which she recognized. At that time she told Brown that the man who had robbed her had a mustache and goatee. About two days later she went to the police station and looked at about 400 to 500 photographs of black men, again without picking any out. On February 11 Brown and Malik came to her home and showed her 8 to 12 photographs of black men. Mrs. Coulter picked out a photograph of the defendant as the man who robbed her. When she was asked to look at the second group of 400 to 500 photographs she was getting impatient and was tired of looking at pictures. She first indicated in her testimony that the investigators told her to look very carefully at the third group of 8 to 12 photographs, but when she was asked again about this she stated that she was only told to look at the photographs. On February 21 Brown called her and asked her to go to the station and view a lineup. At this point she wanted to "hurry it and get it over with" so she agreed to go. She "assumed" the lineup was connected with the robbery. The lineup consisted of five black males whom she described as being about the same height, and general build. Each man in the lineup repeated a phrase which her robber had used. She did not recall if they gave their names. She had first used the defendant's name when she swore out an arrest warrant on February 12. Mrs. Coulter identified the defendant at the lineup from his appearance and his voice.

Investigator Edward Brown testified that on February 7, 1974, Mrs. Coulter gave him a description of the man who had robbed her as being a male negro, approximately 19 to 21 years old, 5 feet, 10 inches in height, with a goatee and mustache and wearing a brown corduroy coat with a fur or fleece collar. On February 7 he showed her about 20 photographs but she did not identify any. On February 9 she failed to pick out any of four to five hundred photographs which he showed her. When Brown began to testify as to nine photographs shown to Mrs. Coulter on February 11, defense counsel objected to any identification corroboration testimony as being inadmissible hearsay. The court stated that such testimony would be admissible not for the purpose of proving the truth of the matter asserted, in this case Mrs. Coulter's prior identification of the defendant, but rather to establish the circumstances of the identification. However, the court refused defense counsel's request that the jury be instructed on this limited purpose, and defense counsel was then permitted to enter a standing objection to any testimony by police officers concerning Mrs. Coulter's prior identification of defendant from photographs or in a lineup. Over defense counsel's objection, Brown testified that Mrs. Coulter looked at nine color photographs on February 11 and selected that of the defendant as the man who had robbed her. Brown also testified that on February 21, 1974, he conducted a lineup in which five male negroes of approximately the same age and height were viewed by Mrs. Coulter, at which time she identified the defendant as the man who had robbed her. They were instructed to state their names but were also told that they need not give their real names, and defendant gave a name other than his own.

Defendant testified in his own behalf. He denied having robbed Mrs. Coulter and stated that he was in Detroit visiting his family on the date of the robbery, February 4. He testified that on February 1, 1974, he purchased a Greyhound bus ticket for Detroit and boarded a bus in Chicago which left for Detroit at about 11:45 p.m. that night. He arrived at his mother's home in Detroit between 4 and 5 a.m. on February 2. He stayed in Detroit until February 6. On Sunday, February 3, he saw the movie "The Exorcist." February 6 he bought a return bus ticket for Chicago, costing $9.55. The agent from whom he purchased the ticket was a white male in his middle thirties, about 5 feet 10 inches tall and weighing less than 150 pounds. Defendant produced a bus ticket receipt which he said was for the ticket he purchased February 6. When he got back to Chicago he saw his aunt, with whom he lived. Defendant stated that in the lineup he was required to state his own name, and that Mrs. Coulter, whom he had never seen before, stated that she was not sure as to his identification.

Defendant's mother, Rachel Robinson, his sister, Carolyn Whitley, and his brother, Willie Whitely, all essentially corroborated his alibi that he was in Detroit from February 2, 1974, to February 6, 1974. His mother thought he had arrived between 4:30 and 5 a.m.; his sister thought it was between 5 and 6 a.m.; his brother thought it was between 4 and 5 a.m. His mother and sister said they had seen him every day of the visit. His brother testified that he saw "The Exorcist" with the defendant on Sunday the 3d; however, his sister recalled that defendant and his brother saw "The Exorcist" on Wednesday the 6th. She stated that their mother did not go with them to the movie. Defendant's mother recalled that she went to "the show" that Wednesday and came back to find that the defendant had left, apparently for Chicago.

Larry Pickens, defendant's friend of 10 years, testified that on February 4, 1974, he called the defendant in Detroit, from his home phone in Chicago at about 9:30 p.m. The last time he had spoken to the defendant by phone was five to six months earlier. A telephone bill was introduced which showed that on February 4, 1974, two phone calls were made from Pickens' home phone to defendant's mother's phone in Detroit. The time of the calls is not shown on the bill.

On rebuttal Allen Wittleshofer, assistant terminal manager for Greyhound in Chicago, testified that in February 1974 the fare for a bus ticket between Chicago and Detroit was $12.95, the same as that for the return trip. The last bus leaving for Detroit from Chicago on each day in February left at 11:25 p.m. and arrived in Detroit at 6:10 a.m. the next morning. Greyhound kept no passenger lists and tickets bore no passenger names. A ticket could be used by anyone for 60 days after its purchase. A code number on each ticket indicated which agent had sold that ticket.

It was stipulated between the parties that if Ulysses Pearcy were called to testify he would testify that the ticket receipt produced by the defendant, bearing code number 21 and dated February 6, 1974, was one which he had sold on that date. Mr. Pearcy would also testify that he was a male Negro of the age of 51 years, 5 feet 7 inches tall, weighing 175 pounds, wearing glasses, and having his hair in a short Afro.

Investigator Malik testified that the defendant did not give his own name at the lineup. He also testified that Mrs. Coulter identified the defendant at that lineup and never stated that she was unsure of the identification.

I.

• 1 Defendant's reasonable doubt argument is premised on his contention that the single witness identification by Mrs. Coulter was not credible enough to permit the jury to disregard defendant's alibi. Defendant cites case law to the effect that a court may not disregard the evidence of alibi where the only contradicting evidence rests upon the identity of the defendant as the man who committed the crime. (People v. McGee (1961), 21 Ill.2d 440, 173 N.E.2d 434; People v. Peck (1934), 358 Ill. 642, 193 N.E. 609.) However, both of these cases involved alleged identifications made under very poor conditions which were countered by strong alibi testimony. Certainly in such cases alibi testimony not only cannot be disregarded but must be given considerable weight. But the general proposition stated in these cases is that a court may not totally disregard alibi testimony; not that alibi testimony must be believed over a single witness identification. The trier of fact is never required to accept alibi testimony over the positive identification of an accused, even though the alibi testimony is given by a greater number of witnesses. People v. Jackson (1973), 54 Ill.2d 143, 295 N.E.2d 462.

The single witness identification in the case at bar was a strong one. Mrs. Coulter viewed the man who robbed her, face to face, for a period of three minutes under lighting conditions which she testified would have allowed her to read a newspaper. She also heard the defendant's voice. The description which she gave to the police matched that of the defendant. After viewing hundreds of photographs she positively selected that of the defendant out of a group of nine photographs of young black men. Four of those men had mustaches and goatees, two others had mustaches. She again positively selected the defendant on the basis of appearance and voice at a lineup of five young black males. This time only the defendant had a mustache and goatee, but two others had mustaches and all were of generally the same height and weight. In any event, complete exactitude of features is not required in lineup and photographic identification situations. (People v. Lawless (1975), 31 Ill. App.3d 650, 334 N.E.2d 292; People v. Bey (1969), 42 Ill.2d 139, 246 N.E.2d 287.) Certainly these identification procedures were not "so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification." (People v. Brown (1972), 52 Ill.2d 94, 99, 285 N.E.2d 1; Simmons v. United States (1968), 390 U.S. 377, 19 L.Ed.2d 1247, 88 S.Ct. 967.) Defendant's contentions that he was required to state his own name in the lineup and that Mrs. Coulter was not certain of her identification of him were both countered by convincing State testimony which the jury clearly believed.

• 2 Nor was defendant's alibi completely uncontradicted, as he suggests. His family generally agreed with him on an arrival time which the State established was an hour or two before the scheduled arrival time of the bus he claimed to have ridden. The testimony was contradictory on when defendant saw a movie he claimed to have seen in Detroit, and even as to whether he saw it at all. Defendant's clear description of the man who allegedly sold him his return bus ticket was contradicted in every detail by the stipulated testimony of the man who sold the ticket for which defendant produced a receipt. The testimony concerning the telephone call clearly established only that a call was made from the home of defendant's friend to that of defendant's family on the night of the robbery. The documentary evidence did not establish who made the call. Nor was the jury required to believe the testimony of defendant's friend, who had not called defendant prior to that night for at least five or six months. None of this testimony was by unbiased witnesses; it was by the defendant, his family, and his friend. The jury could properly have taken that fact into consideration along with the contradictions detailed above. Their determination of the relative credibility of the witnesses was not against the manifest weight of the evidence and will not be disturbed by this court.

II.

• 3 Defendant next contends that the trial court erred in failing to exercise its discretion to consider whether to comply with the jury's query on the availability of a transcript of the proceedings.

After a period of deliberation the jury was returned to the courtroom at which time the foreman indicated that there was a "hung" jury. The court responded that they could not have a hung jury at that time and that they should return to the jury room and continue deliberation. The following colloquy then took place:

"THE FOREMAN: Would the minutes of this hearing be available to us?

THE COURT: The court reporter had [sic] not had an opportunity to type everything up, so we ...


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