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People v. Precup





APPEAL from the Circuit Court of Adams County; the Hon. RICHARD F. SCHOLZ, JR., Judge, presiding.


Defendants were jointly tried before a jury and appeal their respective convictions of armed robbery. No issue is raised upon the sentences imposed and no issue of the sufficiency of the evidence to convict argued.

The Nut Shell Tavern, its operator, Mrs. Nutt, and a patron, were robbed by three men with stocking masks and a shotgun at about 12:30 a.m. on August 4, 1974. Two officers observed the three flee the tavern and attempted to pursue on foot. The shotgun was dropped by the running men. Two of the men were observed to enter an automobile described in evidence. These officers returned to their car but were not immediately able to locate the automobile which they described. Following some investigation, however, they discovered the location of such an automobile and following a surveillance of their activities, Harness and Brummell were arrested several hours following the robbery. The car belonged to defendant Brummell. Defendant Precup was arrested the evening of the following day.

Precup was positively identified by Mrs. Nutt and the patron, both during trial and at a lineup. Neither Harness nor Brummell was directly identified by the victims. Mrs. Nutt testified that a pair of boots belonging to Harness and introduced into evidence appeared to be the boots which she observed on one of the robbers as she lay on the floor during the robbery. She noticed the boots because she was expecting to be kicked. A nylon stocking and a paper bag identifed as similar to those used in the robbery were found in the Brummell car.

Defendant Precup argues that "[i]t is reversible error to permit testimony in the State's case in chief from a police officer which brings out defendant's criminal record."

Officer Collins was, in fact, testifying concerning a post-arrest interview with defendant Brummell. The record shows the following:

"Q. Would you tell us what else you asked him, as you recall?

A. I asked him if he knew Dave Precup and he indicated, only slightly; that he'd known him to have been paroled from the penitentiary * * *.

MR. ADAMS: Objection, Your Honor.

THE COURT: Objection sustained. Let me suggest to you, Mr. Witness, that you refrain from voluntary answers and merely answer the question asked of you."

• 1 It is not argued that the State's Attorney sought to, or did, elicit the testimony as was the fact noted in People v. Colston (1967), 81 Ill. App.2d 75, 225 N.E.2d 801; People v. Pitts (1971), 1 Ill. App.3d 120, 273 N.E.2d 664; People v. Smith (1973), 12 Ill. App.3d 295, 297 N.E.2d 625. The record shows colloquy concerning the court's offer to admonish the jury to disregard the statement and counsel's agreement that such admonition should not be made.

Here, the identification was positive. The unresponsive, unsolicited remark by the witness to which the court sustained objection does not require reversal. People v. Dukett (1974), 56 Ill.2d 432, 308 N.E.2d 590; People v. Christy (1976), 43 Ill. App.3d 1004, 358 N.E.2d 8.

• 2 By supplemental brief, Precup raises the additional issue that the identifications made at trial by the proprietor and patron were tainted and that it was error to deny a motion to suppress. The issue was raised at trial when Precup advised his attorney that the police had taken his photograph. Colloquy of record indicates that counsel anticipated that the photographs were displayed to the witnesses prior to a lineup. Upon cross-examination of the proprietor and an offer of proof by the prosecution, the record shows that neither witness had seen defendant's photograph prior to the lineup at which they identified Precup. Such lineup was held on the day following the robbery. The witnesses had seen the photographs several days before the trial. Each witness made a positive in-court identification based upon independent recollection and observation of Precup's build, hair color and style, mustache and manner of moving. We have examined the authorities cited by defendant which concern a display of photographs to witnesses prior to a lineup and at a time when defendant was in custody. The sequence of events in this record indicates that it cannot be said that the display of photographs could have resulted in an "irreparable misidentification" which would render the in-court identification inadmissible. People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819.

Defendants Harness and Brummell seek to raise certain issues which are stated to be "plain error" under Supreme Court Rule 615, and arise in the fact that the public defender was appointed and represented both Harness and Brummell at the joint trial. Precup, Harness and Brummell presented testimony that each was at a tavern, the Establishment, arriving at different times between 7 p.m. and 10:30 p.m. Several witnesses for the defense testified to the presence of each defendant and observing them at various times. Precup and Harness testified that the three were together at the tavern. Harness testified that he was there with Brummell and that they, Harness and Brummell, stayed until closing time at 1 a.m. Precup and Pam Markert, a girl with whom he was living, testified that they left about 11 p.m. and that at about 1 a.m. Harness and Brummell came to the apartment and stayed for about an hour drinking beer. Harness testified that he left with Brummell to go to the Precup apartment where they stayed until about 2 a.m. when they left to go to Hannibal. Brummell did not testify.

During the prosecution's case in chief, police officers testified to oral Miranda warnings given each defendant, and signed statements of such warnings by each were introduced into evidence. The officers then testified as to each statement given by the respective defendants. The testimony as to the ...

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