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People v. Stewart





APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, Judge, presiding. MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendants, Ricky Stewart, Cornelius Newbern and Bernard Jackson, were indicted for having committed on May 24, 1974, the offenses of armed robbery and robbery. (Ill. Rev. Stat. 1973, ch. 38, pars. 18-2 and 18-1.) Stewart and Newbern were also indicted for having committed on May 28, 1974, and June 1, 1974, the offense of intimidation. (Ill. Rev. Stat. 1973, ch. 38, par. 12-6(a-1).) After a jury trial defendants were found guilty of the charges. Stewart and Newbern were each sentenced on the armed robbery and intimidation convictions. The sentences were ordered to be served concurrently. Jackson was sentenced only on the armed robbery conviction. No sentences were imposed for robbery.

On appeal, defendants contend: (1) they were not proved guilty beyond a reasonable doubt of armed robbery or robbery, since the requisite force and taking were separated by a period of two or three hours; (2) the trial court erred in granting the State's motion in limine precluding evidence of a 24-year-old conviction of the State's witness; and (3) the judgments of conviction for robbery should be vacated since the alleged robbery arose out of the same acts which gave rise to the armed robbery convictions.

There is ample authority to support vacature of the robbery convictions for the reason stated by defendants. (See People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819.) Moreover, the State concedes this argument on appeal. Accordingly, we vacate the judgment of conviction for robbery as to each defendant. In neither their brief on appeal nor in oral argument before this court do defendants Newbern and Stewart urge error in their intimidation convictions or the sentences imposed thereon. Points not argued or briefed on appeal are waived. (Ill. Rev. Stat. 1973, ch. 110A, par. 341(e)(7); see, e.g., People v. Mackins (1974), 17 Ill. App.3d 24, 308 N.E.2d 92, cert. denied (1975), 419 U.S. 1111, 42 L.Ed.2d 808, 95 S.Ct. 786.) Accordingly, we dismiss the appeal as to the offense of intimidation. Therefore, we here consider only the armed robbery convictions.

The three defendants were tried on the foregoing charges in a single trial. Six witnesses testified in the State's case in chief.

Charles Winters testified for the State. He is in the beauty supply distributing business and owns two stores on the south side of Chicago. His wife operates a beauty parlor at one of the locations. Winters met defendant Jackson in November 1973 and defendant Newbern in May 1974. After speaking with Newbern in his store at that time, Winters related the conversation to his wife. Although they decided to comply with certain orders given by Newbern, Winters thereafter contacted and spoke with police officers in the gang crimes unit of the Chicago Police Department and with F.B.I. agents. Both agencies told Winters that they could not help him. Later that same month, he received a telephone call from Newbern. The latter said that he needed a thousand dollars and that if Winters did not comply he would burn down his store and harm his parents. Winters told Newbern that he had already given him "all he had."

On May 24, 1974, at about 1 p.m., the three defendants came into one of Winters' stores. Mrs. Winters and two employees were in the beauty parlor in the front of the store. The defendants sought out Winters who was lying down in the back room. Jackson carried a brown paper bag, and the other two defendants had guns. They told Winters not to get up, and Newbern and Stewart put guns to each side of his head. They cursed and threatened him. Jackson took a jar of white liquid out of the bag and threw a portion of the liquid on some metal Afro picks. The picks burned. Jackson told him that the liquid was acid and would be used to disfigure his face and his entire family family if he did not cooperate. Winters said he would do anything. The defendants then told him that they wanted a thousand dollars by 4 p.m. that day, and that when Stewart called, Winters was to bring the money to them at a certain location. The three defendants then left. They had been with Winters for about 15 minutes.

Winters immediately related the incident to his wife. He told her of the threats to the family and showed her the burnt Afro picks. He told her that they had to give defendants the money. He gathered a thousand dollars from his two stores and from his wife's funds.

At about 3 p.m. Winters saw Stewart pass by the store about four or five times on each side of the street. Eventually Stewart entered and asked Winters whether he had the money. Winters replied that he did, and Stewart ordered that they leave together. The two men walked out of the store and around the corner to the named location where Winters handed Stewart an envelope containing the money. He asked Stewart where Newbern was because he had understood the money was to be delivered to Newbern. Stewart replied that Newbern was nearby.

Winters identified each of the defendants from a group of photographs shown him by the police gang crimes unit. Thereafter, he identified each defendant at a lineup.

Winters also testified concerning events from May 27, 1974, through June 1, 1974, which relate solely to the offense of intimidation and are not relevant to this review.

Prior to defense counsel questioning Winters on cross-examination, the State presented a motion in limine asking that the defense be barred from impeaching Winters with his prior criminal convictions. The State revealed that Winters had a 24-year-old conviction for armed robbery, as well as a 1971 misdemeanor conviction for unlawful use of weapons. After argument by counsel, the trial court granted the State's motion in limine.

On cross-examination Winters was confronted with earlier statements he had made at preliminary hearings. At one hearing he stated that Stewart had come to pick up the money shortly before 4 p.m. on May 24. Winters was also directed to another statement where he testified that Stewart had been accompanied by another man he did not know when Winters handed him the money. In a third statement Winters had testified that Stewart and Newbern had picked up the money from him.

Mrs. Winters testified for the State. She had given Jackson money in the Winters' store in the presence of her husband in December 1973. Her testimony essentially corroborated her husband in that the three defendants went to the back room to see him at about 1:30 p.m. on May 24, and that they remained with him for about 15 minutes. After they left, Winters was nervous and shaking and he told her that the defendants had threatened him and that they wanted a thousand dollars by 4 p.m. She saw the burnt Afro picks. She was frightened. As to the events subsequent to May 24, Mrs. Winters corroborated her husband's testimony of conversations he had with her about the defendants.

The testimony of the other State witnesses is not essential to the issues in this appeal. At the close of the State's case in chief, defendant Stewart presented a motion in limine asking that the State be barred from impeaching him with a 1972 conviction for attempt armed robbery. The motion was denied. Defendants did not testify in their own behalf and ...

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