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People v. Virgil

OPINION FILED NOVEMBER 10, 1977.

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

v.

MORRIS VIRGIL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

After a trial by jury, defendant, Morris Virgil (herein indicted and sometimes referred to as Virgil Morris), was found guilty of the offense of armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2) and was sentenced to a term of 4 to 12 years in the penitentiary. On appeal defendant contends that he was denied a fair trial in that the State improperly introduced evidence implicating him in other crimes, and that he was denied effective assistance of trial counsel.

We affirm.

Defendant was represented by retained counsel at trial where the following facts were adduced.

Joseph Seals, owner of the Chase Lounge, testified that at about 8:30 p.m. on February 4, 1974, he was in the lounge along with a patron and an employee, Maxine Jacobs. A man entered the front door, walked to the washroom at the rear of the tavern where he remained for only a second or two, and then walked back through the tavern and out the front door. Before the front door closed, he re-entered with two companions. One of the three men had a gun; he was later identified as defendant. Defendant announced a holdup and forced Seals to lie on the floor, while the other two men beat the patron and forced Maxine Jacobs to give them her ring and money from the cash register. The two men also took eight quarts of whiskey and petty cash. Meanwhile, defendant remained near the front door. He suggested to his companions that he kill Seals, but one of the men dissuaded him. The three men then fled. Seals immediately went to the door and saw the three get into a black, 1967 General Motors car. Seals identified the three men at a police lineup four days after the occurrence. At trial Seals was shown a picture of the car in which defendant was apprehended. He identified it as the same car he had seen the three men drive away the night of the incident.

On cross-examination Seals stated that he saw the man with the gun run to the car, but he did not know if the man had a limp. Seals reiterated that the man with the gun was defendant.

Maxine Jacobs testified that she had been working at the Chase Lounge on the night of the incident. She stated that defendant walked in and out of the bar, and then immediately returned with two companions. One of the men had a gun. The men cursed her and told her to locate the money. They beat a patron, took the money and whiskey, and fled. She identified the three men at a police lineup on February 8, 1974. On cross-examination Ms. Jacobs testified that she did not notice whether the man with the gun walked with a limp.

Officer John Crenshaw of the Chicago Police Department testified as follows. On February 8, 1974, he was working on a crime pattern, which consisted of 13 to 15 robberies with the common elements that each had been committed by three men using a black, 1968 Skylark with a certain license number. He had information concerning the names and addresses of the men, and on February 8 he received information of the location of the car. He located the car and arrested three men at the scene, including defendant. The three men were later identified by Joseph Seals and Maxine Jacobs at a lineup. At trial Crenshaw identified pictures of the car taken at his direction. The exhibits had previously been identified at trial by Seals as pictures of the getaway car.

Defendant testified in his own behalf and presented an alibi defense. He identified the aforementioned exhibits as pictures of a car owned by him. On the morning of February 4, he had taken the car to be repaired at a shop on west Roosevelt Road. He obtained a receipt for a $10 deposit from "Richard Cardomoni," and he left the car at the shop. He then took a bus to the home of his uncle, John Asberry. The two men spent the afternoon and evening at My Sins Lounge, and defendant stayed overnight at his uncle's home. He picked up his car at the repair shop the next morning.

On cross-examination defendant testified that he had spoken with "Nick Cardomoni" when he took his car in for repairs on February 4.

John Asberry, defendant's uncle, corroborated defendant's testimony in that he had spent the afternoon of February 4 and that evening until about 2 a.m. with defendant at My Sins Lounge. He further testified that defendant sustained injuries to his legs while in the service, and that he walks with a limp.

In rebuttal, Nick Cardamone testified that he had owned a garage operated by his son on west Roosevelt Road. The business closed on January 3, 1974, and no business was conducted thereafter. He denied dealing with defendant on February 4. He stated that defendant approached him in March 1974 and asked him to prepare a receipt, but he refused to do so.

After hearing arguments of counsel, the jury returned a verdict of guilty of armed robbery.

OPINION

I.

Defendant argues that he was denied a fair trial in that Officer Crenshaw's testimony concerning a crime pattern implicated him in other crimes without proof of his involvement therein. He asserts that the only effect of the testimony was to show a propensity toward criminality, which is clearly impermissible. Although there was no objection to Crenshaw's testimony at trial, defendant claims that such evidence constitutes plain error.

The State, however, argues that the reference to the crime pattern was only incidental to and part of a continuing narrative of the circumstances of the arrest. It is contended that the purpose of Crenshaw's testimony was not to show a common scheme; rather, the thrust of the testimony was to connect defendant with the car used in the ...


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