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People v. Thornton

OPINION FILED MAY 12, 1978.

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

v.

DUIL THORNTON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of St. Clair County; the Hon. ROBERT L. GAGEN, Judge, presiding.

MR. PRESIDING JUSTICE EBERSPACHER DELIVERED THE OPINION OF THE COURT:

Defendant, Duil Thornton, brings this appeal from the judgment entered by the circuit court of St. Clair County following a bench trial, finding defendant guilty of the offense of armed robbery and sentencing him to a term of eight to 24 years' imprisonment. On appeal defendant raises the following issues: (1) whether he expressly and understandingly waived his right to a jury trial; (2) whether he was proven guilty beyond a reasonable doubt; (3) whether the trial court erred in refusing an offer of proof that defendant had no reputation for carrying or using a gun or for using or threatening the use of force; and (4) whether the sentence imposed is excessive. Additionally, with regard to the first issue, we must consider a motion by the State to amend the record to show a waiver of jury trial.

The instant charge stems from the March 14, 1975, armed robbery of Robert Schmitt, the manager of the Tri-City Grocery Store. At trial Schmitt testified that on the morning of the crime, he saw a man walking around the back of the store with no shopping cart and no items in his hands. Around 20 minutes later, this same man called to Schmitt and asked for help in choosing shaving lotion. He was, however, not looking at shaving lotion but rather, the man was pointing to alcohol. Schmitt and the man were standing near the store's office at this time. The man again requested help from Schmitt but as Schmitt approached him, he pulled out a gun and demanded money. Schmitt filled a box with cash from the office and gave it to the man who then left. At trial, Schmitt positively identified defendant as the man who robbed him. He testified that the lights in the store were bright and that during the crime he had observed defendant face-to-face and from as close as one foot from defendant. He described defendant as "shabby," being unshaven, smelling of alcohol and having no teeth. He stated that defendant wore a black and orange cap over gray hair, a black and red plaid jacket and jeans.

Roland Davis next testified that he worked in the grocery store and that on the morning of the crime, he saw defendant who approached him and inquired about getting a job. He gave a similar description of defendant as that given by Schmitt. Davis further stated that 15 or 20 minutes after he saw defendant, he learned that the robbery had just occurred.

Martha Harvell testified that at the time of the crime she was shopping in the store. She stated that just before the robbery, she had seen defendant on three occasions at various locations in the store. Her attention was drawn to defendant because she felt that he was acting suspicious in that he was continually looking at the store's office and he was apparently not shopping. Her description of defendant was also similar to that given by Schmitt.

The State's evidence further showed that six days after the crime, Schmitt, Davis and Harvell each separately identified defendant, as the man who had committed the crime, by choosing his photograph from a group of 10 photographs.

Defendant presented a number of alibi witnesses to support an alibi defense.

We will consider defendant's first contention last, and we turn to the issue of whether defendant was proven guilty beyond a reasonable doubt.

• 1 As a general rule, a positive identification by a single credible witness with an ample opportunity to observe will be sufficient to support a conviction. (People v. Clarke, 50 Ill.2d 104, 277 N.E.2d 866; People v. Jackson, 23 Ill. App.3d 1011, 320 N.E.2d 400.) Here, the testimony of Davis and Harvell place defendant at the scene of the crime and the testimony of Schmitt establishes that defendant committed the crime. Essentially, defendant contends that these witnesses lacked the opportunity to observe the perpetrator. The record shows, to the contrary, that the witnesses, and most crucially Schmitt, had an ample opportunity to observe defendant, under excellent conditions, and under circumstances which would concentrate the mind on the appearance of defendant. Although defendant does not directly raise the issue, he nonetheless insinuates that the in-court identifications of defendant were a product of the prior photographic identifications of him. Prior to trial a motion to suppress the identifications was heard and denied by the trial court. We do not find from the evidence adduced therein that the photographic identifications were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification as insinuated. (See People v. Porter, 29 Ill. App.3d 456, 330 N.E.2d 599.) The in-court identifications of defendant were neither vague, doubtful or uncertain and were based on observations of defendant at the time of the commission of the crime. Defendant's argument resolves itself on whether the alibi witnesses are to be believed and the State's witnesses disbelieved. The lower court after hearing the witnesses, judging their demeanor and assessing their credibility, stated that although he was not "impressed" with Davis, he fully believed the testimony of Schmitt and Harvell and disbelieved the testimony of defendant's alibi witnesses and consequently he found defendant guilty of the commission of the offense. After a careful review of the record, we find no basis to disturb the findings of the trial court.

Next, defendant contends that the court erred in refusing evidence of his character. Police Officer Robert Stanton testified during trial on behalf of the State about the police investigation of the crime. During cross-examination it was stipulated by the parties that defendant could temporarily call Stanton as his own witness for purposes of proving defendant's character. Stanton testified that he had lived in the community for 25 years, that he had known defendant's family for about 16 years and that he had known defendant personally for about five years. He further stated that he was familiar with defendant's reputation. Defendant then attempted to question Stanton concerning defendant's reputation but the State's objections to the form of the questions were sustained. Defendant made the following offer of proof:

"Q. From your knowledge of Duil Thornton and knowing his relationship with you and the police department, does he have a reputation for having a gun and using a gun?

A. Not to my knowledge.

Q. And on the same basis you are not — do you know whether or not he has a reputation for using ...


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