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People v. Moyer

OPINION FILED JUNE 9, 1978.

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

v.

WILLIAM MOYER (IMPLEADED), DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. JUSTICE TRAPP DELIVERED THE OPINION OF THE COURT:

This case comes on appeal from a jury trial finding defendant guilty of armed robbery. Defendant argues three issues on appeal: (1) That he was not convicted beyond a reasonable doubt; (2) that the State's impeachment of defendant by use of his theft and forgery convictions was error since the theft conviction had been previously reversed; and (3) that defense witness, Roderick, was improperly impeached by hearsay.

Sometime after 8:45 p.m. on November 17, 1976, defendant Moyer, Phillip Roderick, and Steven Watson were riding in defendant's car looking for one of defendant's friends. The three men had been drinking. Defendant was driving, and at Roderick's suggestion, he pulled the car into an alley behind an Eisner store. Roderick testified that he went into the store to get some snacks. Watson also left the auto.

Defendant testified that he thought he saw a friend's car pass by so he pulled out of the alley to follow it. After a few minutes, he realized he was mistaken and returned to the alley. Watson and Roderick were running down the alley and got into defendant's car. The two men seemed upset. As defendant was leaving the alley, he noticed a police car slam on its brakes as it passed by. Defendant testified that he panicked because he had liquor in the car, and he ordered that it be thrown out the window. Someone threw the liquor container out the window and it landed close to the police car. Defendant then sped away and ran a stop sign and a red light. Finally, defendant stopped the car and all three men fled on foot.

Defendant testified that he did not know Roderick was going to commit the robbery and Roderick did not inform him that he had committed a robbery after he returned to the car.

Other witnesses testified that during the robbery defendant's car was parked in the alley with the lights off.

Roderick testified that he had pleaded guilty to armed robbery and that defendant was not aware that he, Roderick, had a gun in his waist the entire evening. The gun was concealed by Roderick's coat. Roderick also stated that Watson didn't know that Roderick was going to rob the store. When Roderick and Watson left defendant's car and walked towards the Eisner store, Roderick instructed Watson to stand outside the door while Roderick went inside. When questioned why Watson had to wait outside, Roderick stated that he didn't want to be seen in public with Watson because Watson was drunk. When Roderick left the store both he and Watson ran to the alley, but defendant's car was gone. A moment later, he saw defendant's car and got into it. When Roderick was arrested by the police, he had a gun and a paper sack containing the money from the store.

After Roderick was given immunity, he admitted that he had lied to the police when he told them that he bought the gun used in the robbery. Roderick testified that defendant's brother lived next door to defendant and he learned from the defendant that defendant's brother had a gun. Roderick was visiting the defendant a few days before the robbery and defendant left to go to the store. While alone, Roderick went next door into the bedroom closet and stole the gun. Roderick said he had a hunch where to look and defendant didn't know that he had taken the gun. Roderick stated that he had lied to the police to avoid a burglary charge.

According to Officer Mattingly, shortly after arrest defendant denied stopping in the alley to let anyone out of his car and he denied knowing Roderick. Defendant told Mattingly that only he and Watson were in the car. Defendant asked the officer if he was being arrested for throwing the beer can out of the window.

Defendant now argues on appeal that he was not proved guilty beyond a reasonable doubt because a reasonable hypothesis of innocence existed in that defendant was waiting for his companions to return from the store, unaware that they had just robbed it.

Of course, it is the function of the jury to judge the credibility of the witnesses and to resolve conflicting factual issues. (E.g., People v. Miller (1975), 27 Ill. App.3d 788, 327 N.E.2d 253, cert. denied (1976), 424 U.S. 925, 47 Ill. Ed.2d 334, 96 S.Ct. 1136.) Defendant and Roderick both claim defendant's innocence. Nevertheless, there is sufficient evidence to affirm the jury's verdict.

• 1 Flight from the scene of the crime may, at times, be probative of guilt. (McCormick, Evidence § 271 (2d ed. 1972).) Defendant explained his flight by stating that he panicked and threw out the liquor in the car. Yet, there was no explanation as to why the mere passing of a police vehicle would so alarm defendant to make him think that the police would stop his car. Defendant's conduct in speeding away, running through a stop sign and a stop light at a busy intersection, and finally abandoning his car, could reasonably have indicated to the jury that an innocent man would not take such grave risks for simply possessing liquor in his car. The evidence also indicated that shortly after arrest defendant denied that he knew Roderick or that Roderick was in his car. The jury was not bound to accept defendant's and Roderick's testimony in light of the evidence to the contrary. Defendant was proven guilty beyond a reasonable doubt.

After both sides rested, the trial judge read to the jury defendant's convictions for forgery and theft over $150. In a previous case, People v. Moyer (1971), 1 Ill. App.3d 245, 273 N.E.2d 210, we overturned defendant's theft conviction, but affirmed the forgery conviction. Defendant now argues that the trial court erred in allowing the introduction of the theft conviction which had been reversed on appeal.

Initially, we note that defense counsel did not object at the time the convictions were read to the jury. At the hearing on the post-trial motion, defense counsel informed the court that he had only recently become aware of the reversal of the theft conviction. ...


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