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People v. Tate

OPINION FILED AUGUST 25, 1978.

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

v.

ERNEST TATE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. RICHARD L. CURRY, Judge, presiding.

MR. JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Rehearing denied September 22, 1978.

Following a jury trial, defendant was convicted of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) and sentenced to serve 5-15 years in the Illinois Department of Corrections. On appeal he contends that he was not convicted beyond a reasonable doubt, and that the trial court erred when it: (1) admitted into evidence a statement allegedly made by him and not disclosed to the defense prior to trial, (2) allowed the State to make repeated references to his prior arrests, (3) refused to allow defense counsel to testify as a defense witness, (4) allowed into evidence testimony concerning certain acts of a third person, (5) restricted his examination of a witness and argument to the jury on the subject of that witness' interest, bias or prejudice, (6) allowed testimony and arguments concerning the "policy" of Sears stores, and (7) imposed sentence prior to the disposition of his post-trial motions.

The following pertinent evidence was adduced at trial.

For the State

Richard Meiners

On October 23, 1973, at approximately 1:45 a.m. he was working at a Clark gas station at 1745 West Foster in Chicago when two men came into the front office requesting a tow truck. He told them he did not have one, but that there was one at Ashland and Lawrence. They remained there three to five minutes. After one of the men purchased a bag of cookies they left, returning approximately two minutes later asking how far away Ashland and Lawrence was. He responded that it was about eight blocks away. One of the men then asked him for a package of Kool cigarettes. He identified that man as Ernest Tate. As he started to get the cigarettes from the back room, Tate pulled out a chrome-plated revolver with a brown and white handle and said, "This is it. Get in the back." Tate stood about a foot and a half away from him, face to face in the front office, which is a four-foot by nine-foot space illuminated by approximately 25 neon lights. Tate pushed him into the back room, which is a small room lighted by two 150 watt light bulbs. Tate told him to "Turn around and shut up." Tate went through his pockets taking approximately $90 of the service station's money and his wallet, which contained approximately $5, his driver's license, Sears credit card and other identification. The other man opened the cigarette cabinet and took approximately six cartons of Kools. Tate then told him to lie on the floor for five minutes. They then walked out the front door, and shortly afterward a customer walked in. Meiners told the customer he had just been robbed. As the customer called the police, Meiners ran outside and stopped a squad car that was going by. The police drove him around, but they were unable to find the offenders. He described Tate to the police as being approximately 5'10", 160 lbs., 20 to 25 years old, with pock marks on the side of his face, wearing brown pants, a checkered shirt, a hat with a brim and high heel shoes. A police evidence technician also came and took a fingerprint from the door which led to the back room. Later that morning at about 9 he called Sears and advised that his credit card had been taken. He later went to the Racine Police Station where he viewed a five-man lineup and positively identified Tate as the man who had robbed him the night before. His driver's license was returned to him at the police station, but his Sears credit card was not returned.

On cross-examination he denied directing an evidence technician to take a fingerprint off of the door to the back room. He admitted that although he watched the two offenders as well as he could, he kept being turned around and did not always have them in sight. He admitted that although the two offenders were very close in height, Tate was approximately his own size, which was 5'10", and the other man was slightly taller. He denied telling Officers Murray and Halberson that after the two offenders left the first time he thought something was wrong and put a dime in the phone to call the police, but he did tell them that he was thinking about it. He acknowledged that after the robbery, although he told the police that Tate had a slight beard, he did not tell them that Tate had a scar on his forehead or a mustache.

On redirect examination, he testified that the hat which Tate wore throughout the robbery had a round brim which covered the scar on his forehead.

Harvey Gentry, security officer for Sears at 6233 S. Halsted

On October 23, 1973, he responded to a call at the store's radio and television department, where he observed Ernest Tate and a Mr. Sellers who was accepting a sales slip from a salesman. Sellers and Tate left together and went to the fourth floor credit department. After he called the operator for assistance, he and other security officers arrested Sellers and Tate and took them to the security officer on the second floor. Sellers had in his possession the sales slip, a Sears credit card, a driver's license and other identification cards, all of which bore the name of Richard Meiners. The driver's license was later given to the police, and the credit card was given to a Mr. Lockett and put in the file. It is company policy that when a credit card belonging to someone else is recovered the credit card is destroyed and a new one issued. To the best of his knowledge this is what happened to Meiners' card.

On cross-examination he acknowledged having a conversation in the afternoon of October 23 with Officers Murray and Halberson at the Racine Police Station, but denied telling them that Sellers told the salesman he would have to go to his car to get the credit card. The saleslip and credit card were put into an envelope, but he did not recall what happened to it. He admitted that he never heard any conversation between Tate and Sellers. He acknowledged that after a search, he found that Tate had nothing belonging to Meiners.

William F. Murray, Chicago Police Investigator

On the afternoon of October 23, 1973, he met with Richard Meiners and later with Harvey Gentry at the police station. Gentry gave him Meiners' driver's license, which he returned to him. A lineup in which Tate and Sellers were the third and fifth men was conducted at the station. Following an identification by Meiners, he arrested Tate on the charge of armed robbery. Tate and Sellers were both searched and found to have Kool cigarettes in their possession.

On cross-examination he acknowledged that he only observed the second search of Tate which was conducted after the lineup and that nothing with Meiners' name on it was taken from Tate at that time. He did not see a motel key, but did find a motel receipt which he returned to Tate. He acknowledged that Sellers told him he was 5'9" and that Tate in his shoes appeared to be 5'11". He denied that Sellers appeared taller than Tate in the lineup, but admitted that in his report he described Sellers as being 6 feet and Tate as being 5'9".

On re-direct examination, he stated that his lineup report showed Sellers' height as 5'9", that the information is based on interview and observations, and that there are no facilities at the station for weighing and measuring prisoners.

For the Defense

William F. Murray, Chicago Police ...


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