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People v. Malone

OPINION FILED DECEMBER 5, 1978.

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

v.

CHARLES MALONE, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRED G. SURIA, Judge, presiding.

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

Defendant-Appellant Charles Malone was convicted of armed robbery pursuant to a jury trial. The trial court sentenced defendant to a term of 5 to 8 years in the Illinois Department of Corrections. Defendant appeals from this conviction raising for our review issues pertaining to: (1) prior misdemeanor convictions for theft, (2) evidence of unrelated crimes, (3) improper closing argument, and (4) the failure of prosecution to comply with rules of discovery.

On June 20, 1976, Richard Mitchell, the victim of the armed robbery, had been visiting his cousin at the El Continental Lounge before departing for his mother's residence at 559 East Browning, Chicago, Illinois. At 4:15 a.m. he had reached the lobby of his mother's building when Mitchell saw defendant standing by the lobby elevator. Mitchell observed defendant in this position under good lighting for a few minutes.

Mitchell and defendant entered the elevator and rode therein for two minutes until the elevator door opened at the third floor. Defendant positioned himself by the opened door and pointed a bag, containing a gun, at Mitchell. Mitchell was able to view the handle of the gun. Defendant demanded Mitchell's watch, stating, "Give it up brother, this is a stickup." Mitchell did not relinquish his watch at this time and, instead, gave defendant two $20 bills. Defendant again demanded the watch, took the watch, exited the elevator and told Mitchell to "move on."

Mitchell reached the seventh floor, exited the elevator and went into his mother's apartment. Mitchell obtained a butcher knife, departed from the building and unsuccessfully spent the next half-hour searching for defendant. Mitchell then returned to his mother's apartment and called the Chicago Police.

Officer Duhig arrived at the apartment and interviewed Mitchell. Mitchell described the culprit as 23 to 24 years of age, 5'9" to 5'10" tall, weighing 165 pounds, wearing a mustache with hair under the chin, a short Afro hair style, brown check pants and a pattern shirt.

On September 3, 1976, Mitchell observed defendant with a group of persons near Mitchell's mother's apartment. Mitchell located a marked police car and explained to the police officers that he had seen the man who robbed him. Mitchell entered the squad car and the officers and Mitchell drove to the location where Mitchell observed the defendant. Mitchell identified defendant for the officers and then exited the squad car. Defendant commenced to run and was ordered to halt by the police. Defendant then ceased running and was arrested. We note that defendant was the only member of the group who fled upon arrival of the squad car.

At trial, defendant presented an alibi defense. He testified that on June 20, 1976, at 4 a.m. he was sleeping at the residence of his uncle and aunt. He testified that he could not have been out of the residence after 4 a.m. because he had no keys to the residence.

Defendant further testified that he did not satisfy the physical description of him provided by Mitchell. Defendant stated that he never weighed more than 138 lbs., never had facial hair but for a mustache, wore his hair in a "perm" (a straight hair style) and never had checked pants. Defendant also testified that he did not run from the police but merely moved out of the way of the approaching police car.

Several other witnesses testified on behalf of defendant. Defendant's aunt testified that defendant had no keys to her residence, had no check pants and wore a "perm" hair style (as opposed to an Afro) in June of 1976. Defendant's uncle testified that defendant wore a "perm" hair style in June of 1976. He further testified that he could not remember giving defendant the keys to the residence. Two of defendant's friends also testified that defendant wore a "perm" hair style in June of 1976.

The jury found defendant guilty of armed robbery and the trial court imposed a 5 to 8 year term of imprisonment upon defendant. It is from this conviction that defendant appeals.

Defendant argues that he was prejudiced by a forced admission concerning his prior residency in the County Jail. This admission arose from the following cross-examination:

"Q. Who gave you the hair style?

[Defense Counsel]: I object to ...


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