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People v. Lindsey

OPINION FILED MAY 31, 1979.

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

v.

LARRY D. LINDSEY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. MATTHEW J. MORAN, Judge, presiding.

MR. JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

At the conclusion of a bench trial in the circuit court of Cook County, defendant, Larry D. Lindsey, was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2) and attempt murder (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 9-1). He was sentenced to a term of 5 to 10 years for armed robbery and to a term of 3 to 9 years for attempt murder, the sentences to run concurrently.

On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt of either armed robbery or attempt murder; and (2) the trial court erred in denying his motion to suppress the identification testimony.

We affirm the trial court.

Prior to the start of trial, defendant filed a motion to suppress the identification testimony. By agreement of the State and the defense, the suppression motion was held in abeyance until conclusion of the trial.

Daniel Frederickson testified that in September 1975 he and Steven Battersby lived in an apartment at 33 Rockford Avenue in Forest Park, Illinois. On September 11, 1975, at approximately 12:45 a.m., Frederickson parked his Mercedes automobile in the lot behind the apartment building where he lived and turned the headlights off. The Mercedes was facing the back of the apartment building and Rockford Avenue. He opened the car door activating the automobile's dome light. As he began to exit from the car, a man pushed a gun into his left side and announced: "This is a stick up." Frederickson saw a second man (whom he later identified as the defendant), standing eight to 10 feet behind the gunman.

The gunman then ordered Frederickson to lie down across the front seat of the car. Frederickson could not lie flat because of an arm rest in between the driver and passenger seats. The gunman then asked Frederickson where his wallet was and Frederickson replied that it was in his left rear pocket. The gunman reached in, took the wallet and the keys from the car's ignition and threw them to defendant. Frederickson saw defendant catch the wallet and the keys.

At this point, Battersby approached Frederickson's car shouting, "Hey, there, what are you doing?" The gunman and defendant retreated to an automobile parked 20-25 feet away on Rockford Avenue. The gunman jumped into the driver's seat of the automobile, while defendant entered the passenger side. Battersby ran "right up" to the rear end of the robbers' automobile and yelled, "What are you doing?" The robbers "delayed a few seconds" and then accelerated off. Shortly thereafter, the police arrived on the scene.

"A half hour, perhaps 45 minutes later," Frederickson was driven to the vicinity of Roosevelt and Kostner in the city of Chicago, where he identified the defendant, who was then in police custody, as one of the men who had robbed him. Frederickson also identified defendant in court.

Frederickson stated further that the parking lot of his apartment building was well lit at the time of the robbery. There was a street light about 20 feet from where his automobile was parked that night, a flood light on the back of the apartment building near the rear entrance; and the dome light in his automobile was on throughout the incident.

On cross-examination, Frederickson testified that as he was lying in a "pushed over position" across the front seat of his Mercedes, his eyes were level with the dashboard, the armrest was sticking in his ribs, and he could turn his head freely. Defendant was standing approximately 17 feet behind the gunman, and was wearing a cap, a print shirt and a checkered coat with different colors. Frederickson could not tell the color of defendant's pants and could not remember if defendant had any facial hair.

After furnishing the police with a description of both offenders at the Forest Park police station, Frederickson was transported with Battersby to Arthington and Kilpatrick in Chicago. Frederickson identified the automobile depicted in People's exhibits Nos. 1 and 2 as the same automobile the robbers used and which he later saw abandoned in the vicinity of Arthington and Kilpatrick.

Frederickson and Battersby were then driven to the intersection of Roosevelt and Kostner. Defense counsel asked Frederickson what he saw when he arrived at that location.

"A. Well, I saw several squad cars from different police departments. I saw a helicopter with a beacon light. Some canine patrol [sic] and several individuals that had been apprehended.

Q. When you saw [say?] several, how many?

A. Oh, I guess ten at the most."

Defendant and another man were standing together in the midst of officers. Frederickson did not remember defendant being handcuffed.

The Chicago police officers asked Frederickson to walk up and examine the various suspects. Frederickson complied and immediately identified defendant as one of the robbers. At the time of this identification, Battersby was separated from Frederickson.

The State called Steven Battersby as its next witness. Battersby testified that in September 1975 he and Frederickson lived in an apartment at 33 Rockford Avenue, Forest Park. After finishing work, Battersby arrived home on September 11, 1975, at approximately 12:30 a.m.

Battersby was standing at the kitchen sink cleaning his thermos when he heard "scuffles and voices" coming from the parking lot. Battersby parted the curtains on the kitchen window and looked out. He saw: (1) Frederickson lying across the front seat of his Mercedes; (2) a second man leaning inside the car's open door; and (3) a third man, later identified as the defendant, standing a foot or two behind the second man. Battersby was able to see defendant's face and he described defendant's clothing that night as a multicolored shirt, a brown jacket and brown pants.

Battersby testified that several sources of light illuminated the area around Frederickson's automobile at the time of the robbery. There were street lights 50 to 60 feet away at the intersection of Rockford and Brown, a lamppost in the nearby alley, and "lights on the side of the [apartment] building." The dome light in Frederickson's Mercedes was also on during the incident.

Battersby stated that he grabbed the kitchen telephone, threw it to his girlfriend and told her to call the police. He then ran out the front door of the apartment building, turned left and ran around to the parking lot in back. As he reached the lot, Battersby related that he noticed the two robbers entering an automobile parked nearby on Rockford Avenue. Battersby described the automobile as a 1974 or 1975 Buick with a light blue body and a white vinyl roof, bearing license plate number VS-5981.

As Battersby ran up and got to within three to five feet of the rear of the robbers' automobile, he shouted: "Stop, halt, hold it." The two robbers turned and looked over their shoulders. Battersby could clearly see defendant's face. The robbers then accelerated down Rockford, turned right at an intersection located 40 feet away, and headed east on Brown. When the robbers made this right hand turn onto Brown, Battersby, who had pursued the automobile on foot, stated he was able to again see the defendant's face through the passenger side window. Defendant was looking straight at him. Battersby identified defendant in court as the robber.

Battersby asserted that when he lost sight of the robbers' automobile, he ran back to the apartment, grabbed the phone from his girlfriend and talked to the police. He gave them a description of the suspect automobile including its license plate number. He also described the robbers as two male Negroes, between 5 feet 6 inches and 5 feet 10 inches in height and approximately 20 to 25 years old. Battersby informed the police that defendant was wearing a multicolored shirt, a brown jacket and brown pants.

The police told Battersby that a squad car was on the way. Battersby and Frederickson waited in front of the apartment building. About 10 seconds had elapsed when Officer Joseph Madden of the Forest Park Police Department arrived on the scene. Battersby began to repeat his description of the two robbers to Officer Madden when a radio dispatch announced that a high-speed chase was in progress. Officer Madden told Battersby and Frederickson that he had to join the chase and that they should go back into their apartment and call the station.

The police subsequently asked Battersby and Frederickson to come to the station, which they did. After talking to detective Michael Thompson, they were driven to the intersection of Roosevelt and Kostner in Chicago. There were several Chicago police cars parked on the street and a group of policemen standing around. Battersby noticed two men standing alongside a squad car and immediately identified them as the robbers. Defendant was one of those two men. His clothing matched the description Battersby had earlier furnished to the Forest Park police. Battersby testified that defendant and the other man were the only two suspects he saw in police custody, and they were handcuffed together.

Battersby and Frederickson were then driven to Arthington and Kilpatrick where they identified an abandoned automobile as the one the robbers had used. Battersby identified People's exhibits Nos. 1 and 2 as depicting this same automobile.

On cross-examination, Battersby contended that he looked out his kitchen window at the two robbers for approximately 15 to 20 seconds. At an earlier preliminary hearing, Battersby had stated that he looked out the window for about 10 seconds. Battersby could not recall if at the time of the robbery defendant had a hat on, had straight or "natural style" hair, or had a beard or moustache. Battersby denied telling Officer Madden that he did not see the second robber very well.

The State called as its next witness Oak Park Police Sergeant Joseph Mendrick. Sergeant Mendrick testified that on September 11, 1975, at approximately 1 a.m., he received a radio dispatch of an armed robbery in Forest Park. He was given a general description of the robbers' automobile including its license plate number.

As Sergeant Mendrick approached the intersection of Jackson and Harlem, he saw an automobile, containing two occupants, which matched the description furnished by the Forest Park police. The automobile was traveling south on Harlem at approximately 45 to 50 miles an hour. Sergeant Mendrick pursued the vehicle onto the Eisenhower Expressway, ...


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