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People v. Ward

OPINION FILED JUNE 29, 1979.

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

v.

NATHANIEL WARD, JR., ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. SYLVESTER C. CLOSE, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendants were each charged by indictment with four counts of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18-2.) Following a bench trial, defendants were found guilty on all counts and each sentenced to a term of 5 to 15 years.

Defendants raise two issues on appeal: (1) whether probable cause existed for their warrantless arrests; and (2) whether they were proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.

At about 3:30 a.m. on February 23, 1975, Brenda, Jasper and Ruby McElroy, Solomon Jones, and Raymond Mayfield were robbed at gunpoint in a parking lot at 95th Street and Bishop Avenue in Chicago. Defendants were arrested on March 10, 1975, and charged with the crime. Prior to trial Curry made a motion to quash his arrest and suppress any resulting identifications. At the hearing on the motion to quash the arrest, the following pertinent evidence was adduced.

Donald Foulkes, a Chicago police officer, testified. He and his partner, Officer Hayes, were assigned to investigate a robbery that occurred on February 23, 1975. He arrested Curry on March 10, 1975, outside a courtroom at 6100 South Racine. He did not have an arrest warrant nor did he observe Curry committing a crime at that time. He had been assigned to the case on February 24, 1975, and interviewed several of the victims. They described the two assailants. The person carrying the gun was a Negro male, medium brown complexion, approximately 19 to 20 years old, and weighed about 160 pounds. He wore a hat and a black and white tweed coat, and had a scar near his left eye. The second person was a Negro male, light brown complexion, approximately 20 years old, and weighed about 170 pounds. He had light brown hair and wore a brown knee-length leather coat. His original report did not indicate the second man's eye color, but two of the victims, Brenda McElroy and Solomon Jones, had indicated that his eyes were blue. He was also told that a green leather coat had been taken in the robbery.

In the course of investigation Foulkes learned that two people fitting the descriptions of the offenders had been arrested at a Jewel food store and were to appear in court on March 10, 1976. On that date Officer Foulkes observed the two defendants in court. He noted that Curry had sandy brown hair, blue eyes and was about 5'9" or 10" tall. He stated that in his experience it was unusual for a Negro to have sandy hair and blue eyes. The other defendant fit the general physical description given by the victims, had a scar near his left eye, and wore a green leather jacket.

At the time of his arrest, Curry told Officer Foulkes that he was 26 years old, 5'8" tall and weighed 150 pounds. In his report Officer Foulkes mistakenly wrote that Curry had brown eyes. In his opinion Curry fit the description given by the victims. Defendant's motion to quash was denied. At a subsequent hearing to reconsider the motion, Solomon Jones denied telling any investigating officers that either of the men who had robbed him had blue eyes. The court again denied Curry's motion to quash the arrest.

Curry also made a motion in limine to suppress identification. At the hearing on that motion, the following testimony was adduced.

Defendant Curry testified. He participated in two lineups on March 10, 1975. He stated that at one of the lineups he was the only person asked to step out of the lineup a second time and to state his name and occupation. While he was standing there he heard someone say, "Take a good look at him."

Officer Foulkes testified that he conducted two lineups in which Curry was present. Solomon Jones, one of the victims, identified both defendants at the first lineup. The other four victims viewed the second lineup separately. Jasper McElroy made no identification, Brenda McElroy identified both defendants, Ruby McElroy identified Curry, and Raymond Mayfield identified Ward. Officer Foulkes testified that he never told anyone whom to pick from the lineup and that he did not recall any of the witnesses requesting that anyone step from the lineup to be viewed a second time. The court denied Curry's motion to suppress the identification.

The following pertinent testimony was adduced at trial.

Brenda McElroy testified that at about 3:30 a.m. on February 23, 1975, she and the other victims left a lounge where they had attended a birthday party. They went to the Church's Chicken parking lot and found that Solomon Jones' car would not start. Efforts to start the car were fruitless and Jones decided to ride with the McElroys. Her father then discovered that his car had a flat tire. After the tire was fixed, the group prepared to leave. As her father started to get in the car, Ward, whom she identified at trial, walked up and asked him for a cigarette. When Mr. McElroy responded that he had none, Ward announced a stickup. She stated that he carried a "long gun" and wore a wide dark hat and a tweed coat. Ward removed Mr. McElroy's glasses and searched his wallet and pockets. At the same time Curry, whom Brenda also identified at trial, was robbing Mr. Jones and then told Ward to take Ruby McElroy's rabbit coat. Ward also took Mayfield's jacket and Brenda's purse and camera. At the time of the robbery the car was parked next to a light pole facing the chicken store. Her father was told to "drive straight off" and as he did he struck the pole.

On March 10, 1975, she viewed a lineup at a police station and identified both defendants. She noticed that Ward was wearing Mayfield's jacket, which she had purchased in 1974 for his birthday. She also testified that inside the purse that was taken was her mother's Montgomery Ward charge card.

On cross-examination Brenda stated that she bought the green coat from National Clothing Store on June 22, 1974, and charged it to her mother's account. She also stated that she told investigating officers that one of the robbers had light-colored eyes but did not give a particular color. At the time of the robbery Mr. Jones was returning to the McElroy's car after locking his own and was held up at the rear of their car. She estimated that the robbery lasted 15 minutes. After the robbery her father was allowed into the chicken store by the cleanup crew and called the police.

On redirect examination the witness identified a photograph of the lineup she had viewed, and stated that she identified defendants at the lineup. The picture accurately represented the lineup except that Ward was not wearing the green jacket.

Ruby McElroy's testimony basically corroborated her daughter's account. She stated that after the flat was discovered, Mr. McElroy moved the car to a light in the parking lot to fix the flat. She identified Curry at trial as the man who kept his hand in his pocket and said that the other man held a gun. Her rabbit coat was taken in the robbery. At the lineup she could identify only Curry.

On cross-examination she testified that her attention was directed towards the gun and not at the man holding the gun. She also stated that when she looked at the other man, Curry, she saw him because he stood in the light. At the lineup she recognized Curry by his looks and because he wore the same leather jacket that he did at the robbery.

Jasper McElroy testified. He corroborated the testimony of the previous two witnesses. He identified Ward as the man who held the gun to his head and Curry as the other man. He had seen both defendants at a lineup on March 10, 1975. On cross-examination the witness stated that he could not positively identify anyone at the lineup.

Solomon Jones testified. He basically corroborated the other witness' testimony. He identified Ward and Curry as the men who robbed him. He also identified both men at the lineup. On cross-examination he stated that he did not note the color of Curry's eyes and did not tell anyone that they were blue. He remembered that Ward had a scar near his left eye.

Raymond Mayfield testified. He basically corroborated the other witnesses' testimony. He identified Ward as the man who held the gun on Mr. McElroy. He had previously identified Ward at a lineup. He identified the green leather jacket as the one that Brenda McElroy had given him for his birthday and which was taken in the robbery. He recognized the jacket by a cologne stain on one arm and a scratch in the leather. He had seen the same jacket on Ward during the lineup.

On cross-examination Mayfield stated that during the robbery Ward was directly in front of him. He could not see the other man at all. He could ...


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