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People v. Reed

OPINION FILED JANUARY 31, 1980.

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

v.

ROBERT REED, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT SKLODOWSKI, Judge, presiding.

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

Defendant, Robert Reed, was charged with robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-1) and, after a bench trial in the circuit court of Cook County, he was found guilty of attempt robbery. (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 18-1.) He was sentenced to a two- to six-year prison term.

On appeal, defendant contends: (1) the identification evidence linking him to the crime was insufficient to prove him guilty beyond a reasonable doubt; (2) the trial court improperly disregarded his alibi defense evidence; and (3) the trial court failed to resolve issues of fact upon a theory of innocence.

We affirm.

At trial, the State's evidence disclosed that at about 1:30 a.m. on November 21, 1976, Patricia Sperando was walking home alone from a tavern where she had consumed two drinks while there in the company of her husband. Sperando testified that as she walked north of 31st Street on the 3600 block of Poplar Avenue, she noticed a man, later identified as defendant, walking behind her. There were two street lights in the area. Although it was a cold night, the defendant was wearing a sleeveless tee shirt and carrying a brown jacket.

After crossing an alley illuminated by a street light, Sperando started to run. Defendant also started to run after her. As she reached the fence of the first house beyond the alley, defendant grabbed her purse. Sperando let go of the purse and screamed. Defendant grabbed her, put his hand over her mouth, and tried to pull her away from the fence. She felt something at her back and, although she was unable to see a weapon, defendant said, "I got a knife and if you think I won't use it, you're crazy." He also repeatedly told her to "let go of the fence."

Sperando further testified that after struggling with defendant for a moment, she saw an automobile drive around the corner onto Poplar Street. As the car came close to her, Sperando released her hold on the fence and turned towards the car. As the car stopped near the curb, she took one step towards it. Defendant was still behind her. A man later identified as George Rumbaugh exited from the car and asked, "What's going on? Are you all right?" As Rumbaugh approached the sidewalk, defendant released Sperando and ran through the alley with her purse. Defendant ran 12 to 18 feet and then dropped the purse. Sperando further testified she was unable to identify defendant in court because "he was behind me most of time."

On cross-examination, Sperando acknowledged that she was unable to see defendant's face when she first glanced back at him. She could not recall looking back at him again after she had started running, but she had heard defendant running behind her. Sperando acknowledged that at a preliminary hearing on November 23, 1976, she testified that she had "caught a very quick glance of him running." She explained the discrepancy between this testimony and her trial testimony saying, "Sir, it's been a long time."

Although Sperando expressed reluctance to judge distance and length of time, she estimated that a few moments or minutes passed from the time defendant first grabbed her to when Rumbaugh stopped his car in front of her. She also testified that she remembered speaking with Officers Williams and Okeys on November 21, 1976, although she could not recall the conversation. She remembered, however, telling the officers that she did not get a good look at the offender. She could not recall whether she gave the officers a description of her assailant.

On redirect examination, Sperando testified further that she went to the police station on November 22, 1976, and viewed a lineup of four white male subjects. She heard each of the four men state his name and address. Based on hearing the defendant's voice, she identified him as her assailant. She thought she had told the officers that her identification was based on recognizing defendant's voice. Sperando positively identified defendant on the following day at the preliminary hearing.

On re-cross-examination, Sperando estimated defendant told her to let go of the fence more than twice and possibly four times. She admitted that her identification of defendant at the preliminary hearing was based upon her prior voice identification at the police station.

On redirect examination, Sperando again expressed reluctance to judge length of time but estimated that a few seconds elapsed between when she first saw defendant and when she ran to the fence. She could not recall testifying at the preliminary hearing that the time between when she first saw defendant and when he made contact with her was "just a minute or two, not very long." Sperando also estimated that Rumbaugh was six to nine feet from her when he stopped the car near the curb. She also stated that a few seconds elapsed between the time when Rumbaugh got out of his car and began to approach her and when defendant began to run away.

George Rumbaugh, an identification witness, testified for the State. Rumbaugh testified that he had lived in the neighborhood where the incident occurred. He further stated that as he was driving westbound on 31st Street on November 21, 1976, he saw a man whom he later identified as defendant, walking on the other side of Poplar Street, behind Sperando. His attention was drawn to defendant because defendant was wearing a sleeveless tee shirt and the weather was cold. He also recalled seeing defendant in the neighborhood on prior occasions.

Rumbaugh drove approximately one half block on 31st Street, and after he passed the corner of 31st and Poplar Streets, he turned the car around and drove back onto 31st Street, and then turned onto Poplar Street. On Poplar Street, he saw defendant and Sperando next to a fence near an alley. The area was illuminated by street lights. He saw defendant behind Sperando with his arms around her. She was pushed against the fence and she and defendant appeared to be struggling. Rumbaugh stopped his car six feet from the curb, about 15 to 20 feet in front of them. As he exited from his car, defendant and Sperando were facing him. When Rumbaugh began to approach them, defendant fled through the alley. Rumbaugh asked Sperando if she was all right and then unsuccessfully chased defendant.

Later that morning, Rumbaugh spoke with the police about the incident. On November 22, 1976, he identified defendant from a group of five police photographs. At 5 p.m. that day, he viewed a line up of five men at the police station. Each subject was asked to speak and turn in different directions. After viewing the lineup, Rumbaugh identified defendant. At trial Rumbaugh also identified defendant and again viewed the police photographs and selected defendant's picture.

On cross-examination, Rumbaugh acknowledged that between 8 p.m. and 11 p.m. on November 20, 1976, he had consumed three drinks. Rumbaugh also stated that, although he never saw defendant walking on the same side of the street as Sperando, he did see defendant in the process of crossing the street. Rumbaugh also estimated that defendant was out of his sight for approximately 20 seconds while he turned his car around on 31st Street. He did not see either Sperando or defendant running during the time he observed them.

When asked to estimate the length of time he observed defendant, Rumbaugh asserted he viewed defendant on the corner for five seconds and for another five seconds after the defendant came in contact with Sperando. As he exited from his car, he looked directly at defendant and immediately ran to Sperando. Rumbaugh acknowledged testifying on direct examination, as he had at the preliminary hearing, that the door on the driver's side of his car opened to where the incident was occurring. During the incident, however, he could not remember ever seeing a purse, nor did he recall seeing defendant with a purse.

Rumbaugh also asserted he could not say "with certainty" that defendant was the same man he had seen across the street from Sperando. On redirect examination, however, Rumbaugh testified that he recognized defendant when he observed defendant and Sperando at ...


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