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People v. Kirkwood

OPINION FILED MARCH 11, 1980.

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

v.

GEORGE KIRKWOOD ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. VINCENT BENTIVENGA, Judge, presiding.

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

After a jury trial, defendants were found guilty of armed robbery (Ill. Rev. Stat. 1975, ch. 38, par. 18-2) and each was sentenced to a prison term of seven years. Defendants appeal presenting the following issues for review: (1) whether defendants were denied a fair trial by the admission of evidence of another crime allegedly committed by defendants; (2) whether the trial court erred in admitting into evidence two .22-caliber cartridges where the State's answer to discovery did not specifically list the cartridges; (3) whether defendants were proved guilty of armed robbery beyond a reasonable doubt; and (4) whether the trial court erred by considering incompetent evidence in determining the sentence to be imposed.

We affirm.

On October 30, 1976 at approximately 9 p.m. a service station located at 734 South Western Avenue, Chicago, Illinois, was robbed at gunpoint and shortly thereafter defendants, George Kirkwood and Thomas Seals, were arrested and charged with armed robbery.

Andrew Pololak, owner of the service station, testified as follows: On October 30, 1976, at approximately 9 p.m., a man, identified by Pololak in court as defendant Seals, walked into the station, asked for change for the cigarette machine and then walked toward the cigarette machine in the building. A 1971 brown and beige Oldsmobile with two occupants then came into the station and stopped at the gas pump nearest to the station building. The driver, identified by Pololak in court as defendant Kirkwood, told Pololak to fill up the tank and then got out of the car and asked Pololak to check the oil. The other occupant remained in the back seat of the car. Kirkwood opened the hood of the car and then walked toward the office. Pololak then asked Kirkwood to shut off the engine and if it was all right if Pololak shut off the engine and Kirkwood nodded. Pololak stuck his hand through the open window and turned off the engine. As he turned to leave, the man in the back seat pointed a rifle at Pololak and said, "Don't move, give me your money." Seals then got in the back seat of the car, and Kirkwood got in the front on the driver's side. Pololak gave the man with the rifle $18 and then took a .38-caliber revolver out of his pocket and fired three or four shots at the man with the rifle. Pololak saw Kirkwood turn and it looked like he was reaching for something in his belt so Pololak shot him once or twice. After the shots were fired, Kirkwood drove out of the station south on Western Avenue. Pololak ran inside to call the police but as he did, a police car pulled into the station. Pololak told the officers what had happened and gave them his gun. Shortly thereafter, Pololak and his employee, Jimmy Young, went to the police station and looked at the mug books for approximately 1 1/2 hours but did not identify anyone. Approximately two to three hours after the shooting, Pololak went to Jackson Park Hospital with two detectives and saw a dead man in the emergency room. Pololak identified the dead man as the person who had been in the back seat of the car and who had the rifle. Pololak then went into another room and saw a wounded man whom he identified to the officers as the driver of the car. Pololak returned to the police station, viewed a lineup consisting of five men, and identified Seals as the passenger in the car.

Pololak testified further that the service station was well lit with fluorescent lights on top of the pumps, overhead lights, lights on the building and street lights on Western Avenue. Pololak testified on cross-examination that the incident occurred between 9 and 9:15 p.m.; that he did not see either Kirkwood or Seals display a weapon; that the rifle was a .22-caliber with a barrel approximately two feet long, and that during the incident he saw his employee, Young, run around the side of the building.

Jimmy Young testified as follows: On October 30, 1976, he was working for Andrew Pololak. At approximately 9:10 p.m. Young came from the back room where he was washing, across the bay area and into the office. Young saw a 1970 or 1971 brown Oldsmobile next to the first set of pumps, and Pololak was standing next to the car. Young started to go into the washroom, the door to which was open, but a man, identified by Young as defendant Seals, was standing in the washroom. Young viewed Seals for about 30 seconds from a distance of about three feet. Young then walked out and saw the man in the back seat of the Oldsmobile pointing a gun at Pololak's stomach and another man, identified by Young as Kirkwood, standing on the driver's side of the car. Young walked toward the bay area and heard someone from the office area say, "Hold it." Young then ran toward the back of the building and jumped over a fence. Young heard five or six shots and then came back toward the station where he saw Pololak on the telephone and saw a police car pull into the station. Young told the police what had happened and then went to the police station and viewed photographs. Young went home but later returned to the police station to view a lineup. Young identified Seals in the lineup. On cross-examination Young testified that there was no altercation between the parties; that when he saw the rifle, the hood of the car was up, the motor was stopped and the nozzle of the gas pump was in the back of the car; and that he did not see Seals with a gun and he did not see Seals take any cash from the office cabinet.

Robert Cozzi, a Chicago police officer, testified that on October 30, 1976, he and his partner, Kalemba, were assigned to investigate the robbery of Pololak's service station. At approximately 10 p.m. Cozzi went to the station and saw Pololak and Young and took them to the police station where they viewed photographs. Young left and Cozzi, Kalemba and Pololak went to Jackson Park Hospital where they observed the body of Oliver Bonner in the emergency room and George Kirkwood in another room. After Pololak identified Kirkwood as the driver of the car, Cozzi placed Kirkwood under arrest. Approximately 45 minutes later, Cozzi observed in the waiting room a man who fit the description of one offender and he arrested the man, identified as Seals, and transported him to headquarters. Cozzi then called Young and requested him to come to the station to view a lineup. Young and Pololak viewed a lineup of five men and both made an identification.

Richard Berry, a Chicago police officer, testified that on October 31, 1976, he and his partner were called to 1526 East 75th Street in Chicago, which is one block from the emergency room of Jackson Park Hospital, to investigate a suspicious automobile. Officer Berry observed a brown Oldsmobile which had blood on the rear seat and floor and a hole in the vinyl roof. There were no occupants, and the doors and windows were secured. Berry requested by radio verification of the registration and license plate and then called a tow truck.

Norbert Rajewski, a Chicago police officer, testified that on November 1, 1976, he and his partner examined a 1971 or 1972 Oldsmobile at the auto pound. Officer Rajewski observed a hole in the rear roof on the driver's side and blood on the back seat. Rajewski found two live .22-caliber cartridges on top of the rear ashtray on the left side of the car and a spent bullet lodged in the rear side panel. Rajewski inventoried the cartridges and bullet and transported them to the crime lab.

Richard Chenow, a Chicago police officer, testified that he examined the two bullets removed by the medical examiner and he examined the .38 revolver given to the police by Pololak and determined that the bullets were fired from the revolver.

It was stipulated by the parties that if Dr. Yuksel Konacki, a medical examiner for Cook County, were called, he would testify that he performed an autopsy on the person later identified as Oliver Bonner; that the cause of death was bullet wounds in the chest and neck; that two bullets were removed from the body; and that an analysis of the blood showed the presence of 2.17 per cent ethanol, and under the law in Illinois the person would be presumed to be intoxicated.

Defendant Thomas Seals testified on his own behalf as follows: On October 30, 1976, at approximately 9 p.m. Seals was at a service station on Western Avenue with Kirkwood and Bonner. Kirkwood had been driving, and he asked the attendant to fill the tank. Seals, who had been riding in the front seat, got out, asked the attendant for change and then went into the office. Seals bought a package of cigarettes and used the washroom, and as he was coming out of the washroom, five or six shots were fired by the attendant from the driver's side of the car. Seals did not know why the shots were fired. Seals did not observe James Young. After the shooting, Seals got into the car and heard Kirkwood say, "The man's crazy, let's get out of here, he's going to kill us all." Kirkwood drove out of the station with the hood still up and after about one block he passed out. Bonner had also passed out. Seals then put the hood down and drove to the emergency room of Jackson Park Hospital. After a man helped him get Kirkwood and Bonner out of the car, Seals was told to move the car, so he parked it on 75th Street. Seals then went to the waiting room where he was arrested about one hour later.

On cross-examination Seals testified that prior to going to the service station he had been at his uncle's house for a wedding reception. Kirkwood and Bonner were also present, and at approximately 8:30 Kirkwood asked Seals to go with him and Bonner to pick up Bonner's friend on the west side. Seals did not see a rifle. When he got to Jackson Park ...


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