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People v. Cheung

OPINION FILED APRIL 24, 1980.

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

v.

WING CHEUNG, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT McKAY, Judge, presiding.

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

At the conclusion of a bench trial, defendant, Wing Cheung, was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18-2). He was sentenced to a term of 6 to 18 years imprisonment.

On appeal, defendant contends: (1) the trial court unduly restricted his right to cross-examination; (2) the trial court improperly shifted the burden of proof to him; (3) he was denied the effective assistance of counsel; and (4) his sentence is excessive.

We affirm.

The evidence discloses that an armed robbery occurred at 4:45 a.m. on December 13, 1977, at a Jack-In-The-Box restaurant in Chicago Heights. There were three eyewitnesses, Rosalin Hopewell, Virginia Young, and Robert Luckett. The restaurant was brightly lighted at the time of the incident.

Hopewell testified that Young and she were working at the restaurant when defendant came in. As Hopewell stood behind the counter, defendant walked up to her, pulled out a revolver, pointed it at her, and demanded all the money. She gave him all the money in the register.

Young testified that she was standing near Hopewell when the events described by Hopewell took place. She corroborated Hopewell's testimony.

Luckett testified that just as he was entering the restaurant he saw defendant about to leave the restaurant. Defendant pointed a revolver at him and ordered him to get out of the restaurant. Luckett left the restaurant and hid behind a nearby gasoline station. From there he saw defendant get in a car and drive away. Luckett further stated that he then ran and got into his own car and followed defendant to a place he later learned was defendant's home. Luckett said he then returned to the Jack-In-The-Box where he met some police officers. He then led these officers to defendant's home.

Officer Henry Rice, Jr., testified that shortly after the incident he went to defendant's home. With another officer, he entered the house. While searching for defendant in a bedroom, Officer Rice saw defendant jump out of a closet and point a revolver at him. The other officer grabbed defendant and wrestled the gun from his hand. Thereupon, defendant was placed under arrest and was subsequently charged with the offense of armed robbery.

OPINION

I

Defendant's first contention is that the trial court committed reversible error by unduly restricting his cross-examination of witnesses Hopewell and Luckett.

• 1 At trial, Hopewell testified that defendant had taken $110 and had used a "long gun." During cross-examination, defense counsel twice tried to impeach her with prior inconsistent statements contained in the complaint she had signed on the day of the incident. In the complaint, Hopewell had said defendant had taken $60 and had used a .45 Colt Automatic. The State objected to both attempts at impeachment contending there was a lack of a proper foundation to support the alleged impeachment. In neither attempt did defense counsel ask preliminary questions as to the time, place, and circumstances of making the statement. *fn1 The trial court sustained the objections.

At trial, Luckett testified that when he followed defendant's car from the Jack-In-The-Box to defendant's home, he noticed the car was "zigging and zagging" along the road. Luckett also said he had known defendant for a few years and had drunk alcohol with him on occasion. Based on this foundation, defense counsel asked Luckett if he believed defendant was drunk ...


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