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People v. Patterson

OPINION FILED SEPTEMBER 2, 1980.

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

v.

KEVIN PATTERSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS FITZGERALD, Judge, presiding.

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

Defendant, Kevin Patterson, was charged by indictment with the armed robberies of Leroy Newman and Forrest Williams in violation of section 18-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). Defendant's motion to suppress certain identification testimony was denied and after a jury trial defendant was found guilty as charged. The court entered judgment on each verdict and sentenced defendant to two concurrent terms of 18 years. Defendant appeals and we consider the following issues: (1) whether the admission of defendant's prior conviction for the purpose of impeachment was improper; (2) whether the prosecutor improperly commented upon defendant's failure to call certain witnesses; (3) whether the trial court improperly limited the scope of defense counsel's cross-examination of a certain witness; (4) whether the trial court erred in denying defendant's motion to suppress certain in-court identification testimony; and (5) whether the State failed to comply with Supreme Court Rule 412 (Ill. Rev. Stat. 1973, ch. 110A, par. 412).

For reasons hereinafter set forth, we affirm the judgment of the circuit court of Cook County.

On March 11, 1975, at approximately 9:10 p.m., two men brandishing shotguns and one man brandishing a .45-caliber pistol entered the Rothchild Liquor Store. Four Rothchild employees, Meyer Spivak, Jerry Carmen, Jessie Thompson and Donald White, were searched for weapons by the brigands and then instructed to empty their pockets. Two store patrons, Leroy Newman and Forrest Williams, off-duty Chicago police officers, were also searched and were relieved of their service revolvers and police badges. Officer Williams' revolver was a chrome-plated .38-caliber detective special with the name "V. Paresi" engraved upon it, and his badge number was 9963. Officer Newman's badge number was 10599.

Approximately 10 minutes after the employees and several patrons were locked in the store's beer cooler by the offenders, one of the captive patrons forced open the locked cooler door. Spivak, the store manager, upon discovering that approximately $1200 had been taken from one of the safes, called the police to report the robbery. All the patrons, with the exception of Officers Newman and Williams, fled the scene before their identities could be ascertained and before police investigators arrived. Employees Carmen, Spivak and Thompson gave statements concerning the robbery to the police investigators, *fn1 and Officer Newman gave a description of the offenders to police investigators. *fn2

On March 20, 1975, nine days after the robbery heretofore described, at approximately 10:45 p.m., police officer John Thulis and his partner responded to a radio call reporting two men with guns at 8011 South May. The officers spoke briefly with the complainant and then began their search for two men with guns. Officer Thulis located defendant in a cul-de-sac behind the complainant's apartment building. In one hand defendant held a nickel-plated revolver and in the other hand an object later identified as several .38-caliber cartridges. Both hands were above defendant's head as he reached to place the revolver and cartridges on a window ledge. Officer Thulis arrested defendant and recovered from the window ledge a revolver upon which the name "Virgil Paresi" was engraved and several .38-caliber cartridges. A search of defendant revealed a walkie-talkie, a brown holster and a Chicago Police Department badge, No. 9963, attached to the inside of defendant's wallet. *fn3

Officer William Bosak, who also had responded to the radio call, proceeded to the rear of the building, heard footsteps ascending the backstairs and followed. On the second-floor landing, Bosak apprehended John McTush who was carrying a walkie-talkie and a .45 automatic pistol which he threw onto the roof of an adjoining building. Officer Bosak arrested McTush and retrieved the pistol. *fn4 A search of McTush revealed a wallet-type object containing a Chicago Police Department badge, No. 10599, and identification belonging to Officer Newman. *fn5

As a result of the arrests of defendant and McTush, Officers Newman and Williams viewed a lineup at which time both officers identified defendant and McTush as two of the three men who had perpetrated the Rothchild Liquor Store robbery.

Defendant testified that he had not been a participant in the Rothchild Liquor Store robbery on March 11, 1975, and that "he thought he had been set up" by the complainants on March 20, 1975. In addition, defendant denied that he had in his possession a gun and a wallet when he was apprehended. Because defendant does not on appeal contend that he was not proved guilty beyond a reasonable doubt, it is unnecessary to examine in detail his version of the events surrounding his arrest on March 20, 1975.

I.

Defendant contends that the admission of defendant's prior conviction for aggravated battery for purposes of impeachment was improper. During cross-examination of defendant the following colloquy occurred without objection by defense counsel:

"Q. Mr. Patterson, you testified that back — when you were convicted of armed robbery you testified to?

A. January 12, 1970.

Q. And that's not the only felony you have been convicted of, is it?

A. I was convicted of an aggravated battery.

Q. When was that?

A. In 1968. '69, to be exact. I was arrested ...


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