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People v. Powell

OPINION FILED SEPTEMBER 2, 1980.

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

v.

GEORGE POWELL, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ADAM N. STILLO, Judge, presiding.

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

After a bench trial, George Powell (defendant) was found guilty of murder and sentenced to 20 years. He appeals.

John Snow, a 15-year-old high school student, sitting on a mail box in Chicago during the afternoon of November 15, 1974, saw three men "wrestling about 100 feet away" in the driveway of a Bell Telephone building. He started to walk toward them, east on the north side of the street. About 15 or 20 feet away, he heard three shots and saw sparks emanating from where the three men were together. Two of the men ran toward him. The witness identified one of these men as defendant. Defendant was wearing a black three-quarter length coat and a dark knit hat. The other man wore an army field jacket and no hat. At one point, defendant bumped into a trash can. He was then 10 or 12 feet from the witness. Lights were on in front and in the entrance of the telephone building, in a parking lot and "right across the street." At that time the sun was down.

After the witness heard the shots he saw the third man stagger and fall. The witness recognized this person, the deceased, as William Brooks. He had known Brooks for approximately six months to a year. He identified a photograph of the deceased. A police officer, Walter Newton, testified he was told by the witness Snow that the men who ran away were black males, 19 and 20 years old, about 5 feet 5 inches to 5 feet 7 inches tall. Officer Newton observed and examined the man lying in the street. He had been shot and was dead. In the officer's opinion, lighting conditions were very good. Several street lights were on in the area. There was light from the Bell Telephone building and from homes in the vicinity. Some jewelry, cash, and a pay check in possession of the deceased were recovered.

On November 18, 1974, Police Investigator Richard Law showed Snow a picture of a man named Michael Jones. Snow stated the picture was similar to one of the two men he had observed but he could not be certain from a photograph. On December 1, 1974, Snow viewed this same individual at the police station and stated he was not one of the persons he saw attack the deceased.

On December 10, 1974, the witness Snow observed defendant and the other man in a grocery store in the area. He recognized defendant as one of the individuals who had fought with the deceased and fled. He notified the police. On that day, Investigator Law showed Snow five photographs. Snow was not sure how many pictures were in the group. Snow told Officer Law one of the pictures showed a strong resemblance to one of the men who had attacked the deceased. Again, on February 13, 1975, Snow viewed six photographs shown by Investigator Thomas McCarthy. He selected a picture of the defendant and stated that it "strongly resembled" one of the individuals. The investigator obtained a warrant and defendant was arrested on May 27, 1975. Defendant was placed in a lineup and was identified by the witness Snow. A photograph of the lineup was received in evidence.

Shortly prior to the lineup defendant was interviewed at the police station by Investigator Thomas O'Connor. He was advised of his Miranda rights and was told he had been identified in connection with the homicide in question. Defendant told the investigator, "I was there but I didn't do the shooting." Defendant said, "A guy named Demus Knight did the shooting." After the lineup, Investigator O'Connor told defendant he had been identified. Defendant stated, "I had nothing to do with it. I wasn't there." We will comment upon additional testimony as required.

I.

• 1 On reasonable doubt, defendant first raises the issue of accountability. The statute describes accountability as a situation in which one person "with the intent to promote or facilitate" the offense "aids, abets, agrees or attempts to aid" another person "in the planning or commission of the offense." (Ill. Rev. Stat. 1973, ch. 38, par. 5-2.) Application of these principles to any case raises "an issue of fact for the determination of the jury * * *." (People v. Hubbard (1973), 55 Ill.2d 142, 147, 302 N.E.2d 609.) Accountability and the presence of a common design may be proved by circumstantial evidence. (People v. Tate (1976), 63 Ill.2d 105, 109, 345 N.E.2d 480.) Although it is correct that proof of the presence of the defendant at the commission of the crime is not alone sufficient to prove accountability, it has frequently been held that "presence of a defendant at the commission of the crime, without disapproving or opposing it * * *" is one of the circumstances which tend to establish guilt. People v. Morgan (1977), 67 Ill.2d 1, 10, 364 N.E.2d 56, cert. denied (1977), 434 U.S. 927, 54 L.Ed.2d 287, 98 S.Ct. 411, and authorities there cited.

• 2 In the instant case, defendant was observed participating with another person in a fight with the deceased. After the shots defendant and another man fled precipitously from the scene. In response to proper questioning by the police, defendant admitted he was present at the place and time in question and stated he did not do the actual shooting. In a situation of this type, the guilt of the defendant on the theory of accountability has been proved beyond reasonable doubt. See People v. St. Pierre (1975), 25 Ill. App.3d 644, 653, 324 N.E.2d 226.

Defendant attacks the strength of the identification testimony. The legal principles regarding identification need hardly be repeated. The identification is to be judged from the totality of the circumstances. (Stovall v. Denno (1967), 388 U.S. 293, 18 L.Ed.2d 1199, 87 S.Ct. 1967; Manson v. Brathwaite (1977), 432 U.S. 98, 53 L.Ed.2d 140, 97 S.Ct. 2243.) Factors to be considered are: the opportunity of the witness to view the criminals at the time of the crime; his degree of attention at that time; the accuracy of his prior description of the criminals; the degree of certainty of the identification; and the elapsed time between the crime and the confrontation. (Neil v. Biggers (1972), 409 U.S. 188, 34 L.Ed.2d 401, 93 S.Ct. 375; Manson v. Brathwaite; People v. Manion (1977), 67 Ill.2d 564, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L.Ed.2d 533, 98 S.Ct. 1513.) If upon consideration of these factors the identification is deemed to have been reliable it is admissible despite the existence of some suggestive features.

It is not necessary to elaborate on the strength of the identification here. The testimony of the identifying witness meets each and every requirement of the test above set forth. We find his testimony clear and convincing. The careful and observant trial judge found the witness "a very credible and clear and convincing witness" as far as he could determine. No point is raised regarding any suggestive factors in the lineup. The witness had an amply sufficient opportunity to observe the defendant first from a distance and then closer as the defendant ran toward him. The lighting assisted his identification. The failure of the witness to make a positive identification from photographs is urged by the defendant as a sign of uncertainty. On the contrary, it may be asserted with equal validity that the witness demonstrated he would not make an identification without complete certainty.

• 3 Where identification is an issue, "`"the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made."'" People v. Yarbrough (1977), 67 Ill.2d 222, 226, 367 N.E.2d 666, quoting People v. Stringer (1972), 52 Ill.2d 564, 569, 289 N.E.2d 631.

In a bench trial, the trial court has the task of determining the weight and credibility of the testimony and deciding if guilt has been established. We may not set aside the result reached "`unless the proof is so unsatisfactory as to cause a reasonable doubt of guilt to appear.'" (People v. Lofton (1977), 69 Ill.2d 67, 73, 370 N.E.2d 517, quoting People v. Fleming (1971), 50 Ill.2d 141, 146, 277 N.E.2d 872.) In our ...


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