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People v. Finklea

OPINION FILED OCTOBER 6, 1980.

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

v.

HARVEY LEE FINKLEA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE MAROVICH, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

This is an appeal from the circuit court of Cook County wherein the defendant, David Hayes, was convicted of two counts of armed robbery and one count of attempt murder and defendant, Harvey Lee Finklea, was convicted of one count of armed robbery and one count of attempt murder. These convictions were the result of separate indictments as to each defendant. Defendant Finklea was charged in one indictment with the February 16, 1975, armed robbery of Lillian Bordano, four counts of aggravated battery and one count of attempt murder of George Zarco. Defendant Hayes was charged by another indictment with the same offenses as defendant Finklea as well as the armed robbery of Mr. Zarco. The cases were consolidated for trial, and defendant Finklea was tried by the court while defendant Hayes was tried before a jury. After trial and a finding of guilt on all counts, defendant Hayes was sentenced to three concurrent terms of 10 years in the State penitentiary for both counts of armed robbery and the one count of attempt murder, and defendant Finklea was sentenced to two concurrent terms of 20 years in the State penitentiary for the armed robbery count and the attempt murder count. No judgment was entered as to the aggravated battery counts.

The issues presented for review are whether the defendants' identity as the perpetrators was proven beyond a reasonable doubt and, as to defendant Hayes' conviction of the armed robbery of George Zarco, whether the evidence was sufficient to support the finding that Mr. Zarco's coat was taken from his presence.

George Zarco and Lillian Bordano testified at trial that on February 15, 1975, they went to a birthday party at the home of Ms. Bordano's brother. They left the party at about 1:30 a.m. and headed in Mr. Zarco's car to Ms. Bordano's home at 7206 South Honore Street in Chicago, Illinois. Mr. Zarco and Ms. Bordano arrived there at about 2 a.m. and parked the car across the street from the Bordano residence. Mr. Zarco and Ms. Bordano stated that they parked under a bright street light. After Mr. Zarco shut off the ignition and turned off the headlights, he observed a man near the driver's side of the car. The man was about two feet from him and was holding a gun. Defendant Finklea was identified in court as the individual who was holding the gun on the night of the incident. Finklea announced a stickup and told Mr. Zarco to give him all that Mr. Zarco had. Mr. Zarco told Finklea to take anything he wanted and not to hurt them. While Finklea was near the driver's side of the car, a second man, identified in court as defendant Hayes, approached Ms. Bordano near the passenger side of the car and told her to open the door.

As George Zarco rolled down the car window and began to open the car door, Finklea put the gun to Mr. Zarco's head and went through his pockets. At this time, defendant Hayes opened the passenger door of the car, took Ms. Bordano's purse and ran off around the street corner. A third individual, who was never identified, then reached into the back seat of the car and took Mr. Zarco's jacket. After a short while, Hayes returned to the scene of the incident.

Defendant Finklea suddenly struck Mr. Zarco in the head and he fell back in his seat. Finklea then pointed the gun toward Mr. Zarco and shot him in the abdomen. After Finklea shot Mr. Zarco, all three offenders fled.

Ms. Bordano got out of the car, ran into her home and called the police. The police arrived, put Mr. Zarco on a stretcher and took him to Holy Cross Hospital. Mr. Zarco testified that the bullet entered the left side of his body, about two or three inches above his waist.

While Mr. Zarco was in the hospital a Chicago police officer showed him a group of photographs from which he identified a photo of defendant Finklea as the man who shot him. From a second set of photos he identified defendant Hayes as the man who took Ms. Bordano's purse. Mr. Zarco and Ms. Bordano also identified both defendants at separate lineups.

A Chicago police sergeant testified at trial that he found a purse in an alley at 8201 South Sangamon at about 7 a.m. on the morning of February 16, 1975. The purse contained documents with Ms. Bordano's name and she later identified the purse as hers. The purse was found approximately 15 blocks from the scene of the incident.

Virginia Mitchell testified on behalf of defendant Hayes that on February 15, 1975, she was with Hayes from 10 p.m. until about 3:30 a.m. at the Sandpipers Lounge, which is located at 80th and Halsted Streets in the city of Chicago. She stated that she had been a friend of Hayes for 5 or 6 years.

Ida Clark testified that on the evening in question she was with Virginia Mitchell. She saw Hayes at the Sandpipers Lounge at about 11:30 p.m. until 3:30 a.m. She stated that she knew Hayes for 10 years and they were good friends.

Jerry Brooks testified that on the night in question he was with Ida Clark, Virginia Mitchell and defendant Hayes in the Sandpipers Lounge between 10 p.m. and 3:30 a.m. He gave Hayes and a young woman a ride home in his car and dropped them off at Hayes' house at about 3:30 a.m. Jerry Brooks and Hayes had gone to the same grammar school.

Dorothy Jackson testified on behalf of defendant Finklea, that she was at the J & D Lounge on the night in question. She was there from about 10 p.m. til 3 a.m. and saw defendant Finklea and his wife there. Ms. Jackson could not recall seeing Finklea leave the lounge but said it was late.

Gayer Finklea, the wife of defendant Finklea, testified that she and Harvey went to the D & J Lounge on the night in question, arriving at 8 p.m. and staying ...


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