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People v. Lomax

OPINION FILED OCTOBER 15, 1980.

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

v.

GREGORY LOMAX, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM COUSINS, JR., Judge, presiding.

MISS PRESIDING JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Gregory Lomax, the defendant, Curtis Tarver and John Burnom were jointly indicted and charged with the offenses of theft and robbery. The theft charges were subsequently dismissed. Tarver and Lomax were tried jointly at a bench trial. Burnom's trial was severed. At the close of the State's case Tarver's motion for a directed finding of not guilty was granted. Lomax was found guilty of robbery and sentenced to two to six years in the penitentiary.

On appeal Lomax argues: (1) the State failed to prove him guilty beyond a reasonable doubt because of vague and uncertain identification testimony; (2) the court erred in failing to suppress all identifications by the complaining witness; (3) the court erred in refusing to hold a hearing on the defendant's motion to quash his arrest; and (4) the court erred in excluding the testimony of a witness to an alleged confession by a third party to the robbery of the complainant.

Sharon Cerda, the complainant, testified that at approximately 9 p.m., on October 10, 1977, she was walking to her brother's house. She was carrying a purse with both straps over her left shoulder and her thumb was positioned inside one of the straps. As she approached 50th Street from the south on Ashland Avenue, she noticed two men walking toward her. Both men were approximately 20 years old. The taller of the two wore a long coat and hat, and the other wore a short black leather jacket and dark pants. When the complainant crossed their path, the street light on the southeast corner was about 10 feet from her. The area was illuminated with four lights, one on each corner.

When the two men reached her side the shorter of the two men "yanked" her purse from her arm causing the strap to break. Cerda testified that a struggle for the purse ensued for about two minutes and she looked, for about five seconds, into the face of the man who took her purse. When he grabbed the purse the man's face was a couple of inches from hers. Cerda identified the defendant as the man who took her purse.

The defendant ran eastbound on 50th Street with Cerda's purse, and the taller man subsequently followed in the same direction. About five seconds later Cerda saw a 1969 Cadillac, silver with a black vinyl top, occupied by only a driver, pull away from a parking space on the east side of Ashland and travel in the same direction as the two robbers. She then entered a nearby tavern to call the police and later went to the police station with Michael and Michelle McBride.

Cerda testified that while waiting at the police station she saw the police bring in three handcuffed men. She said she recognized one of the three as the defendant. Later that evening Cerda was shown four or five photographs. She recognized a picture of the defendant.

After Cerda's testimony the defense made a motion to suppress any in-court identification of the defendant by Cerda because it was the product of an improper photographic identification. The trial court conducted a hearing but denied the motion because Cerda's in-court identification of Lomax was not based on the photographic presentation, but on her observation of him at the time of the robbery.

The State called Michael McBride who testified that he witnessed the robbery while he was stopped for a traffic light at 50th Street and Ashland, facing east on 50th Street. He testified that it took the shorter man about three seconds to take Cerda's purse. When the light turned green, McBride drove east on 50th Street to chase the two men. He saw a light-colored Cadillac with a black vinyl top pull away from the curb also heading eastbound on 50th Street. There was only one occupant in the car, the driver. McBride pursued the taller of the two men on foot and was aided by the police. The taller man, John Burnom, was apprehended and arrested.

McBride testified he then went back to Sharon Cerda and took her to the police station. He was with Cerda when three handcuffed men walked by. He said Cerda did not point out the defendant but testified that she said one of the men was the one who took her purse.

Police officer Edward Hollinger testified that he arrested John Burnom after he saw Burnom being chased by McBride. He stated he had seen Burnom and Lomax 45 minutes earlier in a 1969 black and grey Cadillac. He and his partner had stopped the car and questioned Lomax. No traffic citations were issued.

Officer Hollinger testified that after Burnom was arrested and placed in a squad car, he and his partner toured the area looking for the second man involved in the alleged robbery. In the 5100 block of South Loomis he saw a 1969 black and grey Cadillac being pushed to the curb by Lomax and Tarver and arrested both men. Lomax was wearing a black waistlength leather jacket and dark trousers. Officer Hollinger testified that when he brought Lomax into the station and led him past Sharon Cerda he did not hear her say anything.

After the State had rested, the defendant's motion for a directed finding of not guilty, based on insufficient identification, was denied. The defendant then moved for a hearing on his motion to quash his arrest. The court allowed the defendant to make an offer of proof but denied the motion because it was untimely.

Curtis Tarver, who testified for the defendant, stated that on October 10, 1977, at approximately 3 or 4 p.m., he was riding in a 1969 grey Cadillac sedan with Lomax and Burnom. He said they were stopped by the police at about 6 or 7:30 p.m. and at about 8 or 8:30 p.m. they met Emanuel Hoskins, also known as "Pinochle" at 55th Street and Ashland. Tarver testified that at about 9 p.m. the defendant stopped the car at 50th and Ashland and Burnom and "Peanut [Pinochle]" got out. He did not see Burnom and Peanut after that. Tarver said he and Lomax ...


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