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People v. Harris





APPEAL from the Circuit Court of Stephenson County; the Hon. LAWRENCE A. SMITH, JR., Judge, presiding.


Rehearing denied January 21, 1981.

The defendant was charged by information in Stephenson County on March 14, 1979, with the September 14, 1976, armed robbery of an Associates Finance office in Freeport, Illinois. (Ill. Rev. Stat. 1977, ch. 38, par. 18-2(a).) At the time the complaint was filed, the defendant was serving a 14-year sentence imposed in Kane County on September 6, 1978, for robbery. Following a conviction by a jury, the defendant elected to be sentenced under the new sentencing act (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-1), and was sentenced to the Department of Corrections for the maximum term of 30 years, to be served consecutively to the Kane County sentence.

The defendant contends that prejudicial error requiring reversal and remandment for a new trial occurred when the trial court admitted evidence of defendant's subsequent armed robbery of the same establishment almost three months later, for the purpose of establishing his identity. We do not agree and affirm the judgment of the trial court.

The record disclosed that on September 14, 1976, a black man, later identified as the defendant, entered the office of Associates Finance in Freeport and asked secretary-receptionist Julene Blair about getting a loan. As Blair proceeded to get some forms, the defendant moved toward the door, then turned around, displayed a handgun and announced a robbery. The defendant then walked with Blair to a back office where the office manager, Edward Foltz, formerly a Stephenson County deputy sheriff, was conversing with a friend. The defendant again announced a robbery and Foltz gave the defendant a sum of money from the cashier's drawer. The defendant put the money in his pocket, cautioned that he had a friend across the street, and instructed them to stay in the bathroom for five minutes. The police were called after about two minutes. Blair and Foltz described the perpetrator of the robbery to the police as a 35- or 40-year-old black male, approximately 170 pounds, wearing a dark blue leisure suit with white stitching. He had a slight growth of mustache and sideburns, and a rather pitted or pock-marked face. Based on the description, a Freeport police detective compiled a photographic lineup; however, these photos, none of which was of the defendant, were never shown to Blair or Foltz. A composite sketch prepared by an Elgin police officer based on a series of descriptions of unnamed individuals was shown to Blair and Foltz, but they were unable to make an identification therefrom. Blair apparently also attended a lineup in Peoria of five or six black men, none of whom was the defendant, but the date of this lineup was not given, nor did Blair make any identification as a result of the lineup. She did identify the defendant at trial, however.

Over defendant's objection, Blair and Foltz were permitted to testify that the same black man who had robbed them on September 14, 1976, robbed them again at gunpoint on December 6, slightly less than three months later. Once again, the defendant entered the office, saying he wanted a loan. He had on a knee-length checked trench coat, and Blair, recognizing him as the robber in the first incident, told him to sit down and began to walk back to Foltz' office. The defendant followed her, and announced a robbery. Foltz recognized the defendant "right off the bat," and exclaimed: "[N]ot again." He handed the money to the defendant and he and Blair headed back to the bathroom without being told to do so. The jury was instructed that the testimony about the December 6 incident was to be considered only for the purpose of identifying the defendant.

Foltz attended a lineup of eight persons in Elgin on May 8, 1978, about 1 1/2 years after the last robbery. One of the persons in the lineup was 61 years old, six foot one inch tall, and balding. Another was very young and clean-shaven. All of the remaining persons in the lineup had some sort of prominent facial hair except the defendant, who had a small mustache and no sideburns. Foltz immediately identified the defendant as the robber in both of the incidents. Blair apparently did not participate in the Elgin lineup, and Foltz additionally identified the defendant at the time of trial. Foltz testified he had reviewed a videotape of the Elgin lineup about 15 minutes before trial. The defendant's counsel was not present at the May lineup, nor was it established that the defendant had asked for a lawyer.

• 1 Although the defendant filed a timely notice of appeal, he failed to file a post-trial motion pursuant to section 116-1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 116-1). Some cases have held this failure constitutes a waiver of all issues that might be raised on appeal. (See, e.g., People v. Hammond (1977), 48 Ill. App.3d 707.) We observe, however, that the defendant interposed timely objections to the introduction of the testimony he now calls error, and orally argued the grounds for his objection in chambers. We conclude that defendant thus has adequately preserved the issue for our review despite the lack of a post-trial motion. People v. Madison (1980), 81 Ill. App.3d 471, 474.

We will therefore review the merits of the issue.

Evidence of crimes other than the one for which the accused is being tried generally is inadmissible. (People v. Lindgren (1980), 79 Ill.2d 129.) Such evidence may be admissible, however, if it has substantial independent relevance which tends to prove either motive, intent, identity, absence of mistake, or modus operandi as to the offense being tried. (People v. McDonald (1975), 62 Ill.2d 448.) But even highly relevant evidence must be weighed against its prejudicial impact on the jury, and this is a matter within the sound discretion of the trial court. People v. Dumas (1977), 49 Ill. App.3d 756.

The defendant cites People v. Butler (1975), 31 Ill. App.3d 78, and People v. Johnson (1980), 81 Ill. App.3d 359, in support of his contention that the testimony about the December 6 robbery should not have been admitted. We find, however, that there are significant distinguishing features in this case which would support the discretionary ruling made by the trial judge in admitting this probative, albeit prejudicial, testimony.

The instant case involved a subsequent, rather than prior, offense. The charge against the defendant for the second armed robbery was dismissed by the State in view of the sentence imposed for the first robbery. Due to statements made by the defendant's counsel, the State anticipated an alibi defense would be asserted or, at least, that the issue of identity would be paramount at trial. An alibi defense was not asserted, nor did the defendant present any evidence, but the issue of identity was aggressively placed before the jury in cross-examination and opening and closing arguments. On two occasions prior to trial, the State announced its intention to use the testimony concerning the second robbery in the instant case. Since none was filed, the defendant apparently chose not to utilize a motion in limine as a means of keeping the testimony out. The second offense involved the same two victims and the same office. The testimony about the second robbery was very brief, and only some of the details of the second robbery necessarily were brought out in the course of establishing that the witnesses recognized the defendant as being the same one in the first robbery. We consider the most significant facts to be that the first positive identification of the defendant did not occur until Foltz identified the defendant at the May 8, 1978, lineup, approximately 1 1/2 years after the second robbery. Blair's first positive identification of the defendant did not occur until trial on May 22, 1979, approximately 2 1/2 years after the second robbery. Although both Foltz and Blair evidently had a good opportunity to view the defendant during the first robbery in September of 1976, the unusually lengthy time delay between the occurrence and the first positive identification of the defendant would undoubtedly have seriously undermined the jury's belief in the recollective faculties of these witnesses without the probative testimony as to their identification of the perpetrator during the second robbery.

• 2 Accordingly, we find the trial court did not abuse its discretion in admitting the testimony and ...

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