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People v. Lavoy

OPINION FILED DECEMBER 16, 1980.

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

v.

SAMUEL LAVOY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. SYLVESTER CLOSE, Judge, presiding. MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendant Samuel Lavoy (defendant) and co-defendant Jerry Morales (Morales) were each charged with one count of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and one count of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2). The jury returned verdicts convicting defendant on both counts and acquitting Morales on both counts. Defendant was sentenced to serve a single 6-year term for the two convictions.

Defendant appeals, asking this court to determine (1) whether his convictions must be reversed in light of the acquittal of co-defendant Morales on the same charges; (2) whether allegedly improper conduct by the prosecutor at trial denied him a fair trial; and (3) whether the trial court erred in entering judgment on both the armed robbery and armed violence counts.

On September 27, 1978, Joseph Kmiec was robbed at knifepoint by two men. As the State's first witness at trial, Kmiec related the following. He was a Polish immigrant who had been in the United States for slightly more than a year at the time of the attack. Kmiec spoke very little English. On the date in question, he was at the corner of North and Milwaukee avenues waiting to meet a friend. As he waited, two men approached him. He identified these men at trial as defendant and Morales. Defendant held a knife to Kmiec's side and the men searched his pockets. A personal note on a scrap of paper and about $24 were taken. During the robbery, a car suddenly arrived on the scene, and two men who turned out to be plainclothes policemen jumped out. Kmiec's assailants ran away when they spotted the policemen. One of the officers patted down Kmiec and told him to wait in the police car. The officer then followed his partner in pursuit of the attackers.

At trial, Kmiec was shown a knife which had been entered into evidence. He was unable to identify it with certainty as the assault weapon, although he believed that it was. Kmiec did identify the scrap of paper which had been taken from him.

Officer Golnick testified to the following. On the night in question, he was assigned to patrol the high crime area which included the location of Kmiec's robbery. While on car patrol with his partner, Golnick observed two men, who were identified by him as defendant and Morales, assaulting Kmiec. Defendant was holding a knife to Kmiec's side while Morales searched the victim. Golnick pulled his car over and both officers got out. The assailants saw them and ran. Golnick was told by Kmiec that the men had robbed him. Golnick told the victim to get into the police car, and then chased after Morales. Golnick was 30 to 40 feet behind Morales when the latter turned a corner. When Golnick reached the corner, he saw Morales drop down into some grass in front of a building. Golnick and other officers on the scene then arrested Morales.

Officer D'Andrea, Golnick's partner, chased defendant from the crime scene. He never lost sight of defendant during the chase. Defendant threw away a knife during pursuit, and was finally apprehended in a building into which he had run. D'Andrea recovered the knife after the arrest, and the knife was entered into evidence at trial. Upon being searched, defendant was found to have possession of $24 and a piece of paper with "European writing" on it.

Defendant, speaking through a Spanish interpreter, testified on his own behalf as follows. On the night in question, he was in a tavern where he saw Kmiec, who defendant called "Mr. Jose." Defendant was with a friend, "Miguel," and the two talked and drank with Kmiec. Kmiec told defendant that he wished to buy a watch and gave defendant $20 and a scrap of paper for it. Kmiec then asked defendant for some marijuana. The men left the tavern, and Kmiec decided to return the watch. Suddenly, a car pulled up, two men got out, and defendant and Miguel ran. While running, defendant threw away the watch. He denied possessing a knife that night and stated that Morales was not with him on the occasion and in fact was not known to him at that date.

Morales rested his defense without presenting evidence.

I.

Defendant contends that there exists a reasonable doubt as to his guilt since Morales was acquitted of the same charges which defendant was convicted of, although the State presented one case against the two.

• 1 The general rule is that the failure to convict one co-defendant does not raise a reasonable doubt as to the guilt of other co-defendants. For a reasonable doubt to be raised, it must be shown that the evidence against each defendant is identical in all respects. People v. Stock (1974), 56 Ill.2d 461, 465, 309 N.E.2d 19; People v. Brown (1977), 47 Ill. App.3d 920, 928, 365 N.E.2d 514.

• 2, 3 In this case, the record makes clear that the evidence against defendant is not identical with that presented against Morales. While victim Kmiec identified both men as his assailants, the jury was not constrained to either accept both identifications as valid or else reject both identifications. Rather, the jury is entitled to believe one part of identification testimony and disbelieve another part. (People v. Green (1976), 42 Ill. App.3d 978, 993, 356 N.E.2d 947.) Officer Golnick, who apprehended Morales, testified that he was 30 to 40 feet behind the latter during the chase and lost sight of his target part of the time. When seized, Morales did not have any of the items taken from Kmiec. In contrast, Officer D'Andrea chased defendant, remaining only a few feet behind him during the entire pursuit and never losing sight of defendant. Defendant at arrest possessed $24, the amount taken from Kmiec, and a note which Kmiec identified as belonging to him. D'Andrea also saw defendant throw aside a knife during the chase; this knife was recovered by D'Andrea and believed by Kmiec to probably be the robbery weapon. Thus, the jury was given two distinct sets of evidence, each individually relating to one of the co-defendants. Defendant's conviction rests upon different evidence than that presented against Morales, although as a general statement the "same evidence" made up the State's case against each co-defendant, since they were tried together. Therefore, the jury was warranted in deciding as it did, and no reasonable doubt as to defendant's guilt is created by that decision.

II.

Defendant contends that the prosecution engaged in several acts of misconduct which prejudiced defendant to the ...


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