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People v. Montgomery

OPINION FILED FEBRUARY 11, 1981.

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

v.

ORSON MONTGOMERY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The defendant, Orson Montgomery, was convicted during a bench trial of armed robbery and was sentenced to nine years imprisonment. Prior to trial the defendant moved to quash his arrest and to suppress evidence seized at the time of his arrest. The court denied the motion to quash the arrest but did suppress one of the items seized, a purse found in the defendant's kitchen.

On appeal the defendant contends he was not proven guilty beyond a reasonable doubt and that his warrantless arrest at his apartment was made in violation of his rights under the Fourth Amendment of the United States Constitution (U.S., Const. amend. IV).

At trial the State's witnesses, Theresa Reid and Berdette Pugh, testified that at about 5:30 a.m. on August 27, 1977, they got off a CTA bus at the corner of 72d Street and Ashland Avenue and were walking home. Two men were standing ahead of them in front of a garage. After the women passed the garage the two men began to follow. One of the men approached Reid, put a gun to the left side of her neck and said, "This is a stick-up." The other man held a box-cutter knife two inches away from Pugh's breast and repeated the same message to Pugh who was standing to the right of Reid. The robbers took their purses and fled. Reid's black purse contained identification cards, food stamps and cash. Pugh's coin purse contained money.

Reid saw the robbers get into an orange colored 1972 Cutlass Oldsmobile. Thereafter, the victims drove around the area looking for the car. They saw the car and wrote down its license number. As the car was driven slowly down Ashland Avenue by a man who was not one of the two robbers, Pugh and Reid saw the two robbers take the purse of a woman and run off. Pugh said the man with the knife got into the car but she did not see where the man with the gun went.

Reid identified the defendant at trial as the man with the silver gun, which had a black-taped handle. She stated she was unable to identify the defendant during the police station lineup on the day of the robbery but that she did identify her purse and identification cards at the police station. Pictures of the latter items and of the defendant's car and the gun used in the robbery were also identified by Reid at trial.

Pugh identified the defendant as the man with the gun who took Reid's purse and stated that at the time of the robbery the defendant was wearing a cap, black sweater and purple pants and held a silver gun with brown tape on it. She did not notice any of the defendant's facial characteristics. Pugh testified that the man with the gun was standing about a foot from her and on the left side front of Reid. At the police lineup on the day of the robbery, Pugh also identified the defendant and the individual who held the knife and took her coin purse. When shown a picture of that lineup, Pugh stated that the defendant was not wearing a black sweater and purple pants and that another individual in the lineup was wearing that clothing. At trial Pugh identified the gun and box-cutter knife used in the robbery.

The day after Pugh testified the State made a motion for a continuance to investigate newly discovered information. When the trial resumed, several days later, the State informed the court that a person claiming to be Berdette Pugh had called the State's attorney's office the morning following her court appearance and said she wished to drop the charges against the defendant because she was not sure whether he was the person with the gun or the person riding in the car. The caller was asked to appear in court but did not do so, and the State was unable to locate Pugh. The trial judge said the bailiff had received a similar call. Defense counsel indicated that the defendant wished to proceed with the trial while the search for Pugh continued.

The State then called Police Officer Joseph Rokas who testified that on August 27, 1977, he was assigned to investigate the robbery. He and his partners checked the registration of the license plate number listed on the police report and said the plate was registered to the defendant for a 1972 Cutlass. Rokas and two other officers went to the defendant's apartment on East 70th Street and observed an orange 1972 Cutlass, with the specified license plate, parked outside. Officer Rokas knocked on the door and announced that he was a police officer. The defendant opened the door and, when questioned, said he owned an orange Cutlass parked outside in front of the apartment. The defendant led the officers into his living room, whereupon Rokas saw a black purse with papers and identification cards on a cocktail table. He inspected the purse, observed Theresa Reid's name on the identification cards, and placed the defendant and the other two men in the defendant's apartment under arrest. The couch upon which the two men were sitting was examined, and a .32-caliber silver revolver with black tape on the handle was found. Three food coupon books, belonging to Theresa Reid, were found on the defendant's person and, during a search of the defendant's car at the police station, some of Theresa Reid's identification cards and a box-cutter knife were found.

Roukas testified that Reid and Pugh viewed a lineup at about noon on August 27, 1977. Reid did not make an identification. Pugh identified the defendant and another man. Officer Rokas said that at the time of this identification, Pugh remarked that a black shirt worn by the third man in the lineup was worn by the defendant at the time of the robbery.

Officer Rokas also testified that the defendant told him that he let two people use his car on August 27, 1977. The defendant said that when they came to pick him up there were two purses in the car.

The defendant testified on his own behalf. He stated that on August 27, 1977, he had been playing cards at his cousin's house until about 5:30 a.m. While driving home, he heard two shots fired and saw Michael Amos, a friend, running down Ashland towards 71st Street. The defendant stopped to give Amos a ride; a few minutes later they picked up Ricky Grayer, Amos' friend. Grayer also was running and carrying a purse. The three men went to the defendant's apartment and the defendant left Amos and Grayer in the living room and went to bed. After the police saw a purse on a table in the living room and examined its contents, they arrested the defendant. The defendant denied participating in any robberies and said the food stamps recovered from his apartment were found on Amos' person, not his own. The defendant admitted that he had given a different factual account of his whereabouts and car use on August 27, 1977, to the police.

On the basis of the testimony discussed above, the defendant was found guilty of armed robbery. The defendant filed post-trial motions, indicated that Berdette Pugh had been found and requested a hearing so that Pugh could give additional testimony. Pugh appeared in court and acknowledged that she had called the assistant State's attorney and the judge's chambers after she had given testimony earlier in the case because she began to have doubts about the defendant's height and the clothing he wore. She stated that she was no longer certain that the defendant was the man with the gun who took Theresa Reid's purse.

On cross-examination Pugh testified that she had identified the defendant at trial, at a preliminary hearing and during the police station lineup and that after the lineup she told the investigator that the defendant wore a black shirt at the time of the robbery. She said she was ...


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