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People v. Lloyd





APPEAL from the Circuit Court of Cook County; the Hon. FRANCIS J. MAHON, Judge, presiding. MR. JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendants Turner Lloyd and Maurice Barr were convicted of armed robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18-2.) Lloyd was sentenced to a prison term of eight years and Barr was sentenced to 12 years. On appeal, defendants contend that (1) the evidence failed to prove their guilt beyond a reasonable doubt; (2) the trial court erred in refusing to strike the identification testimony of one of the complaining witnesses; (3) the prosecutor's question relating to defendant Barr's drug use was improper and prejudicial; (4) the prosecutor's closing argument contained inflammatory remarks; (5) the verdict forms submitted to the jury were improper and prejudicial; (6) defendant Barr's sentence is excessive and should be reduced. We affirm.

On September 29, 1978, at approximately 12:30 or 1 a.m., John Behling, Steve Krol, Brian Thoma, and Marty Mora were sitting in Behling's parked car at 47th Street and Aberdeen in Chicago. There were three street lights in the area. As they sat talking and drinking beer, two men approached the car. One man, later identified as defendant Barr, asked for a cigarette. The other man, identified as defendant Lloyd, pulled a gun from under his jacket and ordered everyone out of the car. While Lloyd trained the gun on the victims, Barr unsuccessfully attempted to start Behling's car. Then Lloyd tried and failed to start the car. He told Behling to start the car, who also failed to do so. Next, Lloyd ordered Behling to join the other three men in the middle of the street. One defendant told the victims to empty their pockets and to put their wallets on the ground. Lloyd also took $140 from Behling's pocket. The four victims were then told to lie face down on the ground. Only Krol complied, but he stood up again after he noticed that the others had not done so. Defendants ran off after hearing a voice say "Come on," or "Hurry up." The robbery had lasted about 10-15 minutes.

On October 1, 1978, Behling and Krol identified both defendants from books of photographs. Although they were in the same room when they looked through the four books of approximately 50-75 photographs each, Krol and Behling identified defendants' photographs separately.

On October 4, 1978, Behling, Krol, and Thoma individually viewed a six-man lineup. Behling identified both defendants, Krol identified Barr only, and Thoma identified Lloyd only.

At the trial, the complaining witnesses identified defendants as the men who had robbed them. On cross-examination, Behling testified that the prosecutor had discussed his testimony with him and had shown him defendants' photographs prior to trial. Behling further testified that he had been drinking his second beer when defendants approached the car. He had never seen Barr before the robbery and did not recall what he was wearing at the time. Behling stated that the taller assailant wore an Afro hairstyle; that one offender had a maroon jacket; and that the shorter assailant wore a grey cap. He recognized Barr and Lloyd in the lineup from their photographs and from the time of the robbery.

Following Behling's testimony, the defense moved to strike his identification evidence because the prosecutors had shown him defendants' photographs before the trial. The motion was taken under advisement, and, after further argument of counsel, denied.

The next witness, Krol, testified to the September 29, 1978, occurrences. His version was essentially the same as Behling's. On cross-examination, he stated that he had drunk about 1 1/2 beers. He described Barr as having worn a dark jacket and dark pants and having a medium complexion and a natural hairstyle. He testified that his attention was fixed primarily on Barr during the robbery, but he saw Lloyd long enough to describe him to the police.

The third complaining witness, Thoma, testified that one of the offenders was tall and had an Afro, that one wore a dark blue coat, and that one wore a hat. He stated that he looked at Lloyd's face for approximately six minutes, during the time Lloyd pointed the gun at him.

On cross-examination, Thoma testified that he did not view police photographs on October 1, 1978, nor was he shown any photographs before the trial.

Police investigator Drew Englert testified that he conducted the defendants' lineup. Following their arrest, Englert told defendants that they were to be charged with armed robbery. He told them to stand anywhere in the lineup. They stood next to each other, in positions four and five. Behling identified both men, Krol identified Barr, and Thoma identified Lloyd.

On cross-examination, Englert testified that when defendants were arrested they had no weapons, nor did they have any of the property of complainants.

After the State rested, and defense motions for directed verdicts were denied, defendant Barr took the stand. He stated that he lived at home with his parents; he had never seen Lloyd before the October 4, 1978, arrest; he was not in the vicinity of 47th and Aberdeen on September 29, 1978, between the hours of 12:30 and 1 a.m.; he was not with Lloyd at any time during that evening, and he did not rob the victims.

According to Barr, he was in front of his brother's house at midnight on September 28, talking to a friend, George Palmer. Fifteen minutes later he walked to 50th Street and Prairie with his girlfriend Joyce Spivey and Palmer. The walk took approximately 15 minutes and they stayed at that location for 40 to 45 minutes. Then Barr and Palmer went to a nearby YMCA to telephone Palmer's girlfriend, while Spivey waited. Defendant and Palmer rejoined Spivey, and the three of them walked to a store to buy some wine. By this time it was 12:50 a.m. or 1 a.m. Spivey got into a car and left. Barr and Palmer waited, drinking the wine. Palmer then left. Shortly thereafter, Barr was told that Palmer and Spivey had been arrested, but he did not know why.

On cross-examination, Barr said that he lived with his girlfriend. When the prosecutor noted that he had earlier claimed a different address, that of his parents, he replied that he "stayed with" his parents because he was "still a teenager."

Barr recalled that he had been with about eight other people at his brother's house at midnight on September 28, 1978, but only remembered the name of his friend, Palmer. Earlier that evening he had been watching a program and drinking wine with his friends inside his brother's apartment. The prosecutor then asked:

"Q. Did you take any ...

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