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People v. Novak

OPINION FILED MARCH 25, 1981.

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

v.

JOEL NOVAK, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROGER J. KILEY, JR., Judge, presiding.

MR. PRESIDING JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

In a jury trial, defendant, Joel Novak, was found guilty of murder (Ill. Rev. Stat. 1973, ch. 38, par. 9-1) and armed robbery (Ill. Rev. Stat. 1973, ch. 38, par. 18-2). He was sentenced to a prison term of 60 to 180 years. On appeal, defendant contends that (1) he was not proved guilty of murder beyond a reasonable doubt; (2) he was not proved guilty of armed robbery beyond a reasonable doubt; (3) he was denied a fair trial because of reference to a separate and distinct charge of robbery for which he had been arrested; (4) his right to a fair and impartial jury was abridged because one of the jurors was the victim of a robbery during the course of the trial; and (5) his sentence is excessive. We affirm.

At approximately 1:30 a.m. on February 2, 1977, Betty Betterton and her daughter, Betty Monteil, heard garbage cans rolling and the sound of glass breaking in the alley behind their third floor rear apartment located at 2329 S. Sawyer in Chicago, Illinois. Looking out the window, they saw three or four men engaged in a scuffle. Monteil heard one voice say, "Hurry up and shoot the guy." She and her mother then saw a man turn and fire in the direction of a dog that had been barking, after which he turned the other way and shot toward the ground. The witnesses were unable to see anything on the ground because their view was obstructed by the bannister and floor of the back porch. Two of the men then grabbed a jacket and went through the pockets. They threw the jacket in a garbage can as they ran away. Neither Betterton nor her daughter telephoned the police.

Later that morning, around 9 a.m., several police officers responded to a call that there was a dead man in the backyard of 2327 S. Sawyer. The victim was found in a bloodied condition due to multiple wounds. His shirt was entwined around one arm. A search of the area revealed a broken pool cue, shattered glass from two beer bottles, buttons the same color as the victim's shirt and one of the victim's shoes. There were blood drag marks leading from a pool of blood towards the spot where the body was discovered. A live bullet was found, as was a coat on a garbage can. No money or identification papers were found on the victim.

A pathological examination of the corpse revealed cutting wounds caused by a sharp object, scraping-type abrasions and three gunshot wounds. A cigarette had been inspired into the bronchus. According to the results of a blood test, the victim was intoxicated at the time of his death.

Defendant was arrested at approximately 6 a.m. on February 2 while allegedly committing a robbery. He was identified by Betterton and Monteil at a lineup held later that day.

Defendant did not testify, but George Roman, who was also charged in this case, testified on defendant's behalf. On February 1, 1975, he and defendant were in a tavern adjacent to the site where the body was found. Around 9:15 p.m., defendant and another man were involved in a fight. They were told to leave, and they went outside for two or three minutes. They then returned to the tavern, where defendant remained until approximately 3 a.m.

Defendant's first contention is that he was not proved guilty of murder beyond a reasonable doubt. Specifically, he argues that the testimony of the two occurrence witnesses was vague and contradictory, that the lineup in which he participated was suggestive, and that the scientific evidence regarding hair and blood samples was merely speculative. Therefore, defendant concludes, there was insufficient evidence on which to base his conviction. We disagree.

The testimony of the eyewitnesses regarding the identification of defendant and his participation in the homicide was clear and convincing. Monteil stated that upon looking out the window, she saw three or four men engaged in a fight. She heard one of the men say, "Hurry up and shoot the guy." She saw a man turn and shoot in the direction of a barking dog; he then turned and shot toward the ground. The witness stated that she saw part of the gunman's face, and that she was positive that the man who fired the gun was defendant.

Betterton substantially corroborated her daughter's testimony. She testified that she could see everything clearly and was able to view two of the men as they stood near a light pole. She was able to recognize defendant because she had seen him in a local tavern once or twice before. Although she did not hear the "hurry up and shoot" statement, she was able to hear one of the men say, "Let's get out of here." When asked why she did not call the police at the time of the incident, she explained that she feared for her children's safety. Both Betterton and Monteil identified defendant at the lineup held on the day of the murder and also identified him at trial.

• 1 The credibility of witnesses, the weight to be accorded their testimony and the inferences to be drawn therefrom are determinations to be made by the jury. Any conflicts or discrepancies in the testimony do not destroy credibility, but only affect the weight to be given the testimony. (People v. Lewis (1979), 75 Ill. App.3d 259, 281, 393 N.E.2d 1098, 1114.) Here, any inconsistencies between the testimony of the two eyewitnesses involved only minor points. Moreover, Betterton and Monteil had ample opportunity to view defendant in a lighted area. The jury obviously found Betterton and her daughter to be credible witnesses. The only testimony offered by defendant to show that he was in a tavern at the time of the offense came from a man who was also accused of the crime. A jury is not required to believe witnesses presented by the defense, especially where there is a possibility of bias. (People v. Palmer (1979), 76 Ill. App.3d 1014, 1024, 395 N.E.2d 713, 720.) Since a conviction may be supported by the credible testimony of even a single eyewitness if the eyewitness viewed the accused under circumstances which would permit a positive identification (People v. Horton (1976), 43 Ill. App.3d 150, 155, 356 N.E.2d 1044, 1047), the testimony supplied by Betterton and Monteil provides a sufficient basis on which to sustain the guilty verdict. Thus, we conclude that the evidence is sufficient to establish that defendant was proved guilty of murder beyond a reasonable doubt.

• 2 We next consider defendant's argument that the lineup in which he was identified by the two eyewitnesses was suggestive. Both Betterton and Monteil made an in-court identification of defendant, and the evidence shows that they were able to view defendant under circumstances that were conducive to making a positive identification. Since the in-court identifications were therefore validated by an origin independent of the lineup, the identifications were not rendered unreliable even if the lineup procedure was impermissibly suggestive. See People v. Connolly (1973), 55 Ill.2d 421, 427, 303 N.E.2d 409, 412-13; People v. Daniels (1979), 73 Ill. App.3d 394, 397-98, 392 N.E.2d 95, 98.

• 3 Finally, defendant's argument that the scientific evidence regarding hair and blood samples was too speculative to support the verdict is without merit. The weight to be accorded this evidence was up to the jury. (People v. Smith (1974), 19 Ill. App.3d 138, 143, 310 N.E.2d 818, 822.) According to the testimony of a microanalyst, blood found on defendant's shoes and pants was type A, as was the victim's blood, and hairs found on defendant's shoes and pants were morphologically similar to the victim's hair. This evidence is consistent with the identifications made by the eyewitnesses, and it supports the guilty verdict. See Smith, 19 Ill. App.3d 138, 143, 310 N.E.2d 818, 822.

Defendant next contends that he was not proved guilty of armed robbery beyond a reasonable doubt because there was no proof that any property ...


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