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People v. Harris

OPINION FILED JUNE 1, 1981.

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

v.

WESLEY HARRIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a jury trial, Wesley Harris (defendant) was convicted on two counts of armed robbery and two counts of armed violence. He was sentenced to 10 years' imprisonment. Defendant appeals.

Carl Carr and Jessie Perry (complainants), employees of B & R Fashions store, on August 31, 1978, testified that at approximately 3:30 p.m. that day two black men entered and asked to see some merchandise. Both men drew handguns and announced a holdup. Perry was forced to open the cash register. One of the two strangers removed the cash. He placed some of the money in his sock. The two then escorted complainants and everyone else in the store into rear dressing rooms and ordered everyone to undress. One of the men took $50 from Perry. Carr was ordered to throw his pants out of the dressing room. The intruders left the store shortly thereafter. Carr testified defendant was not one of the two men.

Carr left the dressing room and observed some men's jackets were missing. He also noted $260 had been removed from his wallet. Several minutes later, police arrived at the store. They escorted Carr to 4826 South Prairie, where he identified the body of James Carbin as one of the two robbers. Carr noted the presence of money in Carbin's sock. He also identified leather jackets found in a nearby automobile as having B & R Fashions price tags on them. Both complainants identified a handgun found on Carbin as having been used in the holdup.

At approximately 3:50 p.m. on that day, Chicago police officers McMahon and Gallivan were driving west on 50th Street in their squad car. They observed a black-over-white Maverick with four men inside come out of an alley onto 50th Street directly in front of them. The car had no State license plates or city vehicle sticker. As the officers attempted to pull the car over, it turned north onto Indiana Avenue and began to slow down. The officers observed the doors of the Maverick open as if the occupants were attempting to exit. The Maverick stopped when it ran into a stop sign.

As the officers approached the Maverick, they heard one of the occupants shout, "The motherfucker is crazy, he has a gun." The officers drew their weapons and ordered the occupants out of the car. The police positioned themselves at the rear of the Maverick, with Officer McMahon on the left and Officer Gallivan on the right. The occupants exited one by one from the passenger side of the Maverick with their backs to McMahon. The first to exit was the occupant of the front passenger seat. The second man to exit was identified as the driver of the car. The man who had been sitting in the rear passenger seat then got out of the car and stated, "That motherfucker is crazy, he has got a gun."

Officer Gallivan testified he was 6 to 8 feet from the men as they appeared. He identified defendant as the driver. Officer McMahon testified that although the men exited the car with their backs to him, at one point they all turned around and faced him. Officer McMahon identified defendant as one of the three men, but was not sure which one defendant was.

The officers testified the fourth man, later identified as James Carbin, climbed over the front seat and onto the floor as if attempting to stuff something under the front seat. Carbin finally came out of the car and proceeded to walk away. As McMahon walked parallel to him, Carbin drew a revolver. McMahon and Carbin exchanged gunfire. Carbin fled, and McMahon followed. Gallivan abandoned the other three occupants of the Maverick and joined in the pursuit of Carbin. McMahon shot and killed Carbin. The handgun identified by the complainants was recovered from Carbin's body. Cash and watches were recovered from Carbin's pockets. Additional cash was found in his sock.

The officers returned to the Maverick and noted the other three passengers had fled. The officers discovered leather coats with price tags on them in the Maverick. The officers also noted a sticker on the car window which indicated defendant was the owner of the Maverick.

At 9 p.m. on August 31, 1978, both officers separately viewed a lineup. Both identified defendant as an occupant of the Maverick. This identification was repeated in open court. On cross-examination, Officer McMahon affirmed that in a police report compiled after the incident but before the lineup he had described the three other occupants of the Maverick only as three male Negroes of medium build.

Police Investigator John Battistella testified that after the robbery and traffic stop he went to the home of Claudette Brown, defendant's girlfriend. Brown told him defendant was not there and, as far as she knew, defendant's car was parked in back of her house. She said nothing about defendant's car having been stolen.

Defendant's sister, Rosie Wallace, testified for defendant. She stated defendant had dinner at her home at 4 p.m. on August 31, 1978. Defendant left her home at 5 or 5:30 p.m. after his girlfriend called him on the phone. His car was not at Wallace's home on that day.

Claudette Brown also testified for defendant. She stated she had borrowed defendant's Maverick on August 30, 1978, and kept it until 5:30 a.m. on August 31, when she parked it in an alley. At 3:30 p.m. on August 31, she discovered the car was missing. She called police at 3:30 or 4 p.m. The police arrived at about 4:30 p.m., and Brown told them the Maverick had been stolen. She testified that between 5 and 5:30 p.m. she phoned defendant at his mother's home but he was not there. She then called defendant at his sister's home and informed him his car had been stolen. Defendant arrived at her house after the police had been there a second time looking for him. The police had told her defendant's car had been used in a robbery. Defendant called the police, who arrested him at Brown's home at approximately 6 p.m.

Defendant first contends the evidence was insufficient to establish guilt beyond a reasonable doubt. Defendant stresses conflicting testimony by the officers as to the instructions they gave the three men as they exited the Maverick and the failure of the officers accurately to describe defendant in their police report. Such discrepancies, contends defendant, ...


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