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People v. Phillips

OPINION FILED AUGUST 11, 1981.

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

v.

JEROME PHILLIPS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH R. WENDT, Judge, presiding.

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

Rehearing denied September 1, 1981.

Defendant was tried on three counts of armed robbery, three counts of aggravated battery, three counts of unlawful restraint, four counts of armed violence and attempt murder. He appeals from a judgment entered on jury verdicts of guilty as to three counts each of armed robbery and unlawful restraint, for which he was sentenced to 6 years in the penitentiary. The issues identified for our consideration are whether defendant was proved guilty beyond a reasonable doubt; and whether the voir dire conducted by the court was so cursory that it deprived defendant of the means with which to choose an impartial jury.

John L. Campbell testified for the State that on May 27, 1978, after leaving the Main Post Office, his place of employment, before 1 a.m., he walked toward a motel parking lot with his friend, Jimmy Coleman. They entered the ramp and a man, later identified as defendant, approached them with a weapon and announced a stickup. Campbell saw his face. Campbell and Coleman were instructed to get down on the ground, after which defendant started to search them. During the search Campbell "stared directly into" defendant's face. The nearest lights were two feet away. After defendant took Campbell's money and keys, he was required to put his hat over his face. At some point thereafter, another individual approached, who was told by defendant to search the victims, and that "he better find some money." That person searched Campbell and took his wallet. A fifth person, Carl Williams, arrived on the scene and was told to get on the ground by defendant. The fourth individual was instructed to search him. At that point a shot was fired. The two robbers fled as a police car drove into the parking lot. After learning that there had been a robbery, the two officers in the squad car gave chase. Later, Campbell viewed a lineup and identified defendant as the gunman. On cross-examination, Campbell was confronted with a statement made at the preliminary hearing that he did not know how far away the parking lot light was. He did not remember whether he had made it or not. Before entering the parking lot he had stopped at a tavern and had three or four beers.

Jimmy Coleman testified that while he was with Campbell in the parking lot, a man approached and announced a stickup. Coleman did not get a very good look at the man's face because his attention was drawn to the gun the man was carrying. Coleman's testimony comported with Campbell's in other respects but he added that when the gunman searched him he took $365, two silver dollars, a badge, his ring and his watch. Prior to searching him, the gunman removed his glasses. Coleman identified his ring and his watch, and stated both items were removed from him by the gunman and not by the other individual who later searched him. On cross-examination Coleman stated he was unable to identify anyone at the lineup.

Carl Williams, a post-office employee, stated that at 12:45 a.m. he proceeded to his car in the parking lot, accompanied by a woman. He observed a group of men on the ground. Assuming that it was a "crap game," he greeted the men, but was told to "shut up" and get on the ground with the victims. He briefly saw the gunman's face, as his attention was drawn to the gun. The individual without the gun searched him, took his wallet and money, ripped his pants off, and pushed him back to the ground. After lying on the ground for two or three minutes, Williams thought the offenders had left and, looking up to see if he was correct, he was shot in the arm and side by the gunman. The individual without the gun said: "You shot once. We haven't got time for this. Let's get out of here." Williams then heard footsteps and he heard someone indicate where the suspects went. He was removed to the hospital.

Police Officer Edward Carter, who conducted the lineup, testified that neither Coleman nor Ms. Bracey (Williams' companion) was able to make an identification.

Also testifying for the State was Police Officer F.M. Holan. During the early morning hours of April 28, 1978, he was in a squad car with his partner, Officer Walter Koltonuk, in the driveway of the nearby motel. After hearing a shot, they drove toward the sound. As they approached, Officer Holan observed two men run away from a group of people. Several individuals in the group shouted that they had just been robbed. The two officers gave chase, lost the suspects briefly, and then came upon them standing in a parking lot. Upon being ordered to stop, the two suspects started to run. Officer Holan chased them on foot, stopping only briefly to pick up a revolver from the sidewalk. Officer Holan found the weapon to contain five live rounds and one expended round. The gun smelled like it had been fired.

Officer Koltonuk's testimony was substantially the same as Holan's. In addition, he stated that while chasing the two suspects, one of whom was several inches shorter than the other, he saw the shorter suspect "go down," and lost sight of the taller person. He looked under a parked automobile and observed defendant lying part way underneath the car next to the curb. With his gun drawn, he handcuffed one of defendant's hands. Defendant began crawling out from underneath the car. Once his foot was part way onto the sidewalk, he lunged forward. After being pulled two or three feet, Officer Koltonuk subdued defendant, placed the other handcuff on him, and removed $254 jammed into defendant's top pocket. In addition, Officer Koltonuk found a ring, two silver dollars, a post-office I.D. card with Coleman's name on it, and "a bunch of keys" in defendant's pockets and another ring, a key, and a watch on the ground within a car's length of the place where defendant was arrested.

Defendant testified in his own behalf. From 1971 to 1973 he worked at the Main Post Office. On paydays he would participate in dice games which took place in the vicinity of the post office, especially near the motel and in front of the tavern on the ramp at Harrison Street. After he stopped working at the post office, he would sometimes return to play dice. During the late night hours of April 27, 1978, he participated in one such dice game, which broke up when police approached. He walked toward the motel and, after the police left, he walked back to the game on the ramp. Again the game broke up with the approach of police; however, when he returned again, there were no people on the ramp. He walked to the bottom of the ramp near the parking lot and saw two people lying down and one kneeling. The latter had a gun and he told defendant to "come here" and "go through their pockets." He began to search one of the people lying on the ground. Thereafter Williams approached and was instructed to get down on the ground. Then another person came down the ramp, saw what was happening, and ran away. A shot rang out, and defendant began to run. He was holding some cash, a watch, and a ring which he had removed from the individual on the ground. The man with the gun chased him and told him to stop. Defendant ran through a parking lot, and then halfway down a street before hiding near the side of a car. He thought that by doing so he could escape from the man with the gun. Sometime later, a police officer approached, handcuffed him and hit him on the head with his gun. The officer told defendant that if he found a gun he was going to kill him. He was taken to the station, where an investigator told him that the man who had been shot was dead. Defendant told the investigator that he was instructed to search the victim's pockets by a man with a gun. He did not see a police car, did not hear Officer Holan speak during the chase, and did not lunge in an effort to escape after he was arrested. He did not discard any property at any time. The defense rested its case in chief.

The State called Officer Koltonuk in rebuttal, who testified that he never hit defendant with his gun, nor did he offer to shoot him. The State also called Officer Carter in rebuttal. He testified that prior to the lineup, defendant stated that he was a "victim of circumstances regarding a crap game." Defendant did not at any time tell Officer Carter that he was ordered at gunpoint to search the victims. Officer Carter did not tell defendant that one of the victims of the armed robbery had died.

It was upon the foregoing evidence that the case was submitted to the jury and upon which defendant was found guilty, as first noted above.

Defendant first argues that he was not proved guilty beyond a reasonable doubt. He claims the evidence establishes that: the area is known for dice games; a man with a gun ordered a second man to search the victims; the two participants in the robbery did not approach the victims together; only Campbell testified that Phillips had a gun, and his vision was obstructed most of the time by the hat covering his face. Thus defendant argues Campbell did not have an adequate opportunity to observe. Defendant claims that the evidence shows that he was the unarmed second participant in the robbery and was forced to search the victims by the armed man.

• 1 There was ample evidence upon which the jury could have found otherwise. Campbell saw defendant with the gun as he announced a stickup and identified him in a lineup. Campbell's opportunity to view defendant was sufficient since the nearest light was only two feet away and he stared directly into defendant's face. He identified defendant at a lineup held within a short time after the robbery and shooting, and again at trial. As to compulsion, the jury had the right to believe Officer Holan's testimony that when he came upon defendant and the other suspect in a parking lot and ordered them to stop, defendant instead chose to run, which negates the theory that defendant did only what he was forced to do. Further, his effort to escape while being handcuffed after he was found hiding under a parked automobile severely erodes the mold of compulsion into which defendant sought refuge. Where the identification of an accused is at issue, the testimony of one witness is sufficient to convict, even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under such circumstances as would permit a positive identification to be made. (People v. Stringer ...


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