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People v. Bayless

OPINION FILED AUGUST 21, 1981.

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

v.

DAVID BAYLESS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. ROBERT R. BUCHAR, Judge, presiding.

MR. JUSTICE ALLOY DELIVERED THE OPINION OF THE COURT:

Following a bench trial the defendant, David Bayless, was convicted of armed robbery. (Ill. Rev. Stat. 1979, ch. 38, par. 18-2.) He was sentenced to a term of eight years imprisonment. On appeal, the defendant contends that he was not proven guilty beyond a reasonable doubt, because the State's sole identification witness allegedly did not see the face of the perpetrator of the crime, the credibility of the witness was impeached, and the State failed to establish that the witness' in-court identification of the defendant had an origin independent of the impermissibly suggestive scene at the defendant's arrest. In addition, the defendant contends that his conviction for armed robbery must be reversed or reduced to simple robbery, since the State failed to prove that the defendant possessed a dangerous weapon at the time of the offense. Finally, the defendant contends that the armed robbery statute is unconstitutional. We affirm.

The following pertinent evidence was adduced at trial. Virgil Thompson, the victim, testified that he drank about three beers after work on August 23, 1980, and went to bed around 10 p.m. About 3 a.m. the following morning he awoke and went outside for a walk. While passing through an alley near his hotel, he took out his wallet to look for something. A black male, approximately 5'11" tall and wearing a white straw hat, approached him and asked, "What are you doing, counting your money?" Thompson replied, "I wish I had some to count." The man then reached into his back pocket, pulled a "gun," and pointed it at Thompson and said: "Drop it and run." Thompson did as he was told.

The victim testified that at the time of the armed robbery, the black male was eight or nine feet in front of him. The alley was illuminated by lights from a nearby parking lot and from the street, with the nearest light being some 45 to 50 feet away.

Thompson also testified that he and the armed robber faced each other throughout the 15-second exchange. When asked by the prosecutor whether he was able to look at the perpetrator and to see who it was, the victim replied: "I didn't know the person — who the person was at that time. That was the first time I saw him."

After Thompson dropped his wallet and ran out of the alley, he located a State trooper, who unsuccessfully assisted the victim in his search for the armed robber. After cruising around the area for five minutes, the trooper dropped Thompson off, and the victim walked down the alley in which he had been robbed. He found his wallet near the parking lot.

Looking down the alley again, Thompson spotted the black man in the white straw hat. The victim ran to the city police department, found an officer and reported that he had been robbed by an armed black man wearing a white straw hat and a black shirt. Thompson sat in the back seat of the officer's car while they drove through the alley to the rear of Barrett's Hardware Store. When they arrived, other officers already had the defendant in custody. As one of the arresting officers held up the defendant's toy gun, the victim yelled: "That's him, that's him, the straw hat, that's him." The site of the defendant's arrest was about one block from the scene of the armed robbery.

During cross-examination, Thompson testified as follows concerning his identification of the defendant:

"Q [Defense counsel]: Now, Mr. Thompson, during your direct-examination, you sat in court here and pointed to my client, David Bayless, and you said that this was the man who had made you drop your wallet in the alley, isn't that what you testified to?

A. That's true.

Q. Now, I want to ask you a few questions about that. First of all, isn't true that when you were in Officer Klepfer's squad car and pulled in behind the alley at Barrett's that the way that you identified David Bayless is because you said something to the effect, That's him, that's the straw hat right there, isn't it?

A. Right.

Q. Now, at that time, you didn't know what David Bayless looked like, did you? All you knew was that there was a straw hat that ...


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