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People v. Yarbrough





APPEAL from the Circuit Court of Winnebago County; the Hon. PHILIP G. REINHARD, Judge, presiding. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

Billy Wayne Yarbrough was tried and convicted in Winnebago County of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2). The defendant was sentenced to a minimum term of six years in the Department of Corrections. He filed a timely notice of an appeal.

Defendant allegedly robbed Dale Reinhold, the owner, and Debbie Edwards, an employee, of K.C.'s Disco in South Beloit. The robbery occurred about 2:30 a.m. on December 22, 1979. The two victims were about to get into Reinhold's truck in the parking lot of the disco after having locked up for the night. The defendant approached them, gun drawn, announced it was a stickup and demanded "the receipts." Reinhold advised him the receipts were in the safe inside the disco, and the victims were forced back inside, the safe was opened, and two money bags and a .357 chrome-plated magnum pistol in a holster were removed by the robber. The robber began to leave the disco but was deterred by the sight of car lights through the glass front door of the disco. Reinhold and Edwards lost sight of the defendant in the darkness within the disco, and Reinhold produced a pistol he had been carrying in his belt and fired a shot. Then he and Edwards, believing the robber might still be on the premises, called the police. The police arrived and searched the premises, did not find the robber or the money bags, but did observe the .357 magnum pistol on the floor near the front door. Subsequently, the police received a "tip" that they should show the defendant's photos to the victims. Photos of six other persons who were physically similar to the defendant were assembled and shown to the victims separately. They each chose defendant's photograph.

Defendant was arrested. At the preliminary hearing, Reinhold failed to identify him, but Ms. Edwards did, and the trial court determined that probable cause existed. At the trial of the cause both victims positively identified defendant and he was convicted in a jury trial. A new trial motion was filed and denied, after which the defendant was sentenced to the Department of Corrections. A post-trial motion in the usual form was filed, and thereafter a supplemental post-trial motion was filed by the defendant. The supplemental motion for post-trial relief alleged, inter alia, with supporting affidavits, that the defendant's brother, Willie Joe, not the defendant, had committed the robbery at K.C.'s. The trial court held an evidentiary hearing on the supplemental petition. Willie Joe Yarbrough, defendant's brother, testified that he, Willie Joe, had committed the robbery. Willie Joe's girl friend, Patricia Smith, testified at the evidentiary hearing that Willie Joe showed her a bag of money from which he gave her $250 after she helped count the bag's contents, and she testified that Willie Joe told her it was stolen out of a truck parked at K.C.'s Disco on December 22.

The trial court denied the supplemental motion for new trial, stating that because it did not believe Willie Joe or Patricia Smith that the defendant had not met his burden of proof showing the conclusiveness of his newly discovered evidence, nor had the defendant been diligent in presenting it to the court. Notice of appeal was then timely filed.

In this appeal the defendant makes three major contentions:

I. He was not proven guilty beyond a reasonable doubt.

II. He was denied a fair and impartial consideration of the post-trial motion when the court "suggested" that he be given a lie detector test and later upon its own inquiry was informed that no "beneficial" evidence had resulted from the "investigation."

III. That the court erred in not granting a new trial after the evidentiary hearing conducted pursuant to the supplemental post-trial motion.

It is defendant's first contention that the eyewitness identifications of him were not credible and were unsupported by any objective corroborating evidence that a robbery, in fact, had occurred. The defendant in contrast asserts the alibi evidence he presented was credible and uncontroverted by the State and that therefore reversal was warranted.

• 1 Positive identification by one credible witness is sufficient to sustain a conviction. (People v. Novotny (1968), 41 Ill.2d 401), provided the defendant is observed under conditions which would allow a positive identification to be made. (People v. Reed (1980), 80 Ill. App.3d 771.) The robber was described by the witnesses as a black male, about 150-160 pounds, 5' 10" to 6' tall, in his early twenties, wearing jeans, boots, a dark jacket and a stocking cap on his head, but not covering his face. Reinhold also said he had a "puffy cheek," although Edwards made no mention of this feature. The parking lot was lighted by mercury vapor lights on the roof of the disco, there was a street light about 50-55 feet away from the door through which the victims and the robber entered the disco, a lighted "Exit" sign above the door, a small light on the cash register, and florescent lights in the anteroom of the small office in which the safe was located and was itself lighted by a bare, 100-watt bulb.

• 2 Clearly, the victims had ample opportunity to view the robber, notwithstanding the defendant's contention the victims were more likely to have been focusing on the robber's weapon than his features. Despite the fact Reinhold's identification of the defendant at trial was somewhat weakened due to his prior inability to identify him at the preliminary hearing, Edwards' identifying testimony was clear, and it alone would have been sufficient to convict if the jury found her credible. This is true even if the defendant presented uncontradicted alibi evidence or more witnesses to support the alibi defense than were called to identify him. (People v. Menendez (1980), 84 Ill. App.3d 1140, 1142; People v. Setzke (1961), 22 Ill.2d 582.) Defendant's alibi evidence presented an issue of fact to be determined by the jury, along with its determination of the credibility of the witnesses. People v. Johnson (1980), 94 Ill. App.3d 200, 207.

• 3 The defendant's alibi was that he and a friend, Roger Beckham, left for Atlanta, Georgia, about 4:30 p.m. on December 21 to visit Beckham's grandmother. The defendant claims he could not have committed the robbery since at 2:50 a.m. on December 22 he was "half way to Nashville." Our review of the record causes us to conclude that the jury could easily have rejected the defendant's contention as to his alibi defense due to the numerous inconsistencies in his witnesses' and his own testimony. Although the defendant may indeed have traveled to Georgia on December 22, his arrival time in Atlanta was of critical importance since he could conceivably have committed the robbery immediately before leaving for Georgia and still have arrived in Atlanta later on December 22. According to the testimony Atlanta is a 15- to 15 1/2-hour trip. The jury could also have considered the great potential for fabrication of the alibi defense since defendant, while out on bond, drove to Georgia to pick up the witnesses and transported them to Rockford for the trial itself. In sum, we believe the State sustained its burden of proof beyond a reasonable doubt, and reversal on this point is not warranted.

• 4 A motion by the State to strike two authorities cited by the defendant in his brief was ordered to be taken with this appeal. The authorities cited were two articles, one from the Journal of Applied Psychology: Gorenstein and Ellsworth, Effect of Choosing an Incorrect Photograph on a Later Identification by an Eyewitness, 65 J. Applied Psychology 616 (1980). The other was Bazelon, Eyewitness News, 13 Psychology Today 102 (March 1980). They were cited in support of the defendant's contention that Reinhold's identification of the defendant was not sufficiently credible to sustain a finding of guilty beyond a reasonable doubt because Reinhold was suffering from "weapon focus" coupled with a "commitment factor" arising out of the assertedly unduly suggestive photo lineup. This court in People v. Dixon (1980), 87 Ill. App.3d 814, found expert opinion testimony on the vagaries of eyewitness identification was properly denied at trial since it was a subject within the common knowledge of the jury. But more crucial to the issue in this particular case is the fact that these writings were not presented to the trial court and were not presented to this court. Since they have never been submitted they cannot be considered and shall not be by this court. The State's motion, therefore, must be granted.

The second thrust of the defendant's appeal is that he was denied a fair and impartial consideration of his post-trial motions when the trial court suggested that a lie detector test be given to Yarbrough and later, upon the court's inquiry, was informed ...

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