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People v. Lutz

OPINION FILED FEBRUARY 8, 1982.

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

v.

GARY LUTZ, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. BRUCE R. FAWELL, Judge, presiding.

JUSTICE NASH DELIVERED THE OPINION OF THE COURT:

Defendant, Gary Lutz, was tried by jury and convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). He was thereafter sentenced to six years' imprisonment and appeals, contending: (1) he was not proved guilty beyond a reasonable doubt, and (2) the trial court erred in denying his motion to suppress the identification testimony of the robbery victim which had resulted from suggestive police procedures.

Shortly after midnight on the morning of August 27, 1980, John Hartgerink was employed at a Standard Oil station in West Chicago. He was sitting within the cashier's hut between the pumps when two men wearing nylon stocking masks over their heads burst through the door. One was armed with what appeared to be an automatic pistol, and the other had a can alleged to contain mace which he sprayed into Hartgerink's face. Hartgerink testified that although he was temporarily blinded, his vision cleared within seconds. He then put on his glasses and clearly saw both robbers in the station's fluorescent lights. The gunman held his weapon to Hartgerink's head and demanded all of the money, dumping the cash drawer into a pillow case himself when Hartgerink failed to respond quickly enough. The gunman told Hartgerink to turn around and tapped the gun barrel against his head to remind him he was armed and then ripped the telephone off the wall. The robbers fled on foot into the woods behind the station with about $236 in cash; the entire episode lasted four to six minutes. Hartgerink then ran to a nearby public phone and called police, who arrived shortly. When they searched the woods behind the station, they recovered a motorcycle belonging to defendant, and its engine was still warm.

Later that morning defendant called police and reported his motorcycle stolen. He advised the officers he had been at a local drivein theater with Gregory Blevins on the night in question and the bike had been stolen while they watched the show.

Officers Jerry Dolan and John Steele of the West Chicago police department investigated the robbery. Officer Dolan informed defendant and Blevins that they were suspects and asked them to take polygraphs, to which they agreed. On the morning of August 29, the two came voluntarily to the West Chicago police station, but refused to proceed with polygraphs. That morning Officer Steele had summoned Hartgerink to the station to take a polygraph to confirm that a robbery had occurred, a standard procedure of the West Chicago police department. As Hartgerink entered the police station through the double set of glass doors at the entrance, he saw defendant and Blevins sitting in the foyer area. He made no sign of recognition but walked into the hall and encountered Officer Dolan, informing him that the robbers were in the station and pointing them out. The officers then procured an "instant" camera to make photographs for a lineup. Fourteen photos of seven individuals were taken, both full face and profile of their heads and shoulders. Defendant and Blevins were two of the seven, four were males in defendant's age group, the seventh was a woman; each wore a nylon mask. The 14 photos were randomly arranged on a desk; upon viewing them Hartgerink identified defendant as the gunman and Blevins as his accomplice.

Defendant persisted in his original story that his motorcycle had been stolen until shortly before trial, when Blevins admitted he was the robber who sprayed mace on Hartgerink and inculpated defendant as the gunman. Blevins pleaded guilty to a reduced charge of robbery and testified for the State at defendant's trial in return for a term of imprisonment of three years.

In trial, defendant testified he was at a drivein movie with Dan Maloney at the time of the robbery and that Blevins borrowed the motorcycle during the movie, returning several hours later without it. Defendant further testified that Blevins admitted to him he had robbed the gas station with an unnamed accomplice and had abandoned the motorcycle to evade police. Defendant stated he had lied to the police about the motorcycle being stolen to protect Blevins, his long-time friend, and to provide him an alibi.

Defendant initially argues he was not proved guilty beyond a reasonable doubt for three reasons. First, that due to the mace shot into Hartgerink's eyes, it was impossible for him to see his assailants and identify them.

Defendant has submitted to this court within his brief certain scientific data analyzing the effects of mace on human test subjects. Included is a 1967 report prepared for the Department of the Army, Edgewood Arsenal, Maryland, by an unknown author, entitled "Characteristics of Riot Control Agent CS," a form of mace. Also included is a 1969 publication from the International Association of Chiefs of Police entitled "ETC Bulletin" which evaluates police equipment technology and describes the effects of CN and CS formulations of mace. The State has moved to strike this material from defendant's brief as no showing has been made that defendant has the requisite scientific knowledge to interpret the data or ascertain its correctness. The State further contends this is an improper attempt to offer new evidence not of record in the trial court. We agree, and the publications will be stricken.

• 1, 2 Attachments to briefs not otherwise of record are not properly before a reviewing court and cannot be used to supplement the record. (Kazubowski v. Kazubowski (1970), 45 Ill.2d 405, 415, 259 N.E.2d 282, 289, cert. denied (1970), 400 U.S. 926, 27 L.Ed.2d 186, 91 S.Ct. 188; Silny v. Lorens (1979), 73 Ill. App.3d 638, 642-43, 392 N.E.2d 267, 270-71.) The proper place to present and analyze such data is in the trial court. No evidence was presented in trial identifying the substance sprayed at Hartgerink's face other than Blevin's representation of it as "mace," and its chemical composition, age, strength or condition is not shown. Nor was evidence offered in trial describing the effects of mace or similar products in such circumstances.

Whatever was in the can and sprayed at Hartgerink, he testified he was not disabled or blinded other than momentarily, which was substantiated by Blevin's testimony. Extensive cross-examination explored this question before the jury. The credibility of the witnesses, the weight to be given their testimony and the inferences to be drawn therefrom are for the jury to determine (People v. Alvarez (1981), 93 Ill. App.3d 111, 116, 416 N.E.2d 1217, 1221; People v. Randall (1980), 84 Ill. App.3d 888, 893, 405 N.E.2d 1269, 1274), as was the reliability of the victim's identification of defendant as the robber in this case (People v. Jackson (1977), 69 Ill.2d 252, 261, 371 N.E.2d 602, 606; People v. Warfel (1979), 67 Ill. App.3d 620, 623, 385 N.E.2d 175, 178, appeal denied (1979), 75 Ill.2d 589). We see no basis upon which to set aside its determination.

• 3 Secondly, defendant argues that a reasonable doubt of his guilt is raised because Gregory Blevins' testimony implicating defendant in the robbery was motivated by a plea bargain between Blevins and the State and therefore cannot support his conviction. In exchange for his testimony the offense charged against Blevins was reduced from armed robbery to robbery, other pending charges were dropped and a three-year minimum term of imprisonment recommended. Initially, we note that Blevins admitted his guilt and implicated defendant before any such agreement was reached. Even uncorroborated accomplice testimony is competent evidence which alone may sustain a conviction if it satisfied the jury beyond a reasonable doubt, and promises of leniency in exchange for testimony go merely to the weight, not admissibility, of such testimony. (People v. Miller (1981), 94 Ill. App.3d 725, 729, 419 N.E.2d 78, 81; People v. West (1977), 54 Ill. App.3d 903, 906, 370 N.E.2d 265, 268.) In the case at bar, Blevins' testimony was in fact corroborated by the victim of the crime.

Finally, defendant contends he was not proved guilty beyond a reasonable doubt because of contradictions in the testimony of the State's witnesses, the lack of tangible evidence linking him to the crime and the fact that his alibi witness, Don Maloney, was unimpeached.

• 4, 5 Discrepancies or conflicts in testimony affect only the weight to be given to it and the trier of fact is free to accept or reject as much or as little as it pleases of a witness' testimony in a criminal prosecution. (People v. Thompson (1981), 93 Ill. App.3d 995, 1009-10, 418 N.E.2d 112, 123-24; People v. Alvarez (1981), 93 Ill. App.3d 111, 116, 416 N.E.2d 1217, 1221.) The discrepancies suggested by defendant include, inter alia, whether defendant wore a windbreaker or a t-shirt on the night in question; whether the weapon used was a .45 automatic pistol or a B-B gun; which robber entered the station first; and, whether or not Hartgerink was seated immediately prior to the robbery. Minor inconsistencies in testimony such as these do not themselves render the testimony unworthy of belief or destroy credibility of the ...


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