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People v. Davis

OPINION FILED MARCH 10, 1982.

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

v.

CURT DAVIS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE M. MAROVICH, Judge, presiding.

JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

The defendant, Curt Davis, was charged by indictment with armed robbery. He was convicted by a jury and sentenced to 6 to 12 years' imprisonment. On appeal, the defendant argues that he was not proved guilty beyond a reasonable doubt and that he was denied a fair trial because the State did not update its answer to defendant's discovery motion and because the State's rebuttal argument was improper.

On August 29, 1975, Tank's Tavern, which was owned and operated by Helen and Homer Wright, was robbed. Helen Wright was bartending at the time of the robbery.

Helen testified that the defendant and another person entered the packaged goods section of the bar. The defendant stood about three feet across from her and purchased a quart of beer. The other person asked to use the washroom, walked toward it, and then fired a gun at the ceiling and announced a stickup. The defendant pulled out a gun and fired at Helen. She picked up a gun, fired back and then hid under the bar sink. Another man went behind the bar and took her gun. He also took money from the cash register and some liquor. Approximately four or five minutes later, Helen heard some shots and then silence. She got up and saw the defendant lying on the floor in a pool of blood. The defendant was struggling with a patron, Percy Benson, *fn1 and was trying to move toward the cigarette machine.

On cross-examination, Helen Wright denied that at the preliminary hearing she testified that it was the defendant who asked to use the washroom after the man behind him announced the robbery.

Chicago police officer Leon Bowens testified that on August 29, 1975, when he arrived at Tank's Tavern, the defendant lay bleeding on the floor and was surrounded by several men. Officer Bowens saw a small caliber gun laying under the cigarette machine near the defendant.

Investigator Michael Cummings inventoried a .22-caliber gun which was recovered from under the cigarette machine. He testified that it contained five live .22-caliber rounds. The gun could have held six rounds. No expended shells were given to Cummings.

Mary Ann Mohan, a microanalyst for the Chicago Police Department, testified that blood stains on the .22-caliber gun were of Type A blood. She stated that the defendant had Type A blood.

Lonnie Burks, a patron at the tavern, testified that the defendant took his watch while he was lying on the floor. Thereafter, Burks heard a few shots. When he got up, Burks saw the defendant lying on the floor bleeding and trying to move towards a gun under the cigarette machine. Percy Benson was kicking the defendant, and Al McClain was trying to restrain Benson.

On cross-examination, Burks stated that he had been at the tavern for about 4 1/2 hours and had had five or six beers before the robbery occurred. He stated that he looked at the defendant's face when he gave the defendant his watch. There were no lights on the floor of the tavern. Burks also testified that on the day of the trial, he discussed the robbery with the prosecutor and the State's witnesses.

Ruby Thomas testified that she was a patron at the tavern when the robbery occurred. She stated that the man lying on the floor after the robbery was the person who shot at Helen Wright.

Albitron McClain testified that his wallet was taken during the robbery. After the robbers left, McClain got up and saw Percy Benson kicking the man on the floor who was crawling toward the cigarette machine. McClain testified that he told Benson to stop and wait for the police to arrive.

On cross-examination, McClain testified that he did not remember telling defense counsel that he did not know if the man who bought beer around the time of the robbery was involved in the robbery. He also denied telling defense counsel that the reason he attempted to stop Percy Benson from kicking the man on the floor was because he did not think the man on the floor was one of the robbers.

Homer Wright testified that when the robbery occurred, he was in the living quarters in the rear of the tavern. He heard some shouting and gunshots and looked through a peephole and saw four men with guns in the front part of the tavern. Homer identified the defendant as one of the men and said the defendant was holding a .38, a .32 or some kind of pistol. He watched the robbers for about two minutes and, with his revolver and 12-gauge shotgun, went outside to the front of the tavern and waited behind a parked car. When three of the robbers left the tavern, Homer called to them and they ran. Then, as the ...


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