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People v. Reppa

OPINION FILED MARCH 17, 1982.

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

v.

PAUL REPPA, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DWIGHT McKAY, Judge, presiding.

JUSTICE RIZZI DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant, Paul Reppa, was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2) and sentenced to 20 years in the Department of Corrections. On appeal defendant argues that (1) he was not proved guilty beyond a reasonable doubt; (2) he was not adequately represented by counsel; (3) admission of evidence of another crime constituted error; (4) he was prevented from testifying as to his state of mind at the time of his arrest; (5) he was prevented from testifying that he pleaded guilty to prior offenses used by the State for impeachment; (6) his motion for mistrial should have been granted where certain items found by the police were mentioned during an officer's testimony but were not offered into evidence; (7) the court erred in giving an instruction regarding exclusive, unexplained possession of recently stolen property; and (8) the court erred in refusing to give instructions on theft tendered by defendant. We affirm.

Around 2 a.m. on August 29, 1979, a man wearing a ski mask and a green army jacket and holding a gun entered the Yale and Harvard Tavern at 204 154th Place in Calumet City. The man took money from the cash register and from nearby drawers, including half dollars marked with red fingernail polish which the tavern owner gave to patrons to use in the jukebox. Shortly thereafter, a man similarly attired and also armed entered the Park View Inn at 248 153rd Place, Calumet City. In addition to taking currency, the robber took two personal checks and a small leather folder from the tavern's owner.

The police responded to dispatch calls relating to the two tavern robberies. One officer saw a man running down an alley near the Park View Inn. The officer pursued the man but lost sight of him when he entered a yard. The man was then seen running across the street. The block was secured by various police officers, and a yard by yard search was conducted. As a result of this search, defendant was observed crouching under a porch. When defendant emerged, a green army jacket fell to the ground. A search of defendant and the jacket revealed large rolls of currency, half dollars with red marks on them, two checks and part of an old wallet. Defendant was placed under arrest.

At trial, defendant testified that while walking home around 2 a.m. on August 29, he saw a person come out of the Park View Inn, go down the alley, and toss his green army coat into a garbage can. Being curious, defendant went through the pockets of the jacket where he found some loose change and currency. As he began to proceed home, he saw a squad car with its lights flashing. Defendant fled down the alley and eventually hid under a porch because he did not feel safe when police were around.

Defendant first argues that he was not proved guilty beyond a reasonable doubt. He contends that the eyewitness testimony was weak and contradictory while his exculpatory testimony was corroborated. We disagree, since there was adequate evidence to prove defendant guilty beyond a reasonable doubt.

Although neither the owner of the Yale and Harvard Tavern nor the owner of the Park View Inn could identify defendant as the man who robbed their establishments, they both described the robber as wearing a green army jacket and ski mask and carrying a gun. They also described the items taken during the robbery. When defendant was arrested a short time after the robberies, he had a green army jacket and the stolen items with him.

The most direct evidence that defendant was the robber came from an "earwitness." One of the patrons of the Park View Inn testified that he recognized the voice of the robber as that of defendant, whom he knew by the nickname Squirrel. The witness had known Squirrel for nine years and had heard his voice hundreds of times, the last time being approximately three months prior to the robbery. Although the witness could not immediately recall defendant's proper name, he was able to associate defendant with a high speed chase to which he had been a witness. While there was some uncertainty as to whether this earwitness was able to identify defendant's voice at the police station because it was distorted by an electronic device, the witness testified that he was positive he heard defendant's voice in the tavern.

In addition, a police officer testified that he chased a suspect down an alley by the Park View Inn. Although he lost sight of the suspect, he soon saw the suspect run across the street. He subsequently arrested this suspect after finding him hidden under a porch. The officer recognized him from his height, general build and clothing as the man he had chased down the alley. This man was the defendant.

The jury, as trier of fact, has the task of determining the credibility of witnesses, the weight to be given their testimony and the inferences to be drawn from the evidence. (People v. Akis (1976), 63 Ill.2d 296, 298, 347 N.E.2d 733, 734.) The reliability of the identification testimony is clearly an issue of fact to be resolved by the jury. (People v. Jackson (1977), 69 Ill.2d 252, 261, 371 N.E.2d 602, 606.) A jury is not required to accept the exculpatory statements of the defendant. (People v. Daniels (1979), 76 Ill. App.3d 646, 651, 395 N.E.2d 163, 167.) Here, the evidence is merely conflicting, and we will not substitute our judgment for that of the trier of fact. People v. Akis (1976), 63 Ill.2d 296, 298-99, 347 N.E.2d 733, 735.

Defendant next contends that he did not receive adequate representation. Specifically, defendant argues that his counsel's decision to withdraw his motion to quash his arrest and to suppress evidence establishes his counsel's incompetency. We disagree. Failure of counsel to file a motion to quash an arrest or suppress evidence is not per se incompetency. (See People v. Gray (1981), 95 Ill. App.3d 879, 884, 420 N.E.2d 856, 861.) Competency must be determined from the total facts and circumstances of each case. (People v. Childs (1981), 95 Ill. App.3d 606, 616, 420 N.E.2d 513, 521.) The question of whether or not a motion to quash an arrest or suppress evidence should be filed is generally considered to be a matter of trial strategy, and our review of counsel's competence does not extend to this area. See People v. Hines (1975), 34 Ill. App.3d 97, 100-01, 339 N.E.2d 489, 492.

• 1 Here, the record reveals that counsel for defendant did file a motion to quash the arrest and suppress the evidence recovered at the scene of the arrest. The fact that defense counsel subsequently withdrew the motion does not support defendant's contention that he was incompetent. Before seeking leave to withdraw the motion, defense counsel informed the court that he had spoken with his colleague who had drafted the motion and with the State. This suggests that counsel's decision not to pursue the motion was based on informed judgment and was a matter of trial strategy. Moreover, it is clear that defendant's motion would not have been granted. The evidence shows that the arrest was legal since the police had reasonable grounds to believe that defendant had committed an offense (Ill. Rev. Stat. 1979, ch. 38, par. 107-2(c)) and that seizure of the evidence in the army jacket was proper since it resulted from a search of defendant's immediate area for the purposes of protecting the officers from attack and discovering the fruits of the crime (Ill. Rev. Stat. 1979, ch. 38, par. 108-1(a), (c)). Defense counsel was not obligated to pursue specious claims of constitutional deprivation. (People v. Ruple (1980), 82 Ill. App.3d 781, 787, 403 N.E.2d 129, 133.) Finally, a review of the record discloses that defense counsel performed in a competent manner during all phases of trial. For all these reasons, defendant's argument regarding the incompetence of his counsel must fail.

• 2 Defendant also argues that reversible error occurred when the owner of the Yale and Harvard Tavern was permitted to testify regarding the armed robbery of his establishment since defendant was only being tried for the armed robbery of the Park View Inn. Generally, evidence of crimes other than the one for which the accused is being tried is not admissible. (People v. McDonald (1975), 62 Ill.2d 448, 455, 343 N.E.2d 489, 492.) Such evidence is admissible, however, if it fairly tends to prove the offense charged by placing the defendant in proximity to the time and place of the offense, aiding or establishing the perpetrator's identity, or tending to prove design, motive or knowledge. (People v. Riley (1981), 94 Ill. App.3d 775, 776, 419 N.E.2d 106, 108; see People v. Diaz (1979), 78 Ill. App.3d 277, 279-80, 397 N.E.2d 148, 150.) Plainly, the evidence regarding the armed robbery of the Yale and Harvard Tavern falls within these exceptions. The armed robbery of that tavern occurred only minutes before the armed robbery of the Park View Inn, and defendant admits in his brief that the two robberies "were undoubtedly committed by the same person." The decision as to whether the probative value of this other crime evidence outweighed any prejudicial impact it may have had was a proper subject for the trial court's discretion, and we cannot say that the trial court abused its discretion in admitting this evidence. Furthermore, the jury was given a limiting instruction regarding the permissible use of this evidence. (See People v. Kirkwood (1980), 82 Ill. App.3d 252, 260, 402 N.E.2d 677, 684.) We conclude that the other crime evidence was properly admitted.

In his next argument, defendant contends that he was denied a fair trial because he was prevented from testifying as to his state of mind at the time of his arrest. According to defendant, he was allowed to testify on cross-examination that he did not feel safe when the police ...


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