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People v. Boclair

OPINION FILED APRIL 29, 1982.

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

v.

TYRONE BOCLAIR ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. WILLIAM COUSINS, JR., Judge, presiding.

PRESIDING JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 20, 1982.

After a jury trial, three of the defendants, Tyrone Boclair, Jessie Scott, and Johnny Ollie, were found guilty of unlawful restraint, armed robbery, and armed violence (Ill. Rev. Stat. 1977, ch. 38, pars. 10-3(a), 18-2, 33A-2). Defendant Frederick Chism waived a jury trial and the court found him guilty of the above charges. All defendants were tried simultaneously. Following a hearing in aggravation and mitigation, each defendant received a 7-year sentence for armed robbery and a 3-year sentence for unlawful restraint. No sentence was imposed on their convictions for armed violence.

On appeal, the following issues are raised for review: (1) whether defendants received a fair trial when other crimes evidence was introduced by the State and admitted into evidence by the trial court; (2) whether defendants received a fair trial when the prosecutor made an improper closing argument; (3) whether the trial court erred by sentencing defendants for armed robbery and unlawful restraint when both charges arose from a single act; and (4) whether the trial court erred by applying an unconstitutional statute which imposed a $500 fine on defendant Scott to be collected from his bond.

We affirm.

The following testimony was adduced at trial. The State's first witness, James E. Harris, testified that at about 1:15 a.m., on August 20, 1979, he left the Turning Point Lounge, located at 60th and State Street, in Chicago, to go to his home 1 block away. A factory with a fenced-in lot is located between his home and the tavern. As he approached the fence, Harris was grabbed by his neck and armpits, pushed into the lot and thrown backwards onto the sidewalk. When he looked up, he saw four people standing over him. One of them held a butcher knife to his stomach. While he was held down, the men took his hat, ring, watch, and wallet with his identification, and his money clip containing five $1 bills. The men walked slowly through the gate and proceeded to 60th Street.

While Harris was on the ground, James Burton, a neighbor, came to help him. Harris went home and told his wife that he had been robbed and beaten. He and his wife went to 60th and State where they saw three of the robbers with the police. The police found the fourth person hiding nearby in the weeds. The police gave Harris his wallet back that night.

On cross-examination, Harris stated that he had been in the lounge for 2 1/2 hours. During that period, he consumed about three shots of gin mixed with tonic. Harris indicated that he was not under the influence of alcohol. He did not know which of the four men had grabbed him nor could he say which of them took his property nor which man held the knife.

Defense counsel asked Harris whether he remembered testifying at the preliminary hearing that the attack occurred at 12:45 a.m. He did not remember stating that exact time. The knife was held on him 2 or 3 minutes. He was certain that People's exhibit No. 1 was in fact the actual knife.

Harris' left elbow was injured during the robbery. He wore a cast for 2 1/2 months. Harris wore eyeglasses at the time of his testimony; he was not wearing them on the night in question. He stated the glasses are for reading purposes. That night, August 20, the lighting conditions were good and the vacant lot contained two floodlights.

Harris thought defendant Ollie held the knife to his stomach but he was not certain. He was unable to describe the clothing worn by any of the four men. (He did not view a lineup.) Defense counsel for Scott referred to the preliminary hearing at which Harris stated he saw four men when he "got up." Harris did not recall making that statement and said that he saw the four men while he was on the ground. Defense counsel for Ollie read a question and answer from the preliminary hearing transcript in which Harris stated he was under a streetlight when he saw the four men. Harris stated he did not recall making the statement but said that a streetlight was in front of the area where he was robbed.

Harris stated he did not previously testify that anyone had a gun; he did not see a gun. Again, defense counsel read a question and answer from the preliminary hearing transcript in which Harris stated, "They had a butcher knife and they had a toy gun." Harris did not recall making this statement nor did he recall stating that one man had a toy gun.

Harris testified that he was not cut with a knife. He did not recall testimony at the preliminary hearing in which he stated that the person with the knife cut him. Defense counsel asked Harris to look at Ollie. The witness stated that Ollie was one of the four men but he did not know how he participated in the incident. There were two men holding him down from behind his head while two others (one on each side of him) were taking his property.

Defense counsel for Chism cross-examined Harris outside the presence of the jury. The person who held the knife held it by the handle. Harris only saw the blade of the knife at the time of the robbery. During the robbery, defendants did not talk except to say, "Let's cut him" and "We got ...


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