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People v. Hancock

OPINION FILED NOVEMBER 29, 1982.

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

v.

JACKIE HANCOCK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Sylvester C. Close, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a jury trial, Jackie Hancock (defendant) was found guilty on two counts of armed robbery. He was sentenced to 15 years. He appeals.

In this court, defendant raises a variety of issues. In an effort to attain an orderly ruling thereon we will first state a summary of the evidence. We will augment this statement as required in considering the various issues raised.

On June 27, 1978, about 11:30 a.m., a bartender and four patrons were in a well-lighted tavern. The doors and a window were all open. A person identified as defendant entered with an automatic pistol drawn. He stated it was a "stickup" and he wanted everyone's wallet. One patron threw his wallet on the floor. The others placed them on the bar. The bartender put some $45 on the bar.

At that point, Rose Carter, a friend of the bartender, entered. She testified that defendant seized her and pulled her in front of him. She struck at the defendant but the bartender cautioned her to obey. Defendant took the money and required all persons to enter the bathroom. This lasted from three to five minutes. One witness was two feet from the defendant.

At trial there were six in-court identifications of defendant, by all four of the patrons (Wright, Peters, Monroe and Martin), by Rose Carter and by the bartender. In addition, two of the patrons (Wright and Peters) identified defendant at a police lineup. Two photographs of this lineup were received in evidence after testimony by the two witnesses concerning them. In addition, two of the patrons (Peters and Martin), Rose Carter and the bartender, also testified each had made a photographic identification of the defendant from an album of photographs shown to them by the police.

Defendant called Geraldine Gilliam. She is defendant's cousin. She testified defendant was at her home about 7 o'clock on the morning in question. She left for work shortly after 8 a.m. She attempted to call her home about 9 a.m. and could not get the line until about 11 a.m. Defendant also called Ernestine Gilliam, a sister-in-law of defendant's mother. She testified defendant called her at 10:30 on the morning in question and said he was coming "to paint some burglary bars for me and put them up." Defendant came to her home about 11:30 a.m. and remained until 12 o'clock.

Defendant testified he went to his mother's home about 6 a.m. He left the house for a short time about 9 a.m. only to buy some cigarettes. He tried to reach a lady named Linda Mellis, a social worker at a hospital where his wife had gone. About 11:30 he went to the home of Ernestine Gilliam. He talked to her about installing some burglary bars. She told him she would have the money shortly and he agreed to do the work. Defendant testified he had never been in the tavern in question and he categorically denied he had ever robbed anyone there.

I

• 1 Defendant moved in limine to exclude evidence of his prior convictions for theft of services in 1977 and for armed robbery in 1973. The trial judge denied the motion and certified copies of these convictions were received. Defendant urges this was an abuse of discretion.

Since People v. Montgomery (1971), 47 Ill.2d 510, 268 N.E.2d 695, admission of prior convictions has been held proper in the exercise of sound discretion of the trial court. (People v. Washington (1973), 55 Ill.2d 521, 523, 304 N.E.2d 276.) The problem to be considered by the trial court and to be reviewed by this court involves a comparison of the probative value of the prior conviction "against the potential for unfair prejudice which might result." (People v. Spates (1979), 77 Ill.2d 193, 205, 395 N.E.2d 563.) The crucial factors are set forth in Spates and Montgomery.

In the instant case we find the trial court exercised its discretion with care and came to the correct result. The crimes of theft of services and armed robbery relate directly to credibility and veracity. (People v. Ridley (1975), 25 Ill. App.3d 596, 601, 323 N.E.2d 577, appeal denied (1975), 58 Ill.2d 598.) The trial judge is given wide latitude in the exercise of his discretion in this situation. (People v. Fleming (1980), 91 Ill. App.3d 99, 108, 413 N.E.2d 1330, appeal denied (1981), 83 Ill.2d 571.) We find no breach of discretion in this regard.

II

• 2 On cross-examination of the defendant, the State inquired: "Were you ever on the phone with Mrs. Mellis [Linda Mellis] that morning of the 27th?" The defendant answered, "No, I wasn't." The State then inquired as to whether defendant had told an assistant State's Attorney and an investigator he had received a telephone call from Linda Mellis; and whether that call took approximately one hour and 15 minutes. The defendant categorically denied both of these statements.

On rebuttal, the State called Assistant State's Attorney Quinn. He testified he interviewed the defendant shortly after arrest. Defendant told him he had received a telephone call about 10:45 a.m. on the day in question. Defendant was at his mother's home. The caller was Linda Mellis, a psychiatric social worker at a hospital. She and defendant spoke about the defendant's wife. This conversation lasted one hour and 15 minutes.

The State also called Linda Mellis in rebuttal. She testified she did not speak to the defendant on the date in question, June 27, 1978. The witness specifically recalled on that particular day she and her husband had doctor's appointments at 10 a.m.

• 3 Defendant now contends the testimony of the two rebuttal witnesses was prejudical and improper. Defendant made no objection to the rebuttal testimony given by either of these witnesses at the time they testified. After final arguments had been completed and after the jury retired, counsel for defendant for the first time told the court he wished to object to the testimony of Linda Mellis on the ground that it was not proper rebuttal. The trial court overruled this objection and stated that the rebuttal was properly admissible. Since no timely objection to this rebuttal evidence was "made at the time of admission" the point, if any, is therefore waived. People v. Baynes (1981), 88 Ill.2d 225, 230, 430 N.E.2d 1070.

Even assuming the absence of waiver on this strong ground, we conclude the admission of this rebuttal evidence was entirely proper within the exercise of sound discretion by the trial court. (People v. Waller (1977), 67 Ill.2d 381, 387, 367 N.E.2d 1283.) We find no breach of discretion in this regard.

III

Defendant filed a motion to suppress identification testimony. The motion alleged the identification witnesses did not have an adequate opportunity to view the person who robbed them; after the robbery the individuals gave descriptions of the offender which substantially differed from defendant's description; identification was made by photographs containing no other persons who resembled the defendant; the photographic identifications were made by the witnesses in the presence of each other; and in the lineup defendant was identified by two people who were in the presence of each other so that the identification evidence should be suppressed. Defendant contends the trial ...


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