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People v. Malone

OPINION FILED APRIL 7, 1983.

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

v.

CURTIS MALONE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Jack Arnold Welfeld, Judge, presiding.

JUSTICE JOHNSON DELIVERED THE OPINION OF THE COURT:

Defendant, Curtis Malone, appeals his conviction of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)). After a jury trial, he was sentenced to 10 years in the Illinois Department of Corrections. He raises the following issues for review: (1) whether he was denied due process when the prosecution failed to provide certain evidence; (2) whether he was denied his constitutional right of confrontation; (3) whether the trial judge erroneously refused to recuse himself prior to hearing evidence on whether trial counsel had rendered ineffective assistance of counsel; (4) whether he was denied effective assistance of counsel; (5) whether in-court identification was the result of an impermissibly suggestive identification procedure; and (6) whether the prosecution's final argument was improper and prejudicial. We affirm.

Defendant was charged by information with the armed robbery and attempted murder (Ill. Rev. Stat. 1979, ch. 38, pars. 18-2(a), 8-4(a)) of Tom Hall on February 7, 1980, and March 4, 1980. The instant case involves the trial of defendant for the robbery occurring on March 4, 1980.

At a hearing on defendant's motion to suppress a lineup identification, Ronald Grego, an Oak Park, Illinois, policeman, testified that he arrested defendant at about 9:30 p.m. on March 5, 1980, pursuant to a robbery report by the victim, Tom Hall. Grego arranged a lineup of five men, two of whom were suspects and two of whom were policemen not in uniform. Hall positively identified the two suspects, defendant Malone and W.B. Bolton.

Hall testified that he immediately recognized the suspects in the lineup; he did not notice the other men and did not know whether they fit the description that he had given to the police. Hall described the offender as five feet seven inches in height and weighing 140 pounds. Defendant Malone was 5 feet 10 inches and weighed 150 pounds. At the close of the hearing, the trial court denied the motion to suppress identification.

Testimony at trial established the following.

Tom Hall was the manager of a gas station in Oak Park, Illinois, on March 4, 1980. The day was sunny and clear. At about 3:15 p.m., Hall was alone in the office when a gold Buick with a tan top entered the station. There were two men in the car; the taller man was driving and the shorter man was the passenger. Hall recognized the passenger as the person who had robbed him in the same gas station on February 7, 1980. The taller man came into the office for cigarettes, returned to the car and drove off. Hall went into the washroom. As he opened the door to leave, the man who had been the passenger in the Buick shoved the door back toward Hall. The lights were on and Hall looked directly into the man's face. The man was pointing a .38-caliber revolver at Hall. He demanded Hall's money and said that he would kill him. Hall gave the man about $100. After a struggle, the man fired a shot and left. Hall heard another shot. At that point in his testimony, Hall identified defendant Malone as the passenger in the Buick and as the man who robbed him. After Hall telephoned the police, a neighbor, Georgia Bowling, ran into the office. When the police arrived, they removed a bullet from the commode.

On February 7, 1980, the day was sunny and clear. Around 4 p.m., a man taller than the defendant came into the office, bought cigarettes and left. Then defendant walked into the office, bought cigarettes and left. As Hall was counting money, defendant returned pointing a gun at Hall. Defendant took the money and forced Hall outside, threatening to kill him. When Hall ran back toward the office, defendant shot at him three or four times. At that point in his testimony, Hall identified defendant Malone as the person who had robbed him on February 7, 1980. On cross-examination, Hall stated that he did not know whether the taller man he saw in the company of defendant on March 4, 1980, was the same taller man he saw on February 7, 1980.

Georgia Bowling testified that on March 4, 1980, at about 3:20 p.m., she was walking her dog in the alley behind her house, which is west of the gas station. She noticed two men in a gold Buick. As she returned to her house she heard a gunshot. She continued walking and saw the same car with both doors open and the motor running. No one was in the car. She noticed the license plate number, ZM 1239. Two men ran from behind the garage and jumped in the car. Bowling ran into her house, jotted down the license number and ran over to the gas station. She showed the license number to Hall and talked to the police on the telephone. On March 5, 1980, Bowling identified the car at the Oak Park police station.

On cross-examination, the defense attorney asked Bowling to describe the two men. He inquired as follows:

"I ask you to look around this courtroom and ask you if you recognize either of the two people you saw?

A. I see one.

Q. What was that man wearing?

A. Green pants and waist hip length jacket.

Q. What color was the jacket?

A. Black.

Q. And by hip length jacket you mean one that stopped at the waist, is that correct?

A. That's right.

Q. Showing you what has previously been identified as People's Exhibit Number 5 I ask you to look at that photograph and ask you if you see an individual under the number three.

A. That's the man, but not the coat.

Q. Is that the type of coat the man was wearing on March 4th?

A. No.

Q. Did you see any man on March 5th when you went to the police station to see the car?

A. Yes, I did.

Q. Did you view a lineup at that time?

A. Yes, I did.

Q. Do you recall what the other man was wearing?

A. I believe he also had a jacket on, but I ...


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