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People v. Rowe

OPINION FILED MAY 25, 1983.

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

v.

ARVEL ROWE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Thomas Casey, Judge, presiding.

JUSTICE WHITE DELIVERED THE OPINION OF THE COURT:

After a jury trial defendant, Arvel Rowe, was convicted of murder and armed robbery and was sentenced to concurrent extended terms of imprisonment of 60 years for murder and 40 years for armed robbery. He appeals from these convictions and sentences.

This case arises out of the fatal shooting of Mazmi Rouhman. The testimony presented at trial was as follows.

Marlo Tassin, who was nine years old at the time of the incident, testified that on January 2, 1980, at approximately 3:30 in the afternoon, she was in a grocery store owned by Mazmi Rouhman when Ferrel Cunningham entered with a gun. A few minutes later defendant entered the store and grabbed Hussein Zeidieh, a clerk in the store, and Cunningham said, "Everybody move back." Both men took money from the cash register and then Cunningham shot and killed Rouhman. Defendant and Cunningham then left the store and got into a yellow car. Marlo testified that she kept her hands over her eyes during the robbery but that she saw defendant's face once for about five seconds when she peeked through her fingers. Marlo also testified to having identified defendant in a lineup on January 4, 1980.

Hussein Zeidieh testified similarly except: (1) he said that Ferrel Cunningham entered the store after defendant; and (2) he identified Cunningham as the man with the gun but did not identify the other perpetrator.

Chicago police officer William Graham testified that he arrested defendant on January 3, 1980. Defendant was a passenger in a yellow car driven by Cunningham.

Deputy Sheriff Mary Ellen Smith testified that on April 15, 1981, she was present in a courtroom during a pretrial hearing when Hussein Zeidieh was testifying. Defendant and Ferrel Cunningham were sitting together at the defense counsel's table. During a sidebar conference, she heard defendant say to Cunningham, "We should have killed him too."

Assistant State's Attorney Linda Woloshin testified that she interviewed defendant on January 4, 1980, and that defendant made three statements regarding his activities on January 3, 1980. In the first statement he told her that he let a friend, Crazy Mike, borrow the license plates to his car. Crazy Mike was driving the yellow car in which defendant was arrested. Defendant said that Crazy Mike drove him to Cunningham's mother's house and then to Cunningham's fiancee's house where defendant took a nap until 4 p.m. In the second statement, defendant said that he left Cunningham's mother's house with Cunningham and Eric Flowers at 3 p.m. Cunningham removed a shotgun from the house and said that he and Flowers were going out to make some money. Defendant was dropped off at Cunningham's fiancee's house. Flowers and Cunningham returned after 4 p.m. and told defendant that Rouhman had been shot. Ms. Woloshin further testified that in defendant's third statement he said that he, Flowers, and Cunningham all drove to the scene of the crime and parked the car. Cunningham took a gun from the trunk and walked into the store. Defendant and Flowers remained in the car. Shortly thereafter, defendant said he heard a shot. Cunningham ran out of the store, threw his shotgun into the car and told them to drive away.

For the defense, Gerviece Collier, who was 15 at the time of trial, testified that she was in Rouhman's store with Marlo at the time of the robbery and shooting. She said that she saw the two offenders but that neither Arvel Rowe nor Ferrel Cunningham were the offenders. On cross-examination, however, she testified that she had told Detective Banahan that she could not identify anyone who was in the store on the day of the crime. She also testified that she had known Ferrel Cunningham for approximately two years.

Defendant first contends that he was not proved guilty beyond a reasonable doubt. He argues that Marlo Tassin's testimony was so weak and riddled with contradictions as to render it unreliable, and that defendant's purported admissions were ambiguous.

• 1 The testimony of a single witness is sufficient to convict where the witness is credible and had an opportunity to view the offender under circumstances which would permit a positive identification to be made even where that testimony is contradicted by evidence presented by the accused. (People v. Yarbrough (1977), 67 Ill.2d 222, 226, 367 N.E.2d 666.) This court has held that five to 10 seconds is sufficient time to allow a positive identification and support a conviction. (People v. Brown (1977), 50 Ill. App.3d 348, 353, 365 N.E.2d 907; People v. Porter (1975), 29 Ill. App.3d 456, 460, 330 N.E.2d 599.) It is the province of the jury to weigh the evidence presented, judge the credibility of the witnesses, and determine facts; a court of review will not set aside a jury's verdict of guilty unless the evidence is so unreasonable, improbable or unsatisfactory as to raise a reasonable doubt as to defendant's guilt. People v. Sumner (1969), 43 Ill.2d 228, 232, 252 N.E.2d 534.

In the instant case, the evidence was not so unsatisfactory as to raise a reasonable doubt as to defendant's guilt. Defendant was identified in a lineup and again in court by an eyewitness, Marlo Tassin. The testimony of Deputy Smith was additional evidence tending to show defendant's guilt. Furthermore, the jury was not required to believe the testimony of Gerviece Collier. Accordingly, we find that defendant was properly found guilty of murder and armed robbery.

• 2 Defendant next contends that his arrest was not based upon probable cause and that his statements which were the product of his alleged unlawful arrest, were improperly admitted into evidence. Defendant argues that his arrest was based solely on information of an informant who was not demonstrated to be reliable. We disagree.

The determination of whether probable cause for an arrest exists in a specific case depends upon the totality of the facts and circumstances known to the officers when an arrest is made. (People v. Creach (1980), 79 Ill.2d 96, 102, 402 N.E.2d 228, cert. denied (1980), 449 U.S. 1010, 66 L.Ed.2d 467, 101 S.Ct. 564; People v. Robinson (1976), 62 Ill.2d 273, 276-77, 342 N.E.2d 356.) Probable cause exists if a reasonable and prudent person in possession of the knowledge which has come to the arresting officer would believe that the person to be arrested had committed a crime (People v. Vogel (1978), 58 Ill. App.3d 910, 913, ...


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