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People v. Withers

OPINION FILED JUNE 21, 1983.

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

v.

JOHN HENRY WITHERS, DEFENDANT-APPELLANT.



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

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Defendant was found guilty by a jury of one count of armed robbery, unlawful restraint, and armed violence, but not guilty of attempted murder. Because the armed violence count was predicated upon the unlawful restraint, the circuit court entered judgment only on the armed robbery and armed violence counts. The court subsequently found defendant to be an habitual criminal and sentenced him to life imprisonment.

On appeal, defendant raises as issues whether: (1) the State's use of peremptory challenges to exclude all blacks from the jury violated his right to a fair trial; (2) defense counsel's mention of an alibi defense in her opening statement, never referred to again during trial or in closing argument, deprived him of effective assistance of counsel; (3) defendant's armed violence conviction was based upon acts separate and distinct from those upon which his armed robbery conviction rested; and (4) the habitual criminal act (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1 et seq.) is unconstitutional because it: (a) requires the court to sentence an offender to life imprisonment if it finds him to be an habitual criminal and allows the court no discretion in this matter, or (b) permits the State to determine whether or not a life sentence will be imposed without setting out any standards which it must follow in making this determination.

The pertinent evidence adduced at trial reveals the following: Eddie Davis testified that he was store manager of a fried chicken restaurant on South Pulaski Avenue in Chicago during the early morning hours of October 19, 1980. At about 2 a.m. while he was working the front register and Dwayne Lacey, the side, drive-thru register to his right, defendant's accomplice, later identified as Gerald King, pointed a gun at Davis and told him, "This is a stickup." As King moved to Lacey's register, defendant stepped in front of Davis' register and had him call his assistant manager, Vickie Cox, to the front. Defendant then jumped over the counter. He was just under six feet but much heavier than King, whom Davis had described as slim. He had a heavy beard, and was wearing a light-colored waist-length beige jacket and a cowboy hat of the same color.

Once over the counter, defendant "directed" Davis back to an office in the rear of the store where the safe was located. Davis could not remember the combination to the safe so he called Cox and asked her to open the safe, which she did. At about this time, King informed defendant that the police were outside. Defendant returned to the front of the store and watched King back out of the front door with the 10 or 15 customers who were in the store at the time. He then picked up the gun King had left on the counter, looked around the store, noticed a door in the back, asked Davis to open it for him and ran out the door. The robbery lasted approximately five minutes. The store was brightly lighted. About one week after the robbery, Davis identified defendant in a six-man lineup.

Dwayne Lacey testified that he was at the drive-thru cash register on the date and at the time of the crimes. King walked up to his register, pulled out a gun, and told him to put the money into a bag and give it to him, which Lacey did. King put the bag into his pocket. Defendant then asked Davis for the keys to the "bleed" boxes beneath the registers where excess cash was placed. When Davis gave him the keys, defendant jumped over the counter, threw the keys to Lacey and told him to open the boxes. Because Lacey was having difficulty, Davis stopped and opened one for him as he was walking past him towards the office. Defendant followed Davis into the office. Davis then called Cox back to the office. While they were there, Lacey took money out of the box and put it into another bag.

Later, police cars began pulling up in front of the store. King called out to defendant who returned to the front of the store. He told King to slide his gun across the counter to him, put his hands up and back out of the store as if he were a customer, which King did. Defendant slipped the gun into his pants, noticed a door towards the back of the store, asked Davis to open it and went out. Defendant was wearing a beige jacket and a beige cowboy hat. Lacey described King and defendant to the police. Four or five days later an investigator showed him a group of pictures and Lacey identified defendant from among them. A few days later he picked King and defendant out of the same lineup Davis had viewed.

Vickie Cox testified that she was on break shortly after 2 a.m. on October 19, 1980, when Davis called her to the front of the store. Defendant was standing on the other side of the counter near the front register pointing a gun at him. He was black and wearing a beige-colored cowboy hat. She saw Lacey take money from his register, put it in a bag and give it to King, who was standing near his register. At defendant's prompting, Davis walked back to the office, followed by defendant. A few moments later Davis called her to open the safe. Defendant and Davis stood outside the office as she opened it because the room was very small. Defendant left. She did not see him or King again that evening because she stayed in the office until the police arrived. At that time she determined that $50 had been taken from the drive-thru window register. She also found a bag in the customer area of the store containing approximately $300 in $10 and $20 denominations. Four days later, she identified defendant from a photographic display.

Chicago Police Officer Edward Carfora testified that he and his partner, Wayne Klacza, were on duty and in uniform on October 19, 1980, at about 2 a.m. when they learned from a passing motorist that there was a robbery in progress across the street. Carfora pulled into the parking area on the south side of the store and began questioning people there as his partner went to the entrance of the store and did the same. Carfora noticed a man climbing a fence separating the area from the adjacent alley. The man paused a moment at the top of the eight feet to 10 feet high cyclone fence about three car lengths away from where Carfora was standing. The parking lot was brightly lighted. The man was black, had a beard and a mustache, and was wearing dark blue jeans and a light tan or beige-colored fingertip jacket. The man on the fence was defendant.

Defendant jumped into the alley and then ran toward an empty lot southwest of the store towards Monroe. Carfora doubled back around the fence, called out to his partner and ran after defendant, who by this time was a couple of hundred feet ahead of him. Defendant ran west on Monroe. Carfora followed him. As defendant approached Karlov, Carfora heard a shot coming from that direction. A second later he saw defendant turn and fire a second shot, at him. Carfora saw the flash from the muzzle of the gun and returned the fire, shooting at defendant six times in rapid succession. He saw defendant turn north on Karlov, but paused to reload his revolver. He did not see defendant again that evening, although he and other policemen searched the hallways, gangways, and basements of the buildings in the vicinity in an attempt to find him. Carfora returned to the store about half an hour later and found a tan-colored cowboy hat in the southwestern corner of the property where he had seen defendant climbing the fence.

On cross-examination, Carfora stated that defendant had paused at the top of the fence for a couple of seconds; that he had lost sight of him momentarily after he had jumped over the fence; and again when the witness turned west onto Monroe and then north onto Karlov. Defense counsel showed Carfora a report in which he had described the lighting as poor. On redirect, Carfora explained that the report to which defense counsel had referred was a special report all policemen are required to file whenever they fire their revolvers under circumstances which might endanger the life of another and described the lighting conditions on Monroe near Karlov where he had shot at defendant, and not the lighting conditions in the parking area outside the store where he had first seen him. Carfora later identified defendant at the lineup previously mentioned.

Officer Klacza testified that when he and Carfora pulled up in front of the fast-food store, he went directly to the entrance of the premises where several people were standing. Ten or fifteen people were inside the restaurant at the time. As he approached the entrance to the store, two of them came out. He stopped them, pushed them against the plate glass window to the right of the entrance, and as he began to interrogate them, saw a man wearing a beige jacket and a cowboy hat on the employee side of the counter. The man was black, 5 feet 10 inches or 11 inches tall, heavy-set, and had a beard. The man was defendant. He was defendant go to the back of the store but continued to search the two men in front of him until another man came running out of the store and told him that the man in the cowboy hat was going out the back door and was armed. Klacza ran around the north side of the building towards the rear of the store. He heard Carfora call out that someone was going over the fence, he turned back and ran around the front of the store. Klacza ran around the fence after Carfora. As he was running through the lot, he heard two shots, and then another six fired in rapid succession. He caught up with Carfora at the corner of Karlov and Monroe. After unsuccessfully searching for defendant, they returned to the store where they found the cowboy hat defendant was wearing in a garbage bin behind the store. The store was well lighted. About a week later, he picked King and defendant out of the six-man lineup previously described.

Lawrence W. Soltysiak, a detective with the Area Four Violent Crimes Unit, spoke with Carfora, Klacza, Davis, Lacey, Cox and Christine Watts that morning. Watts was working in the kitchen at the time of the robbery, but was never called to testify. Later, he went back to the store and showed Lacey and Cox seven photographs. Each identified defendant as one of the two men who had robbed the store. On October 24, 1980, he spoke with a nurse at Evanston Hospital, who identified defendant as a man whom they had treated on the morning of October 19, 1980. Soltysiak arrested defendant three days later and conducted the lineup, referred to earlier, later that day.

The nurse, Mary Harrigan, corroborated Soltysiak's testimony.

The parties then stipulated that, if called, a Dr. Bloom of Evanston Hospital would testify that he treated defendant for a gunshot wound to the upper right back on October 19, 1980, but did not remove the bullet lodged there because it was medically better not to. The parties ...


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