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People v. Roberts

OPINION FILED MAY 2, 1985.

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

v.

GEORGE ROBERTS ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Marion County; the Hon. Richard G. Hodson, Judge, presiding.

JUSTICE KASSERMAN DELIVERED THE OPINION OF THE COURT:

Defendants, George Roberts and Charles Cannon, were convicted by a jury in the circuit court of Marion County of armed robbery. Roberts was sentenced to imprisonment for a term of 12 years, and Cannon was sentenced to imprisonment for a term of six years.

On appeal, both defendants contend that: (1) the circuit court erred in refusing to grant them a continuance to obtain the presence of an alibi witness; and (2) that the identification testimony upon which their convictions are based is insufficient to support their convictions. Further, defendant Roberts contends that he was denied his right to a speedy trial, and Cannon maintains that he was prejudiced when the trial court permitted the State to question Cannon's character witnesses about their knowledge of a prior arrest.

On April 29, 1983, and again on May 16, 1983, Roberts filed a petition for discharge pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1983, ch. 38, par. 103-5), claiming that he was denied the right to a speedy trial. Both petitions were denied by the circuit court.

On May 17, 1983, an affidavit in support of a motion for continuance was filed by both defendants. The affidavit recited the unavailability of an alibi witness, Charles Fischer, who allegedly was with defendants at Shorty's Disco from 5 p.m. to 8 p.m. the evening of the armed robbery for which defendants were charged. The affidavit recounted the issuance of both a subpoena for the testimony of Fischer and a warrant for his arrest for his failure to appear at a scheduled court appearance. The affidavit further indicated that Fischer's attorney was contacted and his aid enlisted in an effort to locate Fischer. According to the affidavit, Fischer's last known addresses in East St. Louis and Centralia were contacted, but Fischer could not be located. The trial court denied the motion for continuance, and the defendants' trial was conducted on May 18, 19, and 20, 1983.

The complainant, Warren Telford, testified that on December 23, 1982, at approximately 6:15 p.m., he was at a car wash in Centralia, washing his jeep, when two black men walked in and asked him if he wanted to contribute toward the purchase of a six-pack of beer. Telford declined, and, after a short discussion, the two men departed on foot. Telford related that approximately 15 minutes later the two men returned and again requested money. Telford stated that he reached into his jeep for a tire tool and a struggle ensued and that both men then pulled guns on him and eventually took his wallet. Telford estimated that the alleged robbery lasted between 10 and 15 minutes and that he had viewed his attackers for a total of about 30 minutes.

Telford reported the robbery to Centralia police and gave a description of his assailants. Telford said both men who attacked him were black and about 6 feet 2 inches tall. He said one of them was about 25 years old, light complexioned, had an Afro hair style and wore a purple sweatsuit jacket. The other robber was described by Telford as being about 28 years old, with a moustache and wearing a plaid waist-length coat. While at the police station, Telford looked at photographs of suspects but was unable to identify anyone.

On December 27, 1982, Telford was asked by the Centralia police to view more photographs, and at this viewing he identified photographs of the defendants. Telford stated that when he first identified pictures of the defendants, he was certain that Roberts was one of the men who robbed him and was about 80% sure that Cannon was the other. Telford identified both Roberts and Cannon at trial and indicated that he was certain that they were the individuals who had robbed him.

Defendants presented a number of witnesses whose testimony suggested that on the evening of the robbery the defendants were at Shorty's Disco. Alberta Goodwin testified that defendants and Charles Fischer left her home in Centralia between 5 and 6 p.m. on December 23, 1982, and indicated that they were going to Shorty's Disco. Kathy O'Neil Favors testified that she saw defendants at Shorty's Disco between 5 and 6 p.m. and again about 10:30 p.m. the night of the robbery. Jack O'Neal, a bartender at Shorty's Disco, said he served defendants drinks between 5:30 and 7 p.m. on December 23, 1982, and did not observe them leave Shorty's Disco. Luana Meyers testified that she spoke briefly with defendants at Shorty's Disco at about 6:30 p.m. on December 23, 1982.

Cannon took the stand in his own defense. He said he was at Shorty's Disco the evening the robbery occurred from about 5 p.m. until it closed at 2 a.m. Cannon denied any involvement in the armed robbery of Telford.

Several character witnesses testified for Cannon. Willie Cox, a Centerville police officer, testified that he had known Cannon all his life and that Cannon had a good reputation for truth and veracity. On cross-examination, Officer Cox was asked whether he had heard that Cannon possessed or carried a gun and had been arrested for unlawful possession of a firearm and for burglary. Officer Cox responded negatively to all these questions except the one which asked whether he had heard that Cannon had been arrested for burglary.

Ralph Smith, Cannon's minister, indicated that Cannon had a reputation for being a peaceful, law-abiding citizen and said that Cannon had always been honest with him. On cross-examination, Smith stated that he had heard that Cannon had been arrested for burglary.

Fred Cannon, the defendant's father, testified that his son had a reputation for being peaceful and law-abiding. He too stated on cross-examination that he had heard that his son had been arrested for burglary.

• 1 On appeal, both defendants assert that the circuit court erred by denying their request for a continuance because of the unavailability of Charles ...


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