Appeal from the Circuit Court of Cook County; the Hon. Kenneth
L. Gillis, Judge, presiding.
PRESIDING JUSTICE JIGANTI DELIVERED THE OPINION OF THE COURT:
After a jury trial, the defendant Pedro Rey was found guilty of two counts of armed robbery and two counts of unlawful restraint. Following a hearing on the defendant's motion for a new trial, the trial court indicated that after weighing the evidence it was not only granting the motion for a new trial but it was also entering a judgment notwithstanding the verdict in that the evidence did not prove guilt beyond a reasonable doubt. The trial court thereafter overturned the jury's verdict and found the defendant not guilty and discharged him. The State now appeals.
The defendant raises a preliminary issue with respect to the right of the State to appeal the instant case. The defendant contends that the State does not have a right to appeal from the judgment notwithstanding the verdict, because such a judgment is in effect an acquittal. The defendant argues that since the State is precluded from appealing an acquittal, then therefore this appeal should be dismissed. The State denies that the instant judgment was an acquittal under the State constitution because the judgment notwithstanding the verdict was based upon an improper evidentiary standard.
The facts and circumstances giving rise to this appeal stem from an incident occurring on March 12, 1983. Chi Un Jun, a victim of the alleged armed robbery, testified that on March 12, 1983, he and his wife, Kum Yung Jun, both of Korean extraction, owned and were working in Yorky's Restaurant when a Hispanic man, identified by Chi to be the defendant, entered the restaurant. After taking the defendant's order and momentarily leaving the counter area, Chi returned to find the defendant behind the counter with a gun. Chi then testified that the defendant ordered him and his wife into the back of the restaurant, where he took $50 or $60 from Chi's wallet and then locked them in the bathroom. Chi then stated that from the bathroom he heard the cash register open. After Chi was able to unlock the bathroom door, he returned to the dining area to find $150 to $200 gone from the cash register as well as the security camera from the wall. He then called the police.
When the police arrived Chi gave then a description of the assailant. Chi described the man as a light-colored Hispanic, about 22 years old, 5 feet 8 inches tall weighing between 130 and 140 pounds. He also stated that the man had dark brown eyes, dark hair and a mustache. The identification of the defendant with regard to facial hair will be a critical factual issue in the instant case.
Chi further testified that on July 12, 1983, the defendant returned to his restaurant. At that time, Chi stated that he recognized the defendant as the man that had robbed him. He stated that the defendant paid for a soft drink and walked out of the restaurant quickly. Chi then followed him out and wrote down the defendant's license plate number and phoned the police.
On July 19, 1983, the police came to the restaurant to show Chi some photographs. Chi was able to identify one of the photographs as that of the defendant. Chi testified that the photograph of the defendant was different from the way the defendant looked on the day of the robbery, March 12, 1983, in that the defendant did not have a mustache in the photograph. On cross-examination, Chi stated that he did not tell the police on the day of the robbery that the assailant had a beard.
Kum Yung Jun testified through an interpreter. She identified the defendant in court as the man who robbed the restaurant on March 12, 1983, and who came to the restaurant again on July 12. She was not questioned about facial hair.
The defendant then testified in his own behalf. He stated that he went to a wake on March 12, 1983. However, on March 20, 1983, while being questioned regarding another investigation, the defendant did not mention being at a wake in response to a question as to where he had been on March 12. On March 20, eight days after the instant robbery, the police took photographs of the defendant in connection with another investigation. The defendant testified that the photograph in which the defendant had a mustache and a goatee reflected how he appeared on March 12, the day of the robbery.
The defendant further testified that in the photographs taken of him on July 19 or 20, 1983, and then shown to Chi for purposes of identification, he had not shaved for three or four days. He also stated that at the present time he had last shaved seven days ago.
Anthony Mora, who knew the defendant and was in the restaurant on July 12, testified that the defendant entered the restaurant wearing a mustache that day. Milagos Montes, the defendant's girlfriend, testified that the defendant had a mustache and a beard on March 12 and that the photograph appeared to have been taken at the police station on July 19, the day before he was arrested. Detective Anthony Bongiorno testified that the photographs were true and accurate photographs of the defendant as he saw him on March 20, 1983.
Procedurally, the defendant moved for a directed verdict after the close of the State's evidence, after the close of the defendant's evidence, and again after jury instructions were given. These motions were all denied. During closing arguments, the defendant emphasized that the victims never mentioned facial hair on the assailant's chin, that the March 20 photograph obviously showed more than an eight-day growth of beard on the defendant's chin and that the defendant's present beard did not appear the same as in the photograph even though it was an eight-day beard according to the defendant's testimony. The State argued that the defendant grew, shaved and played with his facial hair to confuse his identity and emphasized "how much his hair had grown from just yesterday."
The jury found the defendant guilty of two counts of armed robbery and two counts of unlawful restraint. The defendant then made a motion for a new trial but made no motion for a judgment of acquittal notwithstanding the verdict. After arguments on the defendant's motion for a new trial, the defendant amended his motion to include, as a ground for a new trial, the allegation that the verdict was against the weight of the evidence because Chi's testimony indicated that he did not tell the police that the assailant had facial hair other than a mustache and because Chi testified that the assailant did not have a beard or facial hair on his chin.
The trial court then made the following observations and rulings. The trial court indicated that the date of the offense was March 12 and that on March 20, the Chicago police department took a photograph of the defendant which showed that he had a substantial beard. The court stated that it was hair that was very noticeable, especially against his light skin. The trial court further indicated that it did not know what the world's record for a man growing hair on his face was, but that the beard on the defendant as shown in the photograph taken on March 20 did not grow in eight days. Therefore, the court concluded that the defendant looked substantially the same on March 12, the day of the robbery as he did on March 20, the day the photograph was taken. The trial court also indicated that it seemed most unlikely that a person would notice and mention a ...