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People v. Fairbanks





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


This cause involves an appeal by defendant, Mark A. Fairbanks, from a conviction for two counts of armed robbery, one count of home invasion and one count of residential burglary. Defendant refused an offer of 18 months' probation and chose a jury trial. All counts arose from a single event. Fairbanks received concurrent sentences of six years and four years. The statutes involved are sections 12-11(a)(1) (home invasion); 18-2(a) (armed robbery); and 19-3 (residential burglary) of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 12-11(a)(1), 18-2(a) and 19-3.

In his appeal, Fairbanks contends the following compel a reversal of his conviction:

(1) The failure of the State to prove that he was guilty beyond a reasonable doubt;

(2) The admission of evidence against him which the State withheld from him despite his request therefore; and

(3) The failure of the trial court to grant his motion for a new trial based on newly discovered evidence.

The evidence discloses that the victims, Mr. and Mrs. Fancher, were robbed in their home on August 14, 1982, by two masked men. Both of the Fanchers testified at trial and identified defendant as one of the masked robbers. Defendant's conviction is based primarily on this identification.

Mrs. Fancher testified that while at home around 11:30 p.m. on August 14, 1982, her husband rang the doorbell. She opened the door and two men, one of which held a knife on her husband, walked in. The men had loose nylon stockings over their faces. The two men demanded that Mr. Fancher get the money he kept in his bedroom. Mrs. Fancher also stated that the rooms were well lit and she could see the men's features through the loose, baggy stockings. Furthermore, she testified that the robbery took about 45 minutes and that she observed defendant under good lighting conditions for about half of that time.

Mr. Fancher testified that on that night, as he was getting groceries from his car, two men approached him, pulled him out of his car and struggled with him. One of the assailants had a knife. Using the knife, the men forced him up to his apartment. Once in the apartment, the men took money from Mr. Fancher's wallet and ordered him to open his bedroom safe. He stated that the men seemed to know the safe was located in the middle bedroom. Mr. Fancher was forced to open the safe as one of the men held the knife at his wife's throat. After taking the money from the safe and ransacking another bedroom, the robbers forced the Fanchers into the other bedroom. At this time, Mrs. Fancher saw a gun in defendant's hand. Defendant kept the Fanchers in their bedroom while the other robber carried the stolen items to the robbers' car. The robbers then forced the Fanchers into a bedroom closet and left after warning them to stay quiet or defendant would kill them. When they felt it was safe, the Fanchers called the police from a neighbor's phone.

Shortly thereafter, Officer Phillip Bonini of the Hillside police department arrived at the Fancher home. He found the Fanchers in a state of "confusion" with the apartment in disarray. Officer Bonini testified that the Fanchers described the men as being in their early twenties, wearing gloves and nylon stockings over their faces. His report of the incident stated that "[b]oth offenders had worn nylon stockings on their faces, which concealed their identity." On the stand, the officer stated that what he wrote accurately reported what the Fanchers had told him the night of the robbery. He also said the victims told him that the stockings covered the robbers' faces, but that the Fanchers would still be able to identify them. No gun was mentioned in the police report. The police report stated that one robber was 5 feet 7 inches to 5 feet 9 inches tall, had a mustache, and was called "John." The second man was 5 feet 10 inches tall and had a very noticeable scar under his chin. Neither of the Fanchers later read or signed the report. During the trial, Mr. Fancher stated that Mrs. Fancher answered most of Officer Bonini's questions concerning the robbers' descriptions. Also, at trial, both Fanchers identified defendant as the taller robber, although he has no scar. The Fanchers said then that the shorter man had the scar and that defendant was the man who held the knife on Mrs. Fancher even though he had no scar. Both Fanchers also testified that the stockings were very light colored and loose fitting, thus permitting them to identify defendant as one of the robbers.

Several weeks after the robbery, Mr. Fancher signed a statement saying that he no longer wished to cooperate in the investigation of the robbery. Three and one-half months later, Mr. Fancher testified that he thought a car was following him. When he stopped in front of his home, the car passed him by and he followed it to a pizza shop. While following the car, Mr. Fancher called his wife on his car phone and gave her the license number of the car in case anything should happen to him. He went into the parlor, saw defendant and recognized him as one of the robbers. Mr. Fancher then went home and called the police the next day. The license number was registered in defendant's name. Subsequently, the Fanchers individually identified defendant from photographs and in separate lineups.

Before trial, defendant requested the names and addresses of the Fanchers' employees for a period of three years. There is no indication that the trial judge ever ruled on the motion, although the records were not produced. At trial, when the State used employee records to impeach the testimony of defendant's wife and sister, defense counsel objected to the use of records which the judge had refused to give to the defense. The trial judge said that "that's a heck of a point for appeal * * *."

Both defendant's wife and his sister testified to employment by the Fanchers prior to the robbery and also spoke of unpleasant encounters with Mr. Fancher in connection with their employment. Defendant's wife stated that her husband came into the office to drive her home from work on many occasions. Both women had to testify from memory as to the time and locations of their employment with the Fanchers. The State used employment records allegedly denied to the dedefense to impeach these defense witnesses. Also testifying for the defense were two friends of defendant, who stated that defendant and his family helped the witnesses move to Fox Lake on August 14 and spent the night at their Fox Lake home.

Defendant argues that the discrepancies in the Fanchers' identification and the lapse of time between Mr. Fancher's sighting of defendant in the pizza shop and his notification to the police create a reasonable doubt as to his guilt. Defendant contends that this reasonable doubt is reinforced by the fact that defendant's wife worked with Mr. and Mrs. Fancher in a small office for three months and yet, they did not remember her until shown their employment records. ...

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