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People v. Cohen

OPINION FILED APRIL 18, 1986.

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

v.

JAMES MICHAEL COHEN, DEFENDANT-APPELLANT.



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

JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant James Michael Cohen was convicted of home invasion and sentenced to a 15-year prison term, to be served consecutively to a previously-imposed three-year sentence. On appeal, defendant contends (1) the State's identification testimony was insufficient to establish his guilt beyond a reasonable doubt; (2) the State failed to prove that defendant knew or had reason to know someone was present in the apartment he allegedly entered; (3) the trial court's conduct of the proceedings denied defendant a fair trial; (4) defendant's sentence was excessive and was improperly made consecutive without the requisite finding of the need to protect the public.

We affirm.

At trial the following pertinent evidence was adduced. George Brdlik, an art dealer, testified that he lived at 2823 North Troy with Sharon Ruta and sold art from that residence. At 9 a.m. on October 11, 1981, a man identifying himself on the telephone as Michael Ross arranged to come to Brdlik's home at about 11 a.m. to view some art pieces Brdlik had advertised for sale. At 9:45 a.m. that day two men came to the door. One of the men, identified at trial by Brdlik as the defendant, introduced himself as Michael Ross. Brdlik took the men upstairs to a furnished apartment used by him as an art gallery.

After viewing the art for about an hour defendant stated he wished to confer with his wife before making a purchase. As the men were leaving, defendant asked Brdlik if anyone lived on the first floor. Brdlik said he did. Brdlik had also told defendant he should not call till after 6 because Brdlik had to take "Sharon" to work.

According to Brdlik, Sharon Ruta remained on the first floor all this time. When the men left, Brdlik told Ruta he thought he was going to make a sale. Brdlik then drove to his parents' home in Westmont. At about 4:30 p.m. Ruta called, crying and hysterical, telling Brdlik "They came back and took everything." Brdlik immediately drove home where he found that a screen from an upstairs kitchen window had been removed and a number of art pieces were missing.

On July 6, 1982, Brdlik was informed by Detective Robert Collins that some of his art pieces had been recovered. Later that day Brdlik identified the defendant from an array of five or six photographs. He was unable to identify anyone in a lineup which included defendant's brother, but not defendant. On July 21 Brdlik viewed a second lineup and identified the defendant.

Sharon Ruta testified that on October 11, 1981, she lived with George Brdlik at 2823 North Troy. She was in the downstairs apartment when people came over that morning to look at the art, and she did not see them. At about 2:30 p.m. a man telephoned her and said "Sharon, I thought George was taking you to work." When Ruta did not respond the man asked if George was home. She told him she did not expect him back till 6 p.m. Shortly thereafter Ruta responded to a knock on the door. A young man at the door said that his brother had been there earlier and he (the young man) now wanted to see the art. When Ruta heard a noise coming from upstairs she slammed the door and went upstairs. There she confronted a man, identified by her in court as the defendant, standing in the kitchen area.

The defendant grabbed Ruta's hand and told her she would not be hurt if she did what she was told. Ruta testified she recognized defendant's voice as that of the man who had telephoned her. The defendant placed a sack over Ruta's head and walked her down to the first floor. She heard the front door being opened and was then taken upstairs, this time hearing a third person accompanying them. Defendant told her to lie down on the floor, from where she could hear the sounds of artwork being taken off the wall and stacked on the floor.

When defendant attempted to take Ruta down the stairs she refused, sitting on the first stair and refusing to move despite his threats. Ruta then heard defendant run out. She removed the sack and ran to the door where she could see defendant running to a car down the street. She telephoned Brdlik immediately after ascertaining that the intruders were gone.

Ruta testified that on July 6, 1982, she identified defendant from a photographic array. On July 7 she viewed a lineup without identifying anybody, and on July 14 she identified the defendant in another lineup.

The State also presented uncontradicted testimony by a number of witnesses establishing that in June 1982 defendant had attempted to sell six of the stolen pieces to an acquaintance, Martin Suppo. These pieces were recovered when an art gallery examining them for Suppo notified the police. A subsequent police search of defendant's home resulted in the recovery of other pieces stolen from Brdlik.

Defense witness Charles Chrisos testified that defendant worked for him at a Des Plaines hair salon in October 1981. On October 11 Chrisos conducted a training seminar attended by defendant. Chrisos recalled that defendant arrived at 10 a.m. or 10:30 a.m. and left at 4:15 or 4:30 p.m. He had referred to client cards in recalling the events of that day. A card for Evelyn Lydon indicated that defendant worked on her that day (for two hours beginning at 10:45 or 11 a.m.) and because the treatment was deficient she had to return the next day. Chrisos conceded that although all other notations were ink, those pertaining to defendant's treatment of Lydon were in pencil. He also stated that any of five or six employees, including the defendant, could have made those entries. Two of Chrisos' employees, Ellen O'Toole and Stephanie Limperis, testified that they saw defendant working on Lydon that day. O'Toole first saw defendant at "10, after 10" and last saw him there "after 4." Limperis testified she left at 4:30 and she thought defendant left "a little before." Evelyn Lydon also testified that defendant treated her hair that day.

• 1 We find no merit to defendant's contention concerning the insufficient of the State's identification evidence. Thus although defendant contends that Sharon Ruta failed to tell the police of unsightly hair-transplant sores on the defendant's head, the record establishes that she testified during the incident that defendant wore a painter's cap with a brim. Defendant also contends that Ruta's identification was tainted because prior to her initial identification of defendant from a photographic array, George Brdlik informed her he had identified a photograph of a man with light hair. However, Ruta testified that there were several men with light hair in the photographs and her identification was uninfluenced by Brdlik's information. Defendant has failed to include those particular photographs in the record on appeal, but in any event this was merely a factor to be considered by the jury as the finder of fact. We will not disturb the jury's determination absent a showing that it was so contrary to the evidence as to raise a reasonable doubt of defendant's guilt. (People v. Banks (1984), 121 Ill. App.3d 279, 459 N.E.2d 992.) None of the factors cited by defendant support such a finding. Although defendant contends the identifications were tainted by the fact Ruta and Brdlik were first informed the ...


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