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People v. Carr

OPINION FILED NOVEMBER 17, 1986.

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

v.

KEVIN CARR, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Vincent Bentivenga, Judge, presiding.

PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:

Defendant, Kevin Carr, was charged by information with the offenses of armed robbery and armed violence in violation of sections 18-2(a) and 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1983, ch. 38, pars. 18-2(a), 33A-2). During the trial, the court granted the State's motion to nol-pros the armed-violence charge. The jury found the defendant guilty of armed robbery. The defendant's motion for a new trial was subsequently denied, and the trial court sentenced the defendant to eight years' imprisonment.

Defendant appeals and contends: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court deprived him of his right to present a defense when it prevented him from introducing exculpatory statements of a State witness; (3) the prosecutor's personal attacks on defense counsel during the State's rebuttal argument deprived him of a fair trial; (4) the trial court erroneously instructed the jury on the issue of accountability; and (5) the trial court imposed an excessive sentence.

We affirm.

The victim, Gilda Cunningham, testified for the State at the defendant's trial. She testified that on March 13, 1984, at approximately 7:30 p.m., she was driving east on 42nd Street in Chicago with her two children on her way to choir rehearsal at the Mount Carmel Mission Baptist Church, located at 740 East 42nd Street. As she neared the church, Cunningham spotted two men, whom she said were approximately 15 feet away as she passed them in her car. She stated that she parked her car on the street, and, as she began to help her children out of the car, the two men approached and one walked behind her and grabbed her shoulders. The victim stated that the other man stood in front of her, held a gun close to her face, and asked her for her money.

Cunningham stated that, while it was dark at the time, there was sufficient light to see. She stated she was near a street light and that there were lights on both sides of the street, including the church lights. She also said that the man with the gun stood only about 1 foot away from her. In her testimony, Cunningham described the man with the gun in the following manner: he wore a beige jacket, had a scar on his forehead, was approximately 5 feet 8 inches tall, weighed approximately 160 pounds, and had a medium complexion. She identified the defendant in court as that man. She described the defendant's accomplice as wearing a dark jacket, approximately 5 feet 5 inches tall, weighing approximately 140 pounds, and having a light complexion.

Cunningham further testified that when the defendant asked for her money, she gave him her purse, which, she stated, contained at that time identification cards, credit cards, and approximately $25. Cunningham said she asked the defendant if she could keep her identification cards, but the defendant told her to shut up and to walk toward the church as if nothing had happened. She stated that the defendant and the other man then ran south. Cunningham said the robbery lasted a few minutes.

Gilda Cunningham then walked into the church and told her aunt and the pastor's wife about the robbery, and the pastor's wife called the police. Two uniformed police officers arrived in about 15 minutes and took the victim's statement. The police then drove the victim and another choir member, Alice Stapleton, who had seen the robbers fleeing from the scene, through the neighborhood in search of the robbers. They entered a tavern, the Regency Lounge, located around the corner from the church, and, according to Cunningham, she spotted the defendant playing a video game in the front of the lounge and identified him as the robber. The police then arrested the defendant, who was wearing a beige jacket.

On cross-examination Cunningham admitted that, when she first saw the two men on 42nd Street who she said robbed her, they had their backs to her. She also did not remember telling the police officers that the man wearing the beige jacket stood behind her, and, additionally, she denied telling the police that the man wearing the dark jacket held the gun and took her purse.

The State also presented the testimony of Sheila Marshall. Marshall testified that she was coming out of a friend's house located at 722 East 42nd Street when two men walked by. She walked behind the men, who then crossed the street and approached the victim, who at that time was getting out of her car. When Marshall was asked what she saw those men do, Marshall answered, "They were sticking her up I guess." However, she admitted that she did not see a gun and was not aware that the victim was being robbed at the time. Marshall, herself, walked past the victim after the two men had left and merely said "Hi" to Cunningham as she passed. She identified the defendant in court as one of the men she saw with the victim.

Marshall said that she went to the Regency Lounge for a few minutes after walking past the victim. She testified that she then went to the church where she learned that two men had robbed Cunningham. By that time, the police had the defendant in custody, and Marshall testified that she walked up to the squad car, saw the defendant in custody, and stated that he was the one whom she saw rob Cunningham. Marshall admitted on cross-examination that, at the scene, she did say that that was the jacket the robber had on, but she claimed she also had stated that the defendant was one of the men.

Marshall also testified that she spoke to the defendant at a carnival in June 1984. She testified that the defendant asked her for her address, but she refused to give it to him. Nevertheless, Marshall said the defendant later made an uninvited appearance at her home on December 15, 1984, and asked Marshall to go to court with him. Marshall told the defendant that she could not go, and, instead, Marshall gave him a note wherein she stated that the defendant was not one of the men who robbed Cunningham. However, Marshall said that, even though her mother and brother were home at the time, she was afraid of the defendant and wanted him out of her house and she gave him the note only to get rid of him. She admitted on cross-examination that she never mentioned the visit to the State's Attorney. Furthermore, Marshall admitted that she attended the defendant's preliminary hearing but denied talking to anyone there.

Alice Stapleton also testified for the State. She testified that, at the time in question, she was walking to the church for choir rehearsal and saw two men running. She saw the two men for only a second and from a distance of approximately 75 to 80 feet. In court, however, Stapleton was able to describe the clothing of those men, stating that one wore a beige cloth jacket, dark pants, and white gym shoes; the other wore a dark leather jacket, dark pants, and white gym shoes. Stapleton was also present in the tavern when the victim identified the defendant. She stated that the defendant was wearing a black cap in the tavern and that he was leaning over a video game, as if hiding, but not playing the game when they entered. According to Stapleton, the victim asked if the defendant looked like the guy, and she testified that she responded that the defendant did have on the same clothing and gym shoes. Stapleton stated that the victim then said, "`Yes, that is him because I notice his face.'"

Michael Cox also testified for the State. Cox, a Chicago police officer, testified that, on March 13, 1984, he and his partner, Herman Hollister, received a report of a robbery at 740 East 42nd Street and proceeded to that address. Upon his arrival at the scene, Cox interviewed the victim, who described her assailants to him. According to Cox, the victim said that the man with the gun wore a beige jacket. However, Cox did not remember the victim mentioning a scar. Cox testified that he also interviewed Alice Stapleton, who gave him a description of the clothing that the robbers wore. Thereafter, Cox stated that he and his partner toured the neighborhood with the victim and Stapleton in an attempt to locate the offenders. Cox stated that, upon entering the Regency Lounge, the victim identified the defendant as one of the men that robbed her.

Defense counsel cross-examined Cox about the police report he made out after the robbery in which Cox referred to the offenders by number. While the narrative in the police report indicated that offender number one had the gun, on the other hand, the offender described on the first line of the report wore the dark leather jacket and the offender described on the second line wore the beige jacket. Cox testified, however, that the manner in which he listed offenders at the beginning of a report does not necessarily correspond with the manner in which he numbers offenders in the narrative. Further, Cox admitted that there was no indication in his report that offender number one in the narrative was not the first offender listed on the report.

The defendant testified that, on the night of the robbery, he was wearing a beige jacket, rust colored pants, white gym shoes, and a Cubs cap. The defendant stated that he went to Sharon White's apartment that evening around 7 p.m. because White had promised to lend him $5. He said White gave him $10 and asked him to get change. The defendant testified that he then left White's apartment at 7:45 p.m. and went to the Regency Lounge to get change. The defendant said that, at the lounge, he talked to the owner of the Regency Lounge, Gerald Hawkins, and Hawkins' landlady, Justina Sago. He stated that ...


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