APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
505 N.E.2d 1144, 153 Ill. App. 3d 272, 106 Ill. Dec. 353 1987.IL.248
Appeal from the Circuit Court of Cook County; the Hon. Thomas J. Maloney, Judge, presiding.
Justice Lorenz delivered the opinion of the court. Murray, J.,* concurs. Justice Pincham, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
Following a jury trial, defendant, Steve Robinson, appeals from his conviction for residential burglary. In his appeal defendant contends: (1) he was not proven guilty beyond a reasonable doubt; (2) the trial court improperly excluded his exculpatory out-of-court statements; (3) evidence concerning a separately tried accomplice was improperly admitted; (4) two prejudicial and erroneous instructions, which had been refused, were inadvertently read to the jury; and (5) the prosecutor's final argument to the jury included improper and prejudicial statements.
We affirm. Pertinent to our decisions are the following facts.
The complainant, Clara Turner, testified that when she returned to her home at 4840 West Hubbard Street on December 21, 1982, between 12:30 and 1 p.m. she found the door lock removed and some of her property missing, including several burgundy-colored coats, two jars of coins, a telephone, a television set, an Atari, and 10 jars of chemical hair relaxer. She went to a nearby auto garage to locate her property. She never recovered or saw her property again nor did she see who committed the crime.
Armet Pettis, a next door neighbor of Clara Turner, testified that on December 21, 1982, at about 11 a.m. he went to Turner's front porch to look for the mailman. He saw defendant and Dwayne Nixon stepping off the sidewalk in front of Clara Turner's house. Nixon was carrying an object in his arms, while defendant carried a box under his left arm, a plastic garbage bag, and several jackets draped over his right shoulder. Defendant and Nixon fled southwest from Turner's house. Pettis, after telling his son to call the police, attempted to follow the two men but lost them.
Police officer Kenneth Angarone testified that he and his partner, in response to a radio call, went to Turner's home where they conferred with her for about 20 to 25 minutes and then went to a nearby automobile repair shop owned by defendant's father. After they talked to the defendant, they went to a house in the 4900 block of Hubbard Street looking for Dwayne Nixon. When they were told he was not there, they returned to the complainant's house. After they talked to Armet Pettis on the telephone, they returned to Nixon's home on Hubbard Street where they found him and returned with him to Robinson's father's garage. They took both defendant and Nixon back to the complainant's house. Pettis was there. The officers patted defendant down after they had him step out of the police car. After they told defendant to face west and then north, Pettis said, "That's him. That's Steve. That's the one who broke into the house." The officers then told Dwayne Nixon to stand in front of the police car and Pettis identified Nixon stating, "That is the second man who broke into the house." Officer Angarone and his partner then left with defendant and Nixon.
Defendant and Nixon were both charged with the burglary of Clara Turner's house and were tried separately. Nixon was found guilty of misdemeanor theft following a bench trial and was sentenced to a year's probation.
Defendant first contends he was not proven guilty beyond a reasonable doubt because the identification of him by an eyewitness, Armet Pettis, was "doubtful and uncertain" and because defendant's alibi witness was unimpeached. We do not agree. The evidence, if believed by the jury, was sufficient to prove defendant's guilt.
Where the identification of an accused is at issue, the testimony of one witness is sufficient to convict even though such testimony is contradicted by the accused, provided the witness is credible and he viewed the accused under circumstances that would permit a positive identification to be made. (People v. Miller (1981), 101 Ill. App. 3d 1029, 428 N.E.2d 1038.) The credibility of an identification depends rather upon whether the witness had a full and adequate opportunity to observe the defendant. People v. Witherspoon (1975), 33 Ill. App. 3d 12, 337 N.E.2d 454.
Clearly in the case at bar Armet Pettis had ample opportunity to observe the defendant as the defendant walked from Clara Turner's house, when he turned around to pick up the garbage bag, and while Pettis followed him. Also, Pettis testified that he had previously seen the defendant approximately 20 times when Pettis went to the defendant's father's automobile garage to have his car serviced. Pettis also saw the defendant about a week before the incident when he went to the garage to get a tire repaired. Under these circumstances, Pettis had an excellent opportunity to observe the defendant. The credibility and certainty of Pettis' identification were enhanced by his prior acquaintance with the defendant. Similarly, in People v. Lawson (1978), 65 Ill. App. 3d 755, 382 N.E.2d 878, a witness testified that he knew the defendant prior to the burglary and recognized him. The court stated that this acquaintance, coupled with the witness' testimony identifying the defendant as the burglar, provided a sufficient basis for the jury to find the defendant guilty beyond a reasonable doubt.
The case relied on by the defendant, People v. McGee (1961), 21 Ill. 2d 440, 173 N.E.2d 434, is distinguishable. In McGee, the defendant's burglary conviction was reversed because none of the identification witnesses had more than a fleeting view of the intruder and none claimed to have a satisfactory view of the intruder's features. The court therein stated that the lighting conditions were uncertain and the distances involved in the witnesses' view of the intruder "tend[ed] to impair the weight to be afforded their testimony and leads us to conclude there was no real basis for positive identification." (21 Ill. 2d 440, 445, 173 N.E.2d 434, 436-37.) Such uncertainties were not present in Pettis' identification of the defendant in the case before us. We conclude that the evidence, if believed by the jury, was sufficient to establish the defendant's identity beyond a reasonable doubt.
Defendant further contends that his alibi witness, James R. Walker, was unimpeached. Walker testified that his car broke down the morning of the incident and that he walked to the garage owned by defendant's father and arrived there at about 10:10 or 10:15 a.m. Three or four men from the garage, including the defendant, helped Walker push his car five or six blocks to the garage and arrived there at about 10:30 or 10:40 a.m. From there Walker, the defendant and another man, "Sonny," used another person's car to go to an auto parts store and a gas station for gas and then returned to the garage at about 12:20 p.m. Walker testified that the defendant was in the backseat of the car at all times. When they arrived back at the garage, defendant and Sonny worked on Walker's car.
The State however points out certain alleged inconsistencies in Walker's testimony: the time Walker arrived at the garage with defendant after his car was pushed there and the time Walker, the defendant, and others went to the auto parts store. Defendant contends Walker's testimony was corroborated by a receipt from the garage but the receipt was never admitted into evidence. Any discrepancies in the testimony were for the jury's resolution. Defendant contends that alibi evidence cannot be disregarded where the sole and only evidence contradicting it rests upon an uncorroborated single identification of the defendant as the person who committed the crime, citing People v. McGee (1961), 21 Ill. 2d 440, 173 N.E.2d 434. But such is not the case here. There was sufficient evidence in this case to satisfactorily establish the defendant's identity beyond a reasonable doubt. We do not therefore conclude, as defendant urges, that his alibi witness was unimpeached.
Defendant also contends that because the complainant, Clara Turner, and the arresting officer, Officer Angarone, were allowed to testify that they accused the defendant of burglarizing Turner's house, the trial court erred when it excluded the defendant's exculpatory statements. This contention is not supported by the record. There was no evidence presented to the jury that Clara Turner accused the defendant of burglarizing her house. The testimony in this regard was elicited by defendant's attorney during cross-examination of Turner as follows:
"THE WITNESS [Clara Turner]: I went to 4800 on Kedzie. That is around LeMoyne and Kedzie, to a garage.
Q. There is a garage located there, is that right?
Q. And did you see Steve Robinson at that garage?
MR. QUINN [Assistant State's Attorney]: Judge, objection to the line of questions. We had Motions on this Friday.
MR. POLIKOFF [Defense Counsel]: May we have a side bar?
(Whereupon, the following proceedings were had out of the hearing of the Jury):
MR. QUINN: Judge, we had a Motion In Liminae [ sic ] on this. The Motion in Liminae [ sic ] was per the testimony at the preliminary hearing. She went to the garage and she confronted Steve and said, 'Give me my property back, and it won't go any further.' And his response to her was, 'I don't have your property.' It's an exculpatory statement. We had a Motion in Liminae [ sic ]. The ruling was that he cannot go into that, and counsel agreed to that.
MR. POLIKOFF: I have agreed.
MR. QUINN: Then there is no purpose for this line of questions at all, Judge.
THE COURT: I don't know. He understands the ruling.
(WHEREUPON, the following proceedings were had in the presence and hearing of the Jury):
Q. Now, when you arrived at the garage, I believe you stated you saw Steve Robinson there, is that correct?
Q. You had a conversation with him, is that correct?
A. Right." (Emphasis added.)
The fact that Clara Turner testified that she had a conversation with the defendant did not indicate to the jury that she accused the defendant of burglarizing her home or that the defendant remained silent as a "tacit admission," as defendant contends. Moreover, as the record shows, defense counsel agreed at the pretrial hearing on the State's motion in limine that defendant's exculpatory statements during his conversation with Clara Turner would not be admitted. Defense counsel again agreed to this at trial., Defendant's alleged exculpatory statement excluded during cross-examination of Officer Angarone was as follows:
"Q. Now, after you had this conversation with Clara Turner, you went directly from there to a garage, is that correct?
A. The first conversation with her?
Q. The one that you had at her house.
A. The first conversation?
Q. And that's when you first saw Steve Robinson, the defendant in this ...