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05/28/87 the People of the State of v. Lavel Dean

May 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LAVEL DEAN, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

509 N.E.2d 618, 156 Ill. App. 3d 344, 108 Ill. Dec. 922 1987.IL.693

Appeal from the Circuit Court of Cook County; the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE McMORROW delivered the opinion of the court. JIGANTI and LINN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Following a jury trial, defendant Lavel Dean was convicted of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)) and sentenced to 19 years' imprisonment. The State's evidence showed that the owner of a restaurant-lounge in downtown Chicago was robbed at gunpoint in the presence of a barmaid and a waitress. Approximately 2 1/2 years later, defendant came into the restaurant on two separate occasions and was recognized by the owner as the person who had committed the armed robbery. In one instance, the owner followed the defendant and obtained the license plate number of the automobile the defendant was driving. On the other occasion the owner telephoned one of the other witnesses, who came into the restaurant and also recognized the defendant as the person who committed the robbery. The police were notified. The defendant was later identified in a lineup as the person who had committed the robbery in 1980.

On appeal, defendant raises the following questions for our review:

(1) Whether the identification of the defendant, made by the three witnesses 2 1/2 years after the offense was committed, was weak and insufficient to establish guilt beyond a reasonable doubt;

(2) Whether the trial court's admission into evidence of a police officer's testimony that the defendant's girlfriend's description of the defendant matched that given by the witnesses constituted reversible error.

(3) Whether the defendant was denied the opportunity to present his defense, in that a police officer failed to respond to a subpoena, and the trial court denied defendant's motion for a continuance to secure the officer's presence, where the officer would have testified that the police report did not show that any of the witnesses stated after the crime that the perpetrator had a facial birthmark;

(4) Whether certain statements of the trial court during trial were improper and prejudicial such that defendant was denied a fair trial;

(5) Whether the defendant is entitled to a new sentencing hearing, on the ground that the court relied upon evidence of another armed robbery of which defendant was accused but later found not guilty.

We determine that the State's evidence was sufficient to find defendant guilty beyond a reasonable doubt and that no reversible error occurred to deprive defendant of a fair trial. Accordingly, defendant's conviction for armed robbery is affirmed. Because the trial court's sentencing decision relied upon evidence of another crime for which defendant was subsequently found not guilty, however, we vacate the defendant's sentence and remand for a new sentencing hearing.

Background

Defendant was convicted of the September 29, 1980, armed robbery of George Korkofigas (Korkofigas), the owner of the Royal House Lounge and Restaurant (the lounge), in the presence of Judy Stimple (Stimple), the barmaid at the lounge that evening, ...


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