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08/31/87 the People of the State of v. Derrick Clark

August 31, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DERRICK CLARK, DEFENDANT-APPELLANT

AFTER A JURY TRIAL, DEFENDANT, DERRICK CLARK, WAS CONVICTED OF ARMED ROBBERY. (ILL. RE

v.

STAT. 1983, CH. 38, PAR. 18-2.) HE WAS SENTENCED TO 25 YEARS IN PRISON. HE APPEALS HIS CONVICTION AND SENTENCE.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

513 N.E.2d 937, 160 Ill. App. 3d 877, 112 Ill. Dec. 328 1987.IL.1262

Appeal from the Circuit Court of Cook County; the Hon. Joseph J. Urso, Judge, presiding.

APPELLATE Judges:

JUSTICE BUCKLEY delivered the opinion of the court. QUINLAN, P.J., and MANNING, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY

John Obaseki, the victim of the armed robbery, testified that on September 3, 1984, just before midnight, he was a passenger in a parked taxicab in front of 5240 North Kenmore in Chicago. He was waiting for the taxicab driver, who had entered an apartment at that address.

At this time, he observed two men approach the taxicab. One man was tall and thin with a fair complexion, and was later identified as the defendant Derrick Clark. The other man had a darker complexion with a stocky build, and was later identified as Montery Willis (Willis). Defendant told Obaseki to take them to Broadway and Sheridan. He declined, telling him he was not the driver and the cab was not for hire. At this point defendant pulled out a gun and climbed into the driver's seat. Willis entered the rear of the taxicab. Defendant handed the gun to Willis and the three drove away.

During the following 20-minute drive, defendant relieved Obaseki of his wallet and jacket. Willis constantly pointed a gun at Obaseki and the two threatened to kill him. As they drove down Sheridan Road, Obaseki noticed a police squad car. He called for help and grabbed the gun from Willis; a struggle ensued between Willis and Obaseki. As defendant turned around to strike Obaseki, the taxicab collided with a CTA bus.

Willis then pushed Obaseki out of the cab, breaking his leg. The two assailants fled the scene pursued by the police. The police quickly apprehended the two men whom Obaseki identified as the men who had robbed him. The two men were arrested. Defendant later gave a statement to an assistant State's Attorney in which he implicated himself in the robbery of Obaseki. I

Initially, defendant argues that the victim's identification was the result of suggestive police procedures denying him a fair trial. The police presented defendant while the victim was lying on the ground, injured and dazed. He was presented alone, in handcuffs surrounded by many police officers. This procedure is often called a "showup" identification which has been "observed to carry with it a dangerous degree of improper suggestion." People v. Blumenshine (1969), 42 Ill. 2d 508, 512, 250 N.E.2d 152, 154.

We note at the outset that defendant has waived review of this issue, because he failed to object to the admission of the identification evidence at trial. (People v. Lucas (1981), 88 Ill. 2d 245, 250, 430 N.E.2d 1091, 1093.) This issue was also not specifically raised in defendant's post-trial motion. Illinois law requires that both steps be taken in order to preserve an issue for review. People v. Surles (1984), 126 Ill. App. 3d 216, 226, 466 N.E.2d 1295, 1301.

Assuming, arguendo, the defendant had not waived this issue on appeal, the record shows the identification was reliable. The United States Supreme Court has set forth five factors to evaluate the reliability of the identification. These factors are as follows: (1) the opportunity of the witness to view the criminal at the time of the crime; (2) the witness' degree of attention; (3) the accuracy of his prior description of the criminal; (4) the level of certainty demonstrated at the confrontation; and (5) the time between the crime and the confrontation. Manson v. Brathwaite (1977), 432 U.S. 98, 114-15, 53 L. Ed. 2d 140, 154, 97 S. Ct. 2243, 2253.

First, Obaseki had ample opportunity to observe defendant at close range. They were face-to-face in the taxicab when defendant removed his jacket and took his wallet. Furthermore, he observed defendant's face in the rearview mirror during the 20-minute drive. Moreover, as defendant and the other man approached the taxicab, Obaseki was able to observe the defendant's features.

Second, the record supports the inference that he identified the defendant without any hesitation. The record reveals that Obaseki testified as follows:

"Q. And when the policeman came up to you with the defendant with his hands behind his back, did the policeman say anything to you?

A. Yes, sir.

Q. What did he say?

A. He asked me -- I mean if that was the armed robber and I said yes, and then he give me a gun, you know. I said yes, that was the gun which they had."

The testimony of Officer Joseph Laskero, the police officer on the scene, corroborated the victim's account of the showup identification.

A further indicator of the reliability of the identification was the fact that it took place within two to three minutes of the offense. The victim had a fresh recollection of his assailants at the time of the identification.

Alternatively, the police were justified in using a showup identification. At the time of the identification, the extent of the victim's injuries was unknown. If the police had not questioned the victim at the scene, he may have died shortly after defendant's arrest without making an identification.

The defendant argues, however, that the identification was not reliable because the victim did not give a prearrest description of defendant. This argument misses the mark. The victim did not give a prearrest description because it took place so soon after the offense. Under these circumstances, the lack of a prearrest description does not cast a doubt on the reliability of the identification.

In sum, the Manson factors weigh heavily in favor of the reliability of the identification. In this case, use of a showup ...


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