APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
513 N.E.2d 1099, 160 Ill. App. 3d 1082, 112 Ill. Dec. 490 1987.IL.1339
Appeal from the Circuit Court of Cook County; the Hon. Themis Karnezis, Judge, presiding.
JUSTICE O'CONNOR delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE O'CONNOR
Following a jury trial, defendant was found guilty of armed robbery and sentenced to 45 years in the Illinois Department of Corrections. On appeal he argues: (1) that his conviction should be reversed and remanded for a new trial based on newly discovered evidence; (2) that the trial court erred in advising the jury in the absence of defense counsel; (3) that he was not proved guilty beyond a reasonable doubt; and (4) that the 45-year sentence was excessive. We affirm.
Complainant, Robert Rockingham, testified that on November 24, 1984, at approximately 9 p.m., he went to visit a friend at 4112 Taylor Street in Chicago. As he parked his car and walked across the street, he saw one of the defendants, Walter Cunningham, walking towards him. Rockingham walked up on the porch and knocked at the door.
Cunningham also walked up on the porch, where he was joined by defendant Oliver Chew and the third codefendant, Lawrence Blakely. Chew pulled a bluesteel .38 caliber revolver out and pointed it at Rockingham while Cunningham and Blakely took $176 from Rockingham's pockets. The money consisted of a $100 bill, a $50 bill, a $10 bill, two $5 bills, and six $1 bills. The three men then left and ran to the corner of Taylor and Karlov Streets, where they started to get into a blue Chevrolet.
Rockingham drove to Taylor and Pulaski, where he stopped a police car and described the robbery. The officers followed him and shortly thereafter he spotted the blue Chevrolet and identified it to the officers. The police officers chased defendants, and they were eventually stopped at Karlov and 13th Streets. Rockingham saw the three men who had robbed him get out of the blue Chevrolet. Later that night police returned a $100 bill, a $50 bill and a $10 bill to him.
Officer Eddie Jones corroborated Rockingham's testimony regarding the chase and the apprehension of defendants. He further testified that after the defendants were arrested, he described the route of the chase to Officer Vondrak and asked him to retrace it to search for the weapon. At the police station Officer Jones searched the three men. Inside the right sock of Oliver Chew he found a $100 bill, a $50 bill and a $10 bill, which were later returned to Rockingham.
Officer Vondrak testified that he retraced the route of the chase and found a fully loaded bluesteel .38 caliber revolver in the alley. The handle had been cracked and there were fresh scratch marks on the barrel and cylinder. The gun was not dusted for fingerprints because it had been contaminated and the grip surface was too rough to reveal prints.
Defendant Walter Cunningham testified that on November 24, 1984, at about 7 p.m. he was at home with Lawrence Blakely. They left the house and drove to a liquor store on Keeler and Roosevelt, where they remained for about an hour. They then drove to Kildare and Roosevelt, where they saw Oliver Chew. Chew asked them for a ride and got inside the car. Cunningham drove down an alley where he was pulled over by a police car. He stated that he did not rob the complainant and that neither defendants Chew nor Blakely had a gun. In rebuttal, Officer Robert Cook testified that he was in the police car with his partner, Officer Jones, when they were approached by Robert Rockingham. They followed his car and noticed the car in which defendants were riding. Defendants' car stopped at Roosevelt and Kildare but nobody entered or left the car. After the car crossed Roosevelt Road, Officer Cook pulled the car over and arrested defendants. The jury found Chew guilty of armed robbery and he was sentenced to an extended term of 45 years.
Defendant maintains that his conviction should be reversed and a new trial ordered based on newly discovered evidence, which he asserts casts doubt on the credibility of the State's primary witness, Robert Rockingham. The new evidence consisted of an article in the March 22, 1985, Sun-Times indicating that the house at 4112 West Taylor, where Rockingham had purportedly gone to see a friend, was "a popular drug confectionary with a wide following."
"To warrant a new trial, newly discovered evidence must be material, so conclusive it will probably change the result, discovered after the trial, and incapable of being discovered prior to trial by the exercise of due diligence." (People v. Houston (1986), 151 Ill. App. 3d 102, 115, 502 N.E.2d 1111, citing People v. Molstad (1984), 101 Ill. 2d 128, 134, 461 N.E.2d 398.) Whether to grant or deny a motion for a new trial based on newly discovered evidence is discretionary with the trial court, and the exercise ...