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12/03/87 the People of the State of v. Kenneth Robinson

December 3, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENNETH ROBINSON, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

516 N.E.2d 1322, 163 Ill. App. 3d 991, 114 Ill. Dec. 928 1987.IL.1781

Appeal from the Circuit Court of Macon County; the Hon. John L. Davis, Judge, presiding.

APPELLATE Judges:

JUSTICE KNECHT delivered the opinion of the court. LUND and SPITZ, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

Following a jury trial, the Macon County circuit court sentenced defendant Kenneth Robinson to a term of 15 years for robbery, that sentence to run concurrently with one imposed for a prior robbery. On appeal, defendant contends (1) the trial court erred in allowing the victim to testify as to her identification of defendant at a prior court proceeding, and (2) the double jeopardy clause requires the 15-year sentence be vacated and the conviction reversed without remand. We affirm.

In March 1986, defendant pleaded guilty to and was convicted of robbery and sentenced to five years' probation and treatment by Treatment Alternatives to Street Crimes . He was then accused of committing a robbery while on probation. At a hearing on defendant's probation violation, Carol Overlin testified defendant robbed the Ambassador Hotel in Decatur on September 4, 1986. Overlin described the robbery, made an in-court identification of defendant and testified she identified his photograph on two occasions immediately after the incident.

The State recommended defendant be given an extended term of 12 years because of his prior record, the violation of TASC conditions, and the two robberies he was charged with while on probation. The court found defendant had violated his probation and was eligible for an extended term of 7 to 14 years on his original robbery conviction. Defendant was sentenced to the Department of Corrections for 12 years.

Defendant pleaded not guilty to the September 4, 1986, robbery which is the subject of this appeal. At the jury trial on that offense Overlin again testified that while working as a night auditor at the Ambassador Inn, a man, whom she identified in court as defendant, appeared at the front door of the hotel at 2:50 a.m. and stated he wanted to see a friend in room No. 607. Overlin let defendant inside the hotel and informed him that room No. 607 was unoccupied. At that point, defendant indicated he was armed, he demanded money and Overlin complied. Overlin testified the entire incident lasted about four minutes during which she had a good opportunity to view defendant under good lighting conditions. Overlin said defendant was wearing bright yellow shorts and a shirt with green in it. Overlin gave this description to the police and identified defendant's photograph on two separate occasions within 48 hours of the crime. Overlin further testified, over defense counsel's objection, that she identified the defendant at a prior court proceeding as the man who robbed her.

Police officer George McMinn testified Overlin picked defendant's photo out of a series he showed her on September 4, 1986, after the robbery. Although the photo depicted defendant with a mustache, McMinn said Overlin commented she remembered him as "clean shaven" at the time of the robbery.

Police officer Anderson also testified he spoke with Overlin immediately after the robbery on September 4, 1986. Anderson said Overlin stated the man who robbed her had no facial hair. On September 5, 1986, at 11:15 p.m., Anderson took photographs of four black men in a Decatur apartment. Defendant was one of the men photographed. Subsequently, Anderson obtained three more photographs of black men and showed the seven photographs to Overlin. Overlin identified the photograph of defendant and said he was the man who robbed her. The photograph Overlin identified was admitted into evidence and Anderson testified it depicted defendant with a mustache.

The jury returned a verdict finding defendant guilty of robbery. The court sentenced defendant as a Class X offender to the Department of Corrections for a term of 15 years' imprisonment, the sentence to run concurrently with that imposed on revocation of the defendant's probation for the March 1986 robbery. Defendant appeals the conviction and we affirm.

The court in People v. Rogers (1980), 81 Ill. 2d 571, 579, 411 N.E.2d 223, 227, held "[evidence] of . . . out-of-court identification . . . should be admissible but should be used only in corroboration of in-court identifications and not as substantive evidence." Subsequently, the legislature added section 115-12 to the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1985, ch. 38, par. 115-12.) That section allows the use of out-of-court identifications as both substantive and corroborative evidence. (People v. Davis (1985), 137 Ill. App. 3d 769, 484 N.E.2d 1098.) Section 115-12 provides:

"Substantive Admissibility Of Prior Identification. A statement is not rendered inadmissible by the hearsay rule if (a) the declarant testifies at the trial or hearing, and (b) the declarant is subject to cross-examination concerning the statement, and (c) the statement is one of identification of a ...


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