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03/31/88 the People of the State of v. Albert M. Hayes

March 31, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ALBERT M. HAYES, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

522 N.E.2d 1279, 168 Ill. App. 3d 816, 119 Ill. Dec. 420 1988.IL.475

Appeal from the Circuit Court of Cook County; the Hon. Will E. Gierach, Judge, presiding.

APPELLATE Judges:

JUSTICE MURRAY delivered the opinion of the court. SULLIVAN, J., concurs. JUSTICE PINCHAM, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

Following a jury trial defendant was convicted of armed robbery and sentenced to a six-year term. On appeal defendant contends that reversible error occurred when evidence of his alleged unrelated criminal activity was presented and that evidence of the complainants' nonidentification of other individuals as the robber was improper.

The armed robbery occurred about 8 p.m. on February 3, 1984, in a grocery store located at a shopping plaza in Chicago Heights, Illinois. At that time Linda Malito and Cheryl Markiewcz (nee Pitrowski) were working in the store office, which also had a service desk and was located near the front of the store. A man approached the desk and spoke briefly to Markiewcz.

According to Malito she then went to the service desk window to speak to the man whom she positively identified as defendant. At this point defendant produced a silver-colored gun and a bag, in which she then put $800. Defendant took the bag, moved away a short distance, looked inside the bag and announced "You've got to have more money than this. I want more money." When Malito replied that she did not, defendant left the store.

Malito indicated that the incident took no more than two minutes. She said that defendant was wearing a bulky green military jacket, was clean-shaven and had a receding hair line.

That evening Malito and Markiewcz went to the police station, but they did not see their assailant's picture in photo books shown to them there. Both she and Markiewcz then assisted police in preparing a composite sketch of the gunman. About three months after the robbery, the police showed Malito a group of photographs, and she selected defendant's picture. She then viewed a lineup, which included defendant, and selected him as the robber.

Cheryl Markiewcz testified that she was in the office enclosure balancing the register receipts from the store during a "slow night" when defendant approached the service desk. She looked over to him and asked if she could assist him. Linda Malito, who was nearby, then went to the service window to speak to defendant. When she heard defendant tell Malito to "[put] all the money in the bag," she looked again at defendant, who was about six feet away, and she saw that defendant was holding a gun. Malito then filled a bag with currency and gave it to defendant. As defendant began to leave the store, he stopped and asked if that was all the money there was. While this occurred Markiewcz continued to look at defendant, who was still about six feet away. Malito then explained that she had just made a deposit and that she had given him all the money. During the incident, Markiewcz had an unobstructed view of defendant.

Later that evening Markiewcz went to the police station and assisted in completion of a composite sketch of the offender. She also looked at several books of photographs, but did not see defendant's picture contained therein. In mid-May 1984, the police showed her six additional photographs and she selected defendant's picture. She immediately identified defendant from a subsequent lineup because "I was sure that that was the man." She also recognized his voice when he spoke during the lineup procedure.

There was police testimony that defendant had been identified as the robber of an ice-cream store located in the same Chicago Heights shopping plaza. An ice-cream store employee testified that about 8 p.m. on April 17, 1984, defendant, whom she described as fairly tall, entered the store while she was working alone. She gave him the cup of ice cream that he ordered, and as she was by the cash register, defendant produced a small silver gun and demanded that she put money in the bag where she had put the cup. During the time defendant was in the store he was only several feet away from her, and she looked directly at his face.

Defendant's father testified that his son was 6 feet 2 inches tall and weighed about 185 pounds. This description varied from that obtained from Malito and Markiewcz, who placed the assailant at about 5 feet 9 inches in height and 180 pounds. However, the grocery store office area where that armed robbery occurred was elevated about 10 inches above the general floor level where the gunman stood.

Defendant testified on his own behalf, denied committing either armed robbery and said that he could not recall where he was on either occasion. Defendant said that he was 6 feet 2 inches tall and weighed between 185 to 190 pounds. Defendant also claimed that he wore a slight beard and mustache until March 1984, although neither grocery store employee mentioned that the gunman had this facial hair. I

Defendant contends that the testimony of the ice-cream store employee concerning that armed robbery was prejudicial and introduced only to improperly show his propensity to commit crimes. At the close of the trial, the court instructed the jury that evidence of this crime went "solely on the issue of defendant's identification and common scheme" and could be considered "only for the limited purpose for which it was received." (Illinois Pattern Jury Instructions, Criminal No. 3.14 (2d ed. 1981).) Defendant claims that there was nothing distinctive about either armed robbery, thus negating the State's position that the modus operandi of both crimes was comparable, and that it was improper to use the testimony of the ice-cream store employee to bolster the identification testimony of the grocery store employees. Defendant also asserts that the error of the other crime evidence was exacerbated when the jury was not advised during the witness' testimony that evidence related to the ice-cream store armed robbery was to be used for a limited purpose.

In People v. Bryan (1987), 159 Ill. App. 3d 46, 511 N.E.2d 1289, this court had occasion to discuss the use of other crime evidence. There the court said:

"Evidence of crimes other than the one for which defendant is being tried is generally not admissible because it tends to be unfairly prejudicial. [Citation.] Exceptions exist where the evidence of other crimes shows motive, intent, identity, preparation, common scheme or design, absence of mistake or modus operandi. [Citations.]

It appears that in using the term 'common scheme or design' in the case at bar, the trial court in fact was referring to the modus operandi of the perpetrator. Although Illinois courts have tended to use the terms 'common scheme or design' and ' modus operandi ' interchangeably, they are not synonymous. [Citation.] Modus operandi refers to crimes that are so nearly identical in method that they are clearly the work of the accused. Common design, like modus operandi, may also be probative of the identity of the actor; however, common design refers to a larger criminal scheme of which the crime charged is only a portion. [Citation.] While common design is not at issue here, we believe that the modus operandi exception is applicable.

Many courts have held that evidence of other crimes is admissible to show modus operandi only if the manner in which the crime has been perpetrated is so distinctive as to amount to a 'signature' [Citation]; Illinois courts have adopted less stringent requirements. Other crimes evidence has been found admissible where the other offense is substantially similar and has common features with the offense charged; the crimes need not be identical. [Citation.]

Other crimes evidence is also admissible to show identity provided that the probative value of the evidence outweighs its prejudicial effect." 159 Ill. App. 3d at 51-52, 511 N.E.2d at 1292-93.

In the present case the armed robberies occurred in the same shopping plaza about the same time of evening and the assailant used a silver-colored gun. Given the circumstances we do not believe that error occurred in allowing the ice-cream store employee to testify.

Although the Dissenting Judge concludes that the robbery on April 17, 1984, was "independent, unconnected and disassociated" with the robbery of February 3, 1984, we disagree. (168 Ill. App. 3d at 823.) The robberies were committed about the same time, in the same shopping center. The assailant used a silver-colored gun in each robbery and a bag for the robbed money. In our judgment, there were sufficient similarities between the crimes as to permit the introduction with the appropriate cautioning instructions. In addition we note that the trial court's instruction to the jury properly limited the extent to which the other crime evidence was to be considered. See People v. Shum (1987), 117 Ill. 2d 317, 512 N.E.2d 1183. II

Defendant next contends that it was error to allow the grocery store employees to testify that they had looked through many police photograph books without identifying anyone. Defendant characterizes this evidence as an improper attempt to bolster their identifications through the use of prior inadmissible consistent statements. In People v. Trass (1985), 136 Ill. App. 3d 455, 483 N.E.2d 567, a police officer testified to one of the victim's prior nonidentification of two suspects from a lineup that did not include defendant. The victim identified defendant from a subsequent lineup. The court concluded that such testimony was irrelevant and inadmissible. However, the court also concluded that the nonidentification testimony was not prejudicial to defendant.

Here, too, we do not believe that such nonidentification testimony was prejudicial. Each grocery store employee viewed defendant from a short distance for a sufficient length of time. Each positively selected defendant's photograph when shown by police. Each then picked defendant from a lineup, and a voice identification was also made. The grocery store employees' identifications were positive and overwhelmingly established defendant's guilt.

The Dissenting Judge's suggestion that there is a trend by some prosecutors approved by some trial courts to put into evidence a defendant's commission of unrelated crime under the guise of modus operandi has not been observed by the majority. The majority does agree that appellate courts have at times been inconsistent on this and other evidentiary subjects.

Accordingly, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

CASE RESOLUTION

Judgment affirmed.

MINORITY OPINION

JUSTICE PINCHAM, Dissenting:

I Dissent. The defendant has at all times insisted that he has been mistakenly identified as the robbery offender. The jury's guilty verdict that he was the robbery offender was not fairly or properly determined.

The defendant, Albert M. Hayes, was a 19-year-old black male. He was 6 feet 2 inches tall, weighed 180 pounds, was slender in build and he had a thin face. He did not fit the description of full, round face, stocky and chunky in build, 5 feet 9 inches tall, 180 to 185 pounds, 24 to 25 years old, with sparse hair and a receding hairline, which was given to the police by the February 3, 1984, robbery victim, Linda J. Malito, and witness, Cheryl Pitrowski. The defendant for nine years had grown up and lived at 289 Lynn Lane, Chicago Heights, Illinois. His home was in the immediate vicinity of Garofalo's Food Store at 177 West Joe Orr Road, Chicago Heights, where the Malito robbery occurred. The defendant had been a customer in Garofalo's over a hundred times throughout the nine years he had lived on Lynn Lane. Both the robbery victim, Linda Malito, an eight-year manager-clerk at Garofalo's, and the robbery witness, Cheryl Pitrowski, an 11-year cashier at Garofalo's, testified that they had never previously seen the person who robbed them. The defendant was belatedly, and for the first time, identified as the robber by Pitrowski and Malito over three months after the robbery. Not one bit of corroborating evidence -- fingerprints, gun, loot, clothing, confession, admission, etc. -- was presented of the defendant's commission of the February 3, 1984, Malito-Garofalo's robbery. The defendant was a 1983 Homewood-Flossmoor High School graduate and had attended Prairie State College and Southern Illinois University for almost a year. He adamantly and persistently denied committing the robbery. The trial court prohibited the defendant's attorney from even mentioning to the jury during his opening statement that the defendant had never been previously arrested. Yet, the trial court conversely allowed the prosecutor to present to the jury extensive prejudicial, inadmissible evidence of the defendant's commission of an unrelated April 17, 1984, armed robbery of Mary Malvestuto at a Baskin-Robbins ice-cream store. The defendant also denied committing this robbery. The trial court erred and, further, improperly relied on erroneous legal principles in admitting this extraneous evidence. The integrity of the fact-finding process was flagrantly violated and the veracity of the jury's guilty verdict was poignantly contaminated. Reversal of the defendant's conviction is demanded.

The defendant was on trial for an alleged armed robbery of Linda Malito at Garofalo's Food Store on February 3, 1984. During this trial, the prosecutor presented voluminous evidence of the defendant's commission of another, unconnected armed robbery of Mary Malvestuto at a Baskin-Robbins ice-cream store on April 17, 1984. In effect, the prosecutor thereby simultaneously put the defendant on a single trial for two separate, unconnected armed robbery offenses.

Section 111-4 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 111-4(a)) provides that two offenses may be charged in the same indictment or information only if the alleged offenses are based on the same act, or on two or more acts which are part of the same comprehensive transaction. It is patently obvious that the February 3, 1984, Malito-Garofalo's robbery and the April 17, 1984, Mary Malvestuto, Baskin-Robbins robbery were not based on the same act or on two or more acts which were part of the same comprehensive transaction.

The defendant was convicted of the murder of his wife in People v. Lindgren (1980), 79 Ill. 2d 129. During his murder trial the prosecutor contended and presented evidence of the defendant's commission of an arson shortly after the murder to establish the defendant's consciousness of guilt and his concealment and presence at the murder scene. In reversing, the supreme court cautioned and commanded:

"The erroneous admission of evidence of other crimes carries a high risk of prejudice and ordinarily calls for reversal.

There is also the matter of the integrity of the system. A litigant's right to a trial by an unbiased jury is violated where the jury in fact based its decision on extraneous matters. This is a substantial right normally afforded to guilty and innocent defendants alike. Collateral-crimes evidence is likely to violate this right. Therefore, we hold that the defendant deserves a new trial with a jury unbiased with evidence of the arson." Lindgren, 79 Ill. 2d at 140, 143.

In People v. Bricker (1974), 23 Ill. App. 3d 394, 396-97, 319 N.E.2d 255, the defendant was tried on a two-count indictment which charged the defendant with the commission of an armed robbery of a gasoline service station at 12:30 a.m. on July 14, 1972, and with the commission of a second armed robbery of a hotel desk clerk a few hours later and a short distance from the gasoline service station. The jury found the defendant guilty of the service station robbery and acquitted him of the hotel robbery. This court reversed and held:

"It is axiomatic that a defendant may not be placed on trial, over his timely objection, on an indictment charging separate offenses when it appears these offenses are not part of one and the same transaction, but are 'separate and distinct both in law and in fact. [Citations.] A defendant cannot be forced to trial on disassociated felonies.' [Citation.]

[There] is nothing in the record to establish that there was a concerted plan of action or scheme on the part of the defendant that would link the two armed robberies. They are separate and independent felonious acts. Under the cited authority, the State should have tried defendant in separate proceedings for each offense." 23 Ill. App. 3d at 396-97.

There is nothing in the record in the case at bar to establish that there was a concerted plan of action or scheme on the part of the defendant that would link the February 3 Malito-Garofalo's robbery to the April 17 Malvestuto-Baskin-Robbins robbery. The two robberies were separate, independent, unconnected and disassociated felonious acts. The State should have tried defendant in separate trials for each offense.

This court pointed out in People v. Tate (1982), 106 Ill. App. 3d 774, 776-77, 436 N.E.2d 272, that when a defendant is placed on trial simultaneously for separate, unrelated offenses "there is danger that the jury may consider the evidence of the defendant's commission of one of the offenses as showing a propensity to have committed other offenses."

The State's evidence of the defendant's commission of the February 3 Malito-Garofalo's robbery was not overwhelmingly persuasive. The witnesses' description of the robber did not match the defendant's description. There was no corroborating evidence. The defendant was belatedly identified by the witnesses as the robber. The witnesses' identification of the defendant was under rather unusual circumstances. The defendant denied commission of the robbery. The prosecutor's effort to buttress evidence of the defendant's commission of the February 3 Malito-Garofalo's robbery by the admission of evidence of the defendant's commission of another unrelated robbery is quite understandable. Nevertheless, such prosecutorial effort is unacceptable and is legally impermissible.

The Malito-Garofalo's Food Store robbery occurred in Chicago Heights on February 3, 1984. Malito and the witness, Cheryl M. Pitrowski, described the robber to the police as stocky and chunky in build, with a full, round face, 5 feet 9 inches tall, 180 to 185 pounds, 24 to 25 years old, black, male, with a receding hairline and wearing a green, baggy, loose-fitting army jacket.

Linda Malito testified that she was 5 feet 5 inches tall. Cheryl Pitrowski testified that her height was "five eleven and a half, flat foot." Pitrowski's height is unusually tall for a woman. The evidence that the defendant was 6 feet 2 inches tall, 2 1/2 inches taller than Cheryl Pitrowski, is uncontradicted. Yet, both Pitrowski and Malito described the robber as shorter than Pitrowski. Their suggested explanation for this contradiction, that Pitrowski and Malito were standing on a 10-inch platform when they were robbed, is ludicrous.

Two and a half months after the Malito-Garofalo's robbery, on April 17, 1984, Mary Malvestuto was robbed at the Baskin-Robbins store in Chicago Heights. She described the robber to the police as a black male, in his early 20's, medium complexion, brown eyes, short cropped black hair, clean-shaven and fairly tall. Malvestuto stated that she was 5 feet 5 inches tall and she told the officers that the robber was about five or six inches taller than her.

The subsequent events and the circumstances surrounding the identification of the defendant on May 14, 1984, as the February 3 Malito-Garofalo's robber and as the April 17 Malvestuto-Baskin-Robbins robber are peerless. On the pretrial hearing of the defendant's motion to quash his arrest and to suppress evidence, it was established that Chicago Heights police officer Paul Palcek called the defendant's home on May 14, 1984, and asked the defendant's father, who was a marketing analyst for Allstate Insurance Company, to bring the defendant into the Chicago Heights police station, ostensibly to clear up Palcek's report of a purported trespass by the defendant on February 21, 1984, three months earlier.

On February 21, 1984, the defendant and two companions walked behind 525 Hamilton Woods in Chicago Heights, along a creek, going fishing. This Hamilton Woods area was also behind the defendant's home at 289 Lynn Lane in Chicago Heights. The defendant and his companions were inadvertently on the property of Mrs. Ellie Lipe. Mrs. Lipe's daughter, who was a high school classmate of the defendant's and knew the defendant by his name, and Mrs. Lipe saw the defendant and his companions on the Lipe property and asked them to get off the Lipe property. The defendant was unaware that he was on private property and he got off and left the Lipe property when Mrs. Lipe told them to do so. Mrs. Lipe never made a complaint against the defendant. It is further noteworthy that Officer Palcek's May 14 telephone request to the defendant's father to bring the defendant into the police station was three months after the defendant's so-called trespass on the Lipe property, but the call was less than a month after the April 17 Malvestuto-Baskin-Robbins robbery.

Officer Palcek told the defendant's father that he wanted to talk to his son. The defendant's father asked Palcek what it was about. Palcek told him that it was a matter of his son's trespassing across a lady's yard in Hamilton Woods, which was the area behind the defendant's house, and Palcek "just wanted to talk to him and get some information."

In compliance with Officer Palcek's May 14 telephone request, at two o'clock that afternoon the defendant's father took the defendant to the Chicago Heights police station. Palcek took the defendant into an office and asked him a few questions about the Lipe property incident, during which time Palcek had the defendant's father wait outside in the lobby. The defendant answered Palcek's questions. As the defendant was leaving, Palcek told the defendant "he wanted to take a picture just for references, to put it on file to say that he did do the report . . . and he wanted the defendant's picture to close out his file." The defendant had never been arrested before and neither the Chicago Heights police department nor any other police department had the defendant's picture. Palcek took a Polaroid picture of the defendant. The defendant and his father left the police station.

From these and the hereafter-mentioned subsequent events, the defendant vehemently argued that Officer Palcek's purported Lipe property trespass interrogation-investigation was a ruse, a subterfuge, a pretext, a spurious ploy by Palcek to obtain the defendant's picture. Palcek testified that he "intended to take the defendant's picture to Mrs. Lipe's daughter, who is the one who stated she knew Mr. Hayes . . . [and that] Albert Hayes was one of the persons that was trespassing on the land. She went to school with him." Palcek further testified:

"Q. So you were going to show that photograph for identification purposes to Mrs. Lipe's daughter?

A. Yes. If we felt that the circumstances warranted it, you know."

But obviously the circumstances wouldn't warrant Palcek showing Mrs. Lipe's daughter the defendant's picture. Palcek knew that Mrs. Lipe's daughter was the defendant's schoolmate and that she had known and identified the defendant by his name. Moreover, according to Palcek, a rare occurrence intervened which caused Palcek not to show the defendant's picture to Mrs. Lipe's daughter.

A composite drawing of the February 3 Malito-Garofalo's Food Store robber was made from descriptions given by the robbery victims. According to Palcek this composite drawing of the robber was posted on the police station bulletin board. Palcek testified that after he took the defendant's Polaroid picture on May 14 and after the defendant had left the police station, Palcek fortuitously looked at the police station bulletin board's composite drawing of the Malito-Garofalo's robber and noticed that it matched the defendant's Polaroid picture that Palcek had just taken. Palcek testified on direct examination:

"Q. After you saw Albert Hayes in the police station on the 14th of May and after he left the station, did you notice anything?

A. Yes, I did.

Q. What did you ...


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