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12/27/88 the People of the State of v. Dionell Paine

December 27, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DIONELL PAINE, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION

539 N.E.2d 731, 182 Ill. App. 3d 812, 132 Ill. Dec. 168 1988.IL.1871

Appeal from the Circuit Court of Cook County; the Hon. Robert L. Sklodowski, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING

The defendant, Dionell Paine, was charged by indictment with armed robbery, unlawful restraint and armed violence. Following a bench trial, the defendant was found guilty of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2), and sentenced to 10 years' imprisonment. We are called upon to determine: (1) whether the trial court properly denied the defendant's motion to quash arrest and suppress evidence; (2) whether the trial court abused its discretion in allowing the prosecution to introduce Rodney Mitchell's prior inconsistent statement for purposes of impeachment and as substantive evidence; and (3) whether section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat., 1984 Supp., ch. 38, par. 115-10.1), authorizing the substantive use of prior inconsistent statements, is constitutional; and (4) whether the enactment of the statute was within the legislature's authority.

Prior to trial, the defendant filed a motion to quash arrest and suppress evidence. At the hearing on the motion, Officer Ronald Robinson testified that on July 9, 1985, the day of the armed robbery of the Top Value Beauty Supply, he interviewed Rodney Mitchell, one of the men arrested for the armed robbery. Mr. Mitchell identified Ronald Stewart (a/k/a Bimbo) as his accomplice to the armed robbery. Subsequently, Derrick Richardson, one of the victims, stated that Ronald Stewart was not a participant in the robbery. Mitchell then named Dionell Paine as his accomplice and provided Officer Robinson with the defendant's address as 1311 South Christiana, Chicago, Illinois. This was the same address that Mitchell was seen entering into immediately after the robbery by the victim, Richardson. Officer Robinson and Mitchell went to that address, but the defendant was not there. Thereafter, Officer Robinson drove Mitchell to the 11th District police station, where Mitchell provided Officer Robinson with a description of the offender.

Although this description was received on July 9, 1985, the defendant was not arrested until July 17, 1985, when Officer Robinson and his partner received information from a citizen that the defendant would be meeting that citizen at 3401 West Roosevelt Road, Chicago, Illinois, at 10 p.m. The police and the citizen had prearranged a signal by which to identify the defendant upon his arrival at that location. The signal was given when the defendant and the citizen met, and Officer Robinson approached the defendant and two other men and asked them to identify themselves.

Upon recognizing the name and address given by the defendant as being the same name and address given by Rodney Mitchell, Officer Robinson placed defendant under arrest and then conducted a lineup at which defendant was identified by Derrick Richardson.

It was stipulated between the parties that on July 9, 1985, Richardson was unable to identify the defendant from a police photo book as one of the robbers, although the defendant's picture was included in the book. It was also stipulated that on that same date Rodney Mitchell was shown that same photo book and did identify Dionell Paine as his accomplice. The trial court denied defendant's motion to quash arrest and suppress evidence.

During the trial it was stipulated between the parties that Rodney Mitchell gave a signed, written statement on July 9, 1985, to Assistant State's Attorney Michael Kelly, naming Dionell Paine as his accomplice in the robbery of the Top Value Beauty Supply. Mitchell's written statement in summary reveals that he and the defendant met on July 9, 1985, at Roosevelt and Homan and discussed robbing the Top Value Beauty Supply at 3402 West Roosevelt, Chicago, Illinois. Mitchell, in his statement, related that the defendant told him that he had a gun, and they proceeded to the Top Value Beauty Supply, where Mitchell went inside three times to see if anyone was inside. He further related that he then reentered the store followed by the defendant, who pulled a gun and shouted, "This is a stickup." Mitchell next threw some rope to the defendant to tie up one of the employees, leaped over a counter in the store and took some money out of the cash register.

The defendant went into the back room of the store with Shirley Hubbard, the other employee, while Mitchell remained in the front of the store as a lookout. Thereafter, Mitchell and the defendant fled and the defendant gave Mitchell $15 to $20 for assisting him in the armed robbery. However, during Mitchell's trial testimony, he denied seeing the defendant on July 9, 1985. He further testified that he signed the written statement that implicated the defendant because he thought that he was helping himself. Mitchell pled guilty to the armed robbery and received the minimum sentence of six years' imprisonment.

Shirley Hubbard testified that she was working at the Top Value Beauty Supply on July 9, 1985, as a salesperson/cashier. She was in the rear of the store eating lunch and talking on the telephone when she noticed Derrick Richardson waiting on a customer who had previously been in the store purchasing hair products. Ms. Hubbard then saw that same customer jump over the counter, heard a loud crash and the words, "This is a stickup." Another person was in the rear of the store holding a gun to Richardson's head. The man with the gun told her to walk towards him and not look at him. They proceeded to the office, where he took some money out of the desk. Shortly after the robbery when the police returned to the store with Rodney Mitchell, after capturing him, Ms. Hubbard identified Mitchell as the offender without the gun. She was unable to identify the man with the gun since she did not see his face.

Derrick Richardson testified that he was also working as a cashier/salesman for the Top Value Beauty Supply when the robbery occurred. Just before the robbery Richardson noticed the defendant enter the store twice and quickly leave without purchasing anything. Thereafter, Mitchell came into the store to exchange the hair products that he had previously purchased. While Richardson was waiting on Mitchell, the defendant reentered the store, jumped over the counter, pulled out a gun and said "Don't anyone move, this is a stickup." While pointing his gun at Richardson, he instructed Richardson not to look at him. However, Richardson quickly looked directly at his face. The defendant further instructed Richardson to lie flat on his stomach and proceeded to tie him up while Mitchell held the gun. Thereafter, Mitchell took money out of the cash register. The defendant, with a gun pointed at Shirley Hubbard's back, then walked with Shirley Hubbard to the office in the back of the store. After obtaining the money from Ms. Hubbard, the defendant returned to the front of the store, and Richardson saw the defendant and ...


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