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01/09/89 the People of the State of v. Michael Avant

January 9, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

MICHAEL AVANT, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT

532 N.E.2d 1141, 178 Ill. App. 3d 139, 127 Ill. Dec. 312 1989.IL.5

Appeal from the Circuit Court of Champaign County; the Hon. John G. Townsend, Judge, presiding.

APPELLATE Judges:

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

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE KNECHT

After a jury trial, the defendant was convicted of the offense of robbery, a Class 2 felony (Ill. Rev. Stat. 1985, ch. 38, par. 18-1). Upon review of his criminal history, he was sentenced to a term of seven years' imprisonment (Ill. Rev. Stat. 1985, ch. 38, par. 1005-8-1(a)(5)). Defendant appeals from the judgment of the circuit court of Champaign County, arguing (1) he was not proved guilty beyond a reasonable doubt where the case rested on circumstantial evidence, fingerprints; and, alternatively, (2) reversible error occurred when the instructions relating to the robbery charge did not expressly include one of the mental states contained in section 4-3(a) of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, par. 4-3(a)). We affirm.

The robbery charge arose from an incident on Friday, April 3, 1987, at the office of Illinois Power Company, located near the access road to I-74 in Urbana, Illinois. Carrie Banks had been working all morning at

At that point, several other customer service representatives, Sally Glenn and Cassandra Jackson, came to or around the cashier area where Banks was. Several employees took Banks to a lounge area of the office, the police were called, Sue Doolen took over the cashier duties behind the counter, and another employee, Jeff Klinck, remained in front of the counter, preserving the scene and routing people.

When police arrived, officers interviewed Banks, who described the robber as 5 feet 8 inches or 5 feet 9 inches tall, in his early to mid-20's, clean shaven, with short and neat hair. Banks testified she could not recall whether he was wearing gloves during the incident, but said he appeared nervous since he was shaking during the entire incident.

Russell Somers, an engineering employee of Illinois Power Company, was returning to the office at 11:45 or 11:50 a.m. when his pickup was cut off nearby by a blue AMC Pacer which had been parked with its four-way emergency flashers on. Somers saw some feet under the car, which disappeared into the passenger side as the car pulled away -- in one constant motion from where it was parked, running through a stop sign and traveling eastbound and to the entrance ramp to I-74. On I-74, the car proceeded westbound, and still had its four-way flasher signals on as it went down the Interstate. Somers proceeded to the Illinois Power parking lot.

After interviewing several employees, including Banks and Somers, the police began canvassing the neighborhood. The officers did not process the crime scene for fingerprints since no one had observed the robber touch anything in the course of the robbery.

Police were later called back to the office after employees found a note and another paper bag on Banks' desk. The note was processed for fingerprints, which were thereafter matched to those of the defendant.

According to the evidence adduced at trial, when Banks stood up and said she had been robbed, Jeffrey Klinck, an assistant supervisor, came to the cashier's cage while another assistant supervisor, Mark Peters, helped move Banks out of the area. Klinck remained in front of the cashier area for 10 to 15 minutes, until police arrived, and thereafter was relieved by Peters. Klinck testified that during that period no one placed any papers on Banks' desk or the counter, nor was anyone allowed near that part of the counter. Klinck had Sue Doolen begin working as the cashier. Klinck testified he observed four people in the cashier's area, Banks, Jackson, Peters, and Doolen.

Doolen testified she took over at Banks' desk three to five minutes after the robbery and observed a folded paper on Banks' desk, to the right of center, as she sat down. A supervisor took Banks' cash drawer to count it. Doolen was given another cash drawer to take on the cashier responsibilities. She said the folded paper must have been on the desk when she took over because no one else was there until she observed Peters remove the paper from the desk.

Within about two hours of the robbery, Peters noted a folded piece of notebook paper and a folded brown paper bag on the front of Banks' desk. Peters asked Doolen if she knew what the folded blue-lined paper was, and she did not. Using a pencil, Peters moved the folded paper onto a notebook, which he took to Mr. Pontifex' office. Pontifex opened the note using two pencils. Inside, the words "place everything in the bag and we mean business," cut from newspapers or magazines, were taped to the blue-lined paper. The police were called back to the scene and took the folded note.

Banks' desk was lower than the counter and recessed beneath it. Banks testified she did not see the note or the folded brown paper bag on her desk before the robbery and they were not used by the robber during the course of the robbery. Doolen testified the items were not placed on Banks' desk after the robbery while she was working at the counter.

The note was sent to the Federal Bureau of Investigation in Washington D.C. in April 1987. In June 1987, Robert Fudella there processed the note, People's exhibit No. 3, for latent prints of value. He found three such prints on the outside of the note, not processing fragmentary prints consisting of double impressions, triple impressions, smudged prints, or those showing just a few ridges but without points of identity. Photographs were taken of the three latent prints and Fudella compared them to the fingerprint and palm print cards of two suspects forwarded by the Urbana police department. Later in September, Fudella compared the latent fingerprints with the ink prints of a third suspect, the defendant, People's exhibit No. 5, and found the three latent fingerprints matched the rolled prints of the defendant, one of his left thumb and two of his right index finger.

At trial, Officer Rodriguez identified People's exhibit No. 5 as showing inked fingerprints taken from a man named Michael Avant. Rodriguez testified she did not specifically remember defendant as the person from whom these fingerprints were taken. The State then presented the testimony of Officer Sloan, who identified ...


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