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05/12/89 the People of the State of v. Kenneth Wheatley

May 12, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENNETH WHEATLEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION

539 N.E.2d 276, 183 Ill. App. 3d 590, 131 Ill. Dec. 923 1989.IL.721

Appeal from the Circuit Court of Cook County; the Hon. William J. Cousins, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE MURRAY delivered the opinion of the court. COCCIA, J., concurs. JUSTICE PINCHAM, specially Concurring.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY

After a jury trial, defendant Kenneth Wheatley was convicted of armed robbery and sentenced to six years' imprisonment. On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt because the complaining witness' identification of him was inadequate and unreliable and a lineup from which the witness identified him was the product of suggestive procedure; (2) he was denied a fair trial because a number of comments by the State during closing and rebuttal arguments were not based on the evidence or were made as a personal attack on the integrity of defense counsel; and (3) the trial court erred in refusing to give his tendered instruction on identification to the jury. For the reasons set forth below, we affirm.

Defendant and his brother, Robert Wheatley, were initially charged with armed robbery, armed violence and unlawful use of weapons in connection with the October 9, 1985, robbery of complainant, Richard Gillis (Gillis). Defendant elected to be tried by a jury and Robert elected to be tried simultaneously by the court. Prior to jury selection, the State moved to strike the unlawful use of weapons charge against defendant and nolle prossed the armed violence count. Defendant subsequently filed pretrial motions challenging the legality of his arrest and the propriety of the lineup which he claimed was conducted in a suggestive manner. Both motions were denied.

At trial, the evidence disclosed that Gillis left his Chicago Loop law office at 10:15 p.m. on October 9, then took an el train to Fullerton Avenue and then, while walking north on Sheffield toward his home on Wrightwood, he saw two black males standing on each side of the sidewalk (both sides of the street were lit by streetlights). One man who was wearing a brown jacket approached him; the man was about 5 feet 9 inches and weighed approximately 150 pounds. At a distance of two feet, the man asked Gillis if he knew the location of a particular address. Upon looking at the man's face, Gillis noticed that he had a slight mustache and a beard. Gillis did not answer and instead began to walk around the man to his left. The man also moved to the left, outflanking Gillis. He pulled out a chrome-colored gun and told Gillis, "Give us your money [expletive]," and Gillis responded, "Alright, I'll give you my money." The man then told Gillis to "Get into the alley," Gillis stated he would give the man his money "right here," and the man again told Gillis to get into the alley. At that point, the second man, who had been standing behind Gillis, pulled him into the alley. The alley was 15 to 20 feet wide with a light 25 feet from the door of a building and 15 feet from the surface. The man directed Gillis to a door leading to a building off the alley and they pushed him through the doorway into a vestibule area with a stairway off to the right leading to the basement. The vestibule area had one bare lightbulb overhead and light was coming in through the glass in a door that led to another part of the building. At that point the other man, who had a blue or black steel revolver with a rubber band on the barrel, started going through Gillis' pockets, which contained paper, pens and $17 in cash. The other man subsequently told Gillis, "You got some money. I know you got more money." Gillis responded that he did and took an envelope from his boot. The envelope contained $140, a $35 check, and a deposit slip from the Lakeview Trust and Savings Bank. Thereafter, Gillis was told to go downstairs and not to come out for 5 to 10 minutes. However, after a minute or so, he came upstairs, looked around, saw that no one was there, and went home and immediately called the police. The time was approximately 10:45 p.m.; the robbery had taken about five minutes.

Around midnight, Gillis received a call from the police, who told him they had recovered his bank deposit slip and some cash. Gillis went to the police station and viewed a lineup of six men; Robert Wheatley, defendant's brother, was in the first position, Ted McLeod was in the third position, Vincent Wheatley, defendant's brother, was in the fifth position, and defendant was in the sixth position. Gillis identified defendant as one of the men who had robbed him. Gillis acknowledged the fact that the person he identified in the lineup was not wearing a brown jacket and blue jeans like the man he described as one of the robbers, but rather a black leather jacket and grey pants.

Police officer Sergio Rajkovich testified that on October 9, 1985, at approximately 11:20 p.m., he and his partner, Officer Reno Baiocchi, were in a squad car traveling east on Armitage Avenue when they observed a Pontiac without a license plate also going east on Armitage. After the Pontiac made a left turn on Halsted Street, the officers curbed it. Four men were in the car: Robert Wheatley, the driver; Ted McLeod, the front seat passenger; defendant, who was in the rear seat behind McLeod; and Vincent Wheatley, who was behind the driver. The officers got out of their car, and Officer Baiocchi asked Robert Wheatley for his driver's license and was told he had none. Officer Rajkovich then approached the passenger side of the car and asked the other occupants if one of them had a license to drive the car because Robert was being arrested. Defendant responded that he had a license. As defendant exited the car, Officer Rajkovich, who had his flashlight pointing inside the car at defendant, saw a chrome-plated gun (a .357 magnum) on the seat where defendant had been sitting. He then ordered everyone out of the car and handcuffed them. In searching the rear seat of the car, Officer Rajkovich discovered a second gun (a blue .22 caliber steel revolver) where Vincent had been sitting, a brown jacket, and a black hat. In the front seat, Rajkovich found a Lakeview Bank deposit slip with Gillis' name, address and telephone number on it. At this point, Rajkovich placed the four men under arrest, advised them of their Miranda rights, and conducted a pat down search. After being advised of his rights, defendant admitted ownership of the chrome-plated .357 magnum handgun.

The police took the men to the 18th District police station where they were again searched. Sixty-one dollars (three-$20 bills and one-$1 bill) were recovered from Vincent and $40 (one-$20 bill, one-$10 bill, one-$5 bill and five $1 bills) from McLeod; Robert and Kenneth did not have any money on them. Officer Rajkovich prepared a booking sheet on each man. Defendant's sheet indicated that he was 21 years of age, weighed 145 pounds, was 5 feet 9 inches tall, and had brown eyes and black hair.

Officer Kevin Murphy testified on defendant's behalf that on October 9 he was assigned to investigate an armed robbery and he arrived at Gillis' home at approximately 10:55 p.m. Gillis subsequently described the two armed robbers as being "male blacks, in their early twenties, approximately 5 feet 9 inches and 150 pounds." Gillis further stated that the first man wore a brown jacket and jeans and the second wore a dark jacket and blue jeans. Gillis did not mention any facial characteristics of either offender.

Vincent Wheatley testified that on October 9 he was at his mother's house on the southside of Chicago with Ted McLeod and his two brothers, Robert and defendant. When he learned they were going to deliver phone books on the northside, he asked if he could go along. The group took Vincent's car and made three stops, but only Robert and McLeod got out of the car to deliver the phone books; neither Vincent nor defendant ever exited the car. The third stop was at 950 Altgeld and Robert and McLeod returned from their delivery within three to five minutes. The group then was driving back to the southside when they were stopped by the police. While pulling over to the curb, McLeod handed Robert a gun and Robert handed two guns back to Vincent, telling him to "put the guns up." He then placed one gun behind himself and one behind defendant. Vincent further testified that he never heard defendant tell the police that he had a driver's license, that defendant in fact does not drive, nor did defendant make any other statements to the police. Vincent also described defendant as having reddish blonde hair and green eyes. He further stated that the brown coat found in the back seat of his car was put there by a female friend of his one week prior to October 9 and that defendant had never worn it.

Defendant testified on his own behalf, relating the identical version of the events leading up to the police stop as described by Vincent. He also stated that he never told the police he had a driver's license or that he told Officer Rajkovich and an assistant State's Attorney that the chrome-plated gun belonged to him. He described himself as having " Brown, I mean not brown, green eyes" and sandy brown hair, with two missing teeth in the front of his mouth. (Defense counsel "published [defendant] to the jury to demonstrate that [he] has green eyes and reddish hair and that he is missing two teeth from the front of his mouth.") (Emphasis added.) He further stated that on October 9 he was wearing white pants, a black T-shirt and a black leather jacket. On cross-examination, over defense counsel's objection, the State had defendant try on People's exhibit No. 7, the brown jacket. Thereafter, the prosecutor stated, "Record will reflect that jacket fits." Defense counsel objected and the court sustained the objection, directing the jury to disregard the comment.

During the jury instruction conference, the court refused to give defendant's tendered "non-IPI" instruction regarding the reliability of eyewitness identification. Following closing arguments, the jury deliberated and found defendant guilty of armed robbery for which the court sentenced him to six years' imprisonment. This appeal followed.

Defendant first argues that he was not proved guilty beyond a reasonable doubt. Specifically, he contends that his identification as one of the robbers was insufficient to sustain his conviction because it was based on inadequate and unreliable observations by Gillis and a suggestive lineup identification. Defendant points out that Gillis told Officer Murphy that his assailants were 5 feet 11 inches, 150 pounds, with brown eyes and black hair as opposed to the fact that defendant is 5 feet 9 inches, had reddish brown hair and green eyes; that the man with the chrome-plated gun was wearing a brown jacket and blue jeans as opposed to the fact that defendant was wearing a black leather jacket and light-colored pants and it is unlikely defendant had an opportunity to change his clothes; and Gillis did not mention to Murphy any facial characteristics of the offender such as a slight mustache, beard and missing front teeth which in fact was defendant's appearance when he was arrested.

Defendant further contends that the lineup identification was tainted with suggestibility because prior to the lineup Gillis had been informed by the police that his property had been recovered from persons in a vehicle that had been stopped. Defendant also asserts that the lineup identification was unreliable in light of the fact that Gillis was fatigued after working a long day, the robbery only lasted five minutes during which it was raining and Gillis was wearing glasses, and the lighting conditions were questionable.

On the other hand, defendant argues that his alibi that he never exited the car that evening, as corroborated by his brother Vincent, outweighed Gillis' identification testimony. He further points out that Gillis' deposit slip was found on the floor in the front seat of the car at Robert's feet and proceeds from the robbery were found on McLeod, that Robert and McLeod had the weapons discovered in the car which they had passed back to Vincent to "put up," and that no fingerprint analysis connected him to the weapons. Hence, defendant contends that Robert and McLeod were "the most likely suspects." Lastly, defendant asserts that Officer Rajkovich's testimony that he stated he had a driver's license and that he admitted to owning the chrome-plated gun is "incredible."

It is well established that a positive identification by a single witness is sufficient to sustain a conviction. Where a witness had a sufficient opportunity to view an accused, showed an adequate degree of attention to an assailant's characteristics, described the assailant with a reasonable degree of accuracy, displayed a sufficient amount of certainty in identifying his assailant and identified the accused within a reasonable period of time following the crime, an identification is considered positive and reliable. (People v. Taylor (1986), 143 Ill. App. 3d 252, 492 N.E.2d 1011.) The sufficiency, weight and credibility of an identification witness' testimony is for the jury to determine. A reviewing court will not set aside a jury's verdict unless the evidence was so improbable as to raise a reasonable doubt as to a defendant's guilt. People v. Stringer (1972), 52 Ill. 2d 564, 289 N.E.2d 631.

In the instant case, we do not find that the identification testimony was so doubtful, vague and uncertain as to be overcome by defendant's alibi that he never exited the car on the night of the robbery. (See People v. Gardner (1966), 35 Ill. 2d 564, 221 N.E.2d 232.) Gillis clearly had a sufficient opportunity to view defendant. When he initially encountered defendant, defendant was within one to two feet of an overhead streetlight and there was a corresponding light on the other side of the street. When defendant approached him holding a piece of paper, defendant was only two feet away from him and he could see defendant's face. When defendant pushed him into the alley, which was lit by a light over a building doorway, and subsequently through the doorway, defendant was in front of him so that he was looking directly at defendant. While defendant's accomplice went through his pockets for money, defendant continued to hold the chrome-plated gun on him in the vestibule area of the building, which was lit by a bare lightbulb and light coming from a doorway in an adjoining part of the building. During the five minutes in which the robbery occurred, therefore, Gillis had a continuing clear view of defendant.

Gillis also demonstrated an adequate degree of attention to defendant, describing him within a reasonable degree of accuracy. At trial, Gillis testified that he was robbed by a black male with black hair and brown eyes, 5 feet 9 inches, 150 pounds, with a slight mustache and beard growth, and wearing a brown jacket and jeans. The booking sheet prepared by Officer Rajkovich described defendant as 5 feet 9 inches, weighing 145 pounds, with black hair and brown eyes; a brown jacket was recovered from the Pontiac from the rear seat where defendant had been seated; and a chrome-plated gun, which Gillis had described, was also found on the rear seat where defendant had been seated.

We further observe, as apparently did the jury, that the discrepancies in Gillis' positive identification of defendant as one of the robbers weighed more heavily in Gillis' favor in light of the confusion expressed in the testimony of both parties' witnesses. For example, although defendant emphasized the fact that Officer Murphy's police report, as taken from Gillis, indicates defendant's height as 5 feet 11 inches, instead of 5 feet 9 inches as testified to by Gillis at trial, the record discloses that on cross-examination the State kept referring to the height of the robbers as 5 feet 9 inches, which Murphy confirmed and, additionally, on redirect examination, defendant's own counsel referred to the height of the men as 5 feet 9 inches, which Murphy confirmed again. Similarly, we note that although Murphy's report indicated that the man carrying the chrome-colored gun was wearing blue jeans, Murphy also testified that he did not in fact recall whether Gillis had told him the man was wearing jeans or blue jeans and that he could have written this fact down inaccurately. (Adding to this confusion is the fact that defendant's pants were also described as gray, off-white and light-colored.) With respect to the discrepancies concerning defendant's eye and hair color and whether defendant's missing teeth were so prominent that Gillis should have noticed same, we note that at trial even defendant appeared uncertain about his own eye color; at first he stated his eyes were brown, then green and described his hair as sandy brown (while on appeal his brief describes his hair as reddish brown). Like Gillis' description of defendant, even Officer Rajkovich, who had a clear opportunity to view defendant when he arrested him, indicated in his booking report at the arrest scene that defendant's hair color was black and his eye color brown. We further note that the fact that Gillis allegedly did not mention the fact to Officer Murphy that defendant had a slight mustache and beard and did not otherwise notice that defendant had two front teeth missing were matters for the jurors to weigh in light of the foregoing when defense counsel published defendant to them; it was for them to resolve the conflicts in the evidence and the weight to be accorded the testimony. They apparently decided that Gillis' description of defendant was sufficiently accurate and we see no reason to disturb their determination.

We further observe that notwithstanding the fact that defendant was not wearing the brown jacket when arrested, the brown jacket was found in the rear seat of the car where defendant had been seated. In addition, the chrome-colored gun was found on the car seat where defendant had been sitting and Officer Rajkovich and an assistant State's Attorney testified that defendant had told them the gun was his.

In the same vein, Gillis showed a reasonable degree of accuracy in identifying defendant within a short time after the robbery. The robbery occurred at approximately 10:30 p.m., Gillis called the police at 10:45 p.m., and, at 1 a.m., Gillis viewed a lineup which included defendant. After 5 to 10 minutes, Gillis identified defendant, the sixth in position, as one of the robbers, notwithstanding the fact that defendant was wearing a black leather jacket and light-colored pants, rather than the brown jacket and "jeans" which Gillis had described to Officer Murphy; apparently Gillis identified defendant based on his total impression of him, rather than on his clothes alone. (See People v. Dean (1987), 156 Ill. App. 3d 344, 351, 509 N.E.2d 618 (identifications are based upon the "total impression" of the witness rather than a single distinguishing feature); People v. Ervine (1965), 64 Ill. App. 2d 82, 87, 212 N.E.2d 346 ("[It] is contrary to human experience to make an identification by noticing first the separate features, hair, or clothes of a person, and then, somehow, running off a total to determine recognition or non-recognition. Ordinarily all features are viewed at once and the recognition made instantaneously or not at all. This is one of the reasons why minor discrepancies in identification do not require reversal").) Most importantly, there is nothing in the record to suggest that Gillis was uncertain about his identification of defendant.

We next briefly note that the suggestibility of the lineup procedure was the subject of a motion to suppress filed by defendant prior to trial. The court denied the motion and defendant did not raise any issue as to the correctness of the court's ruling. In any event, however, we find no suggestibility based on the facts before us. Prior to viewing the lineup, the only communication of Gillis from the police was that they had recovered his bank deposit slip and some cash from "some persons" in a vehicle that they had stopped. Officers other than those who arrested defendant conducted the lineup, which was composed of six men, including defendant, Robert, Vincent and McLeod. Each man was instructed to step forward, turn and return to his position. Gillis positively identified defendant after 5 to 10 minutes; he did not identify Robert, Vincent or McLeod as the robber with the chrome-plated gun, who also were the victims of the allegedly suggestive lineup procedure. Defendant's further contention that Gillis was fatigued etc., and his lineup identification therefore unreliable, is pure speculation, and the lighting conditions, as discussed above, did in fact give Gillis a clear opportunity to view defendant. Based on these facts, and the factors in ...


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