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10/24/89 the People of the State of v. Jerry Mccall Et Al.

October 24, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

JERRY MCCALL ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

546 N.E.2d 62, 190 Ill. App. 3d 483, 137 Ill. Dec. 438 1989.IL.1663

Appeal from the Circuit Court of Du Page County; the Hon. John J. Nelligan, Judge, presiding.

APPELLATE Judges:

JUSTICE INGLIS delivered the opinion of the court. REINHARD and McLAREN, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE INGLIS

Following a jury trial, defendants, Jerry and Nick McCall, were convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)). Jerry was adJudged a habitual criminal pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B-1 et seq.) and sentenced to natural-life imprisonment. Nick was sentenced to nine years' imprisonment. Defendants brought separate appeals from their convictions, and we consolidated the appeals for oral argument and Disposition. Nick contends that the trial court erred in admitting evidence of another crime and further alleges that he was denied a fair trial by the State's improper use of that evidence in its closing argument. Jerry similarly argues that he was denied a fair trial by the State's closing argument and further contends that he was not proved guilty beyond a reasonable doubt and that the Habitual Criminal Act pursuant to which he received a natural-life sentence is unconstitutional. We affirm as to both defendants.

On March 5, 1987, defendants were indicted for the armed robbery of a Fayva shoe store. Prior to trial, defendants brought motions in limine seeking, inter alia, to bar the State from introducing evidence of another shoe-store robbery occurring six days prior to the charged offense. The State sought to introduce evidence of the other crime for the purpose of establishing identity and modus operandi. The trial court denied defendants' motions to bar introduction of that evidence, and the case proceeded to trial on September 29, 1987.

The State's first witness was Elizabeth Engeldinger, an assistant manager of a Fayva shoe store located in Wheaton, Illinois. Engeldinger testified that on December 29, 1986, at approximately 5 p.m., a man entered the store, proceeded to the men's aisle, and tried on a pair of boots. Engeldinger described the man as approximately 38 years old, 5 feet 8 inches, 170 pounds, with dark brown hair, and dark eyes. Engeldinger testified that a younger man entered the store approximately two minutes later. Shortly thereafter, the older man approached Engeldinger, displayed a gun, and instructed her to go to the back room of the store. Engeldinger and the older man then approached Engeldinger's co-worker, Margaret Leavitt, at which time the older man again displayed his gun, "cocked" it with his left hand, and instructed both employees to proceed to the back room. The parties were subsequently met by the younger man, who also displayed a gun. Engeldinger identified the older of the two perpetrators as defendant Jerry McCall, and the younger man as defendant Nick McCall. Engeldinger further testified that Jerry McCall, who at the time of the trial wore glasses, a beard, and had gray hair, looked different at the time of the offense.

Engeldinger next testified that she accompanied the younger man to the front of the store while the older man and Leavitt went into the stock room. Engeldinger stated that as she walked toward the front of the store she observed the older man put on a white, transparent, latex rubber glove. Upon reaching the front of the store, Engeldinger opened the safe and cash drawer and placed the contents into an empty shoe box. The younger man then instructed Engeldinger to return to the stock room. Upon reaching the stock room, Engeldinger observed Leavitt handcuffed to the bathroom door. Engeldinger stated that the older man then instructed her to handcuff herself to a metal rack and assisted her in doing so. At that time, the older man was wearing rubber gloves. The older man left the stock room after advising Engeldinger and Leavitt that a curious customer would soon discover them. Leavitt subsequently released herself, locked the store, and called police.

Engeldinger next testified that she related the events of the incident and described the perpetrators to the police. Engeldinger stated that she assisted Detective Jeffrey Ludman in composing a sketch of the younger perpetrator while Leavitt assisted Detective Ludman in composing a sketch of the older perpetrator.

Engeldinger next testified that on February 12, 1987, she viewed a series of photographs and identified one of the pictures as depicting the older perpetrator "except for the beard." Engeldinger testified that the man she identified was Jerry McCall. On February 19, 1987, Engeldinger viewed a photo lineup and identified one of the men depicted as the younger perpetrator. Engeldinger testified that the man she identified was Nick McCall. On February 20, 1987, Engeldinger viewed two lineups. Engeldinger testified that one lineup consisted of five middle-aged men wearing orange jumpsuits. Although Engeldinger thought that one of the men in the lineup, later identified as Jerry McCall, looked like the older perpetrator, she was unable to make a positive identification. Engeldinger testified that the second lineup consisted of men in their late twenties wearing orange jumpsuits. Engeldinger identified one of the men in the lineup as the younger perpetrator and stated that she was absolutely positive of that identification. Engeldinger testified that the man she identified in the second lineup was Nick McCall.

On cross-examination, Engeldinger testified that the older perpetrator did not have glasses or a beard. Engeldinger also testified that the older perpetrator had dark brown hair and brown eyes, while the man she thought looked familiar in the first lineup had gray hair, a mustache, and pale green eyes. Engeldinger repeated that she was not absolutely sure of her identification of the older man at the time of the lineup. Engeldinger further testified that the older perpetrator used his left hand to remove a pair of boots from the shelf, cock his gun, and remove the rubber gloves from his pocket. Engeldinger testified that the older man did not have a cast on his left hand, but further stated that she could not see the older man's left wrist as it was covered by his jacket. On redirect, Engeldinger stated that while she was not sure about her identification of the older man at the time of the lineup, she was absolutely sure at trial. Engeldinger testified that she was positive that Jerry McCall was the older perpetrator because she remembered his "beady" eyes.

Margaret Leavitt substantially corroborated Engeldinger's testimony concerning the robbery. Leavitt further testified that she assisted Detective Ludman in composing a sketch of the older perpetrator, but noted that she was not satisfied with the sketch because it did not look like the older perpetrator. However, at trial Leavitt identified the older perpetrator as Jerry McCall and the younger perpetrator as Nick McCall.

Leavitt next testified that on February 12, 1987, she viewed a series of photographs and identified one of the pictures as depicting the older perpetrator. Leavitt stated that the picture looked like the older perpetrator except his hair was shorter and he had a beard in the picture. Leavitt testified that the man she identified was Jerry McCall. On February 19, 1987, Leavitt viewed a photo lineup and identified one of the men depicted as looking like the younger perpetrator. Leavitt was unable to make a positive identification from the photograph. On February 20, 1987, Leavitt viewed two lineups. Leavitt picked a man from the first lineup as the older perpetrator and identified him in court as Jerry McCall. Leavitt picked a man from the second lineup as the younger perpetrator and identified him in court as Nick McCall. Leavitt stated that she was absolutely positive that the man she picked in the second lineup was the younger perpetrator and noted that she was able to identify him before looking at the remaining people. Leavitt also testified that Jerry McCall looked different in court than he did on the night of the robbery, noting that the older perpetrator did not have a beard or glasses and his hair was brown rather than gray.

On cross-examination, Leavitt stated that she did not see the older perpetrator's left wrist and did not see a cast on his left hand. Leavitt further stated that she thought the older perpetrator's eyes were dark or brown, but admitted at trial that Jerry McCall's eyes were green. On redirect, Leavitt testified ...


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