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11/02/89 the People of the State of v. Napoleon Foster

November 2, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

NAPOLEON FOSTER, DEFENDANT-APPELLANT

DEFENDANT, NAPOLEON FOSTER, WAS CONVICTED OF ARMED ROBBERY (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 18-2(A)) FOLLOWING A JURY TRIAL IN THE CIRCUIT COURT OF COOK COUNTY. THE TRIAL COURT SENTENCED DEFENDANT TO THE PENITENTIARY FOR A TERM OF 27 YEARS.



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

547 N.E.2d 478, 190 Ill. App. 3d 1018, 138 Ill. Dec. 311 1989.IL.1731

Appeal from the Circuit Court of Cook County; the Hon. Nicholas T. Pomaro, Judge, presiding.

APPELLATE Judges:

JUSTICE LINN delivered the opinion of the court. JIGANTI, P.J., and JOHNSON, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LINN

Defendant appeals, contending: (1) the State failed to prove beyond a reasonable doubt an element of the offense. Defendant also contends he was denied a fair trial due to: (2) the trial court's failure to instruct the jury on the offense of attempted armed robbery; (3) the admission of (a) an accomplice's hearsay identification, (b) defendant's arrest warrant, (c) evidence of other crimes and bad conduct; (4) the prosecutor's unfair cross-examination of him; and (5) the cumulative effect of the above-assigned errors. Defendant also contends: (6) the sentencing hearing was fundamentally unfair.

We affirm.

Background

Defendant was indicted on one count of armed robbery. The State's case included defendant's oral confession and corroborating evidence from other witnesses. The evidence produced by the State relevant to the issues raised on appeal is summarized as follows.

Felix Martin is the manager of a McDonald's restaurant located at 4830 West Dempster Street, in Skokie, Illinois. On the night of March 4, 1986, Martin was on duty with other employees, including Michelle Nelson, a manager-trainee; Idalene Morton and Paul Edwards.

Defendant was the last customer that evening; Nelson took his order and served him. At approximately 11 p.m., Martin was closing the restaurant; only one door remained unlocked. As defendant began to leave, Martin opened the door for defendant. Defendant turned and put a pistol to Martin's stomach. He ordered Martin, and another employee who was near the door, to walk behind the front counter. Defendant then ordered all of the restaurant employees to move to the rear of the restaurant and enter the walk-in freezer. They obeyed defendant, who then closed the freezer door.

After a few minutes, defendant opened the door and ordered Martin to leave the freezer and open the store safe. Martin complied, and defendant escorted him back to the freezer. A few minutes later, defendant returned and ordered Paul Edwards to leave the freezer and open the cash registers. The employee did not know how to open them and was returned to the freezer. Defendant then ordered Michelle Nelson to open the cash registers. Martin told defendant that he had the keys to the registers and offered to go in Nelson's place.

Martin and defendant entered the drive-through booth on the west side of the building. Prior to the opening of the cash register in the booth, they saw an Illinois State Police car at the drive-through menu board, approximately 30 feet away from the booth. Defendant shouted "It's the cops," ran to the other side of the store, jumped over the front counter, and fled via the east side door.

There were two police cars at the drive-through menu board. The State trooper in the first automobile saw Martin leaning out of the booth window, waving frantically, and pointing to the other side of the building. The State troopers drove to the other side of the building, saw an automobile starting to back out of a parking space, and blocked it with one of their cars. One of the troopers exited his car and stood at the parked car's right rear bumper.

Corey Fisher was the driver of the car, and defendant sat in the front passenger seat. Defendant opened his door, turned so that his head and legs protruded from the car, and looked back at the troopers. He then darted from the car, ran to the edge of the parking lot, and jumped over a fence. One trooper unsuccessfully chased defendant while the other arrested Fisher.

After more troopers arrived, they, with Martin, searched the restaurant. Eventually, they found and arrested Verdalle (also known as Gaston) Fortner, a former employee wearing a McDonald's uniform. The troopers then opened the freezer door and searched all of the employees before releasing them. Martin testified that, after checking the cash registers, the safe, and his records, approximately $1,200 was missing from the safe.

The Skokie police department assumed the investigation. Detective Robert Jones was assigned to the case that night and spoke with Fortner shortly after midnight on March 5, 1986. Fortner told Detective Jones that the man who fled was named "Dean" or "Deanie." Fortner told Jones initially that "Deanie" was named Michael Campbell. Later that day, after an unsuccessful investigation based on this information, the police learned that "Deanie" was defendant.

Upon learning defendant's identity, Detective Jones obtained a photograph of defendant from a prior arrest. The photograph was included in an array, which was shown to a restaurant employee, who identified defendant.

Detective Jones then prepared an arrest warrant for defendant, listing defendant's alias as "Deanie," and unsuccessfully tried to locate him. Jones left a business card with defendant's mother. A few days later, defendant called Jones and ...


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