APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
548 N.E.2d 428, 191 Ill. App. 3d 933, 139 Ill. Dec. 43 1989.IL.1825
Appeal from the Circuit Court of Cook County; the Hon. Lester D. McCurrie, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. LORENZ and PINCHAM, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendants, Larry and Terry Broderick, appeal their convictions, after a bench trial, of felony criminal damage to property. The trial court found each of them not guilty of two counts of aggravated battery. Larry was sentenced to 30 months' probation; Terry was sentenced to 30 months' probation under the Intensive Probation Program or, alternatively, to three months' incarceration. Both were ordered to pay $2,000 in restitution, jointly and severally.
On appeal, defendants allege that the evidence was insufficient to establish their guilt beyond a reasonable doubt. They argue that the witnesses could not distinguish the Brodericks, who were identical twins, from each other and, further, the identifications were not so positive as to be conclusive. We disagree with their claims and affirm the trial court.
The evidence reveals that on July 2, 1987, Dirk Baker left work around 12:30 a.m. and drove to a bar on Archer Avenue to cash his paycheck, as he did every Friday. Baker testified that he cashed his check, played one game of pool, and left the tavern around 1:15 or 1:30 a.m. He also stated that he had had nothing to drink and was accompanied when he left by Kalvin Mullins, a coemployee. Baker and Mullins, who were black, were heading north on Central Avenue when a car with three white males pulled alongside Baker's car, shouted racial insults at Baker and Mullins, and threw three or four beer bottles at the car. Baker pulled into a Town and Country service station, and the other car pulled directly in front of his car. The driver and front seat passenger emerged from their car carrying baseball bats, and the back seat passenger jumped out carrying a tire iron. The three men started beating Baker's car and smashing its windows. Baker also testified that one of the defendants started beating Mullins with the tire iron and another defendant hit Baker with a bat. Mullins tried to drive away in Baker's car but ran into a pole, whereupon he left the car and ran down the street. The three attackers then got into their car and drove away. Baker called the police, and Investigator Gene Gargano from the Cook County sheriff's police responded to the call.
Mullins' testimony was similar to Baker's, except he said that after a passerby took him home, his mother took him to Michael Reese Hospital for treatment of cuts on his forehead. The parties stipulated that the hospital had no records indicating treatment of Mullins on July 2.
Both victims stated that their assailants' car was brown. Although there were several descriptions of the car given by the victims, the variations in them need not be detailed here as they are not relevant to the crucial issue in this appeal -- the identifications of defendants as two of the assailants in the car.
Both Baker and Mullins separately identified Terry Broderick from a photo display as an assailant several days after the incident. There were four separate lineups held on July 22, two in which only Terry appeared and two which included Larry. Viewing the lineups separately, the victims failed to identify Terry, but instead each identified a different lineup volunteer. Baker testified that he did positively identify "one of the Broderick boys" in the second lineup he viewed. (Other evidence concerning the lineups containing Larry is not in the record.) Neither victim ever told investigators that identical twins were involved, and the Brodericks were never placed in the same photo displays or lineups. Baker testified that, contrary to their appearance at trial, the Brodericks were not dressed identically on July 2. Both victims positively identified Larry and Terry Broderick during the trial and also placed the twins as passengers in their car with a third person as the driver.
Denise Hite also identified both Brodericks in court. Hite, who was a former employee of the Town and Country gas station, testified that, accompanied by two friends, she had left a bar directly across the street from the gas station at approximately 2 a.m. on July 2. She said that all the station lights were on and the incident occurred "right [under] all the lights." She observed the two cars pull into the station and saw the two defendants get out of a gray car and beat Baker's car with bats. On cross-examination, Hite said that she had been at the bar since approximately 11 p.m. and had consumed about four beers. She estimated the distance from where she was standing, in the tavern parking lot, to the cars in the station to be from 150 to 200 feet.
Investigator Gargano interviewed Hite at her home on July 2. He testified that she told him that she had seen one assailant, who was larger than the other, strike the black driver with a bat. The investigator reported that Hite initially was not certain that the larger person was one of the Broderick brothers but later in the interview, after stating that she was afraid to get involved, Hite positively identified both Brodericks as the assailants.
Hite testified that she and the Brodericks live in the same neighborhood and that she had known them about seven or eight years. She also stated that she made the first reference to the Brodericks' involvement to Gargano, not the other way around as Gargano claimed. Hite admitted ...