APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
549 N.E.2d 730, 192 Ill. App. 3d 907, 140 Ill. Dec. 79 1989.IL.2022
Appeal from the Circuit Court of Cook County; the Hon. Gino L. DiVito, Jr., Judge, presiding.
PRESIDING JUSTICE MANNING delivered the opinion of the court. BUCKLEY and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
The defendant, Darren Gray, was charged by indictment with one count of armed robbery. (Ill. Rev. Stat. 1983, ch. 38, par. 18-2(a).) Prior to trial, he filed a motion seeking to allow his attorney's participation in voir dire, or in the alternative, to have specific questions which he submitted propounded to the prospective jurors. The questions pertained to the prospective jurors' attitudes regarding a defendant's failure to testify. Defendant also filed a motion in limine to preclude the State from using defendant's two prior convictions for armed robbery as impeachment in the event he testified, or alternatively, that the State be limited to impeaching by use of the two prior convictions without specifying the nature of the convictions. The court denied both motions but did agree to use the questions submitted by defendant.
Following a jury trial defendant was convicted and sentenced to the penitentiary to a term of natural life imprisonment pursuant to the Habitual Criminal Act (Ill. Rev. Stat. 1985, ch. 38, par. 33B-1 et seq.). On appeal he contends: (1) that the trial court's failure to ask certain questions individually on voir dire to each prospective juror denied him a fair trial by an impartial jury; (2) that the trial court's denial of his motion in limine to preclude the State's use of prior convictions for impeachment purposes was an abuse of discretion; (3) that he was not proven guilty beyond a reasonable doubt; (4) that his right to a fair trial was denied when the State was allowed to introduce improper evidence for the sole purpose of inflaming the passions of the juror; (5) that section 5-8-1(a)(2) of the Unified Code of Corrections (Ill. Rev. Stat. 1983, ch. 38, par. 1005-8-1(a)(2)), which provides for mandatory life sentence, is unconstitutional; and (6) that section 33B-1 of the Illinois Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 33B-1) is unconstitutional in that it was amended in 1980 in violation of article IV, section 8(d), of the Illinois Constitution (Ill. Const. 1970, art. IV, § 8(d)).
The following pertinent evidence was adduced at trial. Nathaniel Johnson, the 65-year-old victim, testified that on February 14, 1985, he was employed at Hilltop Food and Liquors in Chicago. He stated that he arrived there at 9 a.m. and was in the process of unlocking the door of the store when he felt something at the side of his head. He turned and saw a man holding a brown-handled .38 revolver with a dark or black barrel. Johnson testified that, although he did not recognize the offender, he did see his face. The offender told him to open the door and turn on the lights. After turning off the burglar alarm, Johnson was handcuffed and a dark scarf was tied over his eyes. The offender took his car keys, the store keys and two rings from him. The offender then took him to a storeroom in the back of the store and sat him on a box. Mr. Johnson heard the offender ransack the store; and although he never saw a second man, he heard the offender speak to someone at the back of the store.
After it became quiet and Johnson had waited 10 to 15 minutes, he was able to pull the blindfold down from his face so that he could see. He walked out through the front door, where he saw Ruby Love, who lived next door to the liquor store. He asked her to call the police. At that time he noticed that his car was missing. Shortly thereafter, the police arrived and removed the handcuffs.
On April 10, 1985, Mr. Johnson viewed a lineup at the police station, where he identified Darren Gray as the man who had robbed him on February 14. Mr. Johnson identified various exhibits, including a pair of handcuffs and a gun which were similar to those used in the robbery. He also identified the defendant in court.
On cross-examination, Mr. Johnson denied that the intruder's face was covered by a scarf or that he told this to the police. On redirect, Johnson stated that he looked at the defendant's face and that it is not hard to recall his face.
Next, Ruby Love testified that she had lived next door to Hilltop. On February 14, at approximately 9 a.m., she was brushing snow off her car when she saw Mr. Johnson go to the house next to hers and pick up the keys to the store. She usually saw him between 8:45 and 9 a.m. She testified that she saw two men in a car stop in front of the store as Johnson was unlocking the front door. Ms. Love knew the defendant and saw him almost daily hanging out in front of the store. He was wearing a scarf which covered the bottom part of his face and a big baggy coat. She stated that she saw the defendant standing next to Mr. Johnson but did not see a gun.
After brushing the snow from her car, Ms. Love went inside for 30 to 40 minutes. When she went back outside, she saw Mr. Johnson with a scarf tied around his face and his hands handcuffed behind his back. Johnson told her he had been robbed. Ms. Love took him inside her house and called the police. However, she did not speak to the police until a couple of days later because she did not want to get involved. Thereafter, she selected defendant's photograph from a group of pictures.
On cross-examination, Ms. Love denied identifying herself to the police as Mary Scott. She admitted telling defense investigators, eight months later, that she saw "some boys" going into the store with Mr. Johnson but denied saying that they had stockings on their faces.
Chicago police officer Daniel Sheehan testified that on the morning of February 14, 1985, he and his partner received an assignment to Hilltop Liquors. Upon arrival there he removed the handcuffs from Mr. Johnson and inventoried them with the police department. He testified that the handcuffs were stamped with the words "STOP" and "TAIWAN." He described the store as "a mess," and Mr. Johnson's condition at the time as "upset."
On cross-examination, Officer Sheehan acknowledged that Mr. Johnson told him although there were two men at the scene, he only saw the one who put the gun to his head. The officer did not remember seeing the scarf.
Next, Richard Leftridge, one of the owners of the store, testified that he arrived at the store at 10:30 a.m., after the robbery. He was missing some liquor and cigarettes valued at approximately $400. Mr. Johnson showed him the scarf that was used as a blindfold. He immediately recognized it because he had seen the defendant, as well as his girlfriend, Ramona, wearing it. He sent his son to Ramona's house to return the scarf.
Detective Peter Dignan testified that he spoke with the owners of the store and also interviewed Ruby Love under an "anonymous relationship" because she did not want to give her name. He returned to Ms. Love's home three or four days after the initial interview, at which time she selected the defendant's photograph from an array of approximately 10 photographs.
Officer Armstrong testified that he arrested the defendant on March 3, 1985, after a traffic accident in which the defendant was charged with negligent driving and driving without a valid license. As he stood next to the defendant's car, he saw a gun in a canvass bag in the back seat. He also found ammunition, a pair of handcuffs and a calculator, which he inventoried.
Detective Joseph Danzl testified that he conducted a lineup on April 10, 1985, at which time Mr. Johnson identified the defendant as the man who had robbed him on February 14, 1985.
Nacy Antoine, an investigator with the public defender's office, testified for the defense. He stated that he and his partner interviewed Ruby Love on October 10, 1985, at which time she told them she had seen "two men going into the store with Nathaniel Johnson" who had "stockings over their faces." He further testified that Ms. Love told him she did not like the defendant. On cross-examination, Mr. Antoine testified that he works closely with Mr. Green, defense counsel, that he had reviewed the police reports and that he had instructions from Mr. Green that these witnesses would have to be impeached.
Ramona Harrell (Ramona) testified as an alibi witness. She testified that she has known the defendant for 14 years and had been his girlfriend since 1983, except for a time in August 1984 when she dated Nathaniel Johnson. She related that on the evening of February 14, 1985, she went with the defendant, Danny Profit and a man named Edward to a small party at the apartment of Profit and Diane (DeeDee) Williams. They first stopped at a liquor store and later arrived at the apartment at approximately 8:30 p.m. The group remained at the apartment overnight. When Ramona awoke at 9:30 a.m. the next morning, DeeDee had left for work; but everyone else, including defendant, remained at the apartment all day, except for a trip to a liquor store in the afternoon. She testified that she left the apartment at approximately 9:30 p.m. When she arrived home she was told that someone from the liquor store had brought a scarf to their house. She denied that the scarf belonged to her.
Next, Diane (DeeDee) Williams testified. Her testimony was substantially the same as Ramona's testimony. She related that she took everyone home the evening of February 14. On cross-examination, DeeDee stated that although her husband was employed at the time of the robbery and worked from 8 a.m. to 5 p.m., he probably did not work on February 14. She did not wake anyone before she left for work, not even the children for preschool. However, her husband must have taken them to school during the day because she remembers picking them up from school that evening. She testified that Edward is her brother and that she has known the defendant since 1979.
Gladys Harrell testified that on February 14, 1985, two men came to her house looking for her daughter, Ramona, or the defendant, saying one of them had left a scarf at the liquor store. Although she had never before seen the scarf, she took it and left it on a table by the door.
In rebuttal, Mr. Johnson testified that he had never dated or had a relationship with Ramona Harrell. On cross-examination, he denied ever having gone to a motel with her. Officer Danzl testified that when he spoke with the defendant after his arrest, the defendant did tell him about a party on the 13th of February and at the time of the robbery. However, on ...