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January 21, 1994



Released for Publication March 18, 1994.

Murray, Gordon, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

After a jury trial, defendant, Jerome Wilson (Wilson), was convicted of two counts of armed robbery and sentenced to natural life imprisonment under the Illinois Habitual Criminal Act. (See 720 ILCS 5/33B-1 (West 1992).) Wilson presents two issues for review: (1) Whether the trial court erred in its denial of a motion in limine to exclude evidence relating to Wilson's arrest; and (2) Whether the Illinois Habitual Criminal Act is unconstitutional.

The relevant facts are as follows.

A jury trial took place on July 18, 1991. This trial was the second to take place on these charges as the first trial had resulted in a mis-trial. Prior to jury selection, both sides stipulated that the pre-trial motions and arguments would be the same as they had been in the first trial. The trial court indicated its rulings on the pre-trial motions would remain the same as they had been in the first trial.

One of the pre-trial rulings concerned a defense motion in limine which sought to preclude any evidence regarding the circumstances and events which lead to defendant's arrest. In ruling on the motion during the first trial, the trial court noted that as long as the evidence did not seek to prove that the defendant was a criminal or had a propensity towards crime, the reviewing court would scrutinize the reason for the admission of the other conduct. The trial court indicated the prosecution intended to attempt to adduce that defendant fired shots at the police immediately before his arrest. The trial court held that defendant's motive in attempting to flee was relevant, among other things, with respect to the charges in the present case. The defense moved that the alleged hostage be precluded from testifying. The trial court ruled that if the hostage would be called by the prosecution, her testimony would be limited to his ruling and moreover, the court would preclude the prosecution from adducing any evidence that defendant had committed another armed robbery in another establishment.

During opening argument, defense counsel did not dispute the fact that a robbery had taken place, but rather argued that Wilson did not commit the crime. Defense counsel pointed out that the crime occurred at approximately 1 a.m. and that the victims were immediately told to face a wall.

Julie Ojala (Julie) testified that on September 7, 1989, she got off work at 1:00 a.m. Her boyfriend, Ken Buchara (Ken), picked her up from work and the two went to a bar where they were supposed to meet some friends. Their friends were not at the bar, so Ken drove Julie home.

As they approached Julie's home, in the area of Harlem and Barry, they noticed a car with two people in it. Ken flashed his lights at the car, thinking the two people might be his friends. Since the people in the car did not look familiar, Ken drove into the alley.

Ken parked in the lot behind the building. Ken was walking Julie to her door when she heard a "ps" sound behind her. Julie kept walking looking for her keys. Julie then heard someone say, "Hey." She turned around and saw Ken, with a man behind him who looked like he was holding Ken's hair.

The man motioned for them to go back by the wall of the apartment. Julie identified Wilson as the person who had been holding Ken. At the time of the incident, Wilson was wearing a white sweatshirt, acid washed jeans and gym shoes. The man told them to spread their hands and legs and put them against the wall. Julie and Ken complied with the man's directive. The man had a gun in Ken's back when he began to look through Ken's pockets. Julie watched him go through Ken's pockets. The man told Julie not to look at him, because if she did, he would kill her boyfriend.

The man began to frisk Julie. Among other things, he took, a gold snake necklace. He then asked if there was anybody in her house, because, he said, her house would be next. Julie told Wilson that her grandmother, brothers and sisters were at home.

The man took Julie's watch off her wrist, her purse off her hand and her ring off her finger. After searching Julie, the man walked towardthe alley, and whistled. The man then came back and asked if she had more money. He gave Julie her purse back and told her to look for more money. While doing this, Julie felt a gun in her purse. She attempted to shoot the gun, but was unable to do so. Julie then pointed the gun towards the man, and asked him if he was looking for it. The man snatched the gun away. A car pulled up, and the man got in and drove away.

Julie described the lighting conditions in the general area. She stated there was "a little roof over the front door, and there's a light there" as well as lights on both sides of Harlem. In addition, there was a dentist's office across the street that had a large white fluorescent light. There was another streetlight behind where the car was parked.

When the car drove away, Julie knocked on her apartment window and rang the bell. Her grandmother answered the door. Julie called the police and about five minutes later they arrived. The police asked Julie and Ken to take a ride with them. They went to the corner of Diversey and Sayre, where Gus' bar was located. This was about five blocks from Julie's home. When they arrived at this location, the police asked Julie to come to an ambulance to see if the person in it was the man who robbed her. While walking to the ambulance, Julie saw the gun which the robber had pulled on her lying on a patch of grass. Julie then noticed defendant's sweatshirt on the ground. Julie identified the man in the ambulance as the man who had robbed her. Subsequently, the police returned to Julie her watch, $60 in cash, her necklace and ring. The police also returned Ken's stuff to him.

The State also presented the testimony of Ken Buchara. Ken's testimony was substantially the same as Julie's. He identified Wilson as the person who had robbed him that night, but also admitted that Wilson was the only man who had been shown to him by the police that night. Ken testified that approximately 20 - 30 minutes ...

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