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March 11, 1994


Appeal from the Circuit Court of Cook County. Honorable Earl E. Strayhorn, Judge Presiding.

Petition for Leave to Appeal Denied June 2, 1994.

McNULTY, Murray, Cousins

The opinion of the court was delivered by: Mcnulty

JUSTICE McNULTY delivered the opinion of the court:

After a bench trial, defendant James Gaston was found guilty of armed robbery and sentenced to life imprisonment. Defendant appeals both his conviction and sentence.

On December 19, 1987, a robbery occurred at the J&J Fish Market which was owned and operated by Tae Lee. On January 17, 1988, the police received a call from Judy Rush, implicating defendant in the robbery. The following day, defendant was arrested and charged with armed robbery and aggravated unlawful restraint.

Defendant filed a motion to suppress his lineup identification. At the hearing on this motion, Judy Rush testified that on January 18, 1988, the police took her to J&J Fish Market where she met with Tae Lee and gave him a description of the man who committed the robbery. She told Lee that the man was tall with glasses, brown skin and had a large nose. She then went to the police station and sat with Lee for about two hours and again described defendant to Lee. Rush testified that she was then taken to another room where she identified defendant, who was the tallest man in the lineup. After she identified defendant in the lineup, Lee also picked defendant out of the lineup.

Lee testified at the suppression hearing that when Rush and thepolice came to his store, he did not speak with Rush. Later, at the police station, Rush told Lee what defendant looked like. According to Lee, Rush did not tell him who to pick out of the lineup and he picked defendant out of the lineup because he looked like the robber.

Officer Dawson testified that at the second district police station, Rush and Lee were in close proximity for 30 to 50 minutes before they were taken to area one. Detectives Glynn and Regan testified that Rush and Lee were placed in an office in area one where they waited until the lineup was prepared. Lee was then bought into a room where he viewed the lineup and identified defendant. After identifying defendant, Lee was taken to another room, not the room that he had been in with Rush. Rush was then brought into a room where she was able to view the lineup. She identified defendant as the man that she claimed robbed J&J Fish Market.

Officer Argenbright testified that he met with Judy Rush, and during this conversation, Rush implicated the person she was living with in an armed robbery. Based on this information, Argenbright went to defendant's apartment and arrested defendant. Later, Rush and Argenbright went to the store Rush claimed defendant robbed, J & J Fish Market. Lee gave Argenbright a description of the man who robbed him and then Lee and Rush conversed. Argenbright took Rush to the second district station. Lee later arrived at the station, and Lee and Rush sat together before they were taken to area one to view a lineup.

The trial court denied defendant's motion to suppress his lineup identification. Both parties stipulated that the evidence heard during the motion would be the same evidence heard at trial.

During defendant's bench trial, Lee testified through a Korean interpreter that he owned and operated J&J Fish Market located at 202 East 51st Street in Chicago. Lee testified that on December 19, 1987, he was about to close his store and had counted the money in the cash register. He put $300 in his pocket and $300 in the register, along with $100 worth of food stamps. Two employees, Ron Smith and Jorrod Hicks, and a beggar were in the store when a man entered, pointed a sawed-off shot gun at Lee's chest and took him to a back bathroom. The man searched Lee and took the $300 from his wallet. After the man left the bathroom, Lee heard him say "If you guys, if any of you move I'm going to kill you." Defendant came back into the bathroom, got the register keys from Lee and left. Lee came out of the bathroom after he heard one of the employees say that the man had left and discovered that the cash register was missing.

Jorrod Hicks testified that he was working at J&J Fish Market on December 19, 1987, when two men walked into the store. Defendantpulled out a shot gun and said, "It's a stick up." The other man pulled out a gun and told Hicks to lay face down. Hicks testified that defendant took Lee to the bathroom and came back with something that sounded like keys. The other man said, "Anybody, move. I'm going to blow your damn head off. Don't even look up." The men then left with the cash register. Hicks testified that about a week after the incident, he looked at some pictures at the police station and he told an officer that defendant looked like one of the men who committed the robbery. Hicks testified that about three weeks after the incident, he stopped working at the fish market.

Officer Brown testified that he interviewed Rush on January 17, 1988, and Rush gave Brown a strip of paper with various figures and initials on it. This piece ...

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