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March 30, 1994


Appeal from the Circuit Court of Cook County. Honorable Frank W. Meekins, Judge Presiding.

Rehearing Denied June 27, 1994. As Modified on Denial of Rehearing June 29, 1994.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman


JUSTICE GREIMAN delivered the opinion of the court:

Following a jury trial, defendant Derrick Berry was convicted of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2-A) and sentenced to 10 years' imprisonment. Defendant now argues that this court should reverse his conviction on grounds that the State violated his due process rights at trial by: (1) introducing evidence of his post-arrest silence to impeach his alibi testimony; (2) improperly impeaching his alibi witnesses with evidence of their failure to come forward and notify the police of the alibi; (3) attempting to shift the burden of proof by arguing that defendant failed to produce certain witnesses to support his defense; (4) introducing evidence of a prior nonidentification lineup to bolster testimony of a subsequent identification; and (5) cumulative error; or ineffective assistance of counsel. Alternatively, defendant asks this court to reduce his sentence for an alleged abuse of discretion at the sentencing hearing.

We affirm the trial court.

On May 6, 1988, Kimberly Wescott was a co-owner of a Baskin-Robbins store where she worked with Michael Shannon and David Arnold. Between 9:30 and 10 p.m. Wescott saw a man later identified as defendant walk into the store, sit down and after a few minutes exit and stand outside the store. Wescott asked the employees if they knew defendant because it was unusual for someone to sit in the store without ordering anything, and they told her they did not.

Defendant returned 10 to 15 minutes later wielding a long-barreled gun and announced, "This is a stick up." At this time, Wescott could see defendant's face and his gun as he stood about six feet away from her and all of the store light were illuminated. Defendant ordered Arnold to lie on the floor and Shannon to turn off the lights and then lie on the floor. Shannon, who stood approximately four to six feet away from defendant, followed this directive; however, several lights remained on including six-foot florescent lights in the front area and other lights in the back room.

Defendant then approached Wescott, jabbed the gun in her side and the two walked to the cash register where defendant removed$70 to $100. Defendant indicated he knew there was more money in the store and proceeded to a cashbox hidden from plain view. Wescott opened the cashbox and handed defendant its contents of rolled coins and $100 in cash while she took a long look at defendant's face, and then obeyed his order to lie on the floor.

Defendant told Shannon, who had a clear view of defendant's face, to open the back door and then return to the floor and count to 100; anyone who moved before reaching 100 would be shot. After Shannon heard defendant exit, he locked the back door and Wescott called the police.

After the police arrived, all three witnesses described the robber as a black male with a dark complexion, 6'1" in height and weighing 160-165 pounds.

Less than a week after the robbery, Wescott viewed a physical lineup of five or six black men but failed to identify anyone as the offender. A month later, Wescott viewed another lineup and identified defendant as the robber. Wescott later testified that she recognized defendant in the second lineup as soon as she saw him.

In July the detective investigating the robbery (Detective Boylan) learned that Arnold was involved in this occurrence. When questioned, Arnold told the detective that defendant was the robber. Arnold also stated that he had informed defendant that there would be few people in the store at the day and time in question and the location of money not in the register, and that he received $15 for his involvement in the robbery. Arnold was later arrested for conspiracy to commit armed robbery, for which he plead guilty.

On July 8 Detective Boylan obtained defendant's picture and compiled a photo array of six men, from which Shannon identified defendant as the robber. Later that day Boylan went to defendant's home, spoke with his family and left them his card. Detective Boylan returned to defendant's home three times to inquire about defendant's whereabouts but was never contacted by defendant.

At trial Wescott, Shannon and Arnold positively identified defendant as the offender. Arnold's testimony suggested defendant's premeditation in committing the crime. Specifically, Arnold testified that he knew defendant from high school and that about one week before the robbery defendant approached him on a basketball court and asked if he would turn defendant in if defendant robbed the Baskin-Robbins store. Arnold also testified that defendant gave him "a little cash" sometime after the robbery.

Defendant testified that in May of 1988 he was 20 years old, approximately 6'1" in height and weighing about 180 pounds. Defendant also stated that on the night of the robbery he was at aparty with Felicia Jones, his girl friend and the mother of his child. Specifically, Jones picked him up at the car wash where he worked and drove him to a birthday party for a friend of three years, Robin Wyms, held at the home of Jones' cousin, Brenda Crawford. Defendant stated that he and Jones arrived at Crawford's home at 8:30 p.m. and stayed until 10 or 10:15 p.m. when they left for a nearby motel where they would spend the night.

Defendant also testified that before he was placed in the lineup Detective Boylan's partner told him, "I don't think you did it because David ...

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