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05/02/94 PEOPLE STATE ILLINOIS v. LEONARD LINDSAY

May 2, 1994

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LEONARD LINDSAY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Will E. Gierach, Judge Presiding.

Rehearing Denied June 10, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Manning, Campbell, O'Connor, Jr.

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

Defendant Leonard Lindsey, was charged by information witharmed robbery 720 ILCS 5/18-2 (West 1992). Following a bench trial he was convicted and sentenced to 11 years in prison. Defendant argues on appeal that: (1) his conviction for armed robbery must be reduced to robbery or reversed for a new trial where the State failed to prove the weapon used was a dangerous weapon; (2) he was denied effective assistance of counsel where trial counsel conceded defendant's guilt to robbery; (3) the trial court abused its discretion in sentencing him by considering improper factors in aggravation, and failing to consider factors in mitigation. The following evidence was produced at trial.

Chris Bour testified for the State that on April 3, 1991, he was employed as the manager at Arby's restaurant in Dolton, Illinois. About 12 midnight he and six other employees were cleaning the store when two men entered the restaurant through the back door. Bour stated that one of the men grabbed an employee while the other person grabbed Bour. Bour stated specifically that it was an ex-employee named Paul Williams who grabbed a woman named Denise. He testified that Williams was known to him because the two had worked together and he recognized Williams' voice, hair and jacket that he frequently wore to work. Bour testified that Williams placed a weapon against Denise's side and said, "Don't move or I'll kill you." Bour identified the weapon placed at Denise's side, which was a metal pipe.

Bour testified that defendant took him by the neck to the back office and demanded that Bour show him where the money was. Bour testified that when defendant grabbed him by the neck, he turned around and was able to see defendant's face. Bour testified that defendant removed money from the cabinet and that defendant along with his accomplice fled through the back door. Bour told the police who arrived at the scene the name of the ex-employee. He also told the officers that when defendant grabbed him by the neck defendant stated, "Don't move, or I will kill you." Bour identified defendant in a lineup as the perpetrator.

On cross-examination when Bour was questioned by defense counsel, he testified that he did not tell the police that one of the men had a length of pipe and acted as if it was a gun.

Marney Zook also testified for the State. Zook testified that shortly after midnight on April 3, 1991, she was working at Arby's in Dolton cleaning the restaurant. Someone said "Tell that bitch to come in the back." Zook testified that she then went to the back of the restaurant and observed defendant holding the back of Bour's shirt and Paul Williams sitting next to an employee named Denise, holding something at her side. Zook testified that Paul Williams hadon a mask and that defendant did not have anything covering his face. She recognized Paul Williams because of his hair and the jacket which Paul often wore to work. Zook stated that she observed defendant in the back office with Bour. Defendant sat next to Denise holding the object at her side, while Williams stuffed money into his pockets and a deposit bag. Zook stated that as the two men left, defendant stated "Don't anybody move or we'll shoot." Williams then said, "Yeah, don't move, or I am going to shoot." Zook stated that about five minutes after both men left the police arrived. The following day, Zook identified both defendant and Williams in separate lineups.

On cross-examination when Zook was questioned by defense counsel, she testified that she did not tell police that defendant had a pipe in his hand, acting as if it was a gun.

Maria Obajtek also testified for the State. Obajtek testified that about 12 midnight on April 3, 1991, she was also working at Arby's when two men entered the restaurant. One of the men grabbed Chris Bour and pushed him into the office. Obajtek stated that Williams had an object in his hand which he placed against Denise's side. She testified that at the same time, defendant was in the office with Bour taking money. Obajtek stated that she heard the men say "If anyone moves I'll shoot," as the men left the building. The following day Obajtek identified defendant and Williams in a lineup.

On cross-examination, Obajtek also testified that she did not tell the police that one of the men had a pipe in his hand, acting as if it was a gun.

Officer Blaundin testified for the State that on April 3, 1991, about 12:30 a.m. he was on duty and responded to a call of a robbery at Arby's. When he arrived at the scene he was given a description of the offenders as male blacks, one five-feet, four inches, and the second offender as five-feet, seven inches. The first offender was wearing a brown leather jacket and black pants, while the second offender was wearing blue jeans and a blue jacket. Blaundin testified that he was told that one offender was Paul Williams, an ex-employee. He then went to the Williams' home.

Blaundin testified that when he arrived at 14722 Woodlawn, he spoke with the parents of Paul Williams. Williams was there and was taken into the station by Officer Blaundin. Officer Blaundin testified that before taking Williams into the station, he heard a noise in Williams' bedroom. Blaundin informed his supervisor of this movement, and based on the conversation with him he returned to the Williams' residence and waited for assisting officers to arrive. Williams' parents signed a consent to search form, and the officerssearched the bedroom. Officer Blaundin stated that he found defendant lying under a pile of clothing in Williams' bedroom. Blaundin found clothing in Williams' bedroom that matched the description of the clothing he had been given. He also found a pair of gym shoes containing money rolled up inside the shoes. Defendant was arrested and taken to the police station.

Officer Frego also testified for the State. He stated that on April 3, 1991, he was assigned to investigate a robbery at Arby's in Dolton. He conducted several line-ups in which defendant was a participant. Defendant was identified by several viewers as the perpetrator of the offense. Frego stated that after the completion of the line-ups, he went to 149th Street and Woodlawn with Williams. At that location, Williams directed Frego to the pipe and garbage bag which were used in the robbery. About 3:30 p.m. assistant State's Attorney Ronkowski and Detective Lindsey spoke with defendant and defendant admitted his involvement in the offense. Defendant gave a written statement in which he admitted that he and Williams robbed Arby's to get money for cocaine. Lindsey stated that he took a pipe wrapped inside a plastic bag with him to give the impression that he had a gun. ...


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