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05/13/94 PEOPLE STATE ILLINOIS v. BUDDY UNDERWOOD

May 13, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BUDDY UNDERWOOD AND GEORGE UNDERWOOD, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. The Honorable Mary Jane Theis, Judge Presiding.

Petition for Leave to Appeal Denied October 6, 1994.

Egan, McNAMARA, Giannis

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

After a bench trial, the defendants, brothers Buddy and George Underwood, were convicted of armed robbery. The trial Judge sentenced Buddy to the Illinois Department of Corrections for 10 years and George to the Illinois Department of Corrections for 18 years. We consolidated their appeals. They contest the sufficiency of the evidence against them and the effectiveness of their counsel.

Buddy and George were tried jointly for the armed robbery of James Bryant. Bryant testified that on November 5, 1991, he was using a pay phone at the bus stop at 16th Street and Kedzie Avenue in Chicago. It was dark outside, but there were working streetlights lighting the area. As Bryant was hanging up the phone, he felt an arm "coming around" the right side of his neck. He looked at the arm and saw that the hand by his neck held a box cutter with a"push out" razor blade. The man holding Bryant said, "This is a stick-up."

The man turned Bryant, and Bryant looked at him. The man was wearing red sweat pants and a black jacket. Bryant told the police the man was wearing a red skullcap. Bryant saw the box cutter "up close" when he was turned; the man held the box cutter razor to Bryant's throat. In court, Bryant identified George as the man who held him. Also, he identified a State exhibit as the box cutter "that was at [his] throat."

While George was holding Bryant, another man walked to the left side of Bryant. This man also had a box cutter. In court, Bryant identified Buddy as the second man. Bryant had never seen Buddy and George before November 5. Buddy was wearing a leather jacket with a "fur collar around it" and a skullcap. Buddy placed his box cutter against Bryant's throat, and George said "Let's drag him in the alley." George and Buddy pulled Bryant approximately 10 feet into an alley, where they were met by another man. The third man was holding a gun, and he "put the pistol to [Bryant's] head."

George then repeated his statement about "a stick-up." Buddy reached into Bryant's pants pocket and removed $15. George reached into Bryant's coat pocket and removed $355 and a CTA pass. Buddy and George then left the alley, traveling east on 16th Street. The third man held Bryant at gunpoint for approximately 10 seconds, then ran. He was never apprehended.

Bryant returned to the bus stop, where he saw an unmarked police car. He got into the car, told the officers about the robbery and gave the officers the same description of Buddy and George's clothing that he gave in court. The officers called his description of Buddy and George over the police radio. They drove Bryant around the area for a short period of time and then drove him to Holman Avenue and Douglas Boulevard, where they parked near another police car.

At Douglas and Holman, Bryant saw Buddy and George standing beside the second police car. Bryant was asked if the two men "were the ones that robbed [him]" and he replied that they were. Bryant noticed that George had "the red sweat pants on under [a pair of] black pants."

It was approximately 10:35 p.m. when Bryant "was assaulted" by the three men. The robbery lasted approximately five minutes and another five minutes passed from the time "the defendants held box cutters on [him] until the time [he] saw them" standing beside the police car at Douglas and Holman.

Officer Gaal testified that he was in an unmarked police car on November 5, 1991, when he heard the description of Buddy andGeorge over his radio. "Just a couple of minutes" later, at approximately 10:45 p.m., he saw two men running across Douglas. One man was wearing a blue skullcap; the other wore a red skullcap. Gaal stopped the two men because they "matched the description that was over the air." When the other officers and Bryant arrived, Gaal asked Bryant if he "recognized anybody." Bryant told Gaal that "those [were] the guys that had just robbed him in the alley." Gaal identified Buddy and George in court as the two men he stopped.

After Bryant identified Buddy and George, Gaal searched them. George was wearing a black pair of pants over red jogging pants. Gaal did not find the missing $370 or CTA pass. He found a chrome box cutter in Buddy's pocket. He did not recover another box cutter from either George or Buddy. In his arrest reports for Buddy and George, however, Gaal noted that he recovered a box cutter ...


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