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06/24/94 PEOPLE STATE ILLINOIS v. ELLIS AUSTIN

June 24, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ELLIS AUSTIN, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE CHRISTY S. BERKOS, JUDGE PRESIDING.

Cousins, Jr., Gordon, McNULTY

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS, JR. delivered the opinion of the court:

Ellis Austin (defendant) appeals his attempt armed robbery conviction because the jury acquitted him of first degree murder in the same proceeding. Defendant also appeals his thirteen-year sentence rendered by the trial court.

The issues presented for review are (1) whether the jury's verdicts - finding defendant not guilty of the first degree murder charge and guilty of the attempt armed robbery charge - were legally inconsistent requiring application of the doctrine of collateral estoppel and (2) whether the State proved defendant guilty of attempt armed robbery beyond a reasonable doubt.

We affirm.

BACKGROUND

On October 4, 1989, defendant and three accomplices, Farrell Hall (Hall), Terrance Steele (Steele), and Kevin Cathey (Cathey) participated in four armed robberies, the last of which resulted in the murder of Derrick Hall (victim).

The first robbery occurred after 7:00 p.m. in Bellwood, Illinois as Lionel Gilmer (Gilmer) was walking home from work. Two men approached him. Gilmer later identified defendant as having been the perpetrator who wielded a gun. Defendant pointed the gun in Gilmer's face and ordered, "Give up your shit." Gilmer surrendered his "Task Force" Starter jacket, a walkman, a pager, and two hundred dollars in cash. Defendant and the other offender then fled down an alley, entered a station wagon, and drove away.

The second robbery occurred about an hour and a half later in Maywood, Illinois as Steven White (White) was walking home. Again, two men approached him. White later identified defendant as having a gun. Defendant and his accomplice demanded White's Washington Redskins jacket and hat. When White tried to run, defendant fired the gun at him. White stopped. Defendant and the other perpetrator took his jacket, hat, and ran away.

The third robbery followed shortly thereafter at the Henry Horner Homes, a housing project development. This time, Cathey and Hall got out of the station wagon and robbed two men of their Starter jackets at gunpoint. No one reported this robbery to the police.

The final robbery, which resulted in the victim's murder, occurred in the vicinity of Thomas and Western Streets in Chicago. Ricardo Vigo (Vigo), an eyewitness, testified that he and the victim had been waiting at a southbound bus stop on Thomas and Western when four people in a station wagon stopped nearby.

From four feet away, Vigo testified that he saw one male blackexit the car and approach the victim who was wearing a blue starter jacket. The offender told the victim to give him his starter jacket. As the victim began to take off his jacket, the perpetrator shot him, ran back to the station wagon, and left. Vigo did not see defendant that night.

Gaspar Rios (Rios), who was standing from a different vantage point, testified that he was approximately three-quarters of a city block away, when a dark colored station wagon with "safari woodgrain along the sides" stopped. Four people were in the car.

At first, one male black person exited from the front passenger side of the vehicle. This individual went to the bus stop where the victim was situated. The victim was wearing a dark navy blue jacket that had orange stripes on its sleeves (Chicago Bears "Starter" jacket). The first person who exited the car, approached the victim and tried to take his jacket. The victim started to run.

At that moment, a second person egressed from the vehicle from the rear side of the driver's side, and ran towards the victim. The victim started to run into the middle of the street, at which time the second person who exited the station wagon shot him. The victim fell in the middle of the street. ...


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