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June 29, 1994


Appeal from the Circuit Court of Cook County. Honorable Christy Berkos, Judge Presiding.

Rehearing Denied August 10, 1994.

Greiman, Tully, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant Edward Moore was convicted of armed robbery, armed violence, multiple counts of aggravated battery and unlawful use of a weapon by a felon. Defendant was sentenced to concurrent prison terms of 20 years, 20 years and 3 years for the offenses of armed robbery, armed violence and unlawful use of a weapon by a felon, respectively. In addition, a consecutive prison term of four years was imposed for one count of aggravated battery.

On appeal, defendant raises four issues: (1) whether defendant was denied effective assistance of counsel because trial counsel failed to elicit, as he had forecasted in opening statements, the discrepancies between the witnesses' pre-arrest descriptions of the perpetrator and defendant's actual appearance; (2) whether the admission of evidence and testimony regarding a motel key which was recovered at the crime scene constituted inadmissible hearsay and reversible error; (3) whether defendant was improperly sentenced for the offenses of aggravated battery and unlawful use of a weapon by a felon because no judgments of convictions were entered and the findings themselves merged with other convictions; and (4) whether defendant's conviction of unlawful use of a weapon by a felon and the related three-year prison term should be vacated because there was no evidence that defendant had a prior felony conviction.

For all the reasons which follow, we vacate the conviction for unlawful use of a weapon by a felon and the three-year sentence imposed for that offense. We also vacate the four-year sentence imposed for one count of aggravated battery. We affirm the remaining convictions and sentences.

Defendant's convictions derive from the armed robbery of thetwo owners of a tavern known as the Terminal Lounge at 1:30 p.m. on August 23, 1991.

At trial the State presented seven witnesses: Anastasios Antonakos and Nick Mavraganis (the two victims and co-owners of the tavern); Rodney Amos and Renardo Dase (two occurrence witnesses); Barry Jackson (a witness relocation officer for the Cook County State's Attorney); Caprice Lindsey (a motel employee); and Detective Patrick Sullivan (the investigating officer).

Antonakos and Mavraganis were working at their bar when two men entered to rob them. One offender vaulted the counter, pointed a gun in Antonakos' face, ordered him to lay down, grabbed his throat, choked him, hit him and shoved him to the ground. The offender also used his gun to shove Mavraganis and force him to the ground.

The second offender remained in the front room and demanded the location of any money. When Mavraganis replied "What money?" the second offender fired two shots in succession and then a third shot which hit Mavraganis in the ankle. The offenders fled with an estimated $15,600.

Seven or eight patrons were in the bar at the time of the robbery. One patron found a set of keys at the front of the bar and presented the keys to Antonakos saying "Hey, this guy [referring to a robber], he dropped these keys." Antonakos could not remember who handed him the keys but he passed them to the police when they arrived. Among the keys was a key to room 114 of the Avenue Motel.

Neither Antonakos nor Mavraganis were able to identify the offenders.

Rodney Amos and Renardo Dase testified that they were standing under a viaduct with some friends near the Terminal Lounge shortly before the robbery. Amos and Dase noticed two men pass them and enter the tavern. Shortly thereafter, they saw a man exit the bar and yell that "guys with guns" were in the bar.

Amos next heard three gunshots and then observed the same two men who earlier had passed exit the bar and drive away in a late model, dark-colored Buick or Oldsmobile.

Amos gave a statement to the police that same day and described defendant as having a beard and a pony tail, and wearing a baseball cap which may have been black and may have had an insignia like a mermaid on it. Amos testified that what he thought was a beard could have been the shadow from the baseball cap.

On recross-examination, Amos testified that from the location (under a viaduct) he and his friends were standing before the robbery, he could not actually see people enter the tavern butsaw shadows that appeared to enter the lounge and heard the tavern door close. However, Amos clearly observed defendant leave.

Amos identified defendant on three occasions. First, on August 29, 1991, Amos reviewed about five photographs provided by Detective Sullivan and identified defendant from the group of pictures. Second, on September 4, 1991, Amos chose defendant from a lineup at a police station at 1:20 p.m. Third, on July 10, 1992, Amos identified defendant in court at trial.

Dase testified that he saw three men, one of whom had a rifle, run out of the bar and jump into a vehicle described as a late model, dark-colored, four-door Buick or Oldsmobile. Dase recalled that on the day of the robbery, defendant was wearing a baseball cap with rhinestone lettering on it forming the name of a team and low-top, purple and white gym shoes. Dase denied that he told the police that defendant had a gheri curl hairstyle and testified that defendant's hair was pulled back in a ponytail.

Dase identified defendant on the same three occasions as Amos but did so separately from Amos: from a photo array, at a police lineup on September 4 at 6:45 p.m. and in court.

Barry Jackson testified that he is a Cook County Sheriff's police officer assigned to the Cook County State's Attorney office as a relocation officer. Defendant entered the witness protection program as a witness in a murder case. From July 23, 1991, until August 19, 1991, defendant was placed at the Avenue Motel in room 114. Thereafter, defendant was relocated to a Chicago Housing Authority (CHA) apartment. The CHA apartment, however, was leased by Wanda Davis, defendant's girlfriend, and was a secured building, meaning that non-tenants may not live there. Under the rules of the CHA, defendant could visit but not live there. Jackson explained to defendant that there was a possibility that the CHA would not permit him to reside with Wanda. However, Jackson arranged to have defendant's belongings moved from the Avenue Motel to a CHA apartment.

Ms. Caprice Lindsey, an employee of the Avenue Motel, identified the motel key recovered at the crime scene as the key to room 114 of the Avenue Motel. Lindsey explained that a log is kept of guests checking in and out of the motel. Based on the log, defendant checked into room 114 with the State's Attorney's relocation program on July 23, 1991, but never formally checked out and never returned the keys. However, Lindsey testified that defendant, who stayed in the room with a woman and child, could not have remained at the motel after August 19. A ...

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