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08/11/94 PEOPLE STATE ILLINOIS v. MELVIN SMITH

August 11, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MELVIN SMITH, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE MARGARET McBRIDE, PRESIDING.

Released for Publication September 27, 1994. As Corrected November 2, 1994.

Johnson, Hoffman, Cahill

The opinion of the court was delivered by: Johnson

MODIFIED ON REMAND FROM THE SUPREME COURT

JUSTICE JOHNSON delivered the opinion of the court:

After a bench trial in the circuit court of Cook County defendant, Melvin Smith, was convicted of two counts of armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a) now 720 ILCS 5/18-2 (a) (West 1992))), and sentenced to a 14-year term of imprisonment in the Illinois Department of Corrections.

On appeal, defendant contends (1) defense counsel's presentation of an alibi defense which did not correspond to the date and time of the offense denied him effective assistance of counsel; (2) defense counsel's failure to move to suppress identification evidence obtained from an impermissibly suggestive lineup denied him effective assistance of counsel; and (3) the trial court improperly sentenced him based on an "inaccurate assumption" respecting his criminal history.

We affirm in part; vacate in part and remand.

The following pertinent facts were adduced at trial. On the night of November 22, 1990, seven young men, Kindred Colin, Anthony Williams, Rahman Williams, James Carr, Ollie Smith, Lloyd Galloway, and Larry Galloway, went to the A.K.A.'s nightclub in Chicago. The next morning, at approximately 2 a.m., they left the club and went to Rahman's car to retrieve their jackets.

As they walked back to the club, they were approached by a group of men, one of whom yelled, "Gangster Disciple." Defendant was identified as a member of this group. Instead of going back to the club, the group of seven decided to leave and went to Kindred's car. They then drove to Rahman's car. Rahman, Anthony and Lloyd got into Rahman's car.

The group of men who yelled the gang name then ran over to Rahman's car. One of the men held a gun to the driver's side of the car. The young men remaining in Kindred's car, which was parked two car lengths in front of Rahman's car, drove to a nearby Dunkin Donuts and called police.

Upon seeing the gun, Rahman ducked down and a shot was fired shattering the window in the back seat of the car. Rahman was then pulled out of the car, told to take off his coat and hit in the face. Rahman testified that defendant was the one who hit him in the face. He also believes he handed his coat to defendant. Rahman was then told to run and when he returned to the scene his car was gone. Anthony stated that two members of the group got into the car, pointed a gun at him, and took both his coat and gold chain.

On December 1, 1990, Rahman identified defendant in a lineup as the person who hit him in the face. James Carr and Larry Galloway also identified defendant as a member of the group who robbed them.

Richard Morrison, the man who wielded the gun, told police thathe belonged to the Gangster Disciple street gang and that he and some other members of the gang had decided to rob the victims. They knew the location of Rahman's car, accosted ...


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