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September 30, 1994



Petition for Leave to Appeal Denied December 6, 1994.

Murray, McNULTY, Cousins, Jr.

The opinion of the court was delivered by: Murray

PRESIDING JUSTICE MURRAY delivered the opinion of the court:

Defendant, Cornelius Lee (Lee), was charged by indictment with attempted first degree murder, aggravated assault, two counts of possession of a firearm, and two counts of armed robbery. Codefendant, Albert Benson (Benson) was charged by indictment with two counts of armed robbery. Following a joint jury trial, Benson and Lee were both found guilty of two counts of armed robbery. Lee was also found guilty of the possession charges. Defendants filed separate appeals, however, we have consolidated the two appeals.

Briefly, the record discloses the following facts. Shawn Lewis testified that on November 24, 1990, he was in the lobby of 514 East 36th Street. He was standing by the mailboxes when he saw two black men enter the lobby from the front door. Lewis identified the two men as Lee and Benson. Willie Gaddy testified that when he came to the lobby to meet Lewis he also saw Benson and Lee. Both Gaddy and Lewis had seen Lee before; they had never seen Benson before.

Both Lewis and Gaddy testified that as Gaddy walked up to Lewis, Lee came up to them while holding a silver revolver, and said "this is a stick-up." Lee patted their pockets with the gun and asked for money. Gaddy gave Lee $8 and Lewis gave him $96. Lee also took a gold nugget ring from Lewis' hand. At trial Lewis testified that Benson did not search anyone or take anything, but Detective Holmes testified that on the night of the robbery, Lewis had told him that Benson had searched some of the people in the lobby.

The men told the people in the lobby to go upstairs and not look back. Gaddy waited and ran out the back door in an attempt to follow the offenders. As Gaddy exited the building, he saw Lee point the silver gun at him and fire a shot in his direction. Gaddy followed the men so that they would not see him. He finally got to a street where he saw a marked police car. Gaddy told the policemen that the two men crossing the street had just robbed him and that they had guns.

Police officers Boddie and Rapier testified that after Gaddy approached their car and told them about the crime, they pursued the two men in the squad car. Both officers identified Lee and Benson. As the car approached the two men, and as Boddie yelled for the men to stop, the two men turned and began to run away. Leaving the car, Boddie chased Benson, while Rapier chased Lee. As Boddie chased Benson, he saw a gun in Benson's left hand, and as Benson started to turn around, Boddie shot at Benson four times. Gaddy followed Boddie as Boddie chased Benson and saw Benson get shot. Gaddy identified Benson, the man who was shot by the police, as the man who robbed him.

Rapier testified that Lee was eventually apprehended, and that before he was caught, Lee dropped a package which was later identified as containing cocaine. Although the police conducted a search of the area, a silver gun was never recovered. After being read his rights, Lee told Detective Bresnahan that he did not commit the robbery, he ran because he did not want to get caught with drugs. At the police station, Lee was searched. Lee was carrying a bag of heroin, $96, and a gold ring which Lewis identified as having been taken in the robbery. Lee told the detective that he did not know Benson, they were just crossing the street at the same time.

Detective Ward testified he responded to Boddie's call for assistance. After canvassing the area for witnesses he went to the hospital as he had been told the "offender" in the armed robbery had been shot and had been transported to the hospital. After he was arrested, Benson told Ward that he did not commit the armed robbery of Lewis and Gaddy. Benson stated he had been shot in the wallet on the previous Thursday and since that time he had been carrying a gun for protection. Benson did not want to get caught with this gun so he ran when the police began to chase him. As he was chased he attempted to throw the gun against a building, but a police officer shot him in the back.

Both Lewis and Gaddy testified that on December 7, 1990, a person came to their home and talked to them about the robbery. Both acknowleged their signatures on statements exonerating Benson of the robbery. However, both men also testified that the papers were folded and they did not see what was written on them.

Christian Easton testified that he went with Benson's attorney to interview Lewis and Gaddy at which time Lewis and Gaddy both stated that previously they had signed statements exonerating Benson from any involvement in the robbery.

Both defendants raise the issue that the trial court violated the holding in Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712 by finding that the State did not commit racial discrimination in selecting the jury. In addition, Lee argues the trial court erred in denying his motion in limine requesting the exclusion of evidence of his prior convictions for impeachment purposes, and that he should receive a new trial due to prejudicial and inflammatory prosecutorial arguments. Benson argues he was not proven guilty beyond a reasonable doubt, and that he was denied his right to a fair trial as a result of certain testimony of two police officers.

For the following reasons, we affirm the convictions of both Lee and Benson.

During voir dire the State utilized peremptory challenges against six prospective black jurors and one prospective hispanic juror. A Batson motion was made and the trial court found that a prima facie case of discrimination had been established. Thus, the State was required to give race neutral reasons for each of its peremptory challenges. *fn1 The defense did not respond to the reasons given by the prosecutors. The trial court accepted the ...

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