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July 24, 1995


Appeal from the Circuit Court of Cook County. Honorable Michael Buckley Bolan, Judge Presiding.

The Honorable Justice Buckley delivered the opinion of the court: Wolfson and Braden, JJ., concur.

The opinion of the court was delivered by: Buckley

JUSTICE BUCKLEY delivered the opinion of the court:

Following a jury trial, defendant was found guilty on a theory of accountability of armed robbery (720 ILCS 5/18--2 (West 1992)). He appeals his conviction, arguing that: (1) the trial court's policy of prohibiting jury note taking violates the Code of Criminal Procedure of 1963 (725 ILCS 5/100--1 et seq. (West 1992)), prejudiced him as evidenced by the jury note sent during deliberations, and warrants a new trial; (2) the trial court erred in denying defendant's motion to suppress identification testimony; and (3) the prosecutor's misstatement of the law during closing argument warrants a new trial.

The victim, Homer Verden, testified that on February 20, 1992, at approximately 12:30 p.m., he and a friend were on their way home from the mall. They were walking on the north side of Washington Boulevard at approximately 5200 west. Verden saw a blue four-door Ford parked on the same side of the street. Three individuals were standing outside the car. The individuals asked Verden and his friend to get out of their jackets. Verden was wearing a red, white, and black leather and suede jacket with a hood. Verden asked "What?" and the individuals began unbuttoning the jacket. Two of the men left Verden and went over to his friend who started to fight over his jacket. The individual with Verden took his jacket and jumped into the car. He told the other two to get in the car because they had Verden's jacket. Verden stated that at some point while the individuals were trying to take his jacket, a fourth individual got out of the back seat of the car with a police stick and tried to hit Verden in the knees and lower legs. After the men got back into the car, it drove away very fast. When it began to leave, Verden looked into the car and saw the side of defendant's face. Defendant was the driver. Verden stated that the incident lasted three to five minutes and occurred right next to the car. At defendant's trial, Verden identified defendant as someone he "believed" was outside the car but said that he "can't recall it up to date."

After the incident, Verden called the police and told them about the robbery. He gave a description of the type and color of car and also the license plate number. When the police came to his sister's house, they showed him a driver's license of defendant. Verden did not remember if the police asked him if he recognized the individual. He stated that the police merely asked if he "would be able to remember his face when I come to claim my jacket." At the hearing on defendant's motion to suppress identification, Verden stated that the police asked if "[he could] identify this person, would [he] remember his face when [he] came down to the station, and [Verden] said yes." Verden went to the police station, viewed a lineup, and identified defendant. Prior to viewing the lineup, Verden saw defendant and another individual pass them.

Officer Fassett testified he and his partner were on patrol on Lotus at approximately 12:30 p.m. and noticed a blue car driving eastbound on Quincy without a front license plate. The officers stopped the car. There were five individuals in the car. Officer Fassett asked defendant for his driver's license, had everyone get out of the car, and put their hands on the back of it. The officers then conducted a pat-down of each individual. While the officers were conducting the pat-down, a radio message stated the police were looking for a blue four-door car with license plate SL 1772 because the occupants had committed an armed robbery. Officer Fassett stated that after the broadcast, all of the individuals started to run, including defendant. However, because he was searching defendant, defendant was unable to escape. Fassett immediately handcuffed defendant and the other individual who did not get away. The officers found Verden's jacket and a police baton in the back seat of the car; however, they left the items in the car because they had no idea they were connected to the robbery.

Assistant State's Attorney Karen Limperis testified that she spoke with Verden at the police station and also with defendant. Prior to speaking with defendant, she advised him of his rights and asked Detective Rickher to leave for a moment. After the detective returned, defendant gave a statement. He told Limperis he was the driver of the car and there were at least two other individuals in the car, possibly more. He was driving them to purchase drugs. The other individuals spotted the victims and said they wanted to rob them of their jackets. They got out of the car, overpowered the victim, and took his jacket. They then got back into the car and defendant drove away. Defendant told Limperis he did not wish to reduce his statement to writing and her account of defendant's statement is based on notes she took during the interview.

Detective Rickher was assigned to investigate the robbery. He spoke with the victims and investigating officers. Subsequent to the lineup, he also spoke with defendant. In his first conversation with defendant, defendant told him he was driving the car but had nothing to do with the robbery. Defendant stated he did not understand what transpired and had no foreknowledge of the robbery. In the second conversation, defendant stated he knew exactly what was going to happen and had full foreknowledge the individuals were going to rob the victims. He stated he went along with it out of fear. In the third conversation which was conducted by Limperis, defendant made it absolutely certain he was aware prior to the robbery that it was going to occur.

Defendant testified on his own behalf. He was employed by T-Force Security at the Chicago Housing Authority projects. On his days off, he operated as a cab service to earn extra money. He was not employed by a cab company and did not have a license or registration to operate as a cab driver. He met his fares at the Jackson Store.

On the date in question, at approximately 11 a.m. he was sitting at Jackson Foods on Campbell and Jackson. A guy came up to his car and asked him to take him somewhere for $4. Defendant knew the guy by his nickname, "Marvin," but was not friends with him. He had driven Marvin once before. Defendant agreed to take Marvin and three other guys got in the car with Marvin and defendant. Defendant did not know the other men. He took them to 5600 West Washington, where one of the individuals went into an apartment building and came back 5 to 10 minutes later. As they were driving back to the store, the individuals told defendant to pull over. When defendant stopped, three of the occupants got out. Defendant stated he just looked ahead. The individuals then jumped back into the car and told defendant to pull off. They stated they had just robbed someone. Prior to this time, defendant denied there was mention of a robbery.

As defendant drove away, he drove past a police car which pulled him over. Defendant got out and gave the police his driver's license. The police then told everyone to get out of the car. All of the occupants stood at the rear of the car with their hands on the trunk. Defendant denied hearing the radio message and denied he attempted to run along with the others. The police took defendant to the victim's home and showed the victim his license. After the police exited the house, they took him to the police station where he was put in a lineup.

Defendant denied telling Detective Rickher he was part of the robbery and denied knowing the other individuals. He said he was "just a can person" and trying to make extra money. He denied telling the assistant State's Attorney he knew about the robbery before it occurred and denied ever getting out of the car.

On cross-examination, defendant denied he spoke with the individuals on the way to their stop and denied he ever saw the back seat occupants carrying anything in or out of the car. He stated he was not paying attention to them. He also stated he did have a front license plate on his car. Defendant denied that the police or the assistant State's Attorney read him his rights, denied telling the assistant State's Attorney he was driving the guys to buy drugs, denied telling the assistant State's Attorney the individuals talked about ...

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