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07/24/95 PEOPLE STATE ILLINOIS v. TYRONE SMITH

July 24, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
TYRONE SMITH, A/K/A TYRONE DOUGHERTY, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable John Morrissey, Judge Presiding.

Petition for Leave to Appeal Denied December 6, 1995.

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:

Defendant was charged with two counts of armed robbery and unlawful use of a firearm by a felon. The State nol-prossed the unlawful use charge. Defendant was found guilty in November 1988, but granted a new trial based on the unconstitutionality of the statute allowing the State to demand a jury trial. Defendant was tried a second time in December 1990. The trial court declared a mistrial after the jury was unable to return a verdict. Defendant was tried for a third time in November 1991 and found guilty. Prior to the first trial, defendant's motion to suppress pretrial identification was denied. Defendant now appeals.

On appeal, defendant contends that: (1) the admission of pretrial identification evidence denied him due process; (2) the trial court erred in refusing his requested lesser-included offense instruction; (3) the trial court erred in allowing the State to elicit a prior consistent statement; (4) the trial court erred in entering judgment on two counts of armed robbery where the convictions were based on a single act; and (5) the Habitual Criminal Act (720 ILCS 5/33B--1 et seq. (West 1992)) is unconstitutional.

In the late afternoon of January 10, 1987, the Lake Cleaners was robbed. Ms. Judy Oh and Mrs. Myong Oh owned the cleaners and were present at the time of the robbery. Mrs. Oh did not testify or give any statements because she does not speak English. The same witnesses testified at defendant's pretrial motion to suppress identification hearing that testified in each subsequent trial.

Judy Oh testified that at approximately 4:55 p.m., two black men entered the cleaners. They were middle-aged and one was wearing a blue wool coat. She saw their faces when they came through the door. They were not wearing masks or scarves around their faces. After the two entered, they walked toward the counter. She looked at their faces as they approached the counter. When they came up to the counter, she was still looking at their faces. As one walked to the counter, he covered his face with his coat. She asked what she could do and they said open the register. She then saw one of them pull a gun. This man told her not to look at his face and if she did he would shoot her. She looked to the floor and did not look at his face again. The man with the gun jumped over the counter and took Mrs. Oh's purse, which was being used in place of the register which was broken.

Oh described the gunman as having a mustache and beard and wearing a blue knee-length wool coat. The other man was standing next to him, looking out the window. She could not remember what he was wearing. She stated she was paying attention to the gunman and not the second man. She testified she saw the second man but could not describe him well; he had curly hair, a little mustache, was not that tall, and was middle size. After the robbery, the two men ran out of the cleaners followed by Oh and her mother. She observed them get into an old green sports car.

When police arrived, she described the offenders and their clothing. She also described their car. According to her, the police told her they were going to transport her to a gas station and she was supposed to "describe [whether] these two people are the right ones or not." She denied hearing any conversations between any police officers. She stated she knew they were talking but did not pay attention to them.

On the way to the gas station, the police told her she was not to exit the car. She was to look through the window and state whether the apprehended individuals were the robbers or not. When they arrived at the gas station, she immediately observed the car the robbers fled in. She also identified the gun. The officer had her look at two individuals and told her to identify them if she could. She testified she positively identified both men. Oh stated she wears glasses but only sometimes and they do not help her see any better.

At defendant's third trial, Oh's testimony was less detailed than that given at the pretrial hearing; her testimony became less detailed at each subsequent trial.

She testified two guys came in the cleaners. She saw them come through the door and stated they looked strange. One stared out the window and the other pulled a gun and pointed it at her. On cross-examination, she testified they both walked to the counter and were facing her. Defendant was wearing a beige jacket which was all she could remember. She could not see defendant very close. The gunman had on a blue knee-length coat. The gun was silver metal with two barrels. When he pulled out the gun, he told her not to look at him. She testified that prior to his statement, she looked at him "very quick."

She identified the two men at the gas station as the robbers and distinguished who was the gunman. It was not defendant. She testified that in 1987 she recognized the offenders' faces "pretty muchclear," but at this third trial, it was hard to identify them. She stated she ...


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