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12/29/95 PEOPLE STATE ILLINOIS v. DALE BRAGG

December 29, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DALE BRAGG, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE BERTINA LAMPKIN, JUDGE PRESIDING.

Presiding Justice Cousins delivered the opinion of the court: McNULTY and T. O'brien, JJ., concur in part. McNULTY and T. O'brien, JJ., specially concur in part.

The opinion of the court was delivered by: Cousins

PRESIDING JUSTICE COUSINS delivered the opinion of the court:

The defendant, Dale Bragg, was convicted of armed robbery in a jury trial and sentenced to 15 years of imprisonment. On appeal, defendant claims the trial court erred in these decisions: (1) denying defendant's motion to suppress identification testimony; (2) refusing to sever his trial from a codefendant's trial; (3) denying his challenge against a venireperson for cause; (4) permitting the State to offer witnesses for modus operandi testimony; (5) overruling defendant's objection to testimony that violated a motion in limine; (6) allowing the State to introduce testimony on the recovery of weapons and valuables; (7) preventing defendant from presenting testimony that he had worked as an undercover agent in the past; (8) denying defendant's motion to dismiss for violation of the speedy-trial statute; and (9) sentencing defendant to 15 years of incarceration.

We affirm.

BACKGROUND

On September 8, 1991, at 2:20 p.m., three men committed an armed robbery at the Order of Sarafina Church, a predominantly Nigerian congregation located at 5129 North Broadway, Chicago. A few minutes after the robbery, defendant was arrested after being cornered by church members near where the incident occurred. Defendant had suffered a head wound and was bandaged at a hospital before arriving at the police station.

At the station, defendant gave information to Officer Michael Cronin that formed the basis of a search warrant for codefendant Robert Brandon. Police searched Mr. Brandon's apartment and discovered proceeds from the robbery and several weapons. A lineup with defendant was held at 8 p.m. on September 8, 1991, about five hours after the robbery. Defendant wore the same clothing he had when arrested, and he also had the hospital bandage around his head. Three witnesses identified the defendant from the lineup as one of the perpetrators. Defendant was held in custody and indicted for the robbery, as were codefendants Mr. Brandon and Anterio Charles.

The previous week, on September 1, 1991, at 3 p.m., a robbery had occurred at the Celestial Church of Christ, a predominantly Nigerian congregation located at 7117 North Ravenswood in Chicago. On September 9, 1991, two witnesses from that robbery identified the defendant in a lineup. Proceeds from this robbery were also recovered from Mr. Brandon's apartment.

On April 15, 1992, defendant filed motions to suppress his statement to Officer Cronin and to suppress the identifications. The motions were continued by agreement until July 14, 1992, when the defendant was ready to proceed, but the State requested another continuance, which was opposed by the defendant. The court granted the continuance until September 16, 1992, at which time the State stated it needed another continuance because a witness to defendant's statements was on military furlough until October. That continuance, opposed by the defendant, was granted until October 5, 1992. On October 6, 1992, the State's missing witness testified that police questioning of defendant had continued after defendant had invoked his right to remain silent. The court continued the motion to suppress the statements but denied the motion to suppress the identifications.

On October 6, 1992, the defendant also presented a motion to dismiss pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 1992)), arguing that the State had not brought him to trial within 120 days from the date he was taken into custody. Defendant included 44 days before his pretrial motions and the 79 days after July 14, 1992, when he opposed further continuances by the State. Although the trial court believed the State responsible for the delay after July 14, 1992, the court held that the defendant wanted the State to respond to his motions before proceeding to trial, and thus the statute was tolled the entire time the State was responding to the defendant's motions.

On May 18, 1993, the trial court granted the State's motion to use other crimes evidence. On June 1, 1993, the trial court granted defendant's motion in limine suppressing the defendant's statements until such time as he testified, after which they could be used to impeach him. The same day, defendant requested that his trial be severed from that of codefendant Brandon, but his request was denied. On June 2, 1993, the State agreed to sever Mr. Charles' case from that of defendant.

On June 3, 1993, Mr. Brandon requested new counsel, and when that request was denied, he requested to proceed pro se. Mr. Brandon did not participate in jury selection, and the trial court allowed defendant to use two of Mr. Brandon's unused peremptory challenges. Mr. Brandon also ignored several orders of the court, culminating in a citation for contempt and a six-month prison sentence. Defendant renewed his request for severance, which was again denied. Opening statements were given on June 4, 1993. On June 7, 1993, before the State began presenting evidence, the trial court declared a mistrial as to Mr. Brandon due to continued difficulties of his pro se representation. Defendant's motion for a mistrial was denied.

At trial, five witnesses described the robbery at issue and five other witnesses testified as to the circumstances of the robbery at the Celestial Church of Christ the previous week. For the robbery of the Sarafina Church, witnesses claimed that while Brandon and Charles went around the church collecting valuables, defendant stood as a lookout brandishing a gun at the church entrance and shielding himself with a baby. Witnesses of the previous church robbery described defendant, Brandon, and Charles proceeding in a manner very similar to the Sarafina Church robbery. Defendant testified that he had been on his way to the Sarafina Church when congregation members ran out and screamed that defendant's friend had taken their money, after which defendant ran but was caught and beaten. The jury convicted the defendant of armed robbery, and he was sentenced to 15 years of imprisonment.

I

Defendant first argues that the court erred in denying his motion to suppress identifications from lineups which he alleges were unduly suggestive. The determination as to whether a pretrial confrontation in a specific instance is so unnecessarily suggestive and conducive to irreparable mistaken identification as to deny due process depends on the totality of the circumstances surrounding it. ( People v. Richardson (1988), 123 Ill. 2d 322, 348, 528 N.E.2d 612, 123 Ill. Dec. 908.) Defendant bears the burden of proving that a lineup procedure was impermissibly suggestive and resulted in the denial of due process. ( Richardson, 123 Ill. 2d at 348.) The admission of evidence is within the sound discretion of the trial court, and its ruling should be upheld absent a clear abuse of discretion. People v. Medrano (1995), 271 Ill. App. 3d 97, 103, 648 N.E.2d 218, 207 Ill. Dec. 762; People v. Stone (1993), 244 Ill. App. 3d 881, 893, 614 N.E.2d 293, 185 Ill. Dec. 159.

Defendant first contends that his bandage and his clothes rendered the lineup impermissibly suggestive. As to the bandage, participants in a lineup need not be physically identical. ( Richardson, 123 Ill. 2d at 350 (defendant had the only "'Afro' hairstyle").) This court has specifically held that bandages are not impermissibly suggestive so long as the bandages were not present when the witness first viewed the defendant, which was the situation in this matter. ( People v. Morissette (1986), 150 Ill. App. 3d 431, 437, 501 N.E.2d 781, 103 Ill. Dec. 464.) As to the clothes, defendant believes he was prejudiced because his clothes matched those of descriptions given by the witnesses. However, there is no requirement that police find matching clothes for everyone in the lineup. ( People v. Johnson (1991), 222 Ill. App. 3d 1, 8, 582 N.E.2d 1331, 164 Ill. Dec. 387 (no error when defendant was only person in lineup with red pants matching witness' description).) Defendant relies on People v. Franklin (1974), 22 Ill. App. 3d 775, 317 N.E.2d 611, but in that case the police made the defendant change into clothes that matched the witness' description, and thus Franklin is inapposite to the circumstances in this matter. Therefore, we find that the lineups were not impermissibly suggestive.

Even assuming arguendo that any of the pretrial identification procedures were impermissibly suggestive, the identifications were still admissible because the totality of circumstances clearly and convincingly established that those identifications had an independent origin in the witnesses' memories of events at the time of the crime. ( Richardson, 123 Ill. 2d at 350.) Factors relevant to this determination include: the witness' opportunity to view the suspect at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the suspect, the witness' level of certainty demonstrated at the confrontation, and the length of time between the crime and the confrontation. ( Richardson, 123 Ill. 2d at 350.) Examining these factors, we conclude that the lineup witnesses who identified defendant had ample opportunity to view the defendant and were paying very close attention, the length of time between the crime and confrontation was short, and none of the witnesses who identified defendant expressed doubt about their identifications. Thus, we find that any possible error was cured under the totality of the circumstances.

II

Defendant argues that he was denied a fair trial by the court's decisions to deny a severance or mistrial after Brandon's behavior. Generally, defendants who are jointly indicted are to be jointly tried unless a separate trial is necessary to avoid prejudice to one of the defendants. ( People v. Mahaffey (1995), 165 Ill. 2d 445, 469, 651 N.E.2d 174, 209 Ill. Dec. 246.) Because of Brandon's mistrial before the presentation of any evidence, defendant suffered no prejudice before his separate trial became a fact.

As to defendant's request for a mistrial, the decision to declare a mistrial rests within the discretion of the trial court, and it is a power which should be exercised with great caution. ( Illinois v. Somerville (1973), 410 U.S. 458, 461, 35 L. Ed. 2d 425, 429, 93 S. Ct. 1066, 1069.) Although defendant suffered no direct prejudice from Brandon's actions, defendant relies on People v. Grignon (1976), 37 Ill. App. 3d 418, 346 N.E.2d 82. In Grignon, the court held it was not an abuse of discretion for the trial court to declare a joint mistrial where members of the jury may have believed a prejudicial statement about a codefendant actually referred to the defendant. ( Grignon, 37 Ill. App. 3d at 426.) However, in this matter, there was no such confusion, and thus Grignon is inapposite and the trial court did not abuse its discretion.

III

Defendant next claims that the trial court should have excluded venireperson John Taylor for cause. The following colloquy took place at jury selection:

"THE COURT: Is there anything about the fact that the location of the alleged robbery is a church that would affect any of your abilities to be fair and impartial jurors?

MR. TAYLOR: I have a problem with that.

THE COURT: Everyone else except Mr. Taylor indicated no.

MR. TAYLOR: The reason being I hold a position of deacon in my church. I handle money and I pay tithes. It's important to me. Because of where the -- location of where the alleged offense, whatever you call it, I have a problem with that from a spiritual viewpoint.

THE COURT: All right. Well, from a spiritual point of view, Mr. Taylor, certainly from a spiritual point of view people are presumed innocent. Would you agree?

MR. TAYLOR: I agree with you. I don't have a problem with that.

THE COURT: All right. If someone committed an armed robbery on the street or in the church it ...


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