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05/20/96 PEOPLE STATE ILLINOIS v. JAMES OVERTON

May 20, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JAMES OVERTON, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE RICHARD LaCIEN, JUDGE PRESIDING.

Presiding Justice Campbell delivered the opinion of the court: Buckley, J., and Wolfson, J., concur.

The opinion of the court was delivered by: Campbell

PRESIDING JUSTICE CAMPBELL delivered the opinion of the court:

Following a jury trial, defendant, James Overton, was convicted of armed robbery and sentenced to 10-years imprisonment. On appeal, defendant contends that: (1) the trial court improperly admitted evidence of alleged unrelated criminal conduct; and (2) his sentence is excessive. For the following reasons, we reverse defendant's conviction and remand this matter for a new trial.

The following facts are relevant to this appeal. Defendant was charged by information with the December 10, 1990, armed robbery of William Pennington, at the Short Stop gas station and mini-mart located at 8222 South Joliet Road, in McCook, Illinois . *fn1

Prior to trial, on November 17, 1993, the trial court entertained defense counsel's motion in limine in response to the State's notice of its intention to present evidence of other crimes at defendant's trial. The trial court noted that it had tried two other cases regarding gas station robberies involving the same defendant and co-offenders occurring in Alsip and Countryside, and that while this robbery in McCook was chronologically the first to occur, it was the last case to be tried. The State requested that the trial court allow it to bring out evidence regarding how defendant was arrested, including: that a police officer saw a vehicle at the gas station; observed a traffic violation; engaged in a high speed pursuit; saw an object thrown from the vehicle; pulled the vehicle over; arrested the defendant; and later retrieved a gun. Defense counsel objected to introduction of any evidence regarding the Countryside robbery. The trial court ruled that it would allow testimony as to the initial police chase or a "traffic altercation," as well as what happened thereafter, but would not allow evidence of the facts of the armed robbery at the Countryside gas station.

Trial commenced on March 22, 1994. Prior to opening statements, defense counsel objected to the trial court's ruling permitting the circumstances of defendant's arrest and other offenses to be argued both in opening statements and in the State's case in chief. Defense counsel argued that such evidence was highly prejudicial, and that the State sought to introduce the evidence not to show the circumstances leading to defendant's arrest, but as actual evidence.

The prosecutor responded that he intended to bring out evidence only as to the circumstances of defendant's arrest as follows: that on December 26, 1990, the arresting officer witnessed a vehicle traveling at a high speed out of a Shell gas station parking lot northbound on LaGrange Road in Countryside; that the officer pursued the vehicle for running a red light; that during the course of that pursuit, the officer received a radio dispatch that an armed robbery occurred at the Shell station, and also saw a shiny object thrown from the vehicle; and therefore, when he stopped the vehicle, the officer asked the three occupants to get out of the car, and lie face down on the ground.

Defense counsel replied that previously, the trial court had ruled that it would not allow testimony that the officer was in pursuit of possible armed robbery subjects. The prosecutor assured the court that testimony regarding the dispatch would explain only why the officer approached the vehicle with his gun drawn, and that there would be no statement regarding the defendant's culpability for the Countryside crime, or to the Alsip crime. Defense counsel requested a continuance to prepare for "new" evidence, which the trial court denied. The trial court allowed defense counsel to introduce evidence that defendant was found not guilty of the Countryside robbery.

During the State's opening statement, the prosecutor referred to the radio dispatch on December 26, 1990, regarding an armed robbery at LaGrange and Joliet Roads. The trial court overruled defense counsel's objection to this statement.

At trial, Countryside Police Officer Michael Vesconte testified that on December 26, 1990, at approximately 5:45 p.m., he was driving his squad car northbound on LaGrange Road, when he observed a white Pontiac with tinted windows drive erratically out of a Shell gas station. The car exited onto Joliet Road, went through a red light, and then turned southbound on LaGrange Road. Officer Vesconte made a U turn, and reported a traffic offense to the radio dispatcher, providing a location, description and license plates of the vehicle. Officer Vesconte then chased after the Pontiac, activating his lights and siren.

Officer Vesconte had been told by the radio dispatcher to stand by. While in the chase, he received a dispatch from Investigator Swanson that the vehicle and occupants he was following were wanted for an armed robbery of the Shell gas station in Countryside. Vesconte communicated his location, and advised that he was attempting to stop the vehicle. During the short pursuit, he observed a metal object fly out of the passenger side window, striking the pavement, and causing a spark. Shortly afterward, the Officer stopped the vehicle, drew his weapon, ordered all of the occupants out, and took them into custody. Officer Vesconte described the occupants of the vehicle as two black males and a white male. The officer identified defendant in court as the white male, and the driver of the vehicle. The officer identified the two co-offenders from photographs.

Next, Countryside Police Investigator Tim Swanson testified that he recovered a .32 caliber handgun near the Sundown Meadows forest preserve area on the West side of LaGrange Road, about a half mile north of Officer Vesconte's arrest location. Swanson noted that there was no "butt stock" on the gun and that the front muzzle was chipped.

Swanson accompanied defendant to the police station and advised him of his Miranda rights. Defendant signed and dated a form acknowledging his ...


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