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06/07/96 PEOPLE STATE ILLINOIS v. MICHAEL BENNETT

June 7, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL BENNETT, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable Joseph Romano, Judge Presiding.

The Honorable Justice Egan delivered the opinion of the court: Zwick, P.j., and Rakowski, J., concur.

The opinion of the court was delivered by: Egan

The Honorable Justice EGAN delivered the opinion of the court:

A jury convicted the defendant, Michael Bennett, for the armed robbery of a McDonald's restaurant at 1117 West Howard in Evanston on July 28, 1991. The judge sentenced the defendant to 26 years in prison.

After the police arrested the defendant on September 2, 1991, the State charged him with the July 28 armed robbery of the McDonald's and with the August 17, 1991, armed robbery of a Toys R Us Store. The grand jury also indicted Peter DelSol for the armed robbery of the Toys R Us. The proceedings on the Toy R Us armed robbery charges were separate from those on the McDonald's armed robbery charges, and it is only the defendant's conviction for the armed robbery of the McDonald's that is before us.

Before the defendant's trial on the McDonald's armed robbery charges, the defense filed a motion in limine, in which it asked the judge to prevent the State from introducing evidence of the Toys R Us robbery. The judge denied this motion on the condition that the evidence at trial support the admission of the Toys R Us armed robbery as evidence of a modus operandi. During the trial, the judge stated that the evidence of the Toys R Us armed robbery was admissible as evidence of a common scheme, modus operandi and identification because of similarities between the two robberies.

Jose Delcid testified that he was a first assistant manager at a McDonald's restaurant at 1117 W. Howard in Evanston. On July 28, 1991, he and the three crew members working with him, Otto Hernandez, Malcolm Watson and Christopher Thomas, were performing their post-closing tasks in the restaurant, which had closed at 11 p.m. Delcid locked the doors and looked into the bathrooms, but he did not look into the stalls in the women's bathroom. After Delcid returned to his office, Thomas asked him to call the police because there was a customer who was refusing to leave the restaurant.

Delcid did not call the police but went with Thomas to speak to the customer. He saw the defendant hiding behind some garbage cans near the bathrooms. The defendant had a bag in one hand and small caliber eight-inch silver gun in the other. He was wearing maroon sweatpants, a dark sweatshirt and yellow dish gloves that were missing the fingertips. The defendant ordered Thomas and Delcid to sit. When Watson and Hernandez exited the kitchen, the defendant ordered them to sit with Delcid and Thomas. The defendant then forced Thomas, Watson and Hernandez into the store freezer and ordered Delcid to place a lock on the freezer door.

The defendant took Delcid, who was the only employee wearing a tie, to the restaurant safe. When Delcid had difficulty opening the safe, the defendant told him to hurry. After Delcid opened the safe, the defendant placed money and gift certificates from the safe into his bag. A second person then entered the restaurant. This person was wearing a white towel covering his face and hair.

After the second person entered the restaurant, Delcid heard the restaurant alarm, from which he concluded that the crew had escaped the freezer through a side door. Upon hearing the alarm, the second person ran from the restaurant. The defendant then forced Delcid to empty the cash drawers in the restaurant. When Delcid did not do so as quickly as the defendant would have liked, the defendant raised his gun and pointed it at Delcid. Delcid emptied the drawers, and the defendant left the restaurant. Shortly thereafter, the police arrived.

Delcid provided the police with a composite sketch of the robber. The day after the robbery, he selected a photograph from a book of photographs the police showed him, and he told the police that he thought the person in the photograph was the robber. The person in the photograph was David McCoy. When he saw McCoy in a lineup on July 29, Delcid told the police that he was not sure that McCoy was the robber. He said that he was 70% sure that McCoy was the robber. On September 3, 1991, the police showed Delcid another lineup. As soon as he saw the defendant in this lineup, he told the police, "That's it. You got him." He told the police that he was 100% sure the defendant was the one who robbed the McDonald's.

Christopher Thomas testified that he was working as a crew member at the Howard Street McDonald's in Evanston on July 28, 1991. After closing, he cleaned the men's bathroom and then entered the women's bathroom to clean it. He saw the defendant sitting in one of the stalls. The defendant asked to stay in the restaurant for a few minutes because he had nowhere else to go.

Thomas went to Delcid's office and told Delcid that a customer was refusing to leave the store. When he and Delcid returned to the bathroom area, they saw the defendant next to the exit near the bathrooms. He was wearing a black sweatshirt, red jogging pants, rubber gloves and a large blue pouch. He was holding a silver handgun.

Thomas admitted he was wearing a house arrest band or bracelet at the time of the robbery. He was wearing a bracelet while a robbery charge was pending against him. He later pleaded guilty of robbery and was placed on probation. He was on probation at the time he testified. He was never shown a photograph of the defendant and he never viewed a line-up containing the defendant. His house-arrest bracelet broke and fell off his wrist when he was escaping from the freezer, and, as a result, the police arrested him the next day. He was angry with the police because they arrested him and did not want to cooperate. He identified no one in the line-up the police showed him on July 29.

Malcolm Watson testified that he was working as a cook on the night of the robbery. After closing, he left the kitchen to use the bathroom and saw the defendant with Delcid and Thomas. He described the defendant as wearing "bummy looking clothes" turned inside out. The defendant was wearing black jogging pants, a red sweatshirt and latex gloves and was holding a small black gun with a silver finish.

Watson explained that he, Thomas and Hernandez escaped from the freezer through an unlocked delivery door. After leaving the restaurant, they told people in a nearby Dairy Queen store to call the police.

The next day, Watson looked at books of photographs at the police station, but he saw no pictures of the robber. The robber was also not in a lineup the police showed him on July 29. In the lineup the police showed him on September 3, 1991, however, he identified the defendant as the robber. Two weeks before the lineup, Watson had seen the defendant on the street. Sometime before viewing the lineup on September 3, he told Detective Mark Kostecki that he had seen the defendant on the street.

Hernandez's testimony was essentially the same as Watson's, but he added that he had seen the defendant in the restaurant prior to closing. At that time, the defendant was dressed in a nice shirt and pants, and he bought food in the restaurant. When he saw the defendant after closing, the defendant was wearing old clothes.

The day after the robbery, he picked a photograph from books of photographs the police showed him. He told the police that the person in the photograph, David McCoy, might be the robber, but McCoy had lighter skin than the robber. He saw McCoy in a lineup that same day and told the police that McCoy looked like the robber but was shorter and had lighter skin. He was unable to attend the lineup in September, but the police showed him an array of photographs that included a picture of the defendant. He selected this picture and told the police that the man in the picture was the man who robbed the restaurant.

Evanston Police Department Detective Mark Kostecki testified that, immediately after the robbery, Delcid told him the robber had been wearing a black T-shirt or sweatshirt and red jogging pants turned inside out. The day after the robbery, the police showed the four McDonald's employees a lineup that included David McCoy, whom some of the employees had tentatively identified from a photograph. After viewing the lineup, Delcid said that McCoy might have been the robber, but ...


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