People v. Davis

560 N.E.2d 1072, 203 Ill. App. 3d 129, 148 Ill. Dec. 475, 1990 Ill. App. LEXIS 1398
Appellate Court of Illinois·Decided September 12, 1990·No. 1-89-0651·Published·Cited by 17 cases

Opinion

PRESIDING JUSTICE CERDA

delivered the opinion of the court:

The defendant, Larry Davis, was convicted for armed robbery on June 13, 1979, following a bench trial and was sentenced to 12 years in the Illinois Department of Corrections. On direct appeal, this court affirmed the defendant’s conviction. (People v. Davis (1981), 103 Ill. App. 3d 792, 431 N.E.2d 1210.) The defendant now appeals from the circuit court’s dismissal of his petition for relief under the Post-Conviction Hearing Act (Ill. Rev. Stat. 1989, ch. 38, par. 122 — 2 et seq.). The petition alleged, inter alia, that: (1) the defendant was denied effective assistance of trial counsel; (2) a statement made by the defendant was erroneously admitted at trial in violation of Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602; and (3) the defendant was denied effective assistance of appellate counsel. After an evidentiary hearing, the trial court denied the defendant’s petition for relief on the ground that he failed to show that his trial was reduced to a charade or a sham as a result of the alleged ineffective assistance of trial counsel. The trial court refused to consider the defendant’s claims asserting a Miranda violation and ineffective assistance of appellate counsel. The remaining counts in the petition are not relevant to this appeal.

The evidence produced at the defendant’s trial reveals the following. On the afternoon of July 26, 1978, three armed men robbed the Chicago Spring and Bumper Company, an automobile repair shop located at 4611 West Lake Street in Chicago. The complaining witness, Henry Jeffery, testified that he was seated at his desk with a customer named Renard Taylor. Jeffery and Taylor then walked into the garage area whereupon Jeffery noticed two men: one standing near a doorway and the other standing near a Coke machine. Jeffery identified the man standing near the Coke machine as the defendant. Jeffery testified that he was eight feet away from the defendant and observed him for approximately a minute and a half until he was distracted by some shouting behind him. Upon turning around, Jeffery saw two of his mechanics running and a third man holding a long-barreled gun. The defendant ordered Jeffery to lie down on the floor. Everyone else was ordered to do the same. The defendant then entered the office area and escorted Jeffery’s secretary, Joyce Bell, into the garage area, where she too was ordered to lie down on the floor.

The defendant ordered a customer to give him money whereupon the customer pointed to Jeffery, telling the defendant that Jeffery was the owner. The defendant walked over to Jeffery and pointed a nickle-plated handgun at Jeffery’s back and asked for the location of the money. Jeffery told the defendant the money was in the office. The defendant then picked Jeffery off the ground, and they entered the office area, where the defendant took $200 from the cash register. The defendant then ordered Jeffery to give him all the money in his pockets. Jeffery testified that at this point, he noticed that the defendant had placed a nylon stocking over his head. The defendant had not been wearing the stocking when Jeffery first noticed him standing near the Coke machine. Jeffery stated, however, that he could see the defendant’s face through the stocking. The other customers were forced to hand over their money to the defendant’s accomplices. One of the robbers had a leather satchel in which they placed the money. The defendant and the second man exited through the front entrance and fled on foot. Jeffrey never saw how or where the third man departed.

On August 7, Jeffery viewed a lineup and identified the defendant. At trial, Jeffery was shown a photograph of the lineup and when asked if the man he identified in the lineup was the same person he pointed to in court, Jeffery replied “I think so.” On cross-examination, Jeffery conceded that he was tentative when he identified the defendant at the lineup. He further admitted that he asked to see the lineup a second time and had to observe the participants from all sides before making an identification. During redirect, Jeffery explained in regard to the lineup that “I said there was no doubt in my mind that the number three man was the man but I felt I did not see his face long enough to say positive that that was the man.” Jeffery further stated that after seeing the defendant in court, there was no doubt in his mind that the defendant was the gunman who robbed him.

Joyce Bell testified that she was working in the office when a man with a gun entered and asked her where the money was located. Bell responded that she had only been employed at the shop for two days and did not know where anything was located. The gunman then walked behind her, pointed his gun at her back, and told her to get on the floor in the garage area alongside everyone else. Bell identified the defendant in court as the gunman. Bell also viewed a lineup on August 7 during which she made a positive identification. Bell further testified that she noticed that the defendant was wearing a nylon stocking over his face but that the stocking was made of a very sheer nylon that she could see through very clearly. During cross-examination, Bell stated that she had told an officer at the lineup that the gunman had reddish hair. (The defendant, who is an African-American, maintains that he has black hair and has always had black hair.)

Virgil Butrum testified that he was a customer observing his car being repaired in the garage area when the robbery occurred. Butrum stated that he heard a voice telling him to “freeze” and that he saw a man holding a machine gun. The man told him to lie on the floor. Butrum testified that a weapon, marked as exhibit number 2, was similar to the machine gun he observed during the robbery.

The State’s last witness, Officer Robert Pietrowski, testified that he and three other officers were questioning the defendant about his name and address on August 7 while the defendant was in custody for an unrelated offense. Defense counsel objected to the prosecutor’s question asking for the defendant’s response on the grounds that the defendant’s response was hearsay and the subject matter of the conversation was not disclosed in discovery. The trial judge overruled the objection, but offered defense counsel a continuance to mitigate any possible surprise. The offer was declined. Pietrowski then testified that he heard the defendant tell an Officer Miller that his address was 718 North Drake, second floor, rear apartment. He further testified that he obtained and executed a search warrant at 718 North Drake on August 7 where he recovered a semi-automatic .45 caliber rifle and a .45 caliber magazine. Officer Pietrowski identified exhibit number 2, the same weapon identified by Virgil Butrum as the type of weapon used in the robbery, as the weapon he recovered from the defendant’s apartment.

The defense called two police officers to testify. Officer Thomas Piekarski stated that he conducted the August 7 lineup and that four persons viewed the lineup. In addition to Jeffery and Bell, the lineup was also viewed by Mr. Eddie Thigpen, a Chicago Spring and Bumper employee, and Mr. Martin Turpel. Renard Taylor viewed a lineup on August 8.

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People v. Davis, 560 N.E.2d 1072, 203 Ill. App. 3d 129, 148 Ill. Dec. 475, 1990 Ill. App. LEXIS 1398 (Ill. Ct. App. 1990).

560 N.E.2d 1072 (People v. Davis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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