People v. Jackson

604 N.E.2d 1075, 237 Ill. App. 3d 712, 178 Ill. Dec. 552, 1992 Ill. App. LEXIS 1943
Appellate Court of Illinois·Decided December 3, 1992·No. 2-90-0891·Published·Cited by 4 cases

Opinion

JUSTICE DOYLE

delivered the opinion of the court:

Defendant, Willie Jackson, was convicted of armed robbery (Ill. Rev. Stat. 1991, ch. 38, par. 18—2(a)) and sentenced to 15 years’ imprisonment. On appeal, he argues that the trial court erred by denying him the opportunity to impeach one identifying eyewitness with evidence that the witness had misidentified a suspect in an unrelated case.

The cause involved the armed robbery of a Domino’s Pizza store in Zion. The two employees identified defendant as one of the perpetrators. Defendant presented an alibi defense. Prior to trial, the State presented a motion in limine to exclude evidence that Mohamed Vakili, one employee, had misidentified a man who assaulted him three weeks prior to trial. When shown photographs of suspected assailants, Vakili selected a photograph of a man who was allegedly incarcerated. The court reserved its ruling on the motion.

On November 5, 1989, a Sunday, at 4:13 p.m. Lisa Naeyaert was working as the assistant manager of a Domino’s Pizza store. She was answering telephones at a counter about five feet from the door. The store was well lit. Two men walked into the store. One man was black, 5 feet 9 inches tall, weighing about 180 pounds and wearing a grey, hooded sweatshirt under a red, satiny jacket, a black cap and black-framed eyeglasses. The second man was black, 6 feet 2 inches tall, weighed about 180 pounds, wore a black T-shirt, a red, satiny jacket, and jeans, and had a slight moustache. The taller man asked to use the bathroom, but Naeyaert told him none was available and directed him across the street. The men then placed a carry-out order and left.

The same two men returned about two minutes later and stated that no rest room was available across the street and that they wanted to use the Domino’s rest room. Naeyaert denied their request and turned to make some pizzas. About 30 seconds later, the taller man was at her right side in the private area of the store. He said, “Ma’am, this is a hold-up.” She then saw the shorter man holding a gun at the other employee, Mohamed Vakili. The taller man tried to open the cash drawer, but it was locked. He told her to get the keys. She checked her pockets but found only her car keys. She walked into the back office, followed by the taller man. She did not see the keys, checked her pockets again, and found the key. She unlocked the drawer, and the taller man took the money. While the shorter man backed toward the door, the taller man walked toward the door. She caught another glimpse of him when he turned to exit. The men turned, walked across the lot, turned to look back at the store, and ran down the street. It was not dark outside. She had been between two and nine feet from the robbers during their presence in the store.

In court, Naeyaert identified defendant as the taller man who took the cash from the drawer. About two hours after the robbery, she viewed six photographs at the Zion police department. The police officer did not tell her that one of the men would be in the array. In court, Naeyaert identified the photograph she selected as the perpetrator on November 5. She also identified defendant as the man in the photograph.

Naeyaert also remembered that the perpetrator’s eyes were red and glassy, as if he had been drinking; however, she did not include this fact in her description to the police. She did not tell the police whether the perpetrator’s skin was light or dark, but she said his hair was short. While he was in the store, she saw his face only for a few seconds at a time. She also paid attention to the fact that he touched the drawer handle; she did not touch the handle because she wanted to preserve his fingerprints. In the array of photographs, while all the subjects were black, some had lighter or darker skin color. Upon reviewing the photographs on cross-examination, Naeyaert admitted that defendant’s skin was the darkest of the lot. The police never conducted a lineup or a showup of the defendant in person.

Mohamed Vakili testified that he saw the two men enter the store. The taller man was about 6 feet 2 inches tall with broad shoulders, in his mid to late twenties, weighed about 180 to 185 pounds, and wore short hair and a small moustache. Vakili could not remember their jackets. Vakili was about two or three feet away from the men across from the order counter. The room was fairly well lit by fluorescent lights. A deliveryman took an order from the men while Vakili was taking telephone orders. Vakili did not look directly at the taller man. After Vakili posted the order taken by the deliveryman, he turned to make pizzas. Five to ten minutes later, he saw the two men, who were demanding money while standing on the employee side of the counter. The shorter man held a gun to Vakili’s nose and said, “Maybe you’ll cooperate if I shoot this person.” The taller man was four to five feet from Vakili and looked at both him and Naeyaert. While being pushed around by the shorter man, Vakili could see the taller man’s face. Vakili watched him for about a minute and from only a foot away as they went to the back office and back to the register. Naeyaert opened the drawer. Vakili could see the taller man’s face when the men removed the money from the drawer.

Vakili believed that he had seen the taller man several times before on the street and twice in the store. In court, Vakili identified defendant as the taller robber. The Zion police department showed him many photographs of black males between the ages of 20 and 60. He viewed 21!z trays of photographs. In court, Vakili identified the photograph he selected the evening of November 5 and identified defendant as the subject of the photograph. Vakili stated that while he had seen the man before the robbery, he did not know his name. The police gave Vakili no opportunity to identify him in person or to view a lineup. He remembered that the perpetrator had big and pink eyes, that his skin was dark, and that he had a wrinkle on his forehead.

During cross-examination, defendant sought to impeach Vakili by confronting him with evidence of the misidentification in the subsequent mugging incident. The trial court permitted defendant to examine Vakili outside the presence of the jury to establish an offer of proof. One night about three weeks prior to the trial, Vakili and his brother were assaulted by three men. The Zion police department had Vakili examine three handfuls of photographs of black males from which he identified one. Vakili was subsequently told that this subject was in the penitentiary at the time of the assault. During the assault, Vakili had only one or two minutes to see the subject, and the light came from a streetlight about a block away. Vakili claimed to have experienced memory problems in the last few months because of stress. Based on this testimony, the trial court ruled that the defendant could not impeach Vakili with this line of evidence.

Officer Charles Kehr of the Zion police department testified that whether a fingerprint is left on a surface depends on the texture of the surface or on smudging. Kehr saw the evidence technician remove prints from a counter and a glass partition. Kehr also examined an order form for a pizza which the employees told him was placed by the robbers. The form listed a telephone number which Kehr determined was registered to an address of 8343V2 S. Racine Street in Chicago.

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People v. Jackson, 604 N.E.2d 1075, 237 Ill. App. 3d 712, 178 Ill. Dec. 552, 1992 Ill. App. LEXIS 1943 (Ill. Ct. App. 1992).

604 N.E.2d 1075 (People v. Jackson) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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