People v. Masse

604 N.E.2d 517, 237 Ill. App. 3d 348, 178 Ill. Dec. 261, 1992 Ill. App. LEXIS 1922
CourtAppellate Court of Illinois
DecidedNovember 25, 1992
DocketNo. 2—90—0842
StatusPublished
Cited by4 cases

This text of 604 N.E.2d 517 (People v. Masse) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Masse, 604 N.E.2d 517, 237 Ill. App. 3d 348, 178 Ill. Dec. 261, 1992 Ill. App. LEXIS 1922 (Ill. Ct. App. 1992).

Opinion

JUSTICE WOODWARD

delivered the opinion of the court:

Defendant, Yolanda Masse, was convicted of armed robbery (Ill. Rev. Stat. 1989, ch. 38, par. 18—2(a)) and was sentenced to eight years’ imprisonment. She argues that the trial court erred by refusing her tendered jury instruction, based on United States v. Telfaire (D.C. Cir. 1972), 469 F.2d 552, that identification testimony is an expression of belief or impression of the witness. She also argues that she was not proved guilty beyond a reasonable doubt because of weaknesses in the identification of the perpetrator of the crime.

At the trial, Dena Moore testified that she was on duty at a Clark gasoline station at 11:30 a.m. on June 15, 1989. A van drove to the door, and a woman exited the van and entered the station. Moore made an in-court identification of defendant as that woman. Moore had been talking on the telephone for about 15 minutes to a friend when the woman entered the station. The woman asked to use the rest room, but this request was not unusual. Moore told her to go outside and around the building. The woman disappeared from Moore’s view for a few seconds, stood outside for about two minutes glancing at Moore, and then walked back to the van. She talked to the driver, who then stepped down and followed her into the station.

The man told Moore to hang up the phone and to give him the money from the register. He pulled a gun from his jacket and pointed it at her. She opened the register and handed him the bills. The man motioned for her to go into the back room. The woman followed Moore and told her to put her hands behind her back. The woman taped Moore’s wrists and closed the door. The man and woman remained in the station for half a minute and left. Moore could see them through half-inch slits in the door. She removed the tape and activated an alarm. The whole incident took about eight minutes. Moore testified that when the police arrived she was still scared, crying, shaking and even shouting obscenities. She testified that she initially described the assailant as a woman in her late twenties, 5 feet 4 inches tall, weighing 120 pounds, and with shoulder-length brown hair.

Later that day, Moore went to the police station and compiled a face of her assailant using an identikit. The kit is comprised of sets of five or six examples each of eyes, noses, facial contours and hair styles. Moore considered the eyes and hair important distinguishing features. Officer Lucchini of the Elmhurst police department helped her make the composite by asking her questions about the accuracy of each feature. After several corrections, she completed a composite she felt reflected the appearance of the assailant. The assailant had not worn eyeglasses. Lucchini testified that Moore estimated that the assailant was 35 years old and weighed 130 pounds.

On August 28, 1989, Officer Gary Fuller of the Elmhurst police department conducted a lineup identification. Moore went to the courthouse in Skokie, where she viewed six similar women through a window. Moore identified defendant as her assailant. The six women did not have the same hair style. One had short hair, and another had long, curly hair. Moore eliminated two of the women from consideration because they did not look alike.

Officer Dan Kaepplinger of the Hanover Park police department arrested defendant pursuant to a warrant on August 26, 1989. He had known her for over a year when she worked in a gas station and a convenience store in Hanover Park. He knew her on a first-name basis and saw her 75 to 100 times when he bought items. Each time, she wore eyeglasses.

Peter Epstein testified that he was an optometrist and examined defendant on March 10, 1988. Defendant was nearsighted to an acuity of 20/200 by squinting and 20/400 without squinting. This diagnosis meant that she could see an object 20 feet away as poorly as a person with standard vision would see it at 400 feet. Epstein prescribed her eyeglasses rather than contact lenses, but he did not know if she saw another optometrist. Vision of 20/400 is still sufficient to see a person at 20 feet, to see aisles in a store, or to see arms and hands a foot away.

Kim Hill testified that he lived with defendant for SVz years. He thought she appeared the same during trial as she had on June 15. She wore glasses, and he had never known her to wear contact lenses.

Prior to the closing arguments, the court conducted a conference on instructions. The court accepted People’s instruction No. 4, which was based on Illinois Pattern Jury Instructions, Criminal No. 1.02 (2d ed. 1981) (hereinafter IPI Criminal 2d). The court also accepted an instruction based on IPI Criminal 2d No. 2.03, regarding the burden of proof. Defense counsel tendered an instruction reading, “Identification testimony is an expression of belief or impression of the witness,” and cited Telfaire. The court denied the instruction. The instructions given by the court stated:

“You are the sole judges of the believability of the witnesses and of the weight to be given to the testimony of each of them.
In considering the testimony of any witness you may take into account his or her ability and opportunity to observe, his or her age, his or her memory, his or her manner while testifying, any interest, bias, or prejudice he or she may have, and the reasonableness of his or her testimony considered in the light of all the evidence in the case.”

During his argument, the prosecutor contended the identification evidence was strong. He stated that Moore had seen the perpetrator for eight minutes and at the close range of across the counter. The lighting was good, and Moore saw no obstructions for most of the time of the incident. The prosecutor argued that the identikit composite matched defendant’s face. The prosecutor also told the jury to use the lineup photograph. He argued Moore was honest because she admitted she could not select a photograph of the male perpetrator.

The defense counsel argued that Moore made mistakes in her testimony as follows. On the stand and in view of defendant, Moore stated the perpetrator was only 25, but at the time of the incident she told Officer Lucchini the perpetrator was in her thirties. She testified the gunman held the gun with his right hand, but she told Officer Kopczynski he used his left hand. The facts showed Moore was extremely upset and frightened. Counsel argued that the time involved was not eight minutes but short intervals of a few seconds span and that they totaled less than eight minutes. Counsel argued Moore did not pay attention to the perpetrator at first because she was doing nothing unusual and Moore was too involved in a 15-min-ute telephone conversation with a good friend. During the actual robbery, Moore would have looked at the gun and the money rather than the female perpetrator. Later, the female perpetrator taped Moore’s hands from the back. Counsel argued that Moore would be too excited to remember the details. Counsel argued that the length of hair of the identikit composite was too short when compared to defendant’s lineup photograph hair even allowing for growth. Counsel also repeated that Moore thought the perpetrator’s eyes were a striking feature, but counsel argued that the eyes of the composite were different from those of defendant.

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Bluebook (online)
604 N.E.2d 517, 237 Ill. App. 3d 348, 178 Ill. Dec. 261, 1992 Ill. App. LEXIS 1922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-masse-illappct-1992.