People v. Moore

576 N.E.2d 900, 215 Ill. App. 3d 836, 159 Ill. Dec. 977
Appellate Court of Illinois·Decided July 30, 1991·No. 1-87-0464·Published·Cited by 8 cases

Opinion

PRESIDING JUSTICE SCARIANO

delivered the opinion of the court:

Earl Moore appeals from his jury convictions for attempt (murder) and armed robbery, claiming that his trial was unfair in that: during closing arguments, the State improperly remarked on his failure to testify and argued facts not in evidence; testimony about his criminal background and that the State’s Attorney approved the prosecution against him was wrongfully admitted; the trial judge impermissibly communicated with the jury during its deliberations; and a juror was inappropriately separated from the rest of the jury panel during deliberations. He seeks reversal of his convictions and a remand of his cause for a new trial.

Moore was tried for the July 22, 1985, shooting and robbery of Peter DiVizio. DiVizio testified that he was a messenger for an armored car company at the time of the incident, and that his route included a stop at a grocery store on North Sheridan Road, in Chicago. He and his partner parked in front of the store at around noon.

DiVizio carried a bag of money into the store and dropped it off at the “courtesy counter.” He then received three bags containing cash, checks and food stamps, with a combined worth of about $22,000. He placed the bags containing the cash and checks into a larger “cole” bag, and carried it and the bag containing the food stamps out of the store. As he approached his truck, he heard someone yell, “Hey.” He looked in the direction from which the voice was coming and saw Moore, about 40 feet away by an exit on the east side of the building, clutching something in his hand. DiVizio then heard a “bang,” felt a sharp pain in his abdomen and fell to the ground, dropping the bags as he collapsed. After hearing another shot and someone running up and grabbing the bags, DiVizio crawled under the truck. He did not view the person who grabbed the bags.

Approximately two or three weeks after the shooting, the police showed DiVizio five photographs, from which he identified Moore’s photo as that of someone who resembled his assailant; but he was not positive about his identification, saying that he would “ha[ve] to see him in person.” On August 11, 1985, DiVizio identified Moore in a police lineup, saying that he “thought it was him,” his doubts stemming from Moore’s hair being shorter than he had remembered. DiVizio also testified that he couldn’t see the gunman’s eyes because the assailant was wearing sunglasses, and that the gunman was wearing a white hat, similar to a “navy hat,” with the flaps pulled down and which covered part of the man’s head. At trial, DiVizio also testified that he was “positive” about his identification, asserting that he had “been having flashbacks, dreams and I could just see his face that I remember.”

Kimberly McHugh, a stock clerk for the grocery store, got off work at noon on the day of the incident. After shopping at the store for about 10 minutes, she left with her groceries through the exit on the east side of the building, where she noticed a man about two feet away, wearing a black coat, black pants and black shoes; she took note of the man because he seemed “overly dressed” for a “hot July day.” McHugh testified that the man was black, that he was “fairly young,” wore mirrored, dark sunglasses, was of medium build, between 145 and 160 pounds, wore a hat, and was clean shaven.

The man looked back and forth between the parking lot and the inside of the store. McHugh stated that from his vantage point, he had a direct view of the courtesy booth where “all the money” is kept. After observing the stranger for about a minute, she walked to her car, drove it over to where her cart was and noticed that the man was still there. When he saw her return, the man walked into the store and then back out of the store through the same exit. After the incident, the police showed McHugh several photographs, of which she identified one as that of the man she saw outside the grocery store; that picture, however, was not of Moore. On August 11, 1985, she identified Moore in a police lineup. McHugh identified Moore in court as the man she saw, acknowledging that she did not witness the robbery.

Walter Lewis was working as a bus driver at the time of the robbery. He was speaking with his supervisor on Sheridan Road, just north of and on the same side of the street as the grocery store. He heard two gunshots come from the direction of the store, and while his supervisor walked across Sheridan, Lewis maintained his position and looked in the direction of the store. He saw a man, whom he described as a black male, approximately 5 feet 10 inches to 6 feet tall, wearing a white and black shirt, a white cap, sunglasses and white “utility gloves,” run toward him and across Sheridan, carrying a money sack of the kind “used at banks” in his left hand, and a “nickel plated automatic weapon” in his right hand. The man ran into an alley leading to a parking lot on the opposite side of Sheridan; about a minute to a minute-and-a-half later, Lewis saw the man as a passenger in a white station wagon driven slowly by a black male, shorter and stockier, who was not wearing a cap. The passenger was still wearing his hat and sunglasses, but Lewis could see only his profile, rather than his entire face. Lewis identified Moore in a police lineup on August 12, 1985, and then at trial, as the man he saw leaving the store with the gun and money sack.

Lovelace Coston testified that he owned an auto body shop at the time of the incident and that he knew Moore. During the middle of July 1985, Moore came into his shop and asked him to work on a white station wagon. When confronted with photographs of a white station wagon identified earlier by Lewis as being the one in which he saw Moore, Coston testified that it was “similar.”

John Redmond, an evidence technician for the Chicago police department, testified that he found two .30 caliber cartridge cases near the scene of the crime on the day of the shooting.

Conrad Pagan testified that he was on duty as a Chicago police officer when the shooting took place. After arriving at the crime scene in response to a call about an armed robbery and about a white vehicle heading north from the scene, Pagan discovered a white station wagon in an alley; and from the same photographs as those from which Lewis identified the car as the one he saw being used by Moore, Pagan identified it as the one he found. The vehicle was listed as a stolen car. Robert Dieringer, a crime lab technician for the Chicago police department, examined the car along with his partner and found a .30 caliber cartridge case on the passenger side of the auto and a white glove on the front seat. They also recovered a fingerprint impression from the exterior portion of the passenger-side window. Further, according to John DuShane, an employee of the identification section of the Chicago police department, another fingerprint was found on the driver’s side seat belt; neither, however, was Moore’s.

Philip Mannion, a Chicago police officer, testified that on August 11, 1985, he and his partner were given a photo of Moore and a description of a 1978 Oldsmobile he was alleged to be driving. After locating the vehicle, other officers arrived. When Moore arrived and drove off in the car. Mannion’s car and three other unmarked vehicles followed. When Moore stopped at a traffic light, the other vehicles stopped behind and next to him.

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People v. Moore, 576 N.E.2d 900, 215 Ill. App. 3d 836, 159 Ill. Dec. 977 (Ill. Ct. App. 1991).

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