People v. Patrick

562 N.E.2d 1027, 205 Ill. App. 3d 222, 150 Ill. Dec. 224, 1990 Ill. App. LEXIS 1578
CourtAppellate Court of Illinois
DecidedOctober 10, 1990
Docket1-87-3148
StatusPublished
Cited by8 cases

This text of 562 N.E.2d 1027 (People v. Patrick) 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. Patrick, 562 N.E.2d 1027, 205 Ill. App. 3d 222, 150 Ill. Dec. 224, 1990 Ill. App. LEXIS 1578 (Ill. Ct. App. 1990).

Opinion

JUSTICE RIZZI

delivered the opinion of the court:

Following a jury trial, defendant Keith Patrick was found guilty of two counts each of attempted murder and armed robbery and sentenced to concurrent terms of 25 years’ imprisonment on each count. On appeal, defendant argues that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred in submitting Illinois Pattern Jury Instructions, Criminal, No. 3.02 (2d ed. 1981) (hereinafter IPI Criminal 2d) defining circumstantial evidence to the jury; (3) his right to present a defense was prejudicially impaired by the State’s failure to disclose a potential witness’ name until near the end of the trial; (4) the State’s remarks in closing argument constituted reversible error; and (5) the trial court erred in denying his request to present an aggravated battery instruction to the jury. We affirm.

At trial, the following facts were revealed. Hyija Kim testified that her husband, Young Kim, owned a shoe store which she helped him operate on East 51st Street in Chicago. At approximately 10 a.m. on June 16, 1986, while Mr. and Mrs. Kim were working in the store, defendant entered alone. At his request, Mrs. Kim brought defendant a pair of shoes and watched as he tried on one shoe. After trying on the shoe, defendant stated that he wanted to buy the pair and approached the sales counter. At the counter, defendant placed his right hand into his pocket and removed his empty hand. Mrs. Kim told her husband that defendant was acting strange, and Mr. Kim told defendant he could have ánything that he wanted. When defendant pulled his hand out of his pocket again, it contained a gun. Mr. Kim described the gun as big and silver. Defendant pointed the gun at Mr. and Mrs. Kim and instructed them to walk to the rear of the store, where he made them lie down on the floor. Defendant removed Mr. Kim’s wallet from his pocket and took $250 in cash.

Defendant walked into the main store area for a moment, returned to the rear, and ordered both Mr. and Mrs. Kim into the warehouse located in the back of the store. As they proceeded into the warehouse, Mr. Kim turned around and tried to grab defendant’s gun. Defendant fired the gun twice, striking Mr. Kim in the stomach and Mrs. Kim in the chest. Defendant then left the store with the pair of shoes under his arm. While hospitalized, Mrs. Kim made a tentative identification of defendant from a photo array. On June 23, Mr. Kim positively identified defendant in a police lineup as the man who robbed and shot him and his wife. Both witnesses identified defendant in court.

Jimmy Rodgers, age 72, testified that on June 16, 1986, he was sitting outside a laundromat located across the street from the Kims’ shoe store. Mr. Rodgers testified that at about 10 a.m., he noticed a man running out of the shoe store just before Mr. Kim began screaming for help. When Mr. Rodgers crossed the street, he saw that Mr. Kim was bleeding from the stomach. Mr. Rodgers testified that he was able to see the profile of the man who ran from the store at a distance of approximately 25 to 30 feet. Rodgers positively identified defendant in a police lineup and at trial as the man he saw running from the Kims’ shoe store on June 16,1986.

Defendant testified on his own behalf and stated that on the date and at the time that the crime was committed he was with his girlfriend at her home. He testified that several members of his girlfriend’s family were also present. In addition, defendant’s aunt and grandmother both testified that defendant always treated them in a polite manner. Following closing arguments, the jury returned verdicts of guilty of two counts each of attempted murder and armed robbery. Defendant was subsequently sentenced to concurrent terms of 25 years’ imprisonment on each count in the Illinois Department of Corrections. This appeal followed.

On appeal, defendant first argues that the State failed to prove him guilty beyond a reasonable doubt. We disagree. The positive identification of an accused by a single eyewitness may be sufficient to sustain a conviction. (People v. Dean (1987), 156 Ill. App. 3d 344, 351, 509 N.E.2d 618, 622.) An identification is considered positive, and thus reliable, where (1) the witness had a sufficient opportunity to view the offender, (2) showed an adequate degree of attention to the characteristics of the assailant, (3) described the perpetrator with a reasonable degree of accuracy, (4) displayed a sufficient amount of certainty in identifying the offender, and (5) identified the accused within a reasonable period of time following the crime. (156 Ill. App. 3d at 351, 509 N.E.2d at 622.) On review, the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Young (1989), 128 Ill. 2d 1, 49, 538 N.E.2d 461, 472-73.

In the present case, three witnesses identified defendant. Mr. Kim’s identification was based on his observation of defendant in the store as he held him and his wife at gunpoint before robbing and shooting them. One week following the incident, Mr. Kim positively identified defendant in a police lineup. Mrs. Kim also testified with certainty that defendant was the man whom she waited on in her shoe store on June 16, 1986, before he pulled out a gun and robbed and shot her and her husband. Although Mrs. Kim’s initial identification of defendant from a photographic array was tentative, she positively identified him in court. Mrs. Kim testified that defendant was no more than five to six feet away from her during the entire ordeal. Mr. Rodgers testified that he observed defendant’s profile as he ran from the store, and he also positively identified defendant in a police lineup and in court. In sum, all three witnesses had a sufficient opportunity to view defendant, displayed sufficient certainty in identifying him and identified him within a reasonable period of time following the crime. Under these circumstances, it is clear from the record that, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Defendant next argues that the trial court erred in submitting IPI Criminal 2d No. 3.02 defining circumstantial evidence to the jury. We disagree.

The failure to raise an allegation of error at trial and in a post-trial motion constitutes waiver of the alleged error. (People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 1130.) Similarly, a defendant waives objection to jury instructions if he does not object or proffer alternative instructions at trial. (People v. Almo (1985), 108 Ill. 2d 54, 66, 483 N.E.2d 203, 208.) Although this court may consider an issue raised on appeal even where the objection has been waived, this procedure is utilized only when the alleged error so affects substantial rights that it rises to the level of plain error. Almo, 108 Ill. 2d at 66.

In the present case, defendant failed to object either at trial or post-trial to the introduction of the complained-of jury instruction.

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Cite This Page — Counsel Stack

Bluebook (online)
562 N.E.2d 1027, 205 Ill. App. 3d 222, 150 Ill. Dec. 224, 1990 Ill. App. LEXIS 1578, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-patrick-illappct-1990.