People v. Son

443 N.E.2d 1115, 111 Ill. App. 3d 273, 66 Ill. Dec. 952, 1982 Ill. App. LEXIS 2592
CourtAppellate Court of Illinois
DecidedDecember 22, 1982
Docket81-341
StatusPublished
Cited by13 cases

This text of 443 N.E.2d 1115 (People v. Son) 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. Son, 443 N.E.2d 1115, 111 Ill. App. 3d 273, 66 Ill. Dec. 952, 1982 Ill. App. LEXIS 2592 (Ill. Ct. App. 1982).

Opinion

JUSTICE REINHARD

delivered the opinion of the court:

Defendant, Timothy H. Son, was charged by information with armed robbery and armed violence. In a bench trial, he was found guilty of both offenses and sentenced to seven years’ imprisonment on the armed robbery charge. On appeal, defendant raises the following issues: (1) whether certain pretrial identification procedures were unduly suggestive; (2) whether the State failed to show by clear and convincing evidence that an independent basis existed for his in-court identification; (3) whether the trial court abused its discretion when it struck without an evidentiary hearing defendant’s post-trial motion for a new trial based upon newly discovered evidence; (4) whether defendant was denied effective assistance of counsel; (5) whether the judgment of conviction entered for armed violence must be vacated; (6) whether the defendant was proved guilty beyond a reasonable doubt; and (7) whether cumulative error denied defendant a fair trial.

On June 28, 1979, at approximately 10:30 p.m. a man of oriental extraction entered the Taco Bell restaurant in Downers Grove, Illinois, approached the cash register, and requested that the cashier, Sherry Jones, give him change for a dollar. When Jones opened the register, the man drew a gun and demanded all the money. Jones backed away, and the man reached into the register, took money, and fled. A co-worker, Rebecca Fitzgerald, the only other person in the restaurant at the time, witnessed the robbery. The two witnesses each subsequently assisted the police in putting together composite drawings of the robber. Sherry Jones did not view any photographs until several days before trial at which time she identified the defendant from six photographs shown to her. She was told that Rebecca Fitzgerald previously had identified the defendant’s photograph from those shown her although Jones was not told which photograph was that of the defendant. Rebecca Fitzgerald viewed various photographs the evening of the armed robbery but was unable to make any identification. On August 30, 1979, Fitzgerald went to the Downers Grove police station, viewed various photographs, and picked out a photograph of the defendant whom she identified as the robber. An arrest warrant was issued for defendant on September 21, 1979, and he was subsequently arrested on December 11, 1979. He was released on bond on December 28, 1979.

Jones and Fitzgerald were the only witnesses who testified at trial for the State. Sherry Jones testified that she viewed the robber for about IV2 minutes at a distance of several feet; that she had no difficulty in observing the robber’s facial features; that the robber had a bandana across the top of his head and wore sunglasses; that defendant was the robber; and that her in-court identification of defendant was based upon her view of him on the night of the crime. During her cross-examination, defense counsel was furnished the six photographs from which Jones had selected defendant’s photograph several days before trial.

Rebecca Fitzgerald testified that she observed the robber from the time he walked into the restaurant; that she stood right next to Jones facing the robber during the crime; that nothing obstructed her view and that there were lights right above where the robber was standing; that she thought the whole occurrence took 10 to 12 seconds, but it could be shorter or longer; that she could observe the robber’s complexion, the shape of his eyes and cheekbones, and some of his hair; and she was positive of her identification in court of the defendant.

At the conclusion of the State’s case, the trial court denied a motion to strike all the testimony on the basis of the pretrial identification procedures. The defendant then testified he did not commit the armed robbery. He further testified that on the day of trial an assistant State’s Attorney approached him, and, in the presence of Jones and Fitzgerald, asked if he was Tim or his brother. On redirect examination, he testified that he had been arrested “a couple of times” for things his brother had done.

Two assistant State’s Attorneys testified in rebuttal that they had approached defendant in the hall on the day of trial and spoke to him briefly about whether he was Tim or his brother, but denied the two witnesses were present at that time.

On June 17, 1980, at the conclusion of trial, the court found the defendant guilty of both armed robbery and armed violence. New privately retained counsel, substituted for defendant’s privately retained trial counsel on August 14, 1980, then filed a motion for new trial claiming newly discovered evidence. Attached to the motion was a copy of a transcript of a statement given to a court reporter under oath by defendant’s brother which, in substance, related that he had committed the robbery at the Taco Bell restaurant on the evening in question. The State thereafter moved to strike the motion for new trial and contended that the motion for new trial failed to include an affidavit setting forth a statement of the defendant’s due diligence in attempting to discover all evidence favorable to his defense prior to trial. After hearing oral arguments on the motion to strike, the trial court granted the motion to strike. A later motion for post-trial relief filed by defendant setting forth various allegations of trial error was denied. After a sentencing hearing, defendant was sentenced to seven years’ imprisonment.

Defendant first contends that the State’s failure to “turn over” composite drawings and photographs used in several pretrial photographic showups, and failure to provide notice of a photographic lineup held several days before trial, violated his right to discovery. While no discovery motion was made by the defendant, the court entered a form discovery order on its own which required, inter alia, that the State disclose to defendant’s attorney all matters as required by sections (a), (b), and (c), of Supreme Court Rule 412 (87 Ill. 2d R. 412), and provide copies of those materials that lend themselves to copying, and as to other materials, permit the defense to make an examination or photograph thereof. The State filed a document entitled “Disclosure to the Accused” which recited, in part, that “[a]ll physical exhibits are in the custody of the Downers Grove Police Department. They may be viewed by appointment at a mutually convenient time.” The supplemental record includes a police report which makes reference to two photographic lineups and the identification of defendant by a witness, Rebecca Fitzgerald.

Supreme Court Rule 412(a)(v) (87 Ill. 2d R. 412(a)(v)) provides for disclosure of “any books, papers, documents, photographs or tangible objects which the prosecuting attorney intends to use in the hearing or trial or which were obtained from or belong to the accused.” The composite drawings and photographs used in the various photographic lineups were not used by the State at trial, nor were they obtained from, nor did they belong to, the defendant. Unless photographs are favorable to the defense, they are not automatically discoverable by the defendant unless the prosecution intends to use them at trial or unless they were obtained from, or belonged to, defendant. (People v. Newbury (1972), 53 Ill. 2d 228, 238, 290 N.E.2d 592; People v. Sakalas (1980), 85 Ill. App. 3d 59, 70-71, 405 N.E.2d 1121; People v. Molsby (1978), 66 Ill. App.

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Cite This Page — Counsel Stack

Bluebook (online)
443 N.E.2d 1115, 111 Ill. App. 3d 273, 66 Ill. Dec. 952, 1982 Ill. App. LEXIS 2592, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-son-illappct-1982.