People v. Wheatley

539 N.E.2d 276, 183 Ill. App. 3d 590, 131 Ill. Dec. 923, 1989 Ill. App. LEXIS 676
CourtAppellate Court of Illinois
DecidedMay 12, 1989
Docket1-87-0044
StatusPublished
Cited by13 cases

This text of 539 N.E.2d 276 (People v. Wheatley) 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. Wheatley, 539 N.E.2d 276, 183 Ill. App. 3d 590, 131 Ill. Dec. 923, 1989 Ill. App. LEXIS 676 (Ill. Ct. App. 1989).

Opinions

PRESIDING JUSTICE MURRAY

delivered the opinion of the court:

After a jury trial, defendant Kenneth Wheatley was convicted of armed robbery and sentenced to six years’ imprisonment. On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt because the complaining witness’ identification of him was inadequate and unreliable and a lineup from which the witness identified him was the product of suggestive procedure; (2) he was denied a fair trial because a number of comments by the State during closing and rebuttal arguments were not based on the evidence or were made as a personal attack on the integrity of defense counsel; and (3) the trial court erred in refusing to give his tendered instruction on identification to the jury. For the reasons set forth below, we affirm.

Defendant and his brother, Robert Wheatley, were initially charged with armed robbery, armed violence and unlawful use of weapons in connection with the October 9, 1985, robbery of complainant, Richard Gillis (Gillis). Defendant elected to be tried by a jury and Robert elected to be tried simultaneously by the court. Prior to jury selection, the State moved to strike the unlawful use of weapons charge against defendant and nolle prossed the armed violence count. Defendant subsequently filed pretrial motions challenging the legality of his arrest and the propriety of the lineup which he claimed was conducted in a suggestive manner. Both motions were denied.

At trial, the evidence disclosed that Gillis left his Chicago Loop law office at 10:15 p.m. on October 9, then took an el train to Fullerton Avenue and then, while walking north on Sheffield toward his home on Wrightwood, he saw two black males standing on each side of the sidewalk (both sides of the street were lit by streetlights). One man who was wearing a brown jacket approached him; the man was about 5 feet 9 inches and weighed approximately 150 pounds. At a distance of two feet, the man asked Gillis if he knew the location of a particular address. Upon looking at the man’s face, Gillis noticed that he had a slight mustache and a beard. Gillis did not answer and instead began to walk around the man to his left. The man also moved to the left, outflanking Gillis. He pulled out a chrome-colored gun and told Gillis, “Give us your money [expletive],” and Gillis responded, “Alright, I’ll give you my money.” The man then told Gillis to “Get into the alley,” Gillis stated he would give the man his money “right here,” and the man again told Gillis to get into the alley. At that point, the second man, who had been standing behind Gillis, pulled him into the alley. The alley was 15 to 20 feet wide with a light 25 feet from the door of a building and 15 feet from the surface. The man directed Gillis to a door leading to a building off the alley and they pushed him through the doorway into a vestibule area with a stairway off to the right leading to the basement. The vestibule area had one bare lightbulb overhead and light was coming in through the glass in a door that led to another part of the building. At that point the other man, who had a blue or black steel revolver with a rubber band on the barrel, started going through Gillis’ pockets, which contained paper, pens and $17 in cash. The other man subsequently told Gillis, “You got some money. I know you got more money.” Gillis responded that he did and took an envelope from his boot. The envelope contained $140, a $35 check, and a deposit slip from the Lakeview Trust and Savings Bank. Thereafter, Gillis was told to go downstairs and not to come out for 5 to 10 minutes. However, after a minute or so, he came upstairs, looked around, saw that no one was there, and went home and immediately called the police. The time was approximately 10:45 p.m.; the robbery had taken about five minutes.

Around midnight, Gillis received a call from the police, who told him they had recovered his bank deposit slip and some cash. Gillis went to the police station and viewed a lineup of six men; Robert Wheatley, defendant’s brother, was in the first position, Ted McLeod was in the third position, Vincent Wheatley, defendant’s brother, was in the fifth position, and defendant was in the sixth position. Gillis identified defendant as one of the men who had robbed him. Gillis acknowledged the fact that the person he identified in the lineup was not wearing a brown jacket and blue jeans like the man he described as one of the robbers, but rather a black leather jacket and grey pants.

Police officer Sergio Rajkovich testified that on October 9, 1985, at approximately 11:20 p.m., he and his partner, Officer Reno Baiocchi, were in a squad car traveling east on Armitage Avenue when they observed a Pontiac without a license plate also going east on Armitage. After the Pontiac made a left turn on Halsted Street, the officers curbed it. Four men were in the car: Robert Wheatley, the driver; Ted McLeod, the front seat passenger; defendant, who was in the rear seat behind McLeod; and Vincent Wheatley, who was behind the driver. The officers got out of their car, and Officer Baiocchi asked Robert Wheatley for his driver’s license and was told he had none. Officer Rajkovich then approached the passenger side of the car and asked the other occupants if one of them had a license to drive the car because Robert was being arrested. Defendant responded that he had a license. As defendant exited the car, Officer Rajkovich, who had his flashlight pointing inside the car at defendant, saw a chrome-plated gun (a .357 magnum) on the seat where defendant had been sitting. He then ordered everyone out of the car and handcuffed them. In searching the rear seat of the car, Officer Rajkovich discovered a second gun (a blue .22 caliber steel revolver) where Vincent had been sitting, a brown jacket, and a black hat. In the front seat, Rajkovich found a Lakeview Bank deposit slip with Gillis’ name, address and telephone number on it. At this point, Rajkovich placed the four men under arrest, advised them of their Miranda rights, and conducted a pat down search. After being advised of his rights, defendant admitted ownership of the chrome-plated .357 magnum handgun.

The police took the men to the 18th District police station where they were again searched. Sixty-one dollars (three-$20 bills and one-$l bill) were recovered from Vincent and $40 (one-$20 bill, one-$10 bill, one-$5 bill and five $1 bills) from McLeod; Robert and Kenneth did not have any money on them. Officer Rajkovich prepared a booking sheet on each man. Defendant’s sheet indicated that he was 21 years of age, weighed 145 pounds, was 5 feet 9 inches tall, and had brown eyes and black hair.

Officer Kevin Murphy testified on defendant’s behalf that on October 9 he was assigned to investigate an armed robbery and he arrived at Gillis’ home at approximately 10:55 p.m. Gillis subsequently described the two armed robbers as being “male blacks, in their early twenties, approximately 5 feet 9 inches and 150 pounds.” Gillis further stated that the first man wore a brown jacket and jeans and the second wore a dark jacket and blue jeans. Gillis did not mention any facial characteristics of either offender.

Vincent Wheatley testified that on October 9 he was at his mother’s house on the southside of Chicago with Ted McLeod and his two brothers, Robert and defendant. When he learned they were going to deliver phone books on the northside, he asked if he could go along.

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People v. Wheatley
539 N.E.2d 276 (Appellate Court of Illinois, 1989)

Cite This Page — Counsel Stack

Bluebook (online)
539 N.E.2d 276, 183 Ill. App. 3d 590, 131 Ill. Dec. 923, 1989 Ill. App. LEXIS 676, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-wheatley-illappct-1989.