People v. Bryant

• Decision Date: 01 September 1981
• Docket Number: No. 80-1112,80-1112
• Parties: , 55 Ill.Dec. 152 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis BRYANT, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1325

425 N.E.2d 1325

100 Ill.App.3d 17, 55 Ill.Dec. 152

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Dennis BRYANT, Defendant-Appellant.

No. 80-1112.

Appellate Court of Illinois, First District, Second Division.

Sept. 1, 1981.

Office of the State Appellate Defender, Chicago, for defendant-appellant; Eva Field, Chicago, of counsel.

Richard M. Daley, State's Atty. of Cook County, for plaintiff-appellee; Michael E. Shabat, George M. Velcich, Gino P. Naughton, Asst. State's Attys., of counsel.

STAMOS, Justice:

Following a jury trial, defendant Dennis Bryant was convicted on two counts of armed robbery. Defendant appeals, contending that identification testimony should have been suppressed, that the trial court erred in allowing a witness to be called as a court's witness and in permitting the impeachment of that witness, that he was not proved guilty beyond a reasonable doubt, that the prosecutor made improper and prejudicial remarks in his closing argument, and that the trial court erred in entering judgment on two convictions when both counts arose from a single act.

At about 6:30 a. m. on December 31, 1978, a 7-Eleven food store on Howard Street in Evanston was robbed. The only witnesses to the robbery were Harold and Norma Lederer. Harold was the night manager of the 7-Eleven. His wife Norma had come to the store to pick up Harold at the end of his shift. A black male entered the store and announced a stick-up. Brandishing a pistol, he forced Harold to open the cash register and the store's safe. The robber pocketed loose change and small bills from the register and several packages of bills from the safe that had been counted and wrapped in register tape.

The store was brightly lit and the Lederers had several minutes to observe the robber. The man's face was masked by a white cloth, apparently torn from a bedsheet, that came over the bridge of his nose and was tied behind his head. He wore a blue knit cap with an orange tassel; the cap was pulled low on his forehead, about half an inch above his eyebrows. The robber wore a blue denim jacket and light blue pants. At trial, Norma Lederer testified that she was able to discern some of the robber's facial features as the robber moved and the mask conformed to his face. Norma observed that the robber had high cheekbones and a prominent jaw line.

Prior to leaving the store the robber ordered the Lederers to lie on the floor. Harold complied but Norma ignored the order. The gunman slapped Norma's face and then left the store. Harold immediately called the police but was too nervous to describe the offender. Norma took the phone and gave police a description of the robber.

Evanston police immediately responded to the call. Officer Douglas Glanz, proceeding in the direction of the 7-Eleven, aimed his squad car's spotlight at the drivers of oncoming cars. In one oncoming car, a white and aqua Cadillac, Glanz observed a black male wearing a blue knit cap with an orange tassel. Glanz immediately activated the car's Mars lights and turned to follow the Cadillac. A chase ensued. After several blocks, the Cadillac entered an alley that was blocked by an abandoned auto. The driver of the Cadillac then fled on foot. Glanz pursued on foot, noting that there were no other occupants of the Cadillac.

In the course of the chase, the suspect vaulted a chain link fence. Glanz climbed the same fence, sustaining a puncture wound on his left palm. Glanz fell behind in the chase but was able to follow the suspect's footprints, as the ground was covered with 3 inches of fresh snow. The pursuit on foot covered several blocks. Glanz followed the footprints to the basement entrance to a dwelling. By this time, another police officer had caught up with Glanz. The door to the basement apartment was standing open, and the two officers entered the basement. After ascertaining that the back door to the basement was locked, the officers concluded that the suspect was still in the basement. The officers then looked in the bedrooms of the basement apartment. In one room, they found a black male talking on the phone. They took this individual, later identified as Early Patterson, to a squad car outside. At trial, Glanz testified that Patterson said, "It's not me you want. It's my nephew. He is still hiding behind the refrigerator." Other officers then found the defendant, Dennis Bryant, crouching next to a refrigerator. After a brief struggle, defendant was placed under arrest. The arresting officers observed that defendant wore a blue denim jacket and blue pants, and that his shoes and pants cuffs were wet. The officers also found packages of dollar bills wrapped in register tape in defendant's pockets. At the police station, Glanz noted that defendant had a puncture wound on his hand similar to the wound on Glanz's left palm. Glanz also noticed a tear in defendant's pants.

In the abandoned Cadillac, police found a blue knit cap with an orange tassel, a .32 caliber automatic pistol, two pieces of white cloth torn from a bedsheet, and an amount of rolled coins and loose change. The Cadillac was registered to defendant and his mother.

At trial, Norma Lederer testified that, on the afternoon of December 31, she was called to the Evanston police station to view "some objects." Police displayed a gun, a white cloth, and a blue knit cap to Mrs. Lederer. She identified these objects as the ones used by the robber. The police also showed Mrs. Lederer an array of photographs. Five of the photos were police "mug shots," incorporating frontal and side views of the subjects and containing identification numbers. One picture was a frontal picture taken by a Polaroid camera. This was defendant's picture, and this was the picture selected by Norma Lederer. At trial, the six photos were introduced in evidence and Mrs. Lederer was allowed to testify to the identification made at the police station. Over defendant's objection, Mrs. Lederer was also allowed to identify defendant in court. Harold Lederer also identified defendant at trial, but the strength of this identification was diminished by Harold's imperfect recollection of the robber's appearance and by the fact that Harold had been afforded a clear view of defendant at the preliminary hearing. Harold did not identify defendant's picture from the photo spread. Harold was able to identify the packages of bills wrapped in register tape that were taken from defendant at the time of his arrest.

After eliciting testimony from the Lederers and Officer Glanz, the State sought to call Early Patterson. The State advised the trial court that Patterson had given evasive answers in prior discussions with the prosecutors and the State requested the trial court to call Patterson as a court's witness. The trial court declined to call Patterson as a court's witness, but found that Supreme Court Rule 433 (Ill.Rev.Stat.1979, ch. 110A, par. 433) applied and the court allowed the State to call Patterson as a hostile witness. On direct examination, Patterson described his encounter with the police on the morning of December 31. The prosecutor asked Patterson if, prior to the arrival of the police, defendant had admitted that he had committed a robbery. Patterson denied hearing such an admission. The State then proceeded to impeach Patterson with a statement Patterson had given to a police detective.

"Q: Was this question asked of you, Mr. Patterson, by Detective Haytow, and did you give these answers: 'Q Mr. Patterson, will you tell me what you know of this armed robbery? A Dennis Bryant came down in the basement. I went down behind him. I asked him what was wrong. He said the police had just taken his car. He said he just robbed a 7-Eleven, I think that's what it was.'

Now, was that the question asked of you by Detective Haytow, and did you give that answer?

A: I don't even know if the question was asked, but I know definitely for sure I think, like I told you, I was under the influence of alcohol at the time. I don't know what was going on.

THE COURT: Okay. Just answer the question, sir.

THE WITNESS: I don't know."

Later the State completed the impeachment by offering the testimony of Detective Haytow, who stated that Patterson had given an oral statement, and that Haytow had typed the statement and Patterson had signed it. Haytow acknowledged that the question and answer cited above were included in Patterson's statement. On cross-examination by defendant, Patterson testified that he had been up all night drinking and that he is unable to read. Patterson stated that he signed the statement, not knowing what it said, because he "wanted to get out of there."

The State has confessed error regarding one of the issues on appeal. Defendant argues, and the State now agrees, that he was improperly convicted of two counts of armed robbery, in that he was separately convicted of the armed robbery of Harold Lederer and the armed robbery of Norma Lederer. The robbery involved only the contents of the 7-Eleven's cash register and safe and no property was taken from Norma Lederer. These facts do not support two separate convictions for armed robbery. See People v. Chaka (1977), 55 Ill.App.3d 470, 473-74, 13 Ill.Dec. 379, 371 N.E.2d 74; People v. Hunter (1976), 42 Ill.App.3d 947, 951, 1 Ill.Dec. 540, 356 N.E.2d 822.

Defendant also contends that the trial court erred in refusing to suppress Norma Lederer's in-court identification of defendant. Defendant argues that the pre-trial photo array was impermissibly suggestive and that the subsequent in-court identification was thereby tainted. Defendant cites Simmons v. United States (1968), 390 U.S. 377, 88 S.Ct. 967, 19 L.Ed.2d 1247, where the Supreme Court noted that the danger of misidentification is increased if the photograph of any one individual is in some way emphasized. (Simmons, at 383, 88 S.Ct. at 970.) The Court further stated that, "(T)he witness thereafter is apt to retain in his memory...