People v. Davis

• Decision Date: 02 June 1978
• Docket Number: No. 14570,14570
• Citation: People v. Davis, 377 N.E.2d 329, 61 Ill.App.3d 368 (Ill. App. 1978)
• Parties: , 18 Ill.Dec. 176 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Homer Gene DAVIS, Mark A. Erbes, and Thomas J. Armstrong, Defendants- Appellants.
• Court: Appellate Court of Illinois

Page 329

377 N.E.2d 329

61 Ill.App.3d 368, 18 Ill.Dec. 176

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Homer Gene DAVIS, Mark A. Erbes, and Thomas J. ArmstrongDefendants- Appellants.

No. 14570.

Appellate Court of Illinois, Fourth District.

June 2, 1978.

Richard J. Wilson, Deputy Appellate Defender, Springfield, Donald T. McDougall, Asst. State Appellate Defender, for defendants-appellants.

Paul L. Stone, State's Atty., Sullivan, for plaintiff-appellee.

MILLS, Justice.

The conclusion first: We affirm.

All three defendants were convicted of armed robbery by a Moultrie County jury.Armstrong was sentenced to 4 to 12 years' imprisonment, Davis received 10 to 30 years, and Erbes got 6 to 18.

Four issues are before us:

(1) Whether Armstrong and Erbes are guilty beyond a reasonable doubt.

(2) Whether Davis is guilty on an accountability theory beyond a reasonable doubt.

(3) Whether Davis was denied a fair trial by the admission of testimony describing a photograph of him and his young son posing with handguns.

(4) Whether the trial court abused its discretion by imposing excessive sentences.

Now for the facts.They are complex, and we find it needful to tell them in somewhat exhausting detail.

During the middle of the afternoon on February 25, 1977, two men carrying handguns robbed the Star Market in Bethany, Illinois (a community of some 1,200 population), of an amount of money described by the prosecutor at trial as $581.The robbers were attired in blue jeans, dark shirts or jackets, and dark knit ski masks.The witnesses unfolded the following story.

DARLENE CUTTILL approached and entered the market just prior to the robbery at which time she observed two men outside near some vending machines.Before leaving her car she observed the two suspicious men for approximately 11/2 minutes as they stood beside some frequently vandalized vending machines.Although the men had their backs to her, they both turned around and looked toward her as she entered the market.The men were dressed in blue jeans, dark shirts and jackets, and their faces were uncovered.Moments later, two similarly dressed men wearing ski masks and carrying guns entered the market and robbed it.The two robbers appeared to be wearing the same clothing as the two men she saw outside the building.She identified Erbes at trial as one of the men she observed outside the market based on his build and the length and color of his hair.She could not recall his having a moustache.She did say, however, that she viewed a line-up on the evening of the robbery and was unable to pick out the second participant in the robbery.On cross-examination she admitted that in a prior conversation with defense counselshe told him that she was unable to identify the men standing near the vending machines.She then stated that she was not positive of her in-court identification of Erbes, that (in her pre-trial conversation with defense counsel)she had told him she did not make a full-face observation of the men standing next to the machines and that she only remembered them wearing jeans, not shirts or jackets.She further admitted that she could not say for certain that the two men standing outside the market were the two who perpetrated the armed robbery.Although she had picked Erbes out of a line-up at the jail on the evening of the robbery, on cross-examination she said she was not certain that that identification was correct, although she said, "I thought I was pretty sure."On redirect she stated she"thought they were the same" men.

HILLIS MILLER was working in the market's meat department at the time of the robbery.On the evening following the robbery, she picked Armstrong out of a line-up as one of the masked men who robbed the market.She said her identification was based on his clothing and facial characteristics.On cross-examination, however, she admitted that she previously had told defense counsel that she could not positively identify any of the robbers, that she did not observe the robber's face and that she couldn't recall whether he had a jacket, T-shirt or sweater on at the time of the robbery.She identified Armstrong as one of the robbers because she saw him at the line-up which was, as she said, "The only place I know for sure that I seen (sic) him."She also testified that she really did not know who perpetrated the robbery at the Bethany Star Market.On redirect she denied that any police officer prompted her to identify Armstrong out of the line-up.

MARNA GOETZ was the market employee who emptied the cash register for the robbers.She testified that a state trooper asked her after the robbery if Homer Davis was one of the robbers.She answered in the negative.

DORIS WHEELER(a customer), just prior to the robbery and just as Mrs. Cuttill pulled up in front of the Bethany Star Market, left the market and rode from the scene in her daughter's automobile.The Wheeler vehicle proceeded eastward on West South Water Street to Washington Street.At that intersection she observed a black, 1969 automobile which turned east onto West South Water Street, the street on which the market is located.She glimpsed the profile of the driver, but she did not see anyone else in the car.When she learned of the robbery, she returned to the market and told an investigating state trooper that she observed an unfamiliar car in Bethany that day.The trooper showed her five photographs and she picked out a photograph of Davis as the driver of the unfamiliar vehicle and identified him at trial as the driver.

JACQUES AND LEOLA SCOTT were parked outside the Bethany Star Market at the time of the robbery.She observed two men wearing ski masks leaving the market just before Mrs. Cuttill rushed out of the building saying, "We have been robbed."After the robbers were out of sight, the Scotts started their car and began driving around Bethany in search of the robbers.The Scotts headed south on then-deserted Washington Street and eventually encountered two men in a dark, northbound car bearing license number 451-739.As they circled around the area, they encountered the car three times and each time Mr. Scott observed the driver and identified him in court as Homer Davis.Mr. Scott is a lawyer who had Homer Davis as a client approximately 5 years previously.(Mr. Scott had not seen Davis since then and did not recognize the driver as Davis until the Sunday evening following the robbery when a state trooper displayed some photographs to Scott who had selected a photograph of Homer Davis, and the trooper told him the man he picked was named Homer Davis.)As they drove around Bethany, the Scotts also observed a beige car parked near the dark car which Davis allegedly had been driving which was now parked.Men were getting out of one of the cars and into the other.Mrs. Scott wrote down the beige car's license number and Mr. Scott identified a black and white photograph of the beige car.The caption on the back of the photograph described the car as a "Brown Barracuda" and the rear license plate on the car was a 1976 Illinois plate bearing the number EU 1209.On cross-examination, Mrs. Scott said she did not know how many people got out of the two parked cars and she could not identify their sexes.Her husband also testified on cross-examination that he only saw two individuals at any one time in the dark and beige cars.

WANDA BARKER observed a brown Barracuda parked in front of her home on the day of the robbery.At approximately 2:45 p. m., a dark Chrysler squealed around her corner and stopped near the Barracuda.Two men in their teens or early twenties exited from the dark car and entered the Barracuda.She identified Armstrong in a line-up and in court as one of the two men, based on the length and color of the man's hair and his build.Armstrong, she said, was unmasked and dressed in blue jeans and a brown T-shirt.One of the men was carrying a brown paper sack.On cross-examination, she admitted she previously told defense counselshe was unable to identify any of the individuals she had seen.She was not positive of her identification of Armstrong and she appeared to say that her identification was based on her general recollection of the man.On redirect she was asked, "What did you mean when you told him you couldn't identify the people?"Her reply: "That I couldn't stake my life on it.I couldn't be one hundred per cent sure."

GENE FAITH, an Illinois State Police officer, testified that he investigated the armed robbery of the Bethany Star Market immediately after it occurred.The next day he executed a search warrant at Davis' trailer in Bethany where the police were searching for ski masks, guns, and a brown paper bag.However, they only discovered ammunition for a .38 caliber pistol and a picture of Davis and a small boy holding two dark-colored handguns.Although the photograph was neither introduced into evidence nor displayed to the jury, Officer Faith did describe the photograph to the jury over objection.

ROGER SHELTON, a deputy sheriff, testified that he stopped Davis' car (a black dodge Polara bearing license number 451-739) on the day of the robbery at approximately 3:31 p. m., in Mt. Zion, Illinois.Davis was driving and his wife and small child were with him.After Deputy Shelton contacted Trooper Faith, Davis and his family were released at 4:12 p. m. Before that, however, Shelton searched the Davis car, finding no ski masks, guns, or money.

CHARLES APPLEGATE, a Mattoon policeman, stopped a brown 1965 Barracuda bearing what Applegate thought was license number EU 1209 on the west edge of Mattoon at 3:30 p. m. on the day of the robbery.Armstrong was driving and Erbes was a passenger.

HAROLD MORGAN, another deputy sheriff, searched the Barracuda at the Mattoon Police Station after Armstrong consented to the search.State TrooperJack Eckarty had told Morgan that Armstrong said some money could be...