People v. Givens

• Decision Date: 11 March 1977
• Docket Number: No. 76--397,76--397
• Citation: 5 Ill.Dec. 348,46 Ill.App.3d 1035,361 N.E.2d 671
• Parties: , 5 Ill.Dec. 348 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald E. GIVENS and Arthur C. Tillman a/k/a Richard A. Bridges, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 671

361 N.E.2d 671

46 Ill.App.3d 1035, 5 Ill.Dec. 348

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ronald E. GIVENS and Arthur C. Tillman a/k/a Richard A Bridges, Defendants-Appellants.

No. 76--397.

Appellate Court of Illinois, First District, Fifth Division.

March 11, 1977.

James J. Doherty, Public Defender of Cook County, Chicago (James L. Rhodes and Marc L. Fogelberg, Asst. Public Defenders, of counsel), for defendants-appellants.

Bernard Carey, State's Atty., County of Cook, Chicago (Laurence J. Bolon and Iris E. Sholder, Asst. State's Attys., of counsel), for plaintiff-appellee.

WILSON, Justice.

Following a bench trial defendants were found guilty of armed robbery and defendant Tillman was also found guilty of unlawful use of weapons. Each was sentenced to serve 5 to 10 years in the penitentiary for armed robbery and Tillman was given a concurrent sentence of 1 to 3 years for unlawful use of weapons. On appeal defendants contend that they were not proved guilty of armed robbery beyond a reasonable doubt and that their respective 5 to 10 year sentences for this offense are excessive. Additionally, Tillman contends that he was not proved guilty of unlawful use of weapons beyond a reasonable doubt. We affirm.

Enrique Limon testified at trial that he was walking south on Hoyne Avenue in the City of Chicago on February 22, 1974, at approximately 10:30 a.m. It was snowing hard and because the snow fell toward him he walked with his head down, looking at the ground, as he approached the intersection of 21st Street and Hoyne Avenue. Suddenly he heard someone say: 'This is a hold up.' He looked up and saw a gun pointing at him and two men facing him. A tall man stood in front of him and held the gun about twelve inches from his face. Limon identified this man as Givens. A short man stood a couple of yards away to his right. Limon identified this man as Tillman. Givens said, 'I will blast your head if you don't turn the money in.' Limon stated that he didn't have any money and Givens responded by hitting him in the head a couple of times with the gun. Tillman then went into Limon's right front pants pocket and took him wallet. Thereafter defendants ran east toward Damen Avenue. As they fled one of them took Limon's money from the wallet and then threw the empty wallet on the sidewalk. Limon followed, retrieved his wallet, and then continued his pursuit and kept them in view until they reached a gas station located at the intersection of Damen Avenue and Cermak Road. He encountered a uniformed policeman sitting in a marked squad car at the same intersection. He reported the robbery to the policeman and lost sight of his assailants while talking to the officer. Two plainclothes men in an unmarked police car were also present at the intersection. Although Limon did not speak to them, they left to search for the assailants after Limon reported the robbery. Limon then got in the squad and accompanied the uniformed policeman in a search for the assailants. The squad circled the block and then pulled into the gas station at the intersection of Damen and Cermak. Limon looked across Damen Avenue and saw Givens in a parked car and Tillman outside of the same car. After spotting them he said to the officer: 'Those are the fellows that just hold (sic) me up.' He then got out of the squad and walked across the street toward the parked car. The policeman followed in the squad. After the officer reached the vicinity of the car he asked Limon: 'Are those the men?' Limon said, 'Yes, sir.' Thereupon the officer went up to the car, ordered Givens out and placed defendants under arrest. A gun was recovered from the car and shown to Limon. At this point in the trial Limon was asked if he had ever seen this gun before it was taken from the car. He answered that he had seen it when he was robbed and that Givens had held it in front of his face. When the question was repeated Limon said that it looked like the gun used in the robbery; but when asked to repeat his answer Limon said he had seen it during the robbery and that Givens was the robber who held it. Following this exchange, Limon testified that he had been robbed of $43, and that Givens was wearing a red hat with the letters 'JB' on it at the time of the robbery.

During cross-examination Limon testified that about three minutes elapsed from the time the pistol was first put in his face to the time that both assailants turned and ran with his wallet. He saw both men during this period. He looked from one man to the other but he never took his eyes off the pistol. The gun was held at eye level and as he looked at it he also looked past it into Givens' face. However, despite the fact that nothing covered Givens' face Limon did not remember any of Givens' facial characteristics; nor did he remember what type of clothing Givens wore. The assailants had their backs to him as they fled and he was not able to see their faces during their flight. Upon entering the squad he described his assailants as two colored men, one weighing around 180 pounds and the other around 145. The only additional descriptive statement he made to the police was that one of the men had a red and white hat on. When asked to recall preliminary hearing testimony in which he stated that the only description he gave of his assailants was that one was tall and the other was short, Limon stated that he remembered so testifying. Limon and the officer searched for his assailants for four or five minutes before he observed them about a block from the scene of the robbery. During this period he could not see the two men. Ten minutes elapsed from the beginning of the robbery until Limon spotted defendants across the street from the gas station. He misunderstood a question asked at the preliminary hearing to which he responded that he had lost sight of the defendants for ten minutes. When he first saw defendants and the car across the street, the passenger door was open and Tillman was outside of the car, 'getting in his seat, cleaning the seat' on the passenger's side. Limon remembered testifying at the preliminary hearing that the officer had asked: 'Are those the men?' for the first time while they sat in the squad at the gas station and that he answered: 'I want to be sure.' He explained that this was the correct account of what he had said. When he first saw the men across the street falling snow prevented a positive identification. After responding 'I want to be sure,' he got out of the squad and walked across the street toward defendants. The officer followed him and again asked: 'Are those the men?' At this point Limon responded: 'Yes, sir.' Following this explanation Limon testified that two detectives arrived in an unmarked car after his assailants were arrested. He saw a search conducted but did not notice whether anything was taken from either defendant.

On redirect examination Limon confirmed that he looked at both men during the robbery and that it occurred in about three minutes. He also observed that while Tillman was now bald, on the day of the robbery Tillman had hair.

On recross examination Limon was asked to recall preliminary hearing testimony in which he said that the robbery had occurred in 'two of three' minutes. Limon admitted saying something like that at the hearing but explained that he didn't have a watch.

Chicago Police Sergeant Eugene Golden testified at trial that he was on duty in uniform and in a marked police car at about 10:30 a.m. on February 22, 1974. At that time he sat in his squad before a stop light at the intersection of Cermak Road, otherwise known as 22nd Street, and Damen Avenue. Two plainclothes men sat in an unmarked police car to his right. Limon came up to his squad and reported a robbery. He asked Limon where it had taken place and who did it. Limon replied that two colored men had robbed him up at the next corner and pointed west. The plainclothes men were present during this conversation. Limon entered the squad and Sergeant Golden proceeded to search for the assailants. The plainclothes men also left. While touring the area he asked Limon for additional descriptive information. Limon said one robber was a tall fellow over six feet tall, the other was about five foot eight and one of them wore a stocking cap with red 'JB' letters on it. After circling the block Sergeant Golden parked in a gas station on the southeast corner of 22nd and Damen. A green, four-door, 1968 Chevrolet was parked at the curb on the other side of Damen facing south. It was snowing at the time but his vision was not obstructed and he clearly saw the car and two men across the street. Limon, who sat in the front seat of the squad, said: 'There they are,' and pointed to the two young colored men across the street. Sergeant Golden asked, 'Are you sure?' and without answering Limon jumped out of the squad and ran across the street. Thereupon the officer drove west across Damen toward the two men and stopped two or three feet from their car. As he drove across the street he observed one of the men Limon pointed to in the vehicle's driver's seat and the other on the passenger's side 'about ready to get in the car.' He identified Givens as the man seated in the vehicle and Tillman as the man standing outside. He exited from his squad, drew his gun and told the two men that they were under arrest. He noticed that Givens was wearing a stocking cap with red 'JB' lettering. He had called for help and the two plainclothes men that had been stopped at the light alongside him when Limon first ran up arrived at this time. These officers searched the defendants. They recovered four shotgun shells from Givens. They also searched the 1968 vehicle and Sergeant Golden saw them recover a pistol and a sawed-off shotgun from this auto. Defendants were then transported to the police station. About five minutes elapsed between the time Limon first spoke to him and Limon's first...