People v. Hayes

• Decision Date: 31 March 1988
• Docket Number: No. 86-0738,86-0738
• Citation: 119 Ill.Dec. 420,168 Ill.App.3d 816,522 N.E.2d 1279
• Parties: , 119 Ill.Dec. 420 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert M. HAYES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1279

522 N.E.2d 1279

168 Ill.App.3d 816, 119 Ill.Dec. 420

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert M. HAYES, Defendant-Appellant.

No. 86-0738.

Appellate Court of Illinois First District, Fifth Division.

March 31, 1988.

Steven Clark, Deputy Defender, Donna Finch, Asst. Appellate Defender, Office of the State Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty., Cook County (Thomas V. Gainer, Jr., Patricia Y. Brown, Asst. State's Attys., of counsel), Chicago, for plaintiff-appellee.

Justice MURRAY delivered the opinion of the court:

Following a jury trial defendant was convicted of armed robbery and sentenced to a six-year term. On appeal defendant contends that reversible error occurred when evidence of his alleged unrelated criminal activity was presented and that evidence of the complainants' nonidentification of other individuals as the robber was improper.

The armed robbery occurred about 8 p.m. on February 3, 1984, in a grocery store located at a shopping plaza in Chicago Heights, Illinois. At that time Linda Malito and Cheryl Markiewcz (nee Pitrowski) were working in the store office which also had a service desk and was located near the front of the store. A man approached the desk and spoke briefly to Markiewcz.

According to Malito she then went to the service desk window to speak to the man whom she positively identified as defendant. At this point defendant produced a silver-colored gun and a bag in which she then put $800. Defendant took the bag, moved away a short distance, looked inside the bag and announced "You've got to have more money than this. I want more money." When Malito replied that she did not, defendant left the store.

Malito indicated that the incident took no more than two minutes. She said that defendant was wearing a bulky green military jacket, was clean shaven and had a receding hair line.

That evening Malito and Markiewcz went to the police station, but they did not see their assailant's picture in photo books shown to them there. Both she and Markiewcz then assisted police in preparing a composite sketch of the gunman. About three months after the robbery, the police showed Malito a group of photographs, and she selected defendant's picture. She then viewed a lineup, which included defendant, and selected him as the robber.

Cheryl Markiewcz testified that she was in the office enclosure balancing the register receipts from the store during a "slow night" when defendant approached the service desk. She looked over to him and asked if she could assist him. Linda Malito, who was nearby, then went to the service window to speak to defendant. When she heard defendant tell Malito to "Put all the money in the bag," she looked again at defendant, who was about six-feet away, and she saw that defendant was holding a gun. Malito then filled a bag with currency and gave it to defendant. As defendant began to leave the store, he stopped and asked if that was all the money there was. While this occurred Markiewcz continued to look at defendant who was still about six-feet away. Malito then explained that she had just made a deposit and that she had given him all the money. During the incident, Markiewcz had an unobstructed view of defendant.

Later that evening Markiewcz went to the police station and assisted in completion of a composite sketch of the offender. She also looked at several books of photographs, but did not see defendant's picture contained therein. In mid-May 1984, the police showed her six additional photographs and she selected defendant's picture. She immediately identified defendant from a subsequent lineup because "I was sure that that was the man * * *." She also recognized his voice when he spoke during the lineup procedure.

There was police testimony that defendant had been identified as the robber of an ice cream store located in the same Chicago Heights shopping plaza. An ice cream store employee testified that about 8 p.m. on April 17, 1984, defendant, whom she described as fairly tall, entered the store while she was working alone. She gave him the cup of ice cream that he ordered, and as she was by the cash register, defendant produced a small silver gun and demanded that she put money in the bag where she had put the cup. During the time defendant was in the store he was only several feet away from her, and she looked directly at his face.

Defendant's father testified that his son was six feet two inches tall and weighed about 185 pounds. This description varied from that obtained from Malito and Markiewcz who placed the assailant at about five feet nine inches in height and 180 pounds. However, the grocery store office area where that armed robbery occurred was elevated about 10 inches above the general floor level where the gunman stood.

Defendant testified on his own behalf, denied committing either armed robbery and said that he could not recall where he was on either occasion. Defendant said that he was six feet two inches tall and weighed between 185 to 190 pounds. Defendant also claimed that he wore a slight beard and mustache until March 1984, although neither grocery store employee mentioned that the gunman had this facial hair.

I

Defendant contends that the testimony of the ice cream store employee concerning that armed robbery was prejudicial and introduced only to improperly show his propensity to commit crimes. At the close of the trial, the court instructed the jury that evidence of this crime went "solely on the issue of defendant's identification and common scheme" and could be considered "only for the limited purpose for which it was received." (IPI Criminal 2d No. 3.14 (1981).) Defendant claims that there was nothing distinctive about either armed robbery thus negating the State's position that the modus operandi of both crimes was comparable, and that it was improper to use the testimony of the ice cream store employee to bolster the identification testimony of the grocery store employees. Defendant also asserts that the error of the other crime evidence was exacerbated when the jury was not advised during the witnesses' testimony that evidence related to the ice cream store armed robbery was to be used for a limited purpose.

In People v. Bryan (1987), 159 Ill.App.3d 46, 110 Ill.Dec. 969, 511 N.E.2d 1289, this court had occasion to discuss the use of other crime evidence. There the court said:

"Evidence of crimes other than the one for which defendant is being tried is generally not admissible because it tends to be unfairly prejudicial. * * * Exceptions exist where the evidence of other crimes shows motive, intent, identity, preparation, common scheme or design, absence of mistake or modus operandi.

It appears that in using the term 'common scheme or design' in the case at bar, the trial court in fact was referring to the modus operandi of the perpetrator. Although Illinois courts have tended to use the terms 'common scheme or design' and 'modus operandi' interchangeably, they are not synonymous. * * * Modus operandi refers to crimes that are so nearly identical in method that they are clearly the work of the accused. Common design, like modus operandi, may also be probative of the identity of the actor; however, common design refers to a larger criminal scheme of which the crime charged is only a portion. * * * While common design is not at issue here, we believe that the modus operandi exception is applicable.

Many courts have held that evidence of other crimes is admissible to show modus operandi only if the manner in which the crime has been perpetrated is so distinctive as to amount to a 'signature' * * *; Illinois courts have adopted less stringent requirements. Other crimes' evidence has been found admissible where the other offense is substantially similar and has common features with the offense charged; the crimes need not be identical.

* * *

* * *

Other crimes evidence is also admissible to show identity provided that the probative value of the evidence outweighs the prejudicial effect." 159 Ill.App.3d 46, 51-52, 110 Ill.Dec. 969, 972-73, 511 N.E.2d 1289, 1292-93.

In the present case the armed robberies occurred in the same shopping plaza about the same time of evening and the assailant used a silver-colored gun. Given the circumstances we no not believe that error occurred in allowing the ice cream store employee to testify.

Although the dissenting judge concludes that the robbery on April 17, 1984, was "independent, unconnected and disassociated" with the robbery of February 3, 1984, we disagree. The robberies were committed about the same time, in the same shopping center. The assailent used a silver-colored gun in each robbery and a bag for the robbed money. In our judgment, there was sufficient similiarities between the crimes as to permit the introduction with the appropriate cautioning instructions. In addition we note that the trial court's instruction to the jury properly limited the extent to which the other crime evidence was to be considered. See People v. Shum (1987), 117 Ill.2d 317, 111 Ill.Dec. 546, 512 N.E.2d 1183.

II

Defendant next contends that it was error to allow the grocery store employees to testify that they had looked through many police photograph books without identifying anyone. Defendant characterizes this evidence as an improper attempt to bolster their identifications through the use of prior inadmissible consistent statements. In People v. Trass (1985), 136 Ill.App.3d 455, 91 Ill.Dec. 221, 483 N.E.2d 567, a police officer testified to one of the victim's prior nonidentification of two suspects from a lineup that did not include defendant. The victim identified defendant from a subsequent lineup. The court concluded that such testimony was Trass irrelevant and inadmissible. However, the court also concluded that the nonidentification testimony was not prejudicial to defendant.

Here, too, we do...