People v. Herrett, 67605

Citation561 N.E.2d 1,148 Ill.Dec. 695,137 Ill.2d 195
Decision Date23 May 1990
Docket NumberNo. 67605,67605
Parties, 148 Ill.Dec. 695 The PEOPLE of the State of Illinois, Appellee, v. Michael E. HERRETT, Appellant.
CourtSupreme Court of Illinois

Robert Agostinelli, Deputy Defender, and Stephen Omolecki, Asst. Defender, of the Office of the State Appellate Defender, Ottawa, for appellant.

Neil F. Hartigan, Atty. Gen., Springfield (Robert J. Ruiz, Sol. Gen., and Terence M. Madsen and David E. Bindi, Asst. Attys. Gen., Chicago, of counsel), for the People.

Justice WARD delivered the opinion of the court:

Following a jury trial in the circuit court of St. Clair County, the defendant, Michael E. Herrett, was convicted of armed robbery and sentenced to 12 years' imprisonment. The appellate court (171 Ill.App.3d 1167, 135 Ill.Dec. 243, 543 N.E.2d 626 (unpublished order)) affirmed the conviction pursuant to Supreme Court Rule 23 (107 Ill.2d R. 23). We granted the defendant's petition for leave to appeal.

The defendant's conviction is the result of his participation in the armed robbery of a pawnshop in Cahokia, on May 31, 1986. George Bailey, the clerk who was working at the pawnshop on the day of the robbery, testified for the State. He stated that, at approximately 9:15 a.m. on May 31, 1986, a white man entered the pawnshop and said that he wanted to look at a lady's ring. Five minutes later, a younger black man (the defendant, the State charges) entered the shop and said that he wanted to pawn a ring. As Bailey examined the ring, the black man drew a gun and ordered him to go to the back of the store. The white man began filling a bag with pawned jewelry from an open safe, while the black man took approximately $1,000 from the cash register and put it in his pockets. The black man also took money from Bailey's billfold. Before the two men left the store, the black man bound Bailey's ankles and wrists and covered his eyes with duct tape. Shortly thereafter, Bailey freed himself and called the police.

At the defendant's trial, Bailey described the black man as "probably in his early thirties, five-eight, five-nine, medium build, beard, kind of bushy hair." He testified that the black man wore a yellow "carcoat" that went down between his hip and his knee and looked like a raincoat. Bailey further testified that two or three days after the robbery, a Maplewood, Missouri, police officer came to his home and showed him seven photographs of black men to see if he could identify the black man who robbed him. Bailey testified that he picked out two photographs, one of the defendant and one of another black man. He could not positively identify either one. Bailey thought that the defendant's photograph looked like one of the robbers, although the hair in the photo looked different. Bailey also testified that the officer showed him pictures of white men and that he was able to positively identify the white robber from the photographs. Bailey concluded his testimony by stating that he was "ninety percent sure" that the defendant was the black robber.

On cross-examination, Bailey testified that he saw the black man's face only for a few seconds and that the lighting in the pawnshop was dim. He also admitted that he had not told the police that the black man wore a hat during the robbery and that the black man's hair was protruding from underneath the hat. He did not recall describing the black man's coat as a baseball-type jacket, rather than a raincoat. He also testified that he had told the police that the photograph of the defendant looked like the black man who robbed him, but that the hair in the photograph looked different than the robber's hair.

Another witness of the State, Michael Springer, operated a business near the pawnshop. He testified that, shortly after 9 a.m. on the morning of the robbery, he noticed an older white man and a black man drive up to the pawnshop in a silver-gray 1977 Chevrolet Impala with Missouri license plates. Because the men were acting in a suspicious manner, he wrote down the license plate number of their automobile. He saw the men go into the pawnshop and observed their automobile leave the area 5 to 10 minutes later. When the police arrived at the pawnshop, Springer gave the police a description of the automobile he had seen, including its license plate number. Springer was unable to identify the persons in the automobile.

The State then called a number of police officers to testify concerning their investigation of the robbery. Their testimony established that the police traced the license plate number and learned that the vehicle belonged to Marie Shigemura, a resident of Maplewood, Missouri, a town that is about a 15-minute drive from Cahokia. Police officers from Maplewood and Cahokia went to the Shigemura residence within an hour of the robbery, at approximately 9:52 a.m. and observed the suspected vehicle in the driveway. The hood of the vehicle was warm, as though the car had recently been driven. Edward Shigemura, an Oriental man, came out of the house and told the police that the automobile was his and that it had not been recently driven. He also said that no one else was in the house. He was then placed under arrest.

The police then called the residence's phone number and spoke to Mrs. Shigemura. Shortly afterward, they spoke with her in person at the door of the house. Approximately five to seven minutes later, Herrett came out of the house. His hair was rolled tightly to his scalp in braids ("corn-rowed"). Approximately five minutes later, an older white man, who matched the description of the white robber, came out. Both men were arrested.

The police obtained a search warrant for the Shigemura residence, which was executed at about 1:30 p.m. During the search, the police found numerous items of jewelry which were later identified as the items taken from the pawnshop. Two rolls of duct tape similar to that used to bind Mr. Bailey, a yellow raincoat and a pair of pants which matched the description of pants worn by the white man during the robbery were also found. No cash or weapons were found in the Shigemura residence, in the automobile or on the defendant's person.

The defense rested without presenting any testimony or other evidence. During closing arguments, defense counsel stressed that the fact that Herrett was at the Shigemura residence that morning did not prove that he was the black robber. Counsel noted that the cash and gun which were in the black robber's possession were never found. The defense attorney also pointed out the discrepancy between Bailey's description of the robber as having bushy hair and the fact that Herrett's hair was tightly braided, or "corn-rowed," at the time of his arrest. In rebuttal, the prosecutor remarked several times that there was no testimony or explanation for the presence of Herrett at the Shigemura residence that morning. As stated, the jury found Herrett guilty of armed robbery and the appellate court affirmed the conviction.

In this appeal, the defendant first claims that his conviction must be reversed because the evidence did not prove his guilt beyond reasonable doubt. When presented with a challenge to the sufficiency of the evidence, this court must affirm the conviction if, " 'after viewing the evidence in the light most favorable to the prosecution, [we conclude that] any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.' " People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 478 N.E.2d 267, quoting Johnson v. Virginia (1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560, 573.

The defendant claims that a different standard of review applies in this case, because the evidence against him was entirely circumstantial. He claims that when a conviction rests solely upon circumstantial evidence, it must be reversed if the evidence is consistent with any "reasonable hypothesis" of innocence. (People v. Lewellen (1969), 43 Ill.2d 74, 78, 250 N.E.2d 651; People v. Willson (1948), 401 Ill. 68, 79, 81 N.E.2d 485.) This court recently rejected the contention that a different standard of review governs in cases involving circumstantial evidence. (People v. Pintos (1989), 133 Ill.2d 286, 291, 139 Ill.Dec. 832, 549 N.E.2d 344.) In Pintos, this court held that the reasonable doubt test should be applied to review the sufficiency of the evidence in all criminal cases, whether the evidence is direct or circumstantial. (People v. Pintos (1989), 133 Ill.2d 286, 291 139 Ill.Dec. 832, 549 N.E.2d 344; see also People v. Eyler (1989), 133 Ill.2d 173, 191-92, 139 Ill.Dec. 756, 549 N.E.2d 268.) Moreover, the evidence against Herrett was not entirely circumstantial. His conviction was based, in part, upon Bailey's identification of Herrett as the black robber. Such identification testimony is clearly direct evidence. People v. Jones (1975), 60 Ill.2d 300, 307, 325 N.E.2d 601; People v. Hancock (1986), 143 Ill.App.3d 1027, 1031, 97 Ill.Dec. 923, 493 N.E.2d 730.

Viewing the evidence in the light most favorable to the prosecution, we conclude that a rational trier of fact could have found Herrett guilty of armed robbery beyond reasonable doubt. The evidence introduced at trial established that Herrett was arrested at the Shigemura residence one hour after the robbery, with a man who matched the description of the white robber. The jewelry stolen in the robbery was found inside the residence where the defendant was found and the automobile used in the robbery was parked outside of the residence. In addition, Herrett was identified in court by the victim of the crime as the man who robbed the pawnshop.

Herrett argues, however, that Bailey's identification testimony is not entitled to weight because Bailey did not positively identify Herrett as the black robber. The fact that a witness does not positively identify a defendant at trial, however, does not render his...

To continue reading

Request your trial
268 cases
  • People v. Hampton
    • United States
    • Illinois Supreme Court
    • May 21, 1992
    ...so serious that its consideration is "necessary to preserve the integrity and reputation of the judicial process." (Herrett, 137 Ill.2d at 214, 148 Ill.Dec. 695, 561 N.E.2d 1.) The alleged error in the instant case is not of such a character. Initially, we note that it is extremely unclear ......
  • People v. Gonzalez, 1-88-0904
    • United States
    • United States Appellate Court of Illinois
    • November 6, 1992
    ... ... (People v. Herrett (1990), ... Page 313 ... [179 Ill.Dec. 481] 137 Ill.2d 195, 148 Ill.Dec. 695, 561 N.E.2d 1.) As hereinafter discussed, the evidence in this case is not closely balanced and we find no plain error on the record in this case ...         Additionally, where a claim of ineffective ... ...
  • People v. Jackson
    • United States
    • Illinois Supreme Court
    • September 26, 1991
    ...by sustaining the objection or instructing the jury to disregard the answer, usually cure the error. (People v. Herrett (1990), 137 Ill.2d 195, 215, 148 Ill.Dec. 695, 561 N.E.2d 1; Carlson, 79 Ill.2d at 577, 38 Ill.Dec. 809, 404 N.E.2d 233.) The court cured any error Although we see no obvi......
  • People v. Saulsberry
    • United States
    • United States Appellate Court of Illinois
    • September 23, 2021
    ...refusal to testify on his or her own behalf, while improper, do not constitute structural error. People v. Herrett , 137 Ill. 2d 195, 215, 148 Ill.Dec. 695, 561 N.E.2d 1 (1990) ; but see People v. Berry , 264 Ill. App. 3d 773, 777, 205 Ill.Dec. 190, 642 N.E.2d 1307 (1994) (comments on a def......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT