People v. Hovanec, 77-1913

• Decision Date: 14 September 1979
• Docket Number: No. 77-1913,77-1913
• Citation: 32 Ill.Dec. 1,76 Ill.App.3d 401,394 N.E.2d 1340
• Parties: , 32 Ill.Dec. 1 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert HOVANEC and Darrell Timm, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1340

394 N.E.2d 1340

76 Ill.App.3d 401, 32 Ill.Dec. 1

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert HOVANEC and Darrell Timm, Defendants-Appellants.

No. 77-1913.

Appellate Court of Illinois, First District, Fifth Division.

Sept. 14, 1979.

Ralph Ruebner, Deputy State App. Defender, Chicago (Alan D. Goldberg, Asst. State App. Defender, Chicago, of counsel), fordefendants-appellants.

Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr, Myra J. Brown and John R. Roe, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

MEJDA, Justice:

Following a jury trial, defendants Hovanec and Timm were convicted of armed robbery. (Ill.Rev.Stat.1975, ch. 38, par. 18-2.) Darrell Timm has since died and his appeal was dismissed by this court as moot. (People v. Mazzone (1978), 74 Ill.2d 44, 23 Ill.Dec. 76, 383 N.E.2d 947.) We will therefore consider only the issues raised by Hovanec on appeal and refer to Timm only where necessary to dispose of Hovanec's contentions. Defendant Hovanec was sentenced to a term of 6 to 18 years. On appeal, defendant contends that: (1) the trial court erroneously refused to dismiss the information charging him with armed robbery; (2) he was denied his right to present a defense; (3) the return of certain physical evidence by the State violated his due process rights since it suppressed evidence material to the proof of his innocence; (4) the trial court erroneously denied a continuance so that defendant could obtain exculpatory evidence; (5) the trial court erroneously allowed defendant's prior conviction to be introduced for impeachment purposes; (6) the prosecutor made improper remarks in his closing argument; and (7) he was not proved guilty beyond a reasonable doubt. We affirm. The pertinent facts follow.

Steve Korwin, the victim, signed a complaint charging defendant and Timm with taking $49, 167 cartons and 125 packages of cigarettes from him while armed with a knife. At the preliminary hearing on the complaint, the victim testified that on October 19, 1976, at about 3:45 a. m., he was sitting in a gas station known as Tony's Oasis located at 50th and California. A man he identified as defendant Hovanec walked into the station, hit the victim in the eye with his fist, and said, "I want all the money." He gave defendant about $40. After the defendant struck him, Korwin noticed that he had a "Small blade, knife" in his hand. At defendant's command, he closed his eyes and put his head down. He remained that way for 5 to 10 minutes. When he got up, defendant was gone. He noticed that cigarette packages were missing and that a storage room had been broken into.

On cross-examination the victim testified that although it was dark outside and the room in which he was seated had no lights, there was enough light to see a face and its features because of a light in the washroom. He also stated that he did not know if defendant had a knife and that the object could have been a belt buckle. When defendant rubbed the object against his arm it felt sharp.

Chicago police officer Zuzich testified that on October 19, 1976, at about 3:50 a. m., he was on patrol in a marked squad car. He saw a vehicle without a city sticker heading in the opposite direction. He made a U-turn and stopped the car at 47th and Seeley. As he got out of the squad, he received a radio message that a robbery had just occurred at 50th and California and that the robber was a white male wearing a brown jacket, blue jeans and dark sunglasses. He noted that the passenger was wearing dark sunglasses and otherwise matched the description. He observed a large quantity of cigarettes in the back seat of the car. A search of defendant revealed a pocket knife. The two men were arrested and taken to the gas station. The cigarettes were inventoried and then returned to the victim.

The preliminary hearing judge found probable cause for robbery but not for armed robbery. He struck the word "armed" from the complaint and changed the statutory section allegedly violated to conform to his finding.

On November 30, 1976, the State's Attorney filed an information charging defendant with armed robbery. On March 8, 1977, defendant filed a motion to dismiss the armed robbery information for failure to have a court or grand jury return a finding of probable cause for armed robbery. Defendant also filed a motion to suppress evidence and quash the arrest and a motion to suppress the identification testimony of the victim. Defendant also filed a motion to bar the use of his prior conviction for aggravated battery for impeachment purposes. After a hearing, all motions were denied. On July 25, 1977, defendant moved to inspect the packages of cigarettes but was told that they had been returned to the gas station, were not available, and would not be introduced at trial.

The following pertinent testimony was adduced at trial.

For the State

Steve Korwin, the victim, testified. On October 19, 1976, he was working at Tony's Oasis at about 3:45 a. m. There were lights on outside the building and in the garage area and another in the washroom area. He saw a person enter the building, walk up to him and hit him in the face with his fist. The assailant was white and wore a brown jacket, blue jeans, and sunglasses. He held a knife in his hand and demanded all the money. Korwin identified the knife at trial. He gave the assailant about $40 to $50, "a lot of singles and a ten." He was told to keep his head down, and while doing this, he heard a second person enter the office. The first person asked Korwin for keys to a storeroom but he did not have any. He heard a cracking sound from the storeroom area. He could hear the two people going back and forth between the storeroom and the door. The person who hit Korwin told him to wait 15 minutes before calling the police. While he was on the ground, one of the persons rubbed the knife against his right arm. He identified Hovanec as the person who hit him and told him to wait 15 minutes before calling the police. After the people left, he called the police, gave them a description, and told them the general direction in which the robbers left. He noticed that a lot of cigarettes were missing from the storeroom and from a cigarette box. The storeroom lock had been broken.

About 15 minutes later he saw defendant in the back of a police wagon at the gas station. Two men were in the back and Korwin recognized defendant. He then went to the police station where he recovered the cigarettes. He placed these cigarettes with the regular stock.

On cross-examination Korwin stated that he was not sure that the knife he had identified was the same knife that he had been threatened with because it was dark in the room. He also said that the object could have been a belt buckle. He did not have a long time to observe the defendant before the defendant came in and he thought he was just another customer. He was struck about 3 or 4 seconds after the man entered the room and was dazed by the blow. At the preliminary hearing, he estimated that $30 to $40 had been taken. On the day of the robbery, Korwin didn't know that cigarettes were kept in the storeroom. When he first gave the description to the police, he did not give any height or weight nor did he mention a mustache. He also did not use the word "sunglasses" to describe defendant's glasses. He never saw or heard a car and did not know what was taken from the storeroom.

After the police arrived, he heard over the police radio that two suspects had been apprehended and would be in a "paddy wagon." When the wagon arrived, an officer told him to look in the back. Defendant was the only person with dark hair in the wagon.

Chicago police officer Zuzich testified. At about 3:50 a. m. on October 19, 1976, while on patrol westbound on 47th Street, he noticed an eastbound vehicle without a city sticker. He made a U-turn on 47th Street and pursued the vehicle. He then observed that one of the taillights was out. The car turned right on Hoyne, then east down an alley to Seeley, then back to 47th Street to go east again. At no time while the car was off of 47th Street did it stop. When the car pulled onto 47th Street, the officer curbed the car. As he approached the car he noticed a box with about 30 cartons of cigarettes through the back window. As the men got out of the car, he noticed the passenger fit the description of a robbery suspect which had just been reported on the police radio. At trial he identified Hovanec as the passenger and Timm as the driver. His partner searched Hovanec and found a pocket knife which the officer identified. The two suspects were put in a squadrol and taken to the gas station. He asked an Officer Bednarkiewicz what had been taken in the robbery. A search of the car revealed 6 cases and about 125 loose packages of cigarettes. In a search of the car at the police station, police found $49 under the passenger's seat, one ten dollar bill and 39 singles. After inventorying the money and the cigarettes, the cigarettes were turned over to Steve Korwin.

On cross-examination Officer Zuzich testified that he returned the cigarettes to Korwin because of the amount of cigarettes and money involved. When defense counsel inquired whether a lineup should have been held for identification of defendant, the trial court sustained the prosecutor's objections and refused to allow questioning on this point. Officer Zuzich told the wagon to return to the station for a one-on-one showup. Although he made a report on the arrest, he failed to mention in the report or inventory sheet that he found the $49 under the seat of the car.

Chicago police officer Bednarkiewicz testified. On October 19, 1976, he was on patrol and received a call about 3:45 a. m. and went to the gas station at 50th and California. He spoke with the victim and received the following description of the assailant: white male, approximately...