People v. Johnson

• Decision Date: 31 December 1980
• Docket Number: No. 78-2000,78-2000
• Citation: 418 N.E.2d 768,49 Ill.Dec. 748,94 Ill.App.3d 200
• Parties: , 49 Ill.Dec. 748 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark JOHNSON, (Impleaded), Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 768

418 N.E.2d 768

94 Ill.App.3d 200, 49 Ill.Dec. 748

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Mark JOHNSON, (Impleaded), Defendant-Appellant.

No. 78-2000.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 31, 1980.

Rehearing Denied April 6, 1981.

[49 Ill.Dec. 750] Zimmerman & Unger, Chicago, for defendant-appellant; Arthur H. Zimmerman, Chicago, of counsel

Bernard Carey, State's Atty., Chicago, for plaintiff-appellee; Marcia B. Orr, Myra J. Brown, Thomas A. Gibbons, Asst. State's Attys., Chicago, of counsel.

LINN, Presiding Justice:

At the conclusion of a jury trial in the circuit court of Cook County, defendant, Mark Johnson, was convicted of armed robbery (Ill.Rev.Stat.1975, ch. 38, par. 18-2) and was sentenced to a prison term of six to ten years.

On appeal, defendant contends reversible error occurred when (1) the State failed to prove him guilty beyond a reasonable doubt; (2) over objection, the trial court allowed a composite drawing of unknown origin to be admitted into evidence; and (3) the trial court allowed the State to introduce hearsay evidence.

We affirm.

At trial, ¹ Charles Dzik, the complaining witness, testified that on June 10, 1975, he was managing the Ponderosa Steak House located in Hazel Crest, Illinois. The restaurant closed to the public at 9 p. m. on June 10. At approximately 11 p. m., after turning off the restaurant lights and turning on the alarm in the office, Dzik exited through a side door of the restaurant. Dzik then proceeded through the parking lot to his car which was parked approximately 25 feet from the restaurant. The parking lot was equipped with mercury vapor lights which were lighted. As Dzik walked, he heard "rustling" in the trees located behind his car. He continued walking when suddenly two men "walked out of the trees" towards him. At this point in time, the men were 15 feet from him.

Dzik further asserted he noticed that one of the men walking towards him was pointing a gun at him. When Dzik was approximately five feet from the men, one of the men told him to turn around and to stop looking at them. Dzik continued slowly walking as did the two men. When they were two or three feet away, Dzik turned around. Dzik stated he had been facing the men "close to a minute."

One of the men told Dzik to walk back towards the restaurant. When they reached the side door, he was ordered to open the door. The two men were standing behind him and, for "at least ten seconds" he saw their reflections in the upper glass portion of the side door. Dzik identified the defendant as one of the two men.

Dzik further asserted that after he informed the men that the door keys were on the hood of his car, defendant remained with him while the other man went to get the keys. After the man returned, Dzik opened the side door. The man told him to go to the office. As Dzik entered the office, defendant told him to turn off the alarm and open the safe. Dzik did so. Defendant then told him to go into the kitchen and not to look at them. Defendant went with Dzik into the kitchen and told Dzik to lie down on the floor. After Dzik complied, defendant "straddled" his back and placed a gun at the back of his neck. During this five minute period, defendant pulled the gun's stop slide back and forth.

The other man came into the kitchen and indicated he had obtained everything. They then told Dzik to close his eyes and crawl into the walk-in cooler. After he crawled into the cooler, he was told to throw his wallet out, which he did. The Dzik then called police. He noticed the contents of the safe approximately $1400 were missing. After the police arrived, Dzik described his assailants as approximately 5 feet 9 inches tall and 145 to 155 pounds. They had shoulder length hair and wore denim shirts and trousers. Both men wore sunglasses.

[49 Ill.Dec. 751] men tossed him a steak knife, shut the cooler door and locked it. Dzik waited approximately one minute and then used the safety mechanism to open the cooler door.

Dzik then testified to the events surrounding his identification of Darryl Hedlund, one of the two men allegedly involved in the robbery. Dzik stated he identified Hedlund from several photographs shown to him by the police. Over defense counsel's objection, Dzik also asserted that he later talked with Detective Strain of the Hazel Crest Police Department. After this conversation, Dzik and Strain went to the Mount Prospect Police Station where Dzik was shown a composite picture of a man whom Dzik identified as defendant. Dzik testified he recognized the person in the composite sketch because he had seen him on the night of the robbery.

Dzik then examined the photocopy of the composite sketch and testified over objection that it was a composite picture of the person who robbed him and held a gun to his neck on the night of the robbery. Dzik stated he first saw the picture at the Mount Prospect Police Station. Dzik also described the line-up procedure utilized by the Arlington Heights police on August 8, 1975. He identified defendant after viewing a group of six men. Dzik also identified defendant at the preliminary hearing.

On cross-examination, Dzik asserted he did not turn off the mercury vapor lights in the parking lot of the Ponderosa restaurant on June 10, 1975. Dzik acknowledged that he described his assailant as dark haired but he also remembered saying that one of the men had blondish-brown hair or medium brown hair. He also could not remember telling the police that he never saw a gun during the robbery. Dzik asserted he did see a gun for at least 10 seconds.

Dzik further admitted that he saw the eyes of the two men who had robbed him. He also acknowledged testifying at the preliminary hearing and stating that he did not know which of the two men left to get his car keys because he was facing the door and not looking. He also acknowledged testifying at the preliminary hearing that he did not know which of the two individuals had sat on him and held a gun to his neck. Dzik could not remember whether he had informed the police prior to trial or the presiding judge at the preliminary hearing that he had seen the men's reflection in the glass. Dzik indicated that during the preliminary hearing he asserted he had not seen the faces of the men at any time after the incident in the parking lot.

On redirect examination, Dzik again testified that after viewing the composite sketch, he identified defendant as the man who had robbed him. Dzik also recounted the events surrounding his line-up identification of defendant. He then made an in-court identification of defendant.

The State's next witness, Officer Bruce Strain of the Hazel Crest Police Station testified he was assigned to investigate the robbery. In connection with that investigation, he contacted a detective at the Elmhurst Police Station to obtain information about an armed robbery of the Ponderosa Steak House in Elmhurst. He was told to contact the Mount Prospect Police Station which he did. He spoke with a Sergeant Halligan and asked him to forward any photographs of the subjects who may have been involved in that robbery. Subsequently, Strain received a photograph of Darryl Hedlund which Dzik later identified as a photograph of one of the robbers.

Strain again contacted Halligan and requested that he be contacted if there were any other suspects. On July 21, 1975 Strain brought Dzik to the Mount Prospect Police Station. Halligan gave Strain two photocopies of the composite sketch. After Dzik viewed the photocopy, he identified the person depicted as the second offender. Strain then examined a photocopy of the sketch and identified it as the same copy which was shown to Dzik at the police station.

Strain further stated that Halligan again contacted him on August 8, 1975. Strain then asked Dzik to accompany him to the Arlington Heights Police Department so that Dzik could view a line-up. Strain testified to the events surrounding the line-up and he identified defendant as the man whom Dzik had picked from the line-up of six men. Strain also indicated that defendant's attorney and a public defender were present during the line-up identification.

On cross-examination Strain stated he did not know who composed the composite sketch and he did not see the sketch being composed. Over defense counsel's objection, the sketch was admitted into evidence. Strain then asserted that although the police report indicated the complaining witness never saw a gun, Strain remembered Dzik telling him that Dzik had observed defendant with a gun as defendant and Hedlund first approached him in the parking lot. At the conclusion of Strain's testimony, the State rested.

The defendant testified in his own behalf. Defendant denied participating in the robbery and asserted that he never weighed more than 135 pounds. Neither he, nor Darryl Hedlund, had light colored hair.

Defendant presented an alibi defense. On the night in question, defendant contended he was at home where he resided with his mother, sister, and two brothers. Defendant claimed he never left his home on the evening of the robbery because he was feeling sick that evening. Defendant further testified that the composite photograph resembled James LaRocco who had been murdered in a "hold-up" of the Ponderosa Steak House in Elmhurst, Illinois. Darryl Hedlund had been with LaRocco on the night of that robbery. Defendant described LaRocco's hair as dark brown.

On cross-examination, defendant asserted he had known Darryl Hedlund, "an acquaintance," and James LaRocco for approximately five years. Defendant's sister had informed him that, in 1975, LaRocco had been murdered during a robbery of the Ponderosa Steak House in Elmhurst.

Defendant further asserted he was home sick from June 8 to June 13, 1975. On the day of the robbery, defendant's mother left the home with his brother and sister. They went out to dinner to celebrate his ...