People v. Kennard, 1-88-0652

• Decision Date: 27 September 1990
• Docket Number: No. 1-88-0652,1-88-0652
• Citation: 561 N.E.2d 1188,204 Ill.App.3d 641,149 Ill.Dec. 492
• Parties: , 149 Ill.Dec. 492 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael KENNARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1188

561 N.E.2d 1188

204 Ill.App.3d 641, 149 Ill.Dec. 492

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael KENNARD, Defendant-Appellant.

No. 1-88-0652.

Appellate Court of Illinois First District, Fourth Division.

Sept. 27, 1990.

[204 Ill.App.3d 644] [149 Ill.Dec. 493] Michael J. Pelletier, Deputy Defender, Chicago (Linda Eigner, Asst. Appellate Defender, of counsel), for defendant-appellant.

Cecil A. Partee, State's Atty., Chicago (Renee Goldfarb, Kenneth T. McCurry, Sharon Jefferson, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice LINN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Michael Kennard, was found guilty of robbery. (Ill.Rev.Stat.1985, ch. 38, par. 18-1(a).) He was subsequently sentenced to seven years imprisonment. On appeal defendant raises four issues: (1) whether the State proved him guilty beyond a reasonable doubt where the identification of defendant was suggestive and inconsistent; (2) whether an out-of-court identification of defendant should have been suppressed; (3) whether defendant's post-trial counsel had an actual conflict of interest and did not adequately represent defendant; and (4) whether defendant was properly sentenced as a Class X offender.

BACKGROUND

The victim, Michael Robinson, testified for the State that about 10:30 p.m. on October 26, 1986, he went into the Mart Food and Liquor store near 72nd and Exchange Avenue in Chicago. There were lights on the outside and inside of the store. He noticed the security guard escorting a man out of the store. Robinson had an unobstructed view of the man for about 90 seconds and noticed a scar on his nose. After buying a six-pack of beer which he put in his bag, Robinson left the store.

At the corner of 72nd and Exchange, a man Robinson identified in court as defendant walked in front of him and demanded a beer. Robinson replied, "What?" and defendant said, "You must know karate." Robinson raised his hands in the air thinking defendant was going to hit him when another man grabbed him from behind around his neck. Robinson felt a hard, blunt object, which he thought was a gun, pressed against his back. He was taken around the corner to a building entranceway where defendant took Robinson's jewelry and his bag, which contained his wallet, tennis shoes, and security guard uniform. Defendant and his accomplice then fled.

Robinson went across the street and called the police. When they arrived he described defendant as a 30-year-old black man of medium complexion with brown eyes and black hair, who appeared to be about six feet tall and weigh 160 or 170 pounds. Robinson also noted a "U-shaped" scar on his nose. Defendant was wearing a black hat, brown leather jacket, and black pants. Robinson could not describe the accomplice except to say that he noticed the man was short. Robinson said there was a street light at the corner and that he observed defendant for the duration of the incident, which he estimated to be about four minutes. Although the police drove Robinson around the area after the crime, he did not see defendant.

The next day Robinson realized that defendant was the same man he saw the security guard escorting from the store the night of the incident. Robinson testified that he then went to the store and told the guard about the robbery and described the assailant to the guard as the man the guard had ejected from the store the night before. The security guard, John Peterson, thought that he knew the man Robinson described and would call him if he saw that man. Robinson gave his name and address to Peterson. However, he did not contact the police and tell them he recognized defendant.

On October 30, 1986, Robinson received a call from Peterson, and he went to the store to make an identification. Robinson saw defendant handcuffed in the back seat of a squad car parked in front of the store. Defendant was about two feet from Robinson who "instant[ly]" identified defendant as the man who robbed him. There was also a police officer in the car and the security guard was present.

John Peterson testified for the State that he asked defendant, whom he identified in court, to leave the store on the night of October 26, 1986. Defendant had been in the store on previous occasions and the management did not want him in the store. There were about 20-to-30 "guys" who "hung out" across the street from the store and who were not allowed to enter.

On October 27, 1986, Robinson came to the store and told Peterson about the robbery. When Robinson described the offender, Peterson thought that he knew whom he was describing. During cross-examination Peterson said that Robinson did tell him that the offender was thrown out of the store the night before. However, upon clarification, Peterson said, "He said it was one of the guys that comes in here that is not supposed to be in the store." On redirect examination Peterson stated that after Robinson described defendant, he thought that he knew who the person was. Peterson was not permitted to testify to the specifics of Robinson's description.

On October 30, 1986, defendant came into the store, and after Peterson told him to get out, defendant appeared ready to strike Peterson when a package of baloney fell from under his jacket. Peterson and defendant then scuffled, and defendant was handcuffed and the police summoned. Peterson also called Robinson to tell him, "Come over here. I think I got the guy who robbed you." Peterson also told the investigating police to wait until Robinson arrived because defendant fit the description regarding a robbery assailant. Defendant was in a squad car in front of the store when Robinson arrived and the police said to Robinson, "Go ahead." Robinson then identified defendant as the man who robbed him.

After the State rested, defendant called Chicago police officer Benjamin Jones. He responded to the robbery call and took Robinson's statement. After Jones memory was refreshed with the police report, he testified as to the description Robinson gave him for the assailant. He said that he "possibly" would have noted any unusual scars in Robinson's description of the assailant if Robinson mentioned them, although there was no notation of scars in the report. Jones' report did note that Robinson estimated the assailant's weight as 160 pounds.

Following defendant's arrest, officer Jones and his partner completed a two-page arrest report. Jones testified that he wrote defendant's height at 6'1"'', and estimated his weight as 180 pounds based upon his observation of defendant. While page two of the report showed defendant at 6'1"' and 185 pounds, the first page was changed showing defendant as 6'2"' and 210 pounds. It also noted a "heavy" build. Jones did not know who changed the first page. Neither page indicated that defendant had any marks, scars or deformities. In a supplementary case report, Jones described defendant as 6'1"" and 185 pounds based on his observations.

Defendant's sister Kimberly Kennard testified on his behalf. She said that defendant had been living in her apartment in Des Plaines, Illinois, at the time of the incident, although she was in the hospital when the incident occurred. She recalled that during the summer of 1986, he was injured when someone attacked him, and as a result he had a cut under his eye and on his nose. He also had a knee injury which made it difficult for him to walk. She said that he used crutches.

On cross-examination she said that defendant was injured in August 1986, and released from the hospital the same day. The hospital did not give defendant crutches but he got them from his mother. As a result of his injuries defendant sustained scars on his nose and under his eye. Kimberly testified that defendant still used crutches in October 1986. She said defendant had had a six-inch scar on the right cheek of his face since 1978.

Pamela Bell also testified for the defense. She lived near Kimberly Kennard and while Kimberly was in the hospital, she would occasionally bring defendant a meal. She said that he used crutches and did not walk very well.

After the defense rested, the State called Chicago police officer Michael Thomas, who saw defendant in the early morning hours of August 5, 1986, at 71st and Clyde. Defendant was bleeding from the face and legs and could not stand on his own. Defendant was taken to the hospital.

Chicago police officer Malcolm Robinson testified that he saw defendant on August 21, 1986, at 7101 South Yates. Defendant was walking without crutches and appeared to walk without difficulty. Officer Robinson saw defendant about 20 minutes later and only noticed a slight limp in his walk. Defendant told the officer he lived at 7623 South Cornell and that he was 6'1"' tall and weighed 180 pounds.

OPINION

I.

In the first issue defendant contends that he was not proven guilty beyond a reasonable doubt because Robinson's identification was unreliable. He argues that the identification resulted from the witness's viewing of defendant on October 30, 1986, under circumstances which were highly suggestive. Defendant also points to the discrepancies regarding his weight and facial scars in the victim's initial identification. In addition, he claims that the victim failed to tell the police when he described the offender that he had seen the offender in the store earlier that night.

The prosecution must prove beyond a reasonable doubt the identity of the person who committed the crime. (People v. Slim (1989), 127 Ill.2d 302, 130 Ill.Dec. 250, 537 N.E.2d 317.) The positive identification of one witness is sufficient to support a conviction as long as the witness is credible and he observed the offender under conditions permitting a positive identification to be made. (People v. Hopkins (1987), 160 Ill.App.3d 967, 112 Ill.Dec. 402, 513 N.E.2d 1011.) The credibility of an identification...