People v. Spates

• Decision Date: 08 August 1978
• Docket Number: No. 77-286,77-286
• Citation: 62 Ill.App.3d 890,379 N.E.2d 869,20 Ill.Dec. 36
• Parties: , 20 Ill.Dec. 36 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lester SPATES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 869

379 N.E.2d 869

62 Ill.App.3d 890, 20 Ill.Dec. 36

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lester SPATES, Defendant-Appellant.

No. 77-286.

Appellate Court of Illinois, Second District.

Aug. 8, 1978.

Allen L. Wiederer, Asst. State Appellate Defender, Mary Robinson, Deputy State Appellate Defender, Daniel Cummings, Asst. State Appellate Defender, Elgin, for defendant-appellant.

Daniel Doyle, State's Atty., Phyllis J. Perko, Martin P. Moltz, Ill. State's Attys. Assn., Elgin, for defendant-appellant.

WOODWARD, Justice.

Following a jury trial, defendant, Lester Spates, was found guilty of the armed robbery of Floyd Ross and was sentenced to five to twelve years imprisonment. Defendant appeals raising the following issues:

Whether he was proved guilty beyond a reasonable doubt;

Whether he was denied a fair trial when the trial court permitted improper cross-examination of defendant; and

Whether he was denied a fair trial when the trial court denied his motion in limine to prevent the state from using a prior misdemeanor theft conviction to impeach defendant's credibility.

Floyd Ross testified that on February 6, 1975 as he was exiting the Grant Park Tavern he was struck on the head with a beer bottle, struck with a fist, and his wallet was taken from him by two men. One of the offenders, standing six feet away from him, he recognized as the defendant, having seen him in the tavern earlier that evening when he challenged John Kellems to a game of pool. According to Ross, he had had five beers at the tavern. While his glasses were knocked off when he was struck, he could see without them, and the lighting conditions in the parking lot were good. Ross identified defendant at a lineup on February 27, 1975, and at trial.

John Kellems testified that he was at the Grant Park Tavern on February 6, 1976. While he was talking with Floyd Ross and another friend, a black man came up to him and challenged him to a game of pool. After playing two games Kellems went home. Later, the police came to his home; after the police left, the same black man entered his home. The man asked him what the police wanted and repeatedly told him, "I didn't do it." On February 23, 1976 Kellems viewed a lineup in which he identified defendant as the man he had shot pool with and who had come to his home that same evening. He also identified defendant at trial.

Rockford police officer, John Casky, testified that in the course of his investigation of the incident he recovered part of a beer bottle that had been broken, at the scene of the attack. Casky also recovered two copies of a traffic ticket issued to defendant approximately 15 feet north of the scene of the incident. The tickets were dry and were lying on top of the snow. On the night of the attack on Ross, Casky also took photographs, including the defendant's, to the Grant Park Tavern and showed them to the bartender and several of the witnesses, including Kellems, but none of the photographs were identified.

Defendant testified that he had pleaded guilty to the offense of petty theft on October 31, 1974 and pleaded guilty to grand theft on November 15, 1968. He testified that he played pool with John Kellems at the Grant Park Tavern; that he left the tavern through the back door and went to a pharmacy. He returned to the tavern to see if a friend of his had shown up. When he didn't see his friend he left walking south. He had received a traffic citation but had lost it, though he did not know when.

During cross-examination Assistant State's Attorney, McWilliams asked the defendant the following questions:

"Q You heard him testify that he (John Kellems) was home that February 6th in the evening and that you came into his house without knocking.

A That's not true.

Q And you asked him what the police wanted.

A No.

Q He was lying?

A Evidently.

Q You didn't tell Mr. Kellems that Johnny, I didn't do it?

A No.

Q Do you have any do you know of any reason why Mr. Kellems would lie about this?

MR. PETERSON: I will object. I think that's argumentative. (Defense counsel)

THE COURT: Overruled.

MR. McWILLIAMS: I will withdraw the question.

THE COURT: All right."

Further on during cross-examination, Assistant State's Attorney McWilliams asked defendant the following questions:

"Q Now you have seen Floyd Ross here in the courtroom?

A Yeah.

Q Had you ever seen him before?

A Not before the court appearance.

Q I mean you didn't know him?

A Not at all.

Q Never saw him? You had no contact with him, is that correct?

A That's right.

Q Do you know why he wants to any reason, any particular motive that you can think of, for Floyd Ross to

MR. PETERSON: I would object. I think this is argumentative again.

THE COURT: Overruled. He may answer."

It is well settled that the testimony of a single positive and crediblewitness who had an ample opportunity to observe the accused is sufficient identification to support the conviction, even though such testimony is contradicted by the accused. (People v. Smith (1977), 52 Ill.App.3d 583, 10 Ill.Dec. 303, 367 N.E.2d 756.) Here, Floyd Ross positively identified the defendant as one of the two perpetrators of the armed robbery and his testimony was corroborated by that of John Kellems.

Defendant argues that the identification testimony was inherently incredible and unworthy of belief. However, the fact that Ross had consumed five beers and had his glasses knocked off, at best are factors that merely go to the weight to be given his testimony. The credibility of the witnesses and the weight to be given their testimony are matters for the jury to determine. (People v. Stringer (1972), 52 Ill.2d 564, 289 N.E.2d 631.) Given Ross' testimony that he could see without his glasses and that there was no evidence that the five beers he consumed affected his perception of the event, the jury had sufficient basis to find Ross a credible witness. Nor does Ross' failure to give police a specific description of the armed robber create a reasonable doubt. An identification is not usually made by distinguishing special features but by the total impression made upon the witness. (People v. Smith.) Ross' inability to describe the clothing worn by the armed robber goes to his credibility and again is for the trier of fact to determine. See People v. Robinson (1964), 30 Ill.2d 437, 197 N.E.2d 45.

Finally, the fact that neither John Kellems nor the bartender and the other witnesses at the tavern could identify the defendant's photograph was merely a factor to be considered by the jury in weighing the identification testimony. (See People v. Bounds (1976), 36 Ill.App.3d 330, 343 N.E.2d 622.) Neither the bartender nor the other patrons of the tavern had a reason to pay any particular attention to the defendant. Moreover, in spite of John Kellems' failure to identify the defendant's photograph, this does not make any less certain the positive identification of the defendant as the armed robber by Floyd Ross, the robbery victim. It is clear that there was sufficient evidence upon which the jury could find the defendant guilty beyond a reasonable doubt.

With regard to defendant's second issue on appeal, the portions of the cross-examination objected to have been set out above. Defendant relies upon People v. Hicks (1971), 133 Ill.App.2d 424, 273 N.E.2d 450. In Hicks, the defendant, on cross-examination, was asked by the prosecution whether he had ever been drunk; whether he was a generous man; whether he ever used one of his weapons to threaten anyone or protect himself. The court sustained objections to the questions....