People v. Thorne, No. 1-01-4112.

• Court: United States Appellate Court of Illinois
• Citation: 352 Ill. App.3d 1062,817 N.E.2d 1163,288 Ill.Dec. 513
• Docket Number: No. 1-01-4112.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Michael THORNE, Defendant-Appellant.
• Decision Date: 30 September 2004

817 N.E.2d 1163
352 Ill. App.3d 1062
288 Ill.Dec. 513

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

No. 1-01-4112.

Appellate Court of Illinois, First District, Fifth Division.

September 30, 2004.

817 N.E.2d 1165

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago, for Defendant-Appellant

Richard A. Devine, State's Attorney, State's Attorney of Cook County, Chicago, for Plaintiff-Appellee.

Justice NEVILLE delivered the opinion of the court:

Defendant Michael Thorne, along with codefendants Harvey Robinson, James Powell, and Donnell Smith, was charged with one count of armed robbery and one count of aggravated robbery based on an incident that occurred on November 1, 1999. Prior to trial, Thorne filed a motion to quash arrest and suppress evidence, which the trial court denied. Following a bench trial, at which Thorne was tried simultaneously with but separately from Robinson and Powell, the trial court found Thorne guilty of armed robbery and sentenced him to six years in the Illinois Department of Corrections. Thorne now appeals, presenting the following issues for our review: (1) whether the State established beyond a reasonable doubt that the defendant used a dangerous weapon while committing a robbery thereby violating the armed robbery statute when there was no evidence that the weapon, a BB gun, was used in a dangerous manner; (2) whether the trial court erred in admitting the victim's prior identification of Thorne, including testimony as to the role Thorne played in the robbery, as substantive evidence; and (3) whether the trial court improperly relied on a nontestifying codefendant's statement in finding Thorne guilty of armed robbery.

BACKGROUND

Alberto Acevedo, the victim, testified that at 10:30 a.m. on November 1, 1999, he

817 N.E.2d 1166

was selling food from his catering truck, which was parked on the west side of Sacramento Street near Franklin Boulevard facing southbound, when he was approached by four black individuals. Acevedo testified that one of the men grabbed him from behind and put a gun on his back. Acevedo also testified that the individual pointed the gun to his head. The individual with the gun demanded money while two of the men searched his pockets. One of the men found and removed $235 from his right pocket. Acevedo described the man who took the money as having braided hair. Acevedo described the man who pointed the gun at him as being a little bit taller than himself and as having short hair and a short beard. Acevedo described the other man who went through his pockets as having a hairstyle like "a ball or something sticking out." Acevedo testified that during the time the two men were going through his pockets and the third man was pointing the gun, the fourth individual was standing about 45 feet away and "looking to the sides, all around."

After the robbery, Acevedo testified the four men ran away across Franklin Boulevard. Acevedo got in his truck and drove after them, traveling southbound on Sacramento. Acevedo testified that prior to the arrival of the police, he observed two of the offenders enter a station wagon and remove their jackets. From his truck, which was now facing west on Franklin, Acevedo watched the men enter a building on the right side of Franklin and go up the stairs. Acevedo flagged down a Metra repair truck, told the Metra employee he had been robbed, and asked him to call the police. Acevedo did not see anyone exit the building while he was waiting for the police.

When the police arrived about 10 minutes later, Acevedo directed them to the door of the building that he observed the offenders enter. Acevedo testified that he remained in his truck while the police went into the building. Sometime later, the police told Acevedo that "they had located them [and they wanted him] to go with them and identify them." Acevedo accompanied the police to an apartment on the second floor of the building and he was shown "about eight persons." Acevedo testified that the eight people were black, the "majority of them were males," and "[t]hey were no older than thirty years of age." Acevedo identified four of the men as the men who robbed him. Acevedo testified that he was questioned about whether the four men he had identified appeared as they were when they robbed him. Acevedo responded "no[,] because some of them had taken their jackets off." He stated that when he identified them at the scene, he "recognize[d] them very well." Acevedo stated he was shown two jackets by the police officers while he was waiting in his truck, one was black and one was black and green. Acevedo testified that he identified Thorne as the person who wore the black jacket during the robbery. After identifying Thorne at trial as being the man who wore the black jacket, Acevedo stated, "I'm not too sure right now because I really don't remember their faces very well now and the clothing that they had on then. But at that moment, yes, I was able to identify them."

Acevedo testified that the person with the gun was wearing a black sweatshirt with a hood or cap on. When asked what the other two men were wearing, Acevedo testified that he "identified them [the] way their faces looked and the way their hairstyles were." Acevedo testified that the man with the braids was "the one who was trying to get the money out of me." Acevedo could not say specifically who took the money. He stated: "It was the one with the gun and the two that had that special hairstyle." Acevedo stated that of the four

817 N.E.2d 1167

people he identified, two of them had removed their jackets and one of them had changed his pants, but he recognized them by their faces and hair. He stated that the one who had changed his pants was the one who had held the gun to his head. He testified that, after identifying the men, he was told by the police to return to his truck and wait. Acevedo waited and then an officer approached his truck and showed him a gun and asked him if he recognized it. Acevedo identified it as a black pistol and stated he had seen the gun before when it was put to his head

In court, Acevedo identified Thorne, Robinson, and Powell as being three of the four offenders. Acevedo testified that when he originally identified the men he told the police officers the role each man played in the robbery. At that time, he was able to recognize two of the men by their hairstyles, noting that one had braids and the other had hair in "little cups." He said that he recognized them because they were in front of him for about two to three minutes. He stated he did not lose sight of them until they entered the door of the building. With respect to the two men who Acevedo saw go to the station wagon, he testified that they ran into the building and then, "almost at the same time," came out.

Acevedo was asked if the three men he identified in court looked different from how they looked when he identified them on the day of the robbery. Acevedo stated that their dress and hairstyles were different but their faces were the same. Acevedo identified the three men in "the uniform from the prison" as the men who robbed him. The three men in the prison uniforms were identified as Thorne, Powell and Robinson. Acevedo further stated "[t]here is one that is not here that he was away from the three of them."

Officer Glen Szeszol testified that on the morning of November 1, 1999, he responded to an armed robbery call at 3000 West Franklin. When he arrived at the location, he saw Officer Fred Estrella and Officer Hector Romero speaking in Spanish with Acevedo. After the conversation with Acevedo ended, Officer Szeszol went to the second floor of a building located just east of them. Officer Szeszol was accompanied by his partner and by Officer Romero, Officer Estrella, and Acevedo. Officer Szeszol described the building as a two-story housing development with an exposed porch on the second story. All the apartments were boarded up and vacant with the exception of apartment 201. Officer Szeszol approached the opened door of apartment 201 and saw four black males sitting on chairs and couches. He identified Thorne, Robinson and Powell as three of the four men that he saw in the apartment. Officer Romero had a conversation in Spanish with Acevedo, who was pointing in the apartment, and then informed Officer Szeszol that the men in the apartment were the offenders. The men were asked to step into the hallway, where they were searched, handcuffed, and taken downstairs.

Officer Romero asked the woman in the apartment if she was the leaseholder. She said she was and signed a consent to search the apartment. Officer Szeszol began his search of the apartment in the kitchen area. He searched the garbage and found a black and green sweatshirt wrapped around a "hard object" that he identified as a Marksman .177-caliber black BB gun. Officer Szeszol, along with Officer Romero, brought the gun and the sweatshirt downstairs to show them to Acevedo. Officer Romero then had a conversation with Acevedo in Spanish.

Officer Fred Estrella testified that he arrived on the scene along with his partner,

817 N.E.2d 1168

Officer Romero, and spoke with Acevedo. After speaking with Acevedo, Officer Estrella, along with Acevedo and the other officers on the scene, walked into a building and went to the second floor, where they walked down a corridor to the one open door. Officer Estrella looked inside and saw people in the apartment. Acevedo was asked in Spanish if the people in the apartment were the men who robbed him and he responded that they were. Officer Estrella was shown Chicago police department "C.B." reports containing individual photographs (People's exhibits 1 through 4) and asked to identify the person in each photograph. Officer Estrella identified People's exhibit 1 as a Chicago police department "C.B." report that contains a picture of...