People v. Thornton

• Decision Date: 12 May 1978
• Docket Number: No. 76-309,76-309
• Parties: , 18 Ill.Dec. 734 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Duil THORNTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 198

378 N.E.2d 198

61 Ill.App.3d 530, 18 Ill.Dec. 734

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Duil THORNTON, Defendant-Appellant.

No. 76-309.

Appellate Court of Illinois, Fifth District.

May 12, 1978.

Michael J. Rosborough, Deputy State Appellate Defender, A. Michael Kopec, Asst. State Appellate Defender, Fifth Judicial Dist., Mount Vernon, for defendant- appellant.

Clyde L. Kuehn, State's Atty., Belleville, for plaintiff-appellee; Bruce D. Irish, Principal Atty., Martin N. Ashley, Staff Atty., Ill. State's Attys. Assn., Mount Vernon, of counsel.

EBERSPACHER, Presiding Justice:

Defendant, Duil Thornton, brings this appeal from the judgment entered by the circuit court of St. Clair County following a bench trial, finding defendant guilty of the offense of armed robbery and sentencing him to a term of eight to 24 years imprisonment. On appeal defendant raises the following issues: (1) whether he expressly and understandingly waived his right to a jury trial; (2) whether he was proven guilty beyond a reasonable doubt; (3) whether the trial court erred in refusing an offer of proof that defendant had no reputation for carrying or using a gun or for using or threatening the use of force; and (4) whether the sentence imposed is excessive. Additionally, with regard to the first issue, we must consider a motion by the State to amend the record to show a waiver of jury trial.

The instant charge stems from the March 14, 1975 armed robbery of Robert Schmitt, the manager of the Tri-City Grocery Store. At trial Schmitt testified that on the morning of the crime, he saw a man walking around the back of the store with no shopping cart and no items in his hands. Around twenty minutes later, this same man called to Schmitt and asked for help in choosing shaving lotion. He was, however, not looking at shaving lotion but rather, the man was pointing to alcohol. Schmitt and the man were standing near the store's office at this time. The man again requested help from Schmitt but as Schmitt approached him, he pulled out a gun and demanded money. Schmitt filled a box with cash from the office and gave it to the man who then left. At trial Schmitt positively identified defendant as the man who robbed him. He testified that the lights in the store were bright and that during the crime he had observed defendant face-to-face and from as close as one foot from defendant. He described defendant as "shabby", being unshaven, smelling of alcohol and having no teeth. He stated that defendant wore a black and orange cap over gray hair, a black and red plaid jacket and jeans.

Roland Davis next testified that he worked in the grocery store and that on the morning of the crime, he saw defendant who approached him and inquired about getting a job. He gave a similar description of defendant as that given by Schmitt. Davis further stated that fifteen or twenty minutes after he saw defendant, he learned that the robbery had just occurred.

Martha Harvell testified that at the time of the crime she was shopping in the store. She stated that just before the robbery, she had seen defendant on three occasions at various locations in the store. Her attention was drawn to defendant because she felt that he was acting suspicious in that he was continually looking at the store's office and he was apparently not shopping. Her description of defendant was also similar to that given by Schmitt.

The State's evidence further showed that six days after the crime, Schmitt, Davis and Harvell each separately identified defendant, as the man who had committed the crime, by choosing his photograph from a group of ten photographs.

Defendant presented a number of alibi witnesses to support an alibi defense.

We will consider defendant's first contention last, and we turn to the issue of whether defendant was proven guilty beyond a reasonable doubt.

As a general rule, a positive identification by a single credible witness with an ample opportunity to observe will be sufficient to support a conviction. (People v. Clarke, 50 Ill.2d 104, 277 N.E.2d 866; People v. Jackson, 23 Ill.App.3d 1011, 320 N.E.2d 400.) Here, the testimony of Davis and Harvell place defendant at the scene of the crime and the testimony of Schmitt establishes that defendant committed the crime. Essentially, defendant contends that these witnesses lacked the opportunity to observe the perpetrator. The record shows, to the contrary, that the witnesses, and most crucially Schmitt, had an ample opportunity to observe defendant, under excellent conditions, and under circumstances which would concentrate the mind on the appearance of defendant. Although defendant does not directly raise the issue, he nonetheless insinuates that the in-court identifications of defendant were a product of the prior photographic identifications of him. Prior to trial a motion to suppress the identifications was heard and denied by the trial court. We do not find from the evidence adduced therein that the photographic identifications were so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification as insinuated. (See, People v. Porter, 29 Ill.App.3d 456, 330 N.E.2d 599.) The in-court identifications of defendant were neither vague, doubtful or uncertain and were based on observations of defendant at the time of the commission of the crime. Defendant's argument resolves itself on whether the alibi witnesses are to be believed and the State's witnesses disbelieved. The lower court after hearing the witnesses, judging their demeanor and assessing their credibility, stated that although he was not "impressed" with Davis, he fully believed the testimony of Schmitt and Harvell and disbelieved the testimony of defendant's alibi witnesses and consequently he found defendant guilty of the commission of the offense. After a careful review of the record, we find no basis to disturb the findings of the trial court.

Next, defendant contends that the court erred in refusing evidence of his character. Police Officer Robert Stanton testified during trial on behalf of the State about the police investigation of the crime. During cross-examination it was stipulated by the parties that defendant could temporarily call Stanton as his own witness for purposes of proving defendant's character. Stanton testified that he had lived in the community for 25 years, that he had known defendant's family for about 16 years and that he had known defendant personally for about five years. He further stated that he was familiar with defendant's reputation. Defendant then attempted to question Stanton concerning defendant's reputation but the State's objections to the form of the questions were sustained. Defendant made the following offer of proof:

Q. From your knowledge of Duil Thornton and knowing his relationship with you and the police department, does he have a reputation for having a gun and using a gun?

A. Not to my knowledge.

Q. And on the same basis you are not do not know whether or not he has a reputation for using force or threatening force?

A. Also not to my knowledge.

It is settled that a defendant can make proof of such previous good character as is inconsistent with the commission of the crime charged. This proof is made by showing a general reputation for the specific trait of character involved to suggest the inference that the defendant acted consistently with his character. (People v. Lewis, 25 Ill.2d 442, 185 N.E.2d 254; People v. Wells, 80 Ill.App.2d 187, 224 N.E.2d 288.) A general reputation for non-violence is a relevant good character trait where a defendant is charged with the commission of armed robbery. (People v. Kendall, 357 Ill. 448, 192 N.E. 378.) Defendant herein sought to prove a character trait for non-violence inconsistent with the charge of armed robbery by showing the absence of a reputation for having and using guns and threatening and using force under circumstances in which his character was well known in the community.

The State contends that proof of a trait of good character cannot be made in this manner and cites People v. Partee, 17 Ill.App.3d 166, 308 N.E.2d 18, wherein the court held that a defendant may not "inquire of a negative attribute of character, and infer that its absence is sufficient to lay a proper foundation for good reputation." (17 Ill.App.3d at 179, 308 N.E.2d at 28.) We cannot accept this view under the facts established herein.

It has long been held that to prove a good character trait, a witness may testify that he has never heard anything said against the defendant or that he has never heard the matter discussed, providing that the witness occupied such a position that in the ordinary course of events he would have heard anything that might have been said concerning the defendant. (People v. Savage, 325 Ill. 313, 156 N.E. 310; People v. Huffman, 325 Ill. 334, 156 N.E. 342; 5 Wigmore, Evidence, § 1614 (Chadbourn rev. 1974).) In this situation, the inference that the defendant's reputation is good is predicated on the absence of a bad reputation, and the supposition that such a bad reputation would have occurred if the good character trait were lacking. This reasoning should apply equally to the proof of a good character trait by testimony of a witness as to the absence of a reputation for a bad, correlative character trait providing the defendant is known in his community and the witness, so testifying, has been in such a position that he would have known of such a reputation if it existed. See, 2 Wigmore, Evidence, § 664 (3rd Ed.1940).

In the case at bar, evidence established that Police Officer Stanton would likely have known of a reputation of defendant of having and using guns and threatening and using force if such a reputation existed. Defendant offered to prove that Stanton knew of no such reputation to support the inference that defendant had an opposite, correlative good character trait. We...