People v. Underwood

• Decision Date: 13 May 1994
• Docket Number: Nos. 1-92-2584,92-2585,s. 1-92-2584
• Citation: 263 Ill.App.3d 780,635 N.E.2d 749
• Parties: , 200 Ill.Dec. 410 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Buddy UNDERWOOD and George Underwood, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 749

635 N.E.2d 749

263 Ill.App.3d 780, 200 Ill.Dec. 410

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Buddy UNDERWOOD and George Underwood, Defendants-Appellants.

Nos. 1-92-2584, 92-2585.

Appellate Court of Illinois First District, Sixth Division.

May 13, 1994.

Rita Fry, Public Defender of Cook County, Chicago (Lynne Hubanks Miller, of counsel), for appellants.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee Goldfarb, Kenneth T. McCurry and Elizabeth A. Scholz, of counsel), for appellee.

Presiding Justice EGAN delivered the opinion of the court:

After a bench trial, the defendants, brothers Buddy and George Underwood, were convicted of armed robbery. The trial judge sentenced Buddy to the Illinois Department of Corrections for 10 years and George to the Illinois Department of Corrections for 18 years. We consolidated their appeals. They contest the sufficiency of the evidence against them and the effectiveness of their counsel.

Buddy and George were tried jointly for the armed robbery of James Bryant. Bryant testified that on November 5, 1991, he was using a pay phone at the bus stop at 16th Street and Kedzie Avenue in Chicago. It was dark outside, but there were working streetlights lighting the area. As Bryant was hanging up the phone, he felt an arm "coming around" the right side of his neck. He looked at the arm and saw that the hand by his neck held a box cutter with a "push out" razor blade. The man holding Bryant said, "This is a stick-up."

The man turned Bryant, and Bryant looked at him. The man was wearing red sweat pants and a black jacket. Bryant told the police the man was wearing a red skullcap. Bryant saw the box cutter "up close" when he was turned; the man held the box cutter razor to Bryant's throat. In court, Bryant identified George as the man who held him. Also, he identified a State exhibit as the box cutter "that was at [his] throat."

While George was holding Bryant, another man walked to the left side of Bryant. This man also had a box cutter. In court, Bryant identified Buddy as the second man. Bryant had never seen Buddy and George before November 5. Buddy was wearing a leather jacket with a "fur collar around it" and a skullcap. Buddy placed his box cutter against Bryant's throat, and George said "Let's drag him in the alley." George and Buddy pulled Bryant approximately 10 feet into an alley, where they were met by another man. The third man was holding a gun, and he "put the pistol to [Bryant's] head."

George then repeated his statement about "a stick-up." Buddy reached into Bryant's pants pocket and removed $15. George reached into Bryant's coat pocket and removed $355 and a CTA pass. Buddy and George then left the alley, traveling east on 16th Street. The third man held Bryant at gunpoint for approximately 10 seconds, then ran. He was never apprehended.

Bryant returned to the bus stop, where he saw an unmarked police car. He got into the car, told the officers about the robbery and gave the officers the same description of Buddy and George's clothing that he gave in court. The officers called his description of Buddy and George over the police radio. They drove Bryant around the area for a short period of time and then drove him to Holman Avenue and Douglas Boulevard, where they parked near another police car.

At Douglas and Holman, Bryant saw Buddy and George standing beside the second police car. Bryant was asked if the two men "were the ones that robbed [him]" and he replied that they were. Bryant noticed that George had "the red sweat pants on under [a pair of] black pants."

It was approximately 10:35 p.m. when Bryant "was assaulted" by the three men. The robbery lasted approximately five minutes and another five minutes passed from the time "the defendants held box cutters on [him] until the time [he] saw them" standing beside the police car at Douglas and Holman.

Officer Gaal testified that he was in an unmarked police car on November 5, 1991, when he heard the description of Buddy and George over his radio. "Just a couple of minutes" later, at approximately 10:45 p.m., he saw two men running across Douglas. One man was wearing a blue skullcap; the other wore a red skullcap. Gaal stopped the two men because they "matched the description that was over the air." When the other officers and Bryant arrived, Gaal asked Bryant if he "recognized anybody." Bryant told Gaal that "those [were] the guys that had just robbed him in the alley." Gaal identified Buddy and George in court as the two men he stopped.

After Bryant identified Buddy and George, Gaal searched them. George was wearing a black pair of pants over red jogging pants. Gaal did not find the missing $370 or CTA pass. He found a chrome box cutter in Buddy's pocket. He did not recover another box cutter from either George or Buddy. In his arrest reports for Buddy and George, however, Gaal noted that he recovered a box cutter from George, but no weapon from Buddy. He identified the State exhibit as the box cutter he recovered.

The defendants called three relatives in support of their alibi. Their mother, Eula Wilkerson, testified that she left her house with Buddy and George at 7 p.m. on November 5, 1991. Buddy was wearing a long leather jacket and a skullcap. George wore red jogging pants beneath blue or black jeans and a leather jacket. Wilkerson did not see her sons with box cutters. They drove to Bertha Williams' house. Williams lived at Trumbull and 14th Streets. At Williams' house, Wilkerson played cards with her daughter Ella Underwood, Lillie Sutton, Buddy, and George. Buddy and George left Williams' home at approximately 10:15 p.m. because they wanted to visit their niece, Fornita Underwood, who lived with Ella near Douglas and Holman. Wilkerson explained that this was one and one-half blocks from Williams' house. At approximately 10:30 p.m., Wilkerson's granddaughter ran to Williams' home from Ella and Fornita's house and told Wilkerson that George and Buddy had been arrested.

Ella was playing cards at Williams' house with Wilkerson, Sutton, Buddy, and George on the evening of November 5, 1991. George and Buddy left Williams' house "somewhere after 10:30--10:15, something like that" to visit Fornita. Ella testified that the distance from her house to the bus stop at Kedzie and 16th where Bryant was robbed is approximately six total blocks, four blocks west and two blocks north.

Fornita testified that Buddy and George were arrested in front of her house at approximately 10:30 p.m. on November 5, 1991. Earlier, at approximately 10:10 p.m., George called Fornita and told her that he and Buddy were "coming over" to visit her. Fornita testified that the distance from her house to Kedzie and 16th is approximately six blocks.

Buddy and George testified in their own defense. The parties stipulated that George had been convicted of robbery and aggravated battery and that Buddy had been convicted of possession of a stolen motor vehicle. Buddy testified that he played cards at Williams' house on November 5, 1991. He heard George call Fornita. At 10:30 p.m., he and George left Williams' home and began walking to Fornita's house. Neither he nor George had a box cutter. Buddy was wearing a long leather coat with a fur collar and a blue skullcap. George was wearing blue jeans, a leather coat and a red cap.

As the brothers crossed Douglas Boulevard, they tried to "beat traffic across the street through the park." A police car drove toward them, and the police exited the car and asked Buddy and George to stop. When the police stopped Buddy and George, Buddy believed it was because they had tried to "beat traffic." Buddy admitted that after his arrest he did not tell a detective he was trying to beat traffic, but told the detective he ran across the street and park because it was cold outside. The police searched them but did not recover anything from either brother.

Another police car arrived and stopped approximately 40 feet from the brothers. Buddy described the lighting as "dark." From inside the car, Bryant looked at Buddy and George for "just a second or two" and said "I'm not sure but it looks like them." Buddy could hear Bryant despite the 40-foot distance between Bryant and Buddy. The defendants were never placed in a line-up and were not asked to speak or turn for Bryant.

George testified that he played cards at Williams' house on November 5, 1991. He called Fornita to ask if he and Buddy could visit. According to George, he and Buddy left Williams' house at approximately 10:45 p.m. and began walking to Fornita's house. They ran across the street and through traffic. Then, "the police come up behind us and jumped out of the car with guns in their hands and told us to stop, so we stopped." The police searched Buddy and George but did not find any money or weapons.

Another police car arrived and the officers who stopped Buddy and George "had [them] come up close to the car." George and Buddy stood approximately 20 feet from the car. George saw that the back window of the car was open and heard the officers ask a man behind the window if Buddy and George "were the guys who robbed him." The man in the back seat said, "No, it looks like them but I'm not for sure." The first time George saw the box cutter was in court on the day of trial.

The trial judge found Bryant to be very credible. She explained that Bryant "testified in a very clear and forthright manner that the two defendants before the court are the people who approached him on November 5." She noted the "degree of certainty" Bryant had regarding the identity of Buddy and George and the strong similarity between the description of the brothers' clothing Bryant gave to the police and the clothing the brothers admitted wearing on November 5. She recognized the possibility of a suggestive identification based on the way Bryant viewed Buddy and George after their arrest, but found that Bryant had a...