People v. Winston

• Decision Date: 16 September 1987
• Docket Number: No. 2-86-0019,2-86-0019
• Parties: , 112 Ill.Dec. 512 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew WINSTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1121

513 N.E.2d 1121

160 Ill.App.3d 623, 112 Ill.Dec. 512

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Andrew WINSTON, Defendant-Appellant.

No. 2-86-0019.

Appellate Court of Illinois Second District.

Sept. 16, 1987.

G. Joseph Weller, Deputy Defender, Robert C. Cooper (argued), Office of the State Appellate Defender, Elgin, for Winston.

Robert J. Morrow, Kane County State's Atty., Geneva, William L. Browers, Deputy Director, Cynthia N. Schneider, State's Attys. Appellate Prosecutors, Elgin, for the People.

Justice UNVERZAGT delivered the opinion of the court:

Following a jury trial, the defendant, Andrew Winston, was convicted of armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2) and sentenced to six years' imprisonment. The following evidence was presented at trial.

Shahud Haque testified that at approximately 5:00 a.m. on June 4, 1985, a man came into the store portion of the gas station Haque managed, pulled out a gun, and announced a robbery. Haque identified defendant as the gunman. The only other person in the store at the time of the robbery was Floyd Nelson, a regular customer who had been there about an hour playing video games. Haque said Nelson had also been in the store earlier that night playing the games. He testified that Nelson behaved suspiciously, leaving when a customer entered and returning after the customer had left. Haque stated that the gunman walked past Nelson, without drawing his weapon, to the counter where Haque stood, but then ordered both Haque and Nelson to lie down on the floor behind the counter and took both their wallets. He also took money from the cash register, some bank bags containing money and receipts, some cartons of cigarettes and a cigar box containing supplies and business cards. He then left the store. A total of about $600 in cash was taken. Haque said that Nelson started to leave after the robbery and had to be persuaded to remain to talk with police.

Floyd Nelson was apparently called as a court's witness and was cross-examined by both the prosecutor and the defense attorney. Nelson admitted that he has a criminal record and was on probation for burglary at the time of this robbery. He testified that in June 1985, he was living at the home of Michael Thomas, less than a block from Haque's gas station. He had known the defendant a couple of years and had met him through Thomas. He said that on June 3, 1985, the evening before the robbery, he was with a crowd of people at Thomas' house where he heard defendant and Thomas openly discuss robbing the station that night. They asked Nelson to participate, but he refused. Nelson admitted that he nevertheless went to the station twice that night--once at about 2 a.m. to challenge someone to a video game, and again before going to work at what he says must have been about 6 a.m. He denied having gone in and out when customers entered and explained his presence there in spite of defendant's plans by stating that Thomas and defendant "tried to psyche me out and say they wasn't doing it since I told them I wouldn't get involved." He explained that he stopped at the station every morning to get enough gas to make it to work and back. He said he had been in the store portion of the station playing video games for a few minutes when the gunman entered. He testified that he did not see the gunman come in but that his voice sounded familiar. He "glanced" at the gunman, but saw "mainly the gun," and insisted that he recognized the gunman only by voice and build. At one point in his testimony, he referred to the gunman as "she." After reviewing an earlier statement he had made to police, he said that the defendant, Andrew Winston, had committed the armed robbery.

Nelson stated that he voluntarily remained to speak with police. He did not tell them that he knew the gunman or where they could find him because he feared for his life. After the police left the station, Nelson said he returned to Thomas' house and found defendant there with Thomas' girlfriend. The defendant had the bank bags and other items taken from the station and had "quite a bit of the money on him." He stated that defendant returned his wallet to him and offered to give him a share of the money taken. Nelson refused. Defendant remained there for an unspecified length of time and then left in a cab. Nelson stated that there was no phone at Thomas' residence and defendant must have called the cab from the house next door.

Nelson went to the police on June 10, six days after the robbery. He named the defendant as the gunman and gave the police two bank bags, a business card file, and some of Haque's identification cards. Haque identified the items at trial as among those taken by the gunman. Nelson testified that his girlfriend found the items. After reviewing the statement he made to police on June 10, however, he recalled that he himself had found the items. He admitted that he went to the police at least in part because he was afraid they might charge him with the crime. However, he later stated that fear of prosecution had not been his reason. He stated he was given $40 by one of the officers, but that the money was a loan and was not paid in exchange for information. He admitted that he has not repaid the officer.

On June 14, based on the information Nelson gave them, police arrested defendant and placed him in a lineup with four other men. Haque viewed the lineup and identified defendant as the gunman.

Defendant testified that in June 1985, he had been living at the home of Modelia Cook for about a month. He stated that he knew Nelson well and had been to Haque's gas station with him several times, but had no knowledge of the robbery. He could not specifically recall June 4, 1985, but said that he must have been asleep at Cook's home that night, as she had a 12 o'clock curfew for him and her son.

Cook testified for the defendant. She stated that in the time defendant lived at her home, which included the night of the robbery, he had never violated her 12 o'clock curfew. She said she always knew when defendant came in as it was his habit to call up to her and ask if she needed anything. She said she would have known if he went out during the night because when anyone entered or left, her door always squeaked loudly, and her two poodles always barked. Cook's son, who slept in the bedroom next to defendant's, gave virtually the same testimony.

Michael Costner also testified for the defendant. He stated that in September 1985 he was in a parked car "getting high" with Floyd Nelson and another man, who asked Nelson why he had set up the defendant. Costner said Nelson replied that he thought defendant was messing around with his girlfriend. Several defense witnesses testified that defendant has a good reputation for honesty. They also stated that defendant regularly wore either a brightly colored high school jacket or a leather jacket and had never seen him wear a sweatshirt or jacket of the type used in the robbery. The witnesses also stated that defendant did not own a car and his only means of transportation were his bicycle or his feet.

Additionally, the parties stipulated that Michael Thomas had in fact been in jail on the evening of June 3, 1985, the date that Nelson testified he overheard Thomas and defendant planning the robbery.

Defendant argues on appeal that: (1) he was not proved guilty beyond a reasonable doubt; (2) the trial court erred in failing to hold an in camera hearing to determine whether certain police reports were discoverable; (3) the court erred in refusing to issue a jury instruction regarding testimony given by an accomplice; and (4) the court erred in refusing the jury's request to review a transcript of the testimony without first informing defense counsel of the request.

We will first review the sufficiency of the evidence. The only evidence linking the defendant, who has no prior criminal record, with this crime was Nelson's testimony and Haque's identification testimony. Defendant contends that Haque's original description of the gunman to police does not fit the defendant and was substantially inconsistent with that Haque gave at trial. He argues that Haque's greater certainty in identifying the defendant at trial than in identifying him in the lineup indicates that Haque experienced a "glimmer of recognition" at the lineup because he had seen defendant in his station with Nelson on other occasions, and that he erroneously convinced himself that defendant was the man who robbed him. Defendant contends that Haque's testimony was therefore vague and uncertain and cannot support a conviction.

We note initially that defendant is a black man, who was 18 years old at the time of his arrest. He had a mustache and a pierced ear. Defendant and his witnesses testified that he has always worn a mustache and usually wears an earring. At the time of trial, he was 5 feet 5 inches tall and weighed 139 pounds. At the trial, Haque described the gunman as a young black man, about 18 years old, and slightly taller than himself (Haque is 5 feet 4 1/2 inches tall). He described the gunman as having worn a cotton jacket with a front pocket and attached hood, blue jeans, white sneakers and a black scarf which completely covered his hair. Haque said that he "could imagine," apparently because the scarf did not bulge, that the gunman's hair was very short (as was defendant's). He described the gunman's facial hair as a "slight mustache when the first mustache is coming in, like that real slight." Haque admitted at trial that he did not notice an earring or pierced ear, but insisted that each time police interviewed him he told them the gunman had a mustache, and that he never told them the man weighed 180 pounds. However, the police officer who interviewed Haque and Nelson immediately after the robbery testified that they said the gunman did not have a mustache and estimated his weight at 180 pounds....