{ "id": 5480033, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WAYNE YARBROUGH, Defendant-Appellant", "name_abbreviation": "People v. Yarbrough", "decision_date": "1982-02-08", "docket_number": "No. 80-854", "first_page": "967", "last_page": "975", "citations": [ { "type": "official", "cite": "103 Ill. App. 3d 967" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "1 Ill. 2d 562", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5315162 ], "pin_cites": [ { "page": "569" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/1/0562-01" ] }, { "cite": "16 Ill. 2d 364", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2760556 ], "weight": 3, "pin_cites": [ { "page": "373-74" }, { "page": "374" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/16/0364-01" ] }, { "cite": "83 Ill. 2d 545", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5474009 ], "pin_cites": [ { "page": "549" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/83/0545-01" ] }, { "cite": "57 Ill. App. 3d 1007", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3422746 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/57/1007-01" ] }, { "cite": "77 Ill. App. 3d 677", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3291276 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/77/0677-01" ] }, { "cite": "25 Ill. 2d 319", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5350915 ], "pin_cites": [ { "page": "321" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/25/0319-01" ] }, { "cite": "26 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2784323 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/26/1027-01" ] }, { "cite": "88 Ill. 2d 225", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3083586 ], "weight": 2, "pin_cites": [ { "page": "230-31" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/88/0225-01" ] }, { "cite": "87 Ill. App. 3d 814", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3179482 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/87/0814-01" ] }, { "cite": "94 Ill. App. 3d 200", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3128690 ], "pin_cites": [ { "page": "207" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/94/0200-01" ] }, { "cite": "22 Ill. 2d 582", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2789968 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/ill-2d/22/0582-01" ] }, { "cite": "84 Ill. App. 3d 1140", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3204995 ], "year": 1961, "pin_cites": [ { "page": "1142" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/84/1140-01" ] }, { "cite": "80 Ill. App. 3d 771", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3232450 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/80/0771-01" ] }, { "cite": "41 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853933 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0401-01" ] } ], "analysis": { "cardinality": 939, "char_count": 19392, "ocr_confidence": 0.867, "pagerank": { "raw": 7.161564862667631e-08, "percentile": 0.42890280475811526 }, "sha256": "6d03d9040f38ff28023915546136a333a0efa16c8e8a1c080b074a33ac29a783", "simhash": "1:a26bd0acfc2689e8", "word_count": 3289 }, "last_updated": "2023-07-14T15:16:39.830915+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WAYNE YARBROUGH, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE UNVERZAGT\ndelivered the opinion of the court:\nBilly Wayne Yarbrough was tried and convicted in Winnebago County of the offense of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18\u20142). The defendant was sentenced to a minimum term of six years in the Department of Corrections. He filed a timely notice o.f an appeal.\nDefendant allegedly robbed Dale Reinhold, the owner, and Debbie Edwards, an employee, of K. C.\u2019s Disco in South Beloit. The robbery occurred about 2:30 a.m. on December 22, 1979. The two victims were about to get into Reinhold\u2019s truck in the parking lot of the disco after having locked up for the night. The defendant approached them, gun drawn, announced it was a stickup and demanded \u201cthe receipts.\u201d Reinhold advised him the receipts were in the safe inside the disco, and the victims were forced back inside, the safe was opened, and two money bags and a .357 chrome-plated magnum pistol in a holster were removed by the robber. The robber began to leave the disco but was deterred by the sight of car lights through the glass front door of the disco. Reinhold and Edwards lost sight of the defendant in the darkness within the disco, and Reinhold produced a pistol he had been carrying in his belt and fired a shot. Then he and Edwards, believing the robber might still be on the premises, called the police. The police arrived and searched the premises, did not find the robber or the money bags, but did observe the .357 magnum pistol on the floor near the front door. Subsequently, the police received a \u201ctip\u201d that they should show the defendant\u2019s photos to the victims. Photos of six other persons who were physically similar to the defendant were assembled and shown to the victims separately. They each chose defendant\u2019s photograph.\nDefendant was arrested. At the preliminary hearing, Reinhold failed to identify him, but Ms. Edwards did, and the trial court determined that probable cause existed. At the trial of the cause both victims positively identified defendant and he was convicted in a jury trial. A new trial motion was filed and denied, after which the defendant was sentenced to the Department of Corrections. A post-trial motion in the usual form was filed, and thereafter a supplemental post-trial motion was filed by the defendant. The supplemental motion for post-trial relief alleged, inter alia, with supporting affidavits, that the defendant\u2019s brother, Willie Joe, not the defendant, had committed the robbery at K. C.\u2019s. The trial court held an evidentiary hearing on the supplemental petition. Willie Joe Yarbrough, defendant\u2019s brother, testified that he, Willie Joe, had committed the robbery. Willie Joe\u2019s girl friend, Patricia Smith, testified at the evidentiary hearing that Willie Joe showed her a bag of money from which he gave her $250 after she helped count the bag\u2019s contents, and she testified that Willie Joe told her it was stolen out of a truck parked at K. C.\u2019s Disco on December 22.\nThe trial court denied the supplemental motion for new trial, stating that because it did not believe Willie Joe or Patricia Smith that the defendant had not met his burden of proof showing the conclusiveness of his newly discovered evidence, nor had the defendant been diligent in presenting it to the court. Notice of appeal was then timely filed.\nIn this appeal the defendant makes three major contentions:\nI. He was not proven guilty beyond a reasonable doubt.\nII. He was denied a fair and impartial consideration of the post-trial motion when the court \u201csuggested\u201d that he be given a lie detector test and later upon its own inquiry was informed that no \u201cbeneficial\u201d evidence had resulted from the \u201cinvestigation.\u201d\nIII. That the court erred in not granting a new trial after the evidentiary hearing conducted pursuant to the supplemental post-trial motion.\nIt is defendant\u2019s first contention that the eyewitness identifications of him were not credible and were unsupported by any objective corroborating evidence that a robbery, in fact, had occurred. The defendant in contrast asserts the alibi evidence he presented was credible and uncontroverted by the State and that therefore reversal was warranted.\nPositive identification by one credible witness is sufficient to sustain a conviction. (People v. Novotny (1968), 41 Ill. 2d 401), provided the defendant is observed under conditions which would allow a positive identification to be made. (People v. Reed (1980), 80 Ill. App. 3d 771.) The robber was described by the witnesses as a black male, about 150-160 pounds, 5'10\" to 6' tall, in his early twenties, wearing jeans, boots, a dark jacket and a stocking cap on his head, but not covering his face. Reinhold also said he had a \u201cpuffy cheek,\u201d although Edwards made no mention of this feature. The parking lot was lighted by mercury vapor lights on the roof of the disco, there was a street light about 50-55 feet away from the door \u25a0 through which the victims and the robber entered the disco, a lighted \u201cExit\u201d sign above the d\u00f3or, a small light on the cash register, and florescent lights in the anteroom of the small office in which the safe was located and was itself lighted by a bare, 100-watt bulb.\nClearly, the victims had ample opportunity to view the robber, notwithstanding the defendant\u2019s contention the victims were more likely to have been focusing on the robber\u2019s weapon than his features. Despite the fact Reinhold\u2019s identification of the defendant at trial was somewhat weakened due to his prior inability to identify him at the preliminary hearing, Edwards\u2019 identifying testimony was clear, and it alone would have been sufficient to convict if the jury found her credible. This is true even if the defendant presented uncontradicted alibi evidence or more witnesses to support the alibi defense than were called to identify him. (People v. Menendez (1980), 84 Ill. App. 3d 1140, 1142; People v. Setzke (1961), 22 Ill. 2d 582.) Defendant\u2019s alibi evidence presented an issue of fact to be determined by the jury, along with its determination of the credibility of the witnesses. People v. Johnson (1980), 94 Ill. App. 3d 200, 207.\nThe defendant\u2019s alibi was that he and a friend, Roger Beckham, left for Atlanta, Georgia, about 4:30 p.m. on December 21 to visit Beckham\u2019s grandmother. The defendant claims he could not have committed the robbery since at 2:50 a.m. on December 22 he was \u201chalf way to Nashville.\u201d Our review of the record causes us to conclude that the jury could easily have rejected the defendant\u2019s contention as to his alibi defense due to the numerous inconsistencies in his witnesses\u2019 and his own testimony. Although the defendant may indeed have traveled to Georgia on December 22, his arrival time in Atlanta was of critical importance since he could conceivably have committed the robbery immediately before leaving for Georgia and still have arrived in Atlanta later on December 22. According to the testimony Atlanta is a 15- to 15M-hour trip. The jury could also have considered the great potential for fabrication of the alibi defense since defendant, while out on bond, drove to Georgia to pick up the witnesses and transported them to Rockford for the trial itself. In sum, we believe the State sustained its burden of proof beyond a reasonable doubt, and reversal on this point is not warranted.\nA motion by the State to strike two authorities cited by the defendant in his brief was ordered to be taken with this appeal. The authorities cited were two articles, one from the Journal of Applied Psychology: Gorenstein and Ellsworth, Effect of Choosing an Incorrect Photograph on a Later Identification by an Eyewitness, 65 J. Applied Psychology 616 (1980). The other was Bazelon, Eyewitness News, 13 Psychology Today 102 (March 1980). They were cited in support of the defendant\u2019s contention that Reinhold\u2019s identification of the defendant was not sufficiently credible to sustain a finding of guilty beyond a reasonable doubt because Reinhold was suffering from \u201cweapon focus\u201d coupled with a \u201ccommitment factor\u201d arising out of the assertedly unduly suggestive photo lineup. This court in People v. Dixon (1980), 87 Ill. App. 3d 814, found expert opinion testimony on the vagaries of eyewitness identification was properly denied at trial since it was a subject within the common knowledge of the jury. But more crucial to the issue in this particular case is the fact that these writings were not presented to the trial court and were not presented to this court. Since they have never been submitted they cannot be considered and shall not be by this court. The State\u2019s motion, therefore, must be granted.\nThe second thrust of the defendant\u2019s appeal is that he was denied a fair and impartial consideration of his post-trial motions when the trial court suggested that a lie detector test be given to Yarbrough and later, upon the court\u2019s inquiry, was informed that no \u201cbeneficial\u201d evidence had resulted from that investigation.\nSection 8b of the act relating to lie detector tests provides:\n\u201cIn the course of any criminal trial the court shall not require, request or suggest that the defendant submit to a polygraphic detection deception test, commonly known as a lie detector test[,] to questioning under the effect of thiopental sodium or to any other test or questioning by means of any mechanical device or chemical substance.\u201d Ill. Rev. Stat. 1979, ch. 38, par. 155\u201411.\nThe People contend that this issue is waived for failure to object. Considering the unambiguous restriction placed on the trial court by this statute, we find no merit in the State\u2019s waiver argument, however. We believe the trial court\u2019s action in this regard amounts to plain error. It is clear , the trial court here did not observe the restriction in section 8b, to-wit:\n\u201cI am going to say this to the prosecution, again without any reflection on the facts of this case, and whatever they do is certainly up to them, and I\u2019m not\u2014I don\u2019t want to know whether you do anything or not; but in some cases of this type where there is only identification by eyewitnesses and there is no other corroborating evidence and there appears to be an alibi, that from time to time the state\u2019s attorney\u2019s office has given lie detector tests to a defendant to insure that they do have the right man. While that isn\u2019t the sole test, by any means, nor is it one that is admissible in evidence, there are times when that can be used, along with all the other available facts that the State has, to determine whether, in fact, an innocent man may have been convicted. I want to make it clear that I am not saying an innocent man is convicted. I am just saying that under the evidence there is no corroboration. I would suggest that. I don\u2019t want to know the answer whether you do it or you don\u2019t do it, because it is only a matter that the State, if it conducts a lie detector test, felt that was conclusive, the State would come in and move to vacate. The Court does not want to know the results or even whether you conducted one, because I cannot take that into consideration, but I suggest it. I know it has been done in the past in the state\u2019s attorney\u2019s office.\u201d\nThen, immediately after the post-trial motion arguments were heard, and before the court commented or decided the merits of the post-trial motion, the trial judge asked:\n\u201cTHE COURT: * * 0 I take it, Mr. Fuenty [assistant State\u2019s Attorney] that there is no new evidence subsequent to the trial that would, in the interest of justice, be beneficial to the Defendant?\nMR. FUENTY: Certain investigative procedures were performed subsequent to the trial. As a result of these investigative procedures which Mr. Beu participated in, there is no new evidence available to the Defendant. In fact, all of the results of that investigative procedure are in the hands of Mr. Beu.\u201d\nPolygraph evidence is not admissible in the State of Illinois; any stipulation to the contrary constitutes an attempt to change the legal standards for admissibility, which is an unacceptable result. (People v. Baynes (1981), 88 Ill. 2d 225.) Baynes found the admission without objection of polygraph evidence in that case rose to the level of plain error which impinged upon the integrity of the judicial system. (88 Ill. 2d 225, 230-31.) The defendant\u2019s assertion in his brief that the trial court improperly assumed the role of a prosecutor by suggesting a polygraph test is not without some support. It has been stated that discretion in the administration of polygraph exams is an adjunct to the discretionary powers of the State in prosecuting criminal conduct. People v. Smeathers (1975), 26 Ill. App. 3d 1027.\nContrary to the State\u2019s assertion otherwise, we believe the second-quoted passage from the record strongly indicates the court was seeking information as to the results of the \u201ccertain investigative procedures.\u201d Further, it made no comment about the decision on the merits of the post-trial motion until it had determined there was no \u201cnew evidence subsequent to the trial that would, in the interest of justice, be beneficial to the Defendant.\u201d It would appear that the trial court withheld exercise of its discretion until it was possessed of that last little bit of information which, under the sequence of events, must have been considered by it to be conclusive. Similar to the posture of the court in People v. Nimmer (1962), 25 Ill. 2d 319, 321, we believe it could be said that just before it ascertained the results of the test \u201cthe court did not then entertain an unalterable or conclusive conviction of guilt.\u201d The Nimmer court granted the defendant a new trial due to that court\u2019s improper suggestion as to the use of, and reliance on, a polygraph exam. There, however, the court was also the trier of fact and its intent to rely on the exam was manifestly evident. Here, by contrast, it would appear the trial court could have been swayed by the favorable results of a lie detector test, but it was not absolutely certain. Further, the jury, not the court, was the fact finder. In that respect, the trial court\u2019s only task was to determine whether, as a matter of law, the verdict could not stand; the defendant\u2019s motion was the equivalent of a motion to direct a verdict of acquittal. (People v. Wallerstedt (1979), 77 Ill. App. 3d 677.) Accordingly, the trial court was required to view the evidence and the inferences in the light most favorable to the State. (People v. Tibbs (1978), 57 Ill. App. 3d 1007.) In determining whether the trial court abused its discretion in deciding a motion for a new trial, the reviewing court will consider whether the jury\u2019s verdict was supported by the evidence and whether the losing party was denied a fair trial. (Reidelberger v. Highland Body Shop, Inc. (1981), 83 Ill. 2d 545, 549.) We believe the jury\u2019s verdict was supported by the evidence and that the defendant received a fair trial. Accordingly, we believe the trial court\u2019s suggestion concerning lie detector tests, while error, was harmless beyond a reasonable doubt.\nThe third argument advanced by the defendant on appeal is that the circuit court erred in denying his motion for a new trial after hearing seven witnesses including and in particular that of his brother, Willie Joe, who testified that about 2:30 going on 3 a.m. on December 22, 1979, he was in South Beloit, he was armed with a weapon, he noticed a man and a lady walking out of K. C.\u2019s Disco, and'he asked them to stop and asked them for money. He testified he pulled out the handgun and pointed it at them and asked them for money. Willie Joe Yarbrough testified that the man said that the money was inside, and the man unlocked the door and they all went in. The man opened the safe, and Willie Joe removed two money bags and a hand gun from the safe and then he told them not to come out of the room until he left, after which he left the building.\nWe find no ground for reversal in the argument. The circuit court did not abuse its discretion in denying the motion.\nA succinct and often-cited summary of criteria to be considered in reviewing the circuit court\u2019s denial of a motion for a new trial is found in People v. Baker (1959), 16 Ill. 2d 364; the court there said:\n\u201cA motion for a new trial on the ground of newly discovered evidence is addressed to the discretion of the trial judge and denial thereof will not be disturbed upon review in the absence of a showing of an abuse of discretion. [Citation.] To warrant a new trial, the new evidence must be of such conclusive character that it will probably change the result on retrial, that it must be material to the issue but not merely cumulative, and that it must have been discovered since the trial and be of such character that it could not have been discovered prior to trial by the exercise of due diligence. [Citations.]\u201d 16 Ill. 2d 364, 373-74.\nIn an earlier case, the court also held:\n\u201cApplications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequence of an adverse verdict, such application should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and to show there has been no lack of diligence. The matter is largely discretionary with the trial court, and the exercise of its discretion will not be disturbed except in case of manifest abuse.\u201d People v. Holtzman (1953), 1 Ill. 2d 562, 569.\nJudged by these standards, there was no abuse of discretion.\nAlthough the evidence of Willie Joe Yarbrough\u2019s confession would have been conclusive as to the defendant\u2019s guilt or innocence had it been believed by the jury, that evidence must also \u201cbe of such conclusive character that it will probably change the result on retrial.\u201d (People v. Baker (1959), 16 Ill. 2d 364, 374.) The court here heard the new evidence, which, as the State details in its brief, was fraught with inconsistencies from the testimony of the victims at trial. The trial court also had to consider the fact that neither of the victims recognized Willie Joe. This fact must be contrasted with their earlier positive identification of the defendant as the robber at trial. Although Reinhold\u2019s identification of the defendant may have been somewhat impeached, it must be taken into consideration that Debbie Edwards identified the defendant as the robber on three separate occasions: at the photographic lineup, the preliminary hearing and at trial. Under these circumstances the probability of a different result being reached in a retrial is rather remote. We cannot, therefore, conclude the trial court abused its discretion in denying the defendant\u2019s motion for a new trial.\nThe judgment of the circuit court of Winnebago County is therefore affirmed.\nHOPF and NASH, JJ., concur.", "type": "majority", "author": "JUSTICE UNVERZAGT" } ], "attorneys": [ "Mary Robinson and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.", "Daniel D. Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and Cynthia Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. BILLY WAYNE YARBROUGH, Defendant-Appellant.\nSecond District\nNo. 80-854\nOpinion filed February 8, 1982.\nMary Robinson and Paul J. Glaser, both of State Appellate Defender\u2019s Office, of Elgin, for appellant.\nDaniel D. Doyle, State\u2019s Attorney, of Rockford (Phyllis J. Perko and Cynthia Schneider, both of State\u2019s Attorneys Appellate Service Commission, of counsel), for the People." }, "file_name": "0967-01", "first_page_order": 989, "last_page_order": 997 }