{ "id": 5642285, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAITH MOORE et al., Defendants-Appellants", "name_abbreviation": "People v. Moore", "decision_date": "1977-07-26", "docket_number": "No. 76-137", "first_page": "952", "last_page": "959", "citations": [ { "type": "official", "cite": "50 Ill. App. 3d 952" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "45 Ill. App. 3d 643", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2896152 ], "pin_cites": [ { "page": "652" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/45/0643-01" ] }, { "cite": "55 Ill. 2d 421", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937510 ], "pin_cites": [ { "page": "427" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0421-01" ] }, { "cite": "62 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971950 ], "year": 1973, "pin_cites": [ { "page": "453-55" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0448-01" ] }, { "cite": "394 U.S. 440", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6173399 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/394/0440-01" ] }, { "cite": "17 Ill. App. 3d 507", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2511513 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0507-01" ] }, { "cite": "59 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2958938 ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0352-01" ] }, { "cite": "17 Ill. App. 3d 901", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2509300 ], "pin_cites": [ { "page": "909-10" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/17/0901-01" ] }, { "cite": "42 Ill. App. 3d 902", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639802 ], "year": 1974, "pin_cites": [ { "page": "910" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0902-01" ] }, { "cite": "46 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2976462 ], "weight": 4, "pin_cites": [ { "page": "988" }, { "page": "991" }, { "page": "989-90" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0978-01" ] }, { "cite": "46 Ill. App. 3d 962", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2975468 ], "year": 1977, "pin_cites": [ { "page": "967" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/46/0962-01" ] }, { "cite": "28 Ill. App. 3d 710", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5411263 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0710-01" ] }, { "cite": "28 Ill. App. 3d 237", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5411710 ], "weight": 2, "pin_cites": [ { "page": "239" }, { "page": "239" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/28/0237-01" ] }, { "cite": "32 Ill. App. 3d 788", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2795757 ], "pin_cites": [ { "page": "790" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0788-01" ] }, { "cite": "32 Ill. App. 3d 506", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2797646 ], "pin_cites": [ { "page": "510" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0506-01" ] }, { "cite": "32 Ill. App. 3d 265", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2793188 ], "pin_cites": [ { "page": "268" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/32/0265-01" ] }, { "cite": "30 Ill. 2d 110", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2826279 ], "year": 1975, "pin_cites": [ { "page": "113" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0110-01" ] }, { "cite": "48 Ill. 2d 56", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2907564 ], "year": 1964, "pin_cites": [ { "page": "63" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/48/0056-01" ] }, { "cite": "41 Ill. 2d 177", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853252 ], "pin_cites": [ { "page": "194-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0177-01" ] }, { "cite": "52 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5393878 ], "weight": 2, "year": 1968, "pin_cites": [ { "page": "568-69" }, { "page": "568-69" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0564-01" ] }, { "cite": "60 Ill. 2d 300", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414202 ], "year": 1972, "pin_cites": [ { "page": "308" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0300-01" ] } ], "analysis": { "cardinality": 913, "char_count": 18825, "ocr_confidence": 0.879, "pagerank": { "raw": 2.596652071829693e-07, "percentile": 0.8191218870289348 }, "sha256": "f384dfef05266ffbc0fca899f82262f4e1f3d2da3e09e1a9d76a4c38f472d615", "simhash": "1:feac759e0a7a2b37", "word_count": 3162 }, "last_updated": "2023-07-14T21:01:05.304449+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. FAITH MOORE et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE RECHENMACHER\ndelivered the opinion of the court:\nThe defendants were convicted of armed robbery after a jury trial. Defendant Jay Brown was sentenced to a term of 6 to 18 years in the penitentiary, and defendant Faith Moore was sentenced to a term of 4 to 6 years. Both defendants appeal, contending that the evidence presented by tlie prosecution was insufficient to prove their guilt beyond a reasonable doubt. Jay Brown further contends that his sentence was excessive and not justified by the \u201cnature and circumstances\u201d of the offense.\nThe State\u2019s case was based upon t\u00edre eyewitness identification of the defendants by Donna Langley, who was 16 years old, and employed by die Kentucky Fried Chicken Restaurant in Zion, Illinois, as a sales-hostess. Miss Langley was on duty on May 13,1975, at a few minutes past 8 p.m. when a black man and woman entered tire restaurant. The woman | ordered a soft drink while tire man went to the side of the counter. Miss Langley served tire woman, and took tire man\u2019s order. The woman gave Miss Langley a $5 bill, and Miss Langley rang her order up on the cash register. After tire register opened, she saw drat the man had a small, silver gun. The man said, \u201cDon\u2019t scream or say anything or else I\u2019ll kill you,\u201d and reached over the counter and took all of the bills from the cash register. The couple then ran out of the restaurant together.\nMiss Langley described the male offender as five feet ten inches to six feet tall, between 24 and 26 years old, and weighing about 240 pounds. He was described as wearing a \u201cfishing hat\u201d with the brim tinned down, reaching to the bottom of his forehead, as well as sunglasses. Miss Langley testified at trial that the man \u201chad a normal mustache and maybe he could have been starting to grow a beard or sideburns or goatee.\u201d The woman was described as a \u201clight-skinned\u201d Negro with her hair pinned to her head with barrettes, weighing 110 to 115 pounds, 19 to 20 years old, wearing a \u201cbaby blue\u201d jacket of mid-thigh length. Miss Langley told police after the robbery that she was sure that she could identify the female and \u201calmost sure\u201d she could identify die male.\nThat same night, she went to the Zion Police Station, and was shown approximately two to three hundred photos of both male and female subjects, but was unable to identify any of them. The next day she returned to the station where she assisted in the preparation of a composite sketch of the male offender, and was then shown five or six photos of different subjects. She picked the photograph of Jay Brown out of die six, saying it \u201clooks like\u201d the offender, except tiiat the subject in the photographs was dressed differently tiian the offender, and had a beard.\nOn the following Saturday, Miss Langley viewed a lineup of six subjects, including Jay Brown. She was given a sheet of paper with .the number of each subject on it, and circled the number corresponding to Brown; however, she added the comment \u201cnot positively though\u201d on the sheet.\nAt the preliminary hearing, Miss Langley made a positive identification of Jay Brown and Faith Moore. She testified that she had not been certain of her identification at the police lineup, because Brown was dressed differently than the offender.\nMiss Langley also made a positive identification of both offenders at trial. There, she testified that she had failed to make a positive identification at the lineup because Jay Brown \u201cdidn\u2019t look quite the same\u201d without his hat and glasses and with different clothes, that she didn\u2019t have her glasses or contacts on when she viewed the lineup and that Brown \u201cwasn\u2019t just a couple of inches away * * * like he was standing across the counter.\u201d On cross-examination she stated it would not have made any difference as to whether or not she was wearing glasses when she viewed the lineup.\nCertain circumstantial evidence was presented by the State in support of Miss Langley\u2019s testimony. David Dorn, the assistant manager of the restaurant, testified that, at the time of the robbery, he was checking the parking lot for garbage when he observed a black couple running from the restaurant, heading in the direction of the nearby Colonial Bakery. Mr. Dorn observed that the black female was wearing a waist length blue jacket, but was unable to make any identification of the pair. Robert Brown, who lived near the Colonial Bakery, testified that when he arrived home at approximately 8 p.m. on May 13, he observed a rusted, older model Ford automobile of a \u201cpeculiar bluish green color\u201d backed into the bakery parking lot in an unusual manner. He testified that three small black children were jumping up and down on the rear seat of the car, and that the car pulled away after about three minutes. He stated that on the next night, two police detectives took him to 2717 Galilee in Zion, Illinois, where he observed the Ford which he had seen on the night of the robbery, parked by an apartment building at that address. Margie Moore, Faith Moore\u2019s sister, was called by the State and testified that Jay Brown was her sister\u2019s boy friend and that her sister had three children. She further testified that her sister came to her home and asked to borrow her car, a blue-green or turquoise 1964 Ford, which had rust on it, on the night of the robbery. Her sister borrowed the car at between 6 and 6:30 and returned it between 8 and 9. Jay Brown and her three children were with her when she returned the car; Faith Moore was wearing a blue coat and Brown was wearing a blue hat with a brim in front. Margie Moore testified that she lived at 2717 Galilee in Zion, Illinois.\nJay Brown testified that on the night in question he played pool at his home with his brother and Lee Jones. At 6 o\u2019clock or 6:30 p.m., Faith Moore left to borrow her sister\u2019s car, in order to do some errands. She returned and at 7 o\u2019clock or 7:30, the pair and Faith Moore\u2019s three children left Brown\u2019s home and drove to North Chicago, where they arrived after 15 to 20 minutes. There Brown borrowed his cousin\u2019s car and followed Faith Moore to Margie Moore\u2019s home, where she returned Margie Moore\u2019s car. Faith Moore also took the stand, corroborating Jay Brown\u2019s alibi testimony.\nThe defense called a number of further witnesses. Carole Brewer testified that although she was working in die back of the restaurant on the night of the robbery, and saw a black couple come into the store, she was unable to identify them or recall what they were wearing. Lee Jones testified stating that he had followed the defendants after they had left Moore\u2019s house and had last seen them heading toward North Chicago at 7:30 or 8 o\u2019clock. Jones testified that he was currently serving time for robbery. Other defense witnesses established that the automobile which Margie Moore had loaned Faith Moore had subsequently been scrapped and that sometime after the auto was scrapped, an investigator from the public defender\u2019s office photographed a similar car about one block from Faitii Moore\u2019s apartment. Although the photo of the car was not admitted into evidence, it was shown to Donald Graves, a former owner of Margie Moore\u2019s car, who lives with Margie Moore. Graves testified that the car in die photo was the same car that he used to own.\nThe defendants\u2019 argument in sum is that the identification testimony of Donna Langley was unreliable and insufficient to form the basis for a conviction, since the \u201cmale robber wore clothes which concealed rather than disclosed his identity,\u201d and Miss Langley \u201cwould have no incentive to carefully observe her patrons until the moment the male threatened her.\u201d They argue that the \u201cuncertainty\u201d was evidenced by the inaccuracies in Miss Langley\u2019s description of the offenders and her inability to make a positive identification after viewing photos and the lineup, and reinforced by what \u00dciey contend were unfairly suggestive identification procedures. They assert that the State\u2019s circumstantial evidence was \u201cunsatisfactory\u201d and inconclusive and that the jury was thus not justified in \u201cignoring\u201d the defendants\u2019 \u201cuncontradicted alibi evidence.\u201d\nWe begin by noting that a positive and credible identification of a defendant by a single witness is sufficient to convict, even though it may be contradicted by the alibi testimony of the defendant. (E.g., People v. Jones (1975), 60 Ill. 2d 300, 308; People v. Stringer (1972), 52 Ill. 2d 564, 568-69; People v. Speck (1968), 41 Ill. 2d 177, 194-95.) Here Miss Langley was a witness who had the opportunity to observe the defendants for four or five minutes at close quarters in a well-lighted restaurant. The defendants\u2019 argument that Miss Langley was so preoccupied that she failed to closely observe the offenders before the announcement of the robbery, and was then so upset by seeing the gun that she was not capable of careful observation afterward, finds no support in the record. Similarly, there is nothing to indicate that the male offender\u2019s hat and glasses so obscured his face as to render his identity unrecognizable, and the composite sketch which Miss Langley assisted in preparing, and which was admitted into evidence, would seem to indicate the contrary. Instead, the record presents a credible eyewitness who had an excellent opportunity to observe the offenders.\nWe also disagree with the defendants\u2019 contention that errors and inconsistencies in Miss Langley\u2019s description of the offenders negates the value of her testimony. The defendants note that she described the male offender as five feet ten inches to six feet tall, and weighing 240 pounds, while it was undisputed that Jay Brown was only five feet nine inches tall and weighed abo\u00fat 180 pounds. They further note that although Miss Langley said that the offender was \u201cmaybe 0 0 0 starting to grow a beard or sideburns or goatee,\u201d she failed to include a beard or goatee in the composite drawing, and told the police that the offender did not have a beard when she picked Jay Brown\u2019s photo from the group of photos that was shown her. They argue that her identification of Faith Moore was also erroneous, since she described the blue jacket as mid-length, while other witnesses stated that it was waist length. They assert that although Miss Langley testified that the female offender had her hair pinned closely to her head in braids, with barrettes, and the arresting officer, Ronald Ransom, indicated that Faith Moore had her hair in barrettes at the time of her arrest, in view of Margie Moore\u2019s testimony that Faith had not worn her hair in braids since sixth grade, Miss Langley\u2019s testimony on this point was \u201cunconvincing,\u201d since \u201c[i]t is incredible that one would braid her hair in order to conceal her identity dining the robbery.\u201d\nIt is unnecessary for us to deal with these points in any detail, although we note in passing that there is nothing \u201cincredible\u201d about the concept of a female offender braiding her hair in order to conceal her identity. Precise accuracy in describing facial or other characteristics is unnecessary where an identification is positive. (People v. Catlett (1971), 48 Ill. 2d 56, 63; People v. Miller (1964), 30 Ill. 2d 110, 113.) In People v. Nichols (1975), 32 Ill. App. 3d 265, 268, for an example, the court stated that:\n\u201cThe significant issue \u00b0 \u00b0 \u00b0 is not whether diere is a discrepancy between the victim\u2019s estimate and the actual height, but whether, under the facts and circumstances * * * \u2018an adequate opportunity for a definite identification\u2019 existed.\u201d\n(See also People v. Chatman (1975), 32 Ill. App. 3d 506, 510 (discrepancy of 60 to 65 pounds, coupled with discrepancies regarding offender\u2019s height and age, held not to destroy credibility of eyewitness); People v. Rogers (1975), 32 Ill. App. 3d 788, 790 (witness\u2019s failure to notice a thin goatee, description of glasses as dark-rimmed, rather than wire-rimmed, and of coat as dark brown, whereas other witnesses described it as light brown, held not to raise reasonable doubt); People v. Winston (1975), 28 Ill. App. 3d 237, 239 (fact that witness could not remember whether robber had a mustache held to go only to credibility); People v. Lumpkin (1975), 28 Ill. App. 3d 710 (failure of witnesses to notice prominent scar on defendant\u2019s face held not to invalidate identification).) As the court noted in Winston, an identification is usually not made by distinguishing separate features but by die \u201ctotal impression\u201d made upon the witness (28 Ill. App. 3d 237, 239); tiierefore, omissions or discrepancies in descriptions, such as tir\u00f3se in tire case at bar, where Miss Langley had an excellent opportunity to observe the offenders for \u201cfour or five minutes\u201d, go only to the weight of tire evidence. See In re Winslow (1977), 46 Ill. App. 3d 962, 967; People v. Owens (1977), 46 Ill. App. 3d 978, 988.\nSimilar rules apply to the failure of Miss Langley to make a positive identification prior to tire preliminary hearing; in general, the failure of a witness to make a positive identification at a lineup is but a factor to be considered in weighing tire testimony of tire identification witness. (See People v. Evans (1976), 42 Ill. App. 3d 902, 910; People v. DeMorrow (1974), 17 Ill. App. 3d 901, 909-10, aff\u2019d, 59 Ill. 2d 352.) Further, we observe that Miss Langley\u2019s initial identification of Faith Moore at the preliminary hearing was positive.\nThe defendants\u2019 argument tiiat Miss Langley\u2019s testimony was tainted and invalidated by unfairly suggestive pretrial identification procedures is also without merit. This court has examined the record, and is convinced that the pretrial identification procedures were not unfairly suggestive. In regard to Faith Moore, we note tiiat there is no requirement for a lineup to be held in every case (People v. Moore (1974), 17 Ill. App. 3d 507, 510), and there was nothing unfairly suggestive about the procedure employed at the preliminary hearing. As to Jay Brown, we have examined the photo of the lineup and the six photos Miss Langley viewed at the police station, which are part of the record on appeal, and find nothing unfair about them, there being no requirement that all of the men in the lineup be physically identical. People v. Owens (1977), 46 Ill. App. 3d 978, 991, and cases cited therein.\nThe defendants have argued that since Jay Brown was the only person in the six photos which were shown Miss Langley, who was also in the lineup, an identification of Brown was \u201calmost inevitable,\u201d and therefore unfair, citing Foster v. California (1969), 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127. Foster is not on point since it involved not a photo identification followed by a lineup, but rather, a suggestive lineup, followed by a one-on-one confrontation between the accused and the witness, followed by a second lineup, with the accused being the only person appearing in both lineups. We know of no case which would invalidate the identification procedure employed here. See People v. Owens (1977), 46 Ill. App. 3d 978 (among lineup participants, only defendant\u2019s picture had previously been displayed to eyewitness; affirmed).\nEven assuming arguendo that the pretrial identification procedures employed in die instant case were unfairly suggestive, the validity of Miss Langley\u2019s identification of the defendants, both at the preliminary hearing and at trial, would be unaffected, since the identification at the trial clearly had an origin independent from the pretrial procedures. (People v. McDonald (1975), 62 Ill. 2d 448, 453-55; People v. Connolly (1973), 55 Ill. 2d 421, 427.) The failure of Miss Langley\u2019s co-worker, Carole Brewer, to identify the defendants is of no particular importance or relevance. (People v. Owens (1977), 46 Ill. App. 3d 978, 989-90.) The circumstantial evidence presented by the State provided considerable support for Miss Langley\u2019s version of the event, and the defendants themselves admitted that, at the time of tire offense, they were riding in an old car with three children, similar to the car and children described by witness Robert Brown. The defendants\u2019 alibi testimony presented but a counterproposition to the testimony of Miss Langley, and was thus an issue of fact for the jury to resolve. A court of review cannot substitute its judgment for that of the jury on questions involving the weight of the evidence or the credibility of the witnesses, and cannot reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (E.g., People v. Stringer (1972), 52 Ill. 2d 564, 568-69.) Here it is clear that the jury chose to believe Miss Langley and disbelieve the testimony of the defendants, and there is nothing so improbable about this finding as would justify our disturbing the verdict.\nFinally, Jay Brown argues that his sentence of 6 to 18 years is excessive, since none of the persons involved in the robbery were injured or even touched, the robber obtained a mere 50 to 60 dollars, and the three children which he and his \u201ccommon law wife\u201d (co-defendant Faith Moore) have had \u201cwill suffer in growing up without their father.\u201d\nThe imposition of sentence is a matter of judicial discretion, and the sentence imposed by tire trial court will be disturbed only where there has been a manifest abuse of that discretion. (E.g., People v. Limas (1977), 45 Ill. App. 3d 643, 652.) Here, Jay Brown had a prior burglary conviction, and multiple convictions for shoplifting and other offenses. The probation officer\u2019s presentence report expressed the opinion \u201c* * * drat no matter what [sentence] die court may give tire defendant, he will be in future trouble with the law, because of his present attitude.\u201d The fact that the defendant only obtained 50 to 60 dollars is clearly irrelevant, and the contention that the defendant\u2019s children will suffer if they grow up without their father is highly questionable. The quality of the parental influence of a father who would take his children along on an armed robbery is dubious, at best. On this record, the trial judge could properly have found that both the defendants\u2019 children and society would be better off if deprived of Jay Brown\u2019s presence for a considerable span of time; there was thus no abuse of the trial court\u2019s sentencing discretion.\nFor the foregoing reasons, the judgment of the circuit court of Lake County is affirmed.\nJudgment affirmed.\nSEIDENFELD and BOYLE, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE RECHENMACHER" } ], "attorneys": [ "Ralph Ruebner and Michael Mulder, both of State Appellate Defender\u2019s Office, of Elgin, for appellants.", "Jack Hoogasian, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. FAITH MOORE et al., Defendants-Appellants.\nSecond District\nNo. 76-137\nOpinion filed July 26, 1977.\nRalph Ruebner and Michael Mulder, both of State Appellate Defender\u2019s Office, of Elgin, for appellants.\nJack Hoogasian, State\u2019s Attorney, of Waukegan (Phyllis J. Perko and Martin P. Moltz, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0952-01", "first_page_order": 974, "last_page_order": 981 }