author: Mr. JUSTICE DRUCKER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Ernest Townsend, Defendant-Appellant.
    (No. 59784;
    First District (5th Division)
    September 13, 1974.
    James J. Doherty, Public Defender, of Chicago (Leonard V. Solomon, Assistant Public Defender, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Assistant State’s Attorney, of counsel), for the People.
   Mr. JUSTICE DRUCKER

delivered the opinion of the court:

Defendant entered a plea of guilty to an amended indictment charging him with the offense of robbery (Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1) and was sentenced to from 1 to 6 years. On appeal he contends that the trial court’s admonishment as to the possible minimum sentence he could receive was erroneous, and that the “possible effect” of this admonishment was to induce his plea of guilty.

Defendant was initially charged with the offense of armed robbery. On motion of the state the indictment was amended to read “robbery.” Pursuant to a conference with the State’s Attorney, defendant withdrew his plea of not guilty to armed robbery and entered a plea of guilty to robbery. Pursuant to Supreme Court Rule 402 (Ill. Rev. Stat. 1971, ch. 110A, par. 402) the trial court admonished him as follows:

“The Court: You waive preliminary hearing in the indictment?
The Defendant: Yes, sir.
The Court: Mr. Townsend, how old are you?
The Defendant: Thirty-one.
The Court: How much schooling have you had?
The Defendant: Ten and a half.
The Court: The State, with agreement and consent of your lawyer, has amended this indictment No. 72-3191, charging that you, on May 5, 1972, at and within said county, Ernest Townsend committed the offense of robbery, in that he, by use of force, took an amount of U.S. Currency from the person of Sandra Green, in violation of the State Statutes. Do you understand that?
The Defendant: Yes.
The Court: How do you plead to that charge, guilty or not guilty?
The Defendant: Guilty.
The Court: You understand when you plead guilty to an indictment of this type, you give up or waive certain rights. Among these rights is your absolute right to have a trial by a jury of 12 men or women, who, in the event they find you guilty, they must vote for your guilt unanimously and who would be selected by your attorney, Mr. Lampkin, and the State’s Attorney. Do you understand that right?
The Defendant: Yes.
The Court: You are willing to give up or waive that right?
The Defendant: Yes.
The Court: I ask you to sign a jury waiver indicating your willingness to surrender this right.
I have the jury waiver which I direct be attached to and made a part of the permanent court record in this cause.
In addition to that, Mr. Townsend, you give up certain other rights. One of these rights is your absolute right to have the State attempt to prove this case as required by law beyond a reasonable doubt; to cross-examine witnesses of the State; and to offer evidence on your own behalf. Do you wish to give up those rights?
Mr. Townsend: Yes, sir.
The Court: Furthermore, you give up your absolute right not to incriminate yourself and not to testify in this cause. Do you wish to give up that right?
The Defendant: Yes, sir.
The Court: I am informing you, sir, on your plea of guilty to this reduced charge, this charge of plain robbery, that I can, if I see fit, sentence you to any term of years not less than one nor more than twenty, two to ten, ten to fifteen or fifteen to twenty years in this indictment. Do you understand that?
The Defendant: Yes.
The Court: I have related to your lawyer, Mr. Lampkin, and the State’s Attorney, pursuant to your lawyer’s conference with the State’s Attorney, Mr. Montemurro, I would accept the recommendation of the State’s Attorney and I would sentence you to the Illinois State Penitentiary for a term of years not less than one nor more than six on your plea of guilty. Do you understand that?
The Defendant: Yes, sir.
The Court: Are you willing to accept such a penalty in this case, sir?
The Defendant: Yes.
Mr. Montemurro: For the record, Section 1005 — 8—2 of the new Illinois Code of Corrections indicates the court may sentence a defendant 17 years of age or older and convicted of a felony, which he inflicted or attempted to inflict serious bodily injury to another, or use a firearm, to a term not to exceed twice the maximum sentence.”

A sentence of from 1 to 6 years was thereupon imposed.

OPINION

Robbery is a Class 2 felony. (See Ill. Rev. Stat. 1971, ch. 38, par. 18 — 1, as amended by P.A. 77-2638, sec. 1.) The Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 — 8—1), effective at the time defendant entered his guilty plea, provided that the maximum term to be imposed upon conviction of a Class 2 felony “shall be any term in excess of one year not exceeding 20 years.” The minimum term “shall not be greater than one-third of the maximum term set in that case by the court.” The court, in its admonishment, informed defendant that' he could bé sentenced to “any term of years not less than one nor more than twenty, two to ten, ten to fifteen or fifteen to twenty years in this [robbery] indictment.” Defendant argues that a term of from “ten to fifteen or fifteen to twenty years” would be clearly contrary to the sentencing provisions of the Unified Code of Corrections and therefore this admonishment had the possible effect of inducing his guilty plea, thus denying him rights guaranteed by Supreme Court Rule 402.

Rule 402 was enacted (1) to ensure compliance with the requirements of Boykin v. Alabama, 395 U.S. 238, 23 L.Ed.2d 274, 89 S.Ct. 1709, that a guilty plea may be accepted only if there is an affirmative showing that the defendant voluntarily and understandingly entered his plea ánd (2) to provide a reviewing court with a record containing an accurate and complete account of all relevant plea negotiations surrounding the guilty plea. (See Committee Comments, Ill. Rev. Stat. 1971, ch. 110A, par. 402.) The rule requires substantial, not literal, compliance with its precepts. “[I]ts objective is fixed but its application is flexible. (People v. Campbell, 13 Ill.App.3d 237, 239, 300 N.E.2d 568.)” “[A] purely technical error which does not prejudice the defendant will not be deemed less than substantial compliance [with the rule] and therefore will not be cause for reversal of the conviction.” People v. Hudson, 7 Ill.App.3d 800, 804, 288 N.E.2d 533.

In the case at bar the record makes clear that defendant’s plea of guilty was the product of negotiations between his attorney and the assistant State’s Attorney. The State, it appears, agreed to reduce the offense with which defendant was charged and recommend a lenient sentence. The court informed defendant that it would accept the State’s recommendation of a sentence of from 1 to 6 years. Defendant affirmed that he was “willing to accept such a penalty.” In addition, defendant was fully advised of the rights he was waiving by entering a guilty plea. Under these circumstances it is obvious that, when taken in context, the court’s statement that defendant could be sentenced to from “ten to fifteen or fifteen to twenty years” did not in any way prejudice defendant. There can be no doubt that the court did not intend to impose a sentence other than that which had been negotiated during plea discussions, and it is equally clear that defendant understood this. We find that the admonishment of the trial court was in substantial compliance with Rule 402 and therefore affirm the judgment entered below.

Affirmed.

BARRETT and LORENZ, JJ., concur.


source: Caselaw Access Project

author: Mr. PRESIDING JUSTICE EGAN

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Loring Britt et al., Defendants-Appellants.
    (No. 59594;
    First District (1st Division)
    September 16, 1974.

      Paul Bradley and Edwin R. McCullough, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (James S. Veldman and Roger Horwitz, Assistant State’s Attorneys, of counsel), for the People.
   Mr. PRESIDING JUSTICE EGAN

delivered the opinion of the court:

A jury found Loring Britt and Charles Capíes guilty of three counts of aggravated battery causing great bodily harm, three counts of aggravated battery using a deadly weapon and three counts of aimed robbery. The trial court sentenced each defendant to three concurrent terms of not less than 7 nor more than 10 years on each of the three counts of armed robbery. The defendants assign several grounds for a new trial but do not question the sufficiency of the evidence.

On August 24, 1969, Ted Nicholas, the owner of the Rivers Edge Restaurant at 325 North Wells Street in Chicago, left the restaurant between 1 and 2 A.M. with Nick Franco, John Semis, Edmon DeFiore, Steve Kutis and Terry Kutis. He went with Franco and Scurfs to get his car which was parked at the receiving dock at the northeast corner of the building. The other three went to get their car which was parked on Wells Street. After he got in the car, he heard a voice say, “Put your hands up, get out of the car.” When he looked up, he saw a man he later identified as Loring Britt standing there with a gun. Both Nicholas and Franco, who was the manager of the Rivers Edge Restaurant, had known Britt, who worked in the same building, for about 3Vz years, and they had seen him hundreds of times.

Nicholas got out of the car with his hands up and he, Franco and Scuris were told to get up against the loading dock and face the wall. When he first came around the car, Nicholas saw a man he later identified as Capíes up on the dock behind some garbage cans with a revolver. He had never seen Capíes before but observed him that night for about a minute or a minute and a half. After he stood against the wall, he got hit on the head twice with a 5-minute interval between. After he was hit the second time, he fell, and his two friends were also hit; and they fell. Everything was then taken out of their pockets. After his pockets were emptied, he was hit over the head for a third time. When he got up he saw the two men running north out of the passageway onto Kinzie where their car was parked. He immediately ran up the stairs to Wells Street where DeFiore and the Kutises were waiting. He got in DeFiore’s car and about three minutes later he saw the men in a 1967 black Dodge pulling out of the parking lot on Wells and Kinzie. DeFiore followed the black Dodge traveling east until they came to Fairbanks and Ohio. Nicholas saw a police car and got into it and continued following the black Dodge. He lost sight of it for a few seconds as it made a right turn onto the Outer Drive. After the black Dodge turned onto the Outer Drive, Nicholas saw it pull into an emergency parking area. When Nicholas saw the car, the doors were open, and he saw the defendants at the railing of the bridge in the position of throwing something toward the water. The officer he was with, Richard Crotty, pulled his gun and held the defendants until other police officers arrived. Nicholas was taken to a hospital where he received 12 stitches for the three gashes in the back of his head. He testified that the lights in the loading dock have 150-watt lightbulbs in them and bum all night long. The fluorescent lighting in the city parking lot is kept on 24 hours a day.

At the time Franco went to the car with Nicholas, he had a plain sealed envelope with the receipts of the day, which he had put in the pocket of his jacket. He could not recall the amount of those receipts. When a voice said, “Don’t get in the car,” he turned around and was facing a man he identified as Britt. There was a swinging door that was used to close the elevator. A voice from behind the door told him to face the dock, and Franco identified the man by the door as Charles Capíes. After he faced the wall with his hands up, he was hit on the head with an object which he identified as a jack handle or tire iron. He was hit on tire head again and told to lie down. He did not see the object with which he was hit directly, but he could see the shadow of a tire iron on the wall.

While he was on the ground, Capíes came down and searched his pockets. Franco watched him put his hands in Franco’s pocket and take out $475 and some papers that were in his wallet. Both men searched them twice, and about every 2 minutes they would walk down the alley to see if anyone was coming. He saw the two men going up a ramp leading upstairs.

Franco testified that as he looked north toward the parking lot there were no lights on. There were some tall buildings there, but it was not too dark. There were lights in the parking lot. There was no spotlight in the area where they were struck, but there Were two lightbulbs on the top of the platform. The lightbulbs were about 11 feet apart and there was a rope on the end of the light. One could reach the rope and pull out the lights from the platform. When those lights were out the area was not dark. The fluorescent lights from the parking lot were still on.

Franco received 12 to 15 stitches in his head. He did not tell the police that the man that robbed him was Loring Britt because he planned to get Britt himself. He saw the face of each of the two men for about a minute.

John Scuris, who apparently had some language difficulties, identified Britt as the man he saw in the parking lot and Capíes as the next person that he saw. Fie saw Capíes on the left where the garbage cans were with a gun in his hand. After he and his friends walked to the wall the two men started hitting them. The men did not say anything to him, but he heard someone say, “Son of a bitch, he is alive,” and they were pointing to Nicholas. Scuris was struck once and rendered unconscious. He testified that he saw what Nicholas was struck with, but he did not know what it was. Later he testified that when they started to hit Nicholas, he turned his head and saw a tire iron clearly. He had never seen the two men before.

Richard Grotty, a Chicago policeman, was driving a squadrol in the vicinity of Fairbanks and Ohio and saw Nicholas waving to him. After Nicholas got in the squadrol, Grotty proceeded eastbound on Ohio Street. After he made the turn onto Lake Shore Drive, he saw a dark Cadillac stop around an S-tum just before the bridge. He also saw a dark blue Dodge in the southwest corner of tire U-shaped area. Grotty went past both cars, stopped and backed up and blocked off the exit to the U-shaped area so that no vehicles could get out. He got out of his squadrol and drew his revolver. The Dodge was in the U-shaped area, and the doors were open on both sides. The two defendants were inside the car seated in the front seat. Grotty testified that he saw a brown bag in the middle of the front seat. In the bag were a pair of rose-colored glasses, miscellaneous keys, a comb and checks. The checks were payroll checks and the payees were Peter Economopolis on one and John Scuris on three others. The checks were later identified by Scuris. Grotty searched the car and found a tire iron in the rear of the car on tire passenger side between the seats on the floor. The checks that he found were altogether in the bag; some were loose and some were rolled up. Fie also found a wallet in the bag. When he first saw the defendants they were in the car. From the time he stopped his car to the time he backed up, three or four seconds elapsed. As he was backing up he did not see either one of the defendants throwing anything over the bridge. He never saw them with guns at anytime.

Nicholas had told him that he knew one of the men when they were in the car going eastbound on Ohio Street. When he arrested the defendants he did not see any blood on their clothes nor did he see any blood when he searched the auto.

Officer Thomas P. Nyeran took the defendants to the lockup in his squadrol. When he searched them he did not find any weapons. Capíes had $475 including three $100 bills. Britt had $274.

Edmon DeFiore testified that he and Terry and Steve Kutis went up to Wells where he had parked his car, got in and waited for the others. After waiting a while, he went around the block to see if they were coming out of the lower level. He heard some yelling, and Nicholas came running toward the car. His shirt, face and hands were full of blood. He jumped in DeFiore’s car, and they went north on Wells Street. When DeFiore arrived at the first east-west street, north of Wacker Drive, a car pulled out of the lower level and he followed it. When he reached Ohio Street the car turned east. When they came to the intersection of Ohio and State, Nicholas jumped out of the car and hailed a police car. DeFiore continued following the car and never lost sight of it. He followed the car south onto Lake Shore Drive. At all times he was approximately 20 yards behind it. As he was following the car he saw only one man driving, but as the car turned south on Lake Shore Drive another man appeared in the front seat. The car pulled into the cul-de-sac on Lake Shore Drive, and the two men jumped out and walked over toward the railing. DeFiore slowed his car down, and he could see that one of the men was throwing something over the railing. He identified the defendants as the two men he saw at the railing. They were coming back to get in their car, but he could not remember if they actually got back in. Within a few seconds there were several police officers in the area. He saw one officer go into the car and pull out a brown bag. He saw a little black wallet, some identification of one of the fellows he had eaten with at the Rivers Edge Restaurant and some checks in the bag.

Capíes testified that he was related by marriage to Loring Britt, whom he met in front of Britt’s home at 5529 South Normal. They went to a party at 10 or 10:30 P.M. at 517 or 519 North Wells and left about 1 or 1:15 A.M. Capíes had never been to that address before nor did he know anyone at the party. Britt knew some of the people at the party and had been at the location previous to August 23. After the party they went back to get in Britt’s car which was in a parking lot about a half block north of the Merchandise Mart. Capíes was not sure whether the party was on the second or third floor. They left the parting lot and turned east on Kinzie. Britt testified that as they turned south on the Outer Drive at Ohio he noticed a police light behind him. He pulled over to the right lane to get out of the way. He saw a Cadillac car about 30 or 40 feet behind him and assumed that the police were pursuing it. The police car was just behind the Cadillac. The Cadillac proceeded on and the police pulled in front of the exit to the cul-de-sac after Britt had pulled the car into the emergency parting area. The police officer got out of the squad car, pulled his revolver and told Capíes and Britt to get out of the car. Both denied robbing or striking any of the complainants. Both defendants testified that the police took items from inside the car which included Capíes’ wallet, sun-glasses and comb, all of which were in a brown paper bag in the car.

It was stipulated that a laboratory analysis of the tire iron disclosed no stains identifiable as blood; nor was any hair or human tissue found on the the iron.

After the defendant filed a pre-trial discovery motion for a list of physical evidence, the State filed the following list:

“One tire iron painted black.
One black leather wallet with miscellaneous papers.
Three sets of keys.
One black hand rubber comb.
One pair of rose-colored glasses.
Ten photographs.”

Scuris identified certain checks which were taken from him and were recovered by the police. The defendants moved to strike the testimony and the exhibits because the checks were not included in the list of physical evidence. That motion was denied by the trial court, and that ruling is assigned here as error.

At the outset, we note that it is fairly arguable that there was no failure to disclose the existence of the checks since the State’s answer included “miscellaneous papers.” The defense apparently made no further effort to have these items particularized nor to inspect them despite an offer by the State to permit inspection. But more important, the indictment alleged that the defendants took “a number of checks from tire person and presence of John Scuris.” In addition, before trial, the defense requested and was furnished a copy of the crime detection laboratory report which listed cancelled checks issued to John Scuris and Peter Economopolis, Under these circumstances, the purpose of the discovery rules — to prevent surprise and any unfair advantage — has been honored, and the defendant may not now complain.

Nicholas was asked if he had given a signed statement to the police and he said that he had. Franco said that he had made a statement to the police and signed it. During the cross-examination of each of these witnesses, the defense attorney asked for their signed statements; the State’s Attorney said that they had none and that there were none in the police file. He offered to show his entire file to the defense attorney and the court. He contended that when the witnesses said that they signed statements, they were referring to the complaints. The defendants now contend that the trial court erred in not conducing an evidentiary hearing to determine whether or not written statements had in fact been given by the witnesses to the police. (See People v. Camel, 4 Ill.App.3d 106, 280 N.E.2d 294.) But we believe that the trial judge did conduct an evidentiary hearing and was justified in concluding that no written statements had been given by the witnesses to the police.

During the colloquy between the attorneys and the court in the course of Franco’s cross-examination, it was disclosed that the detective in charge of the investigation was William Casey. The following occurred:

“State’s Attorney: Judge, if you want to inspect our file, Judge, you are perfectly welcome. Here is our entire file. This is all the State’s Attorney’s Office has been given on this case. I will get Detective Casey in here. You can look through his own file. He will deny there was any verbatim statements [sic] taken from any of these witnesses.
# # e
The Court: I want to get Casey in here.
* # »
State’s Attorney: We will tender to the Court the entire file.
The Court: This doesn’t answer the question. I want to know from Casey.
State’s Attorney: We will call him in.
State’s Attorney: We will sit here until he comes in.
The Court: I want to know from Casey whether or not he took a verbatim statement from this man, typed it at a desk and handed it to him to sign. If the man says, all I did was type the complaint, that answers the question.
State’s Attorney: Do you want to talk to him on the phone?
The Court: It is up to Mr. Washington. [Defense attorney.}
State’s Attorney: Do you want to bring him in?
Defense Attorney: I think you should. This has come up twice. Now I went ovér to make sure, to make sure there is no ambiguity.
a # #
State’s Attorney: Judge, let me further state for the record at this time that I have talked to Officer Casey myself. I have asked him whether or not there was any verbatim statement or any statement taken of these people that wére signed by these people themselves, other than the court complaints. He told me no. The only statements he took he reduced to his report, which is supplementary.
The Court: Those reports you have?
State’s Attorney: They have been tendered to Mr. Washington. He has inspected the same.
# * *
State’s Attorney: If the court requires we will have Officer Casey in here.
The Court: If they have to have him in here, just for the purpose of getting it on the record, so we don’t have any problem.
State’s Attorney: Sure, Judge.”

Later, during the cross-examination of Franco the following occurred:

“Q. And you signed a complaint later, you said, charging the men with the robbery?
A. The same time, yes, within the same transaction. When he got through all asking me all the questions, when I got through he said, do you mind signing this, and I did.
Q. Did you sign the statement and then the complaint?
A. I don’t know which one I signed first or second, both statements. I don’t know if I signed twice, three, four, five times. I don't remember.
Q. But you do remember signing three — two separate things?
A. I remember signing two separate things, one or two. I don’t remember if it was one or two.
Q. Did you give the police a statement and sign it or not?
A. I did sign it.
Q. All right. Then after that did you sign the complaint?
A. I must have signed the complaint. I must have signed something. I was signing papers there, yes.
Q. Do you know what you signed?
A. If you are asking if I read it, no, I didn’t read it.
Q. Let me ask you this: Now, you said before that you signed the statement. Remember that — signed the statement for the police?
The Witness: I said to you I signed. He asked me questions. I signed a piece of paper. I didn’t read it. If that was a complaint I signed or insurance policy, I told you I didn’t read it.”

When Scuris was cross-examined the following occurred:

“Q. Did you sign any statement for the Police Officer?
A. I did. I signed something.
Q. Well, now, you signed something?
Y. Yes.
Q. But you don’t know what you signed, do you?
A. He told me just, Police Officer told me he is police, just, he say, he told me to sign complaint. So I signed.
# # #
Q. Did you sign anything; did you sign a statement as to what you told the police?
A. I don’t remember what did I sign.”

Officer Casey testified that he went, to Henrotin Hospital during the early morning hours to investigate the robbery. Franco, Nicholas and Scuris were all being treated for head injuries. From there he went to the 18th District Station where Officer Grotty gave him the articles relating to the robbery investigation. Officer Catena gave him a wallet containing a Florida driver’s license belonging to Franco. He interviewed all the parties concerned, then drew up the complaints and had Franco and Nicholas sign them. Five days later when Scuris regained consciousness he also signed the complaint. Casey testified as follows:

“Q. Did Mr. Nicholas ever give you a statement in connection with the robbery?
A. An oral statement.
Q. Did Mr. Franco ever give you a written statement in connection with the robbery?
A. Not a written statement.
Q. Did Mr. Scuris ever give you a written statement, a signed written statement in connection with the robbery?
A. A formal statement?
Q. Yes, one that he signed.
A. Not a formal statement in the sense of—
Q. Did you go to the hospital several days after the robbery to see Mr. Scuris?
A. No, sir, I didn’t.
Q. When was the next time that you saw Mr. Scuris?
A. I believe it was at the first court appearance that he was available to attend or able to attend.
Q. Did Mr. Scuris ever sign a complaint?
A. Yes, sir, he did.
Q. And that was the complaint that you had prepared?
A. Yes, sir, it was.
Q. And did he sign that in court or in the police station?
A. He signed that in the hospital.
Q. He signed that in the hospital?
A. Yes, sir.”

It was incumbent upon the defense to establish the existence of the possibly impeaching statement. (People v. Dennis, 47 Ill.2d 120, 129, 265 N.E.2d 385.) In our view, the trial court correctly concluded that the defense had failed to establish the existence of written statements.

The tire iron recovered from the car was marked as an exhibit and shown to the witnesses, but its admission into evidence was denied. The defendants now contend that the identification and exhibition of the tire iron was totally without probative value and highly prejudicial. The State’s Attorney, when asked by the trial court for his views on the admissibility of the exhibit, said:

“The State would just say it’s offering it for the limited purpose of showing that the defendants did have a tire iron in a place in a motor vehicle not usually — that is not usually the place where a tire iron is kept. * * * The tire iron is usually kept in the trunk, Judge.”

The State did not advance the argument in the trial court that it now advances here. If it had, we believe the trial court would have admitted the exhibit into evidence, and properly so. It has been consistently held that where there is evidence indicating that an accused possessed a weapon at the time of the offense, a similar weapon found in his possession at the time of his arrest may be admitted against him, even though not identified as the actual weapon used in committing the crime. (People v. Tribbett, 41 Ill.2d 267, 242 N.E.2d 249; People v. Johnson, 35 Ill.2d 516, 221 N.E.2d 497; People v. Ostrand, 35 Ill.2d 520, 221 N.E.2d 499; People v. McCasle, 35 Ill.2d 552, 221 N.E.2d 227; People v. Dale, 355 Ill. 330, 189 N.E. 269.) We judge, therefore, that the testimony identifying the tire iron was proper. We also note that in the discussion on the admissibility of the exhibit the court said: “There had been testimony of finding a tire iron, and that testimony is in the record and before the jury.” The defense attorney then said: “They can consider it for what it’s worth.” In his closing argument, the defense attorney referred to the tire iron found in the automobile and said that the crime laboratory tests had shown that it could not have been used in the robbery. The defense took the position that it was all right for the jury to consider testimony concerning the tire iron being found in the car but it could not consider the tire iron itself. In our view that position is inconsistent. See People v. Dowling, 51 Ill.2d 370, 282 N.E.2d 696.

The trial court would not permit the defense to show that before trial Capíes, his attorney and a photographer went at 1 A.M. to the area where the robbery had taken place. The photographer sought to take pictures on concededly private property and was prevented from doing so by Franco and Nicholas and others, including a Chicago police officer. The defense also made an offer of proof that the police officer and Franco drew guns. The defendants contend that the proof was relevant “because it would have permitted the jury to draw an unfavorable inference against the prosecution. The customary rule is an adverse inference may be drawn against one who conceals evidence.”

The witnesses were not required to permit an unheralded and uninvited defendant on their property in the early morning to take pictures any more than they were required to submit to an interview by defense counsel. (See People v. Peter, 55 Ill.2d 443, 451, 303 N.E.2d 398.) Supreme Court Rule 412(h) provides as follows: "Upon a showing of materiality to the preparation of the defense, and if the request is reasonable, the court in its discretion may require disclosure to defense counsel of relevant material and information not covered by this rule.” (Ill. Rev. Stat. 1971, ch. 110A, sec. 412(h).) We believe that under this rule, if not the inherent power of the court, the defense attorney could have sought an order upon the State and its witnesses to permit the taking of the pictures at the time the defense deemed appropriate. Under all these circumstances, therefore, we conclude that the trial court’s ruling was not error.

John Scuris testified that there was a hole in his head on the left side. He was then permitted over objection to display his head to the jury. The defendants now contend that the only puipose of the display was to prejudice them in the eyes of the jury and that the court’s ruling constituted reversible error. We believe People v. Swaney, 2 Ill.App.3d 857, 859, 276 N.E.2d 346, is clearly in point. In that case the defendant was charged, as here, with aggravated battery. The complaining witness testified to the severity of his wounds, blood all over himself, his intestines hanging out and pain experienced. He exhibited his scars to the jury. The court held that, since the nature or seriousness of the injury inflicted was at issue, no error was committed. Similarly, in this case the nature and extent of the complainant’s injuries were in issue. Consequently, it was not error for the trial court to allow Scuris to exhibit his head wound to the jury.

The defendants also contend that the court committed error in restricting their cross-examination of Officer Grotty. He had testified on direct examination that after he ordered the defendants out of the car he saw a brown bag in the middle of the front seat and recalled that the contents of the bag included payroll checks of John Scuris. Neither in his police report nor his Grand Jury testimony did he say that he found the checks inside Britt’s automobile. Before the Grand Jury he testified as follows:

“Q. Was any of the property belonging to Mr. Scuris, namely some checks, ever recovered from the area of where the defendants were arrested?
A. There is like a bridge there. I found it on the bottom. Well, there is an overpass. I found it on the bottom there. There was about — 500 Lake Shore Drive there, right near the scene there.”

The defense attorney was prevented from asking Grotty whether he ever told the grand jury that he found any checks in the bag in Britt’s automobile. The defense offered to prove that Grotty would answer in the negative. The defense should have been permitted to ask the question and to show that he had never told the grand jury that he had found the checks in the automobile (People v. Bonham, 348 Illl. 575, 591, 181 N.E. 422)- but in our view the ruling in no way prejudiced the defendants. In light of the positive identification by three witnesses, two of whom knew the defendant Britt and one of whom had the exact amount of money taken that was recovered from Capíes and the arrest within minutes of the offense, whether the checks were found in the car or in the nearby vicinity seems of little moment. Grotty’s testimony in no way affected the testimony of the identifying witnesses. And in his closing argument the defense attorney in attacking the credibility of Grotty said:

“Some of it was made somewhat easy by Mr. Grotty, because when he was asked specific things, specifically in the Grand Jury, where did you find those checks, the Grand Jury testimony that these men stipulate is accurate, he never told the Grand Jury that he found any checks in a bag sitting besides Mr. Charles Capíes. He went back to the original plan of the wallet under the bridge and later, since you don’t have it in any reports, since you don’t have it when you testified under oath, later he decided to get up here and tell you for the first time it was in a bag. That is a lie. That is a lie. He didn’t tell the Grand Jury it was in a bag because it wasn’t in a bag and he tried to fumble an excuse like, I misunderstood. How could you possibly misunderstand somebody that says, where did you find those checks, namely the checks of John Scuris? I don’t think any of you can possibly forget that question and those answers, and he never started saying in a bag sitting next to Charles Capíes, with sunglasses and his comb. What did he do with the checks? According to him. Why can’t we find some inventory? He mumbled some excuse, I inventoried them as miscellaneous papers.
The most important evidence in this case, the most significant piece of evidence in this case, piece of evidence that they wanted to forfeit the freedom of these two men on, and no mention in the detective’s report, no mention of it in his own report, no mention of it before the Grand Jury and inventoried under some miscellaneous papers somewhere — let’s go farther, because I think somewhere along the fine some outsider interjected himself.”

It thus appears that the point the defense wish to make — that Grotty had not told the grand jury he found thé checks in the car — was made before the jury.

During the closing argument the assistant State’s Attorneys read from a transcript purportedly of the opening statement of the defense attorney and repeatedly told the jury that the defense attorney had failed to prove certain tilings he had told them the evidence would show. In particular, the prosecutor told the jury: “Counsel told you that he will submit to you that the evidence will show no money was found on their person or automobile. Yet you know $700 was found on their person.” What the defense attorney actually said in his opening statement was: “We submit the evidence will show at the time of their arrest Mr. Britt and Mr. Capíes between them had in their pockets $700 or a little more.” He later said: “We also submit to you that the evidence will show that no money, no checks were found on their persons or in their automobile.” It would thus appear that the statement by the prosecutor in his final argument was inaccurate. But accurate or not, as a general rule, statements by a prosecutor that the defendant has failed to prove things his attorney said the evidence would show are to be condemned. We have found no case directly on the point in Illinois. In People v. Durso, 40 Ill. 2d 242, 239 N.E.2d 842, the defense attorney in his opening statement said that they would show that money left at a tavern was a loan in connection with a barber shop contrary to the testimony of a witness that it represented proceeds from a sale of narcotics. In his argument the prosecutor asked where that evidence was and did they prove it. The defendant contended that the argument was prejudicial in that it made it appear that the defendants were being tried on an issue of narcotics rather than murder and further that the prosecutor impliedly commented on the defendant’s failure to testify. The supreme court held that there was no error, but we emphasize that the opinion was addressed to the specific points raised by the defense.

We believe the Supreme Court of California’s holding in People v. Pantages, 212 Cal. 237, 244-45, 297 P. 890, 894, is persuasive. The court held:

“ ‘It is clear that in the trial of an action, proper argument should be based solely on the evidence and that if the opening statement to the jury does not constitute evidence and is not binding upon the party making it, then, in the absence of “bad faith” his failure to “make good” should not be.argued by the opposite party as a reason for a verdict. The conviction of a defendant of the crime of which he is accused should rest not even slightly upon the dereliction (if any) of his counsel, but ordinarily should be grounded upon acts committed by the defendant either actually or by law imputed to him. # * V ”

This case illustrates the wisdom of the holding in Pantages. Crotty’s testimony before the grand jury would lead one to believe that he would testify at the trial that he found the checks other than in the car. The defense had the right to rely on the grand jury testimony and it should not be penalized by the fact that the witness apparently changed his testimony. But we note that the defendants made their first and only objection to this fine of the State’s argument when the prosecutor said: “Defense counsel told you in his opening statement that these men were robbed and beaten and their money was taken.” No ruling was made on that objection. Immediately thereafter an objection was made to the argument that the defendants did not explain where they got the money that was found on them. That objection was sustained. No objection was made later to the assertion that the defense counsel had said in his opening statement that the evidence would show no money was found on their person or their automobile. We, therefore, judge that the defendants’ argument on this point has been waived. Moreover, in view of the strength of the State’s evidence, which the defendants do not question here, any error in this argument we deem harmless.

Last, the defendants contend that the sentence is excessive in view of their background and character. Britt was a high school graduate who had completed one year of college. He was married with three children and owned his own home. He had been continuously employed since 1964. His wife was a school teacher, and he belonged to several civic organizations on the south side. He had never been arrested before. Charles Capíes was 29 year's old and had been honorably discharged from the service. He was married with three children. He graduated from high school and earned two years of college credits. His only criminal record was an arrest in which he was discharged. The record shows that the court in sentencing said that the men would be entitled to probation under ordinary circumstances for a crime of less violence than the one for which they have been convicted. In view of the vicious and cold blooded nature of the assaults on the three complainants, we see no reason to substitute our judgment for that of the trial court’s. The judgments of the circuit court are affirmed.

Judgments affirmed.

BURKE and GOLDBERG, JJ., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Isaac Adams, Defendant-Appellant.
    (No. 60051;
    First District (1st Division)
    September 16, 1974.

      Julius Lucius Echeles, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Jerome Charles Randolph, and Daniel F. Murray, of counsel), for the People.


author: Mr. JUSTICE LEIGHTON

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James L. Walker, Defendant-Appellant.
    (No. 57902;
    First District (2nd Division)
    September 17, 1974.

      Paul Bradley and Robert E. Davison, both of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis, Douglas Cannon, and Terrance McQuigg, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE LEIGHTON

delivered the opinion of the court:

Defendant, James L. Walker, was charged with the murder of Gaynell Brown. He was convicted by a jury and the cdurt sentenced him to serve 30 to 90 years. In this appeal, he presents five issues. 1. Whether the conduct of his court-áppointed lawyer denied him effective assistance of counsel. 2. Whether it was prejudicial error for the trial court to exclude his testimony concerning a statement he said Gaynell Brown made a few moments after the shooting that resulted in her death. 3. Whether he was prejudiced by the closing arguments of the assistant State’s Attorneys. 4. Whether he was proven guilty beyond a reasonable doubt. 5. Whether the sentence imposed on him is excessive.

On July 24, 1971, defendant and Gaynell Brown lived in an apartment on the first floor of 5129 South Prairie .Avenue in Chicago. Sometime between 10 and 11 P.M. that evening, Edith Morris was visiting on the second floor of the building when she heard loud quarreling voices coming from the apartment below. Then, she heard a shot. The next morning, at about 7:15, in response to calls from friends who were concerned about Mrs. Brown’s well-being, two Chicago policemen entered the apartment in which she lived and found her on the floor of the rear bedroom. She was dead, lying face down in a pool of blood. Defendant was asleep on a bed; he appeared to be heavily intoxicated. When one policeman asked him what had happened, he replied, “What do you think happened?”

He was arrested; and while he was still in the apartment, police investigators came in, inspected it and found three spent cartridge cases. Early next morning, at a police station, the investigator advised defendant concerning his constitutional rights and questioned him. Defendant told the investigator that at about 9:30 P.M. on the evening of July 24, he and Gaynell Brown became involved in an argument which culminated in a struggle for a gun that Mrs. Brown kept under a pillow on her bed. He said that the gun went off twice and Mrs. Brown was wounded accidentally. According to defendant, he took the gun and threw it in a back yard. Later, he went with policemen back to the apartment and showed them where he threw the gun. Subsequent ballistics examinations disclosed that the three empty cartridges found in the apartment were fired by that gun. Thereafter, defendant was indicted; and on November 3, 1971, he was brought to court for arraignment. At his request, the case was continued so that a lawyer from the Chicago Bar Association could be appointed to represent him.

I.

On December 15, 1971, a lawyer from the Chicago Bar Association, a member of its Defense of Prisoners Committee, appeared and with defendant’s consent, agreed to be his court-appointed counsel. On the same day, the lawyer filed a motion for discovery. Later, he answered a similar motion by the prosecution and obtained the State’s response to the motion he had filed on defendant’s behalf. Then, after several continuances, and after defense counsel announced he was ready, the case was called for trial on April 3, 1972. A jury was selected; opening statements were made; witnesses were called.

Among those who testified for the prosecution was the pathologist who performed the autopsy on Gaynell Brown. He was not an expert on the subject of powder burns; nor did he have personal knowledge of the tests which had been made of Mrs. Browns blood for alcoholic content. However, without objection from defendant’s counsel, the pathologist testified to the distance he thought the gun was from Gaynell Brown when she was shot. When he was cross-examined, defendant’s counsel asked the pathologist about an examination that was made of blood taken from the dead woman’s body. The State objected to the questions on the ground that the pathologist’s testimony on this point would have been hearsay. Then, on five occasions, the prosecution offered to stipulate to traces of alcohol in Mrs. Brown’s blood. Defendant’s counsel declined the offers, he did not object to the pathologist’s testimony concerning the distance between a body and a gun required for powder burns; he did not object when in summation, an assistant state’s attorney argued that the gun which defendant used to shoot Gaynell Brown had to be more than 18 inches from her body and that she did not five for 2% hours after the shooting as claimed by defendant.

Before defendant appeared as a witness, his counsel made it known that his testimony was going to include a statement the defense claimed was a dying declaration by Gaynell Brown. The State objected to the proffered testimony. To resolve the issue, the trial court held a hearing outside the jury’s presence to determine whether defendant’s testimony was' admissible. Therefore, out of the jury’s hearing, defendant testified that a moment after she was shot “[s]he [Gaynell Brown] told me she kicked the gun and told me to get this so and so out of my house 1 don’t never want to see it again, I am sorry I bought it [the gun] in the first place [sic].”’ After hearing defendant, the trial judge ruled that the statement was not a dying declaration, and that his testimony concerning it was inadmissible.

In this court, defendant, by other counsel, concedes that Gaynell Brown’s statement was not a dying declaration. Instead, he insists that Mrs. Brown’s utterance was a spontaneous declaration, an exception to the hearsay rule which his court-appointed counsel failed to recognize. From this failure, the failure of counsel to ask correct questions of the pathologist on cross-examination, the failure of counsel to object to the pathologist’s direct testimony concerning the distance of the gun from Gaynell Brown’s body and his failure to object to statements which the assistant State’s Attorneys made in their final arguments, defendant asks us to decide whether the conduct of his court-appointed lawyer denied him the constitutionally guaranteed right to effective assistance of counsel for his defense.

We begin with the rule that for a defendant to show he was denied effective assistance of counsel in his trial, he must establish (1) actual incompetency, as reflected by the manner in which his court-appointed counsel discharged the duties of a trial attorney, and (2) substantial prejudice resulting therefrom, without which the outcome of' the case would probably have been different. (People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810.) Failure of a lawyer to make a motion, to object to improper testimony during a trial, or to object to portions of a prosecutor’s final argument, does not establish lack of competent representation. (People v. Goerger, 52 Ill.2d 403, 288 N.E.2d 416; People v. Barbour, 5 Ill.App.3d 323, 282 N.E.2d 175.) Usually, the decision of a trial lawyer not to make a motion or interpose an objection, the kind of things about which defendant complains, are matters of trial strategy, not evidence of incompetency. (People v. Rettig, 131 Ill.App.2d 687, 264 N.E.2d 835.) As the Alaska Supreme Court said recently, “All that is required of counsel is that his decisions, when viewed in the framework of trial pressures, be within the range of. reasonable actions which might have been taken by an attorney skilled in the criminal law, regardless of the outcome of such decisions.” (Risher v. State (Alaska 1974), 523 P. 2d 421; compare McMann v. Richardson (1970), 397 U.S. 759, 25 L.Ed.2d 763, 90 S. Ct. 1441; Beasley v. United States (6 Cir. 1974), 491 F. 2d 687.) In our judgment, the decisions of the defense attorney met this standard. The record does not show actual incompetence of counsel nor any prejudice to defendant. Therefore, we conclude that the conduct of his court-appointed lawyer did not deny defendant effective assistance of counsel.

II.

In the brief filed for defendant, and for the first time in this case, it is argued that the statement he attributed to Gaynell Brown was a spontaneous declaration and should have been admitted by the trial court as an exception to the hearsay rule. It is strenuously urged upon us that, although evidence of the alleged statement was offered on the theory it was a dying declaration, the trial court committed prejudicial error when it excluded defendant’s testimony concerning what he claimed Mrs. Brown said to him. Defendant argues that his testimony was the only way he could explain to the jury why he threw the gun away after the shooting.

We need not decide whether this theory for admission of what was claimed to be Gaynell Brown’s statement is the correct one. Plainly, this theory was not advanced in the trial court when defendant’s testimony was offered. It is well settled that a theory for the admission of evidence different from the one advanced in the trial court cannot be urged on appeal. (Compare People v. Sawyer, 42 Ill.2d 294, 251 N.E.2d 230.) Absent an offer of proof based on the theory of admissibility now advanced, the trial court properly excluded defendant’s testimony concerning the statement he claimed Gaynell Brown made a few moments after she was shot. (People v. Jones, 121 Ill.App.2d 268, 257 N.E.2d 514.) What is more important, however, is the fact that defendant’s case was not adversely affected by exclusion of this small portion of his testimony. (See People v. Cokes, 106 Ill.App.2d 139, 245 N.E.2d 507.) Therefore, no prejudicial error was committed by the trial court’s ruling.

III.

In their summations to the jury, the two assistant State’s Attorneys in the case argued that when Gaynell Brown was shot, no call was made to the police; and therefore, she did not receive medical aid which, perhaps, would have saved her life. Then, referring to the absence of powder burns on the dead woman’s body, one of the assistant State’s Attorneys argued that defendant’s testimony about the gun going off during a hand-to-hand encounter with Mrs. Brown defied the laws of physical science. Then, pointing to the testimony of the State’s pathologist, the assistant contended that a gun shot in a hand-to-hand struggle would have left powder burns on her body. The other assistant State’s Attorney argued that Mrs. Brown’s wound was such that she could not have lived 2Vz hours after she was shot, as defendant had claimed. Defendant contends that there was no evidence to support these argumentative assertions; therefore, he raises the issue whether he was prejudiced by the arguments which the assistant State’s Attorneys made to the jury.

It is a general rule that in their final arguments, prosecuting attorneys have the right to draw all legitimate inferences from facts which have been proven; and an accused cannot complain that such deductions place him in a bad light before the jury. (People v. Heidman, 11 Ill.2d 501, 144 N.E.2d 580.) Statements of counsel, comments and arguments based on facts supported by proof, or which are legitimate inferences from the proof, never transcend the bounds of proper debate and thus are not to be discountenanced by the courts. (People v. Bruce, 344 Ill.App. 114, 100 N.E.2d 350; People v. Phillips, 126 Ill.App.2d 179, 261 N.E.2d 469.) Of course, whether language used by prosecuting attorneys in final argument will result in reversal of a conviction depends on the facts of the particular case. (People v. Baker, 365 Ill. 328, 6 N.E.2d 665.) But, statements in arguments for the prosecution will warrant reversal of a conviction only where it reasonably appears that the verdict would have been different had the statements not been made. People v. Buckner, 9 Ill.App.3d 1013, 293 N.E.2d 622.

In this case, careful study of the instances about which complaint is made reveals that in their arguments, the assistant State’s Attorneys were only drawing reasonable inferences from the proven facts. The arguments, then, were based on the evidence. Moreover, the comments made were well within the bounds of legitimate debate. Therefore, we conclude that defendant was not prejudiced by the closing arguments of the assistant State’s Attorneys. People v. Nicholls, 42 Ill.2d 91, 245 N.E. 771.

IV.

The evidence in this record proved that during the evening of July 24, 1971, sometime after 9:30 P.M., defendant and Gaynell Brown were in their- apartment in Chicago, where they became embroiled in an argument. According to defendant, Mrs. Brown attacked him with an iron, pulled a knife on him and reached for a gun he knew was under a pillow. In the struggle that followed, three shots were fired and Mrs. Brown was wounded. Defendant threw the gun into a back yard, went to the home of two friends and told them he had hurt Gaynell Brown. After unsuccessfully seeking help, defendant returned to the apartment, took two tablets of a painkiller and went to sleep. When, the next morning, two Chicago policemen awoke him and asked what had happened, his reply was “What do you think happened?” There was no iron or knife in the apartment; but three empty cartridges were found. There were no powder burns on Gaynell Brown’s body; but the fatal gunshot wound was present. The gun was where defendant had thrown it; and tests proved it fired the three cartridges found in the apartment. Defendant’s testimony established that the gun propelled the bullet which killed Gaynell Brown. In our judgment, this evidence, as found by the jury in its verdict, proved defendant guilty of murder, beyond a reasonable doubt. People v. Sally, 17 Ill.2d 578, 162 N.E.2d 396; People v. Jersky, 377 Ill. 261, 36 N.E.2d 347; People v. Mallory, 101 Ill.App.2d 207, 242 N.E.2d 306.

V.

It is without doubt true that imprisonment for a term of 30 to 90 years, for any crime, is a long sentence. And contemporary American literature in the fields of penology and corrections abound with thoughtful questions concerning the efficacy if not the morality of such sentences. (See Randolph, Are Long Sentences Necessary?, 21 Am. J. Correct. 4 (1959); Murrah & Rubin, Penal Reform and the Model Sentencing Act, 65 Colum. L. Rev. 1167 (1965); George, An Unsolved Problem: Comparative Sentencing Techniques, 45 A. B. A. J. 250 (1959); Frankel, Lawlessness in Sentencing, 41 U. Cinn. L. Rev. 1 (1972); Symposium, 11 Am. Crim. L. Rev. 1-372 (1972).) In fact, the American Bar Association in its recent study of standards for criminal justice has urged legislatures to recognize “that in many instances in this country the prison sentences which are now authorized, and sometimes required, are significantly higher than are needed in the vast majority of cases in order adequately to protect the interests of the public.” (A.B.A. Standards Relating to Sentencing Alternatives § 2.1(d) (1968).) The Association goes on to recommend that, with the exception of certain type of offenders and of very few particularly serious offenses (murder being the only offense on which its advisory committee unanimously agreed), “* # * the maximum authorized prison term ought to be five years and only rarely ten.” A.B.A. Standards Relating to Sentencing Alternatives § 2.1(d) (1968).

In this State, however, long prison sentences are an integral part of our criminal justice system. The legislature has provided for them; and our Supreme Court has held that when they are within statutory limits, reviewing courts should not disturb them unless they greatly vary from the purpose and spirit of our law or they are manifestly in excess of the constitutional provisions which require that all penalties be proportioned to the nature of the offense. (People v. Fox, 48 Ill.2d 239, 269 N.E.2d 720.) Only recently, bound as we are always by applicable law and the decisions of our supreme court, we sustained without modification, a 100 to 199 year sentence for murder. People v. Malcom, 14 Ill.App.3d 378, 302 N.E.2d 352.

In this case, during the hearing in aggravation and mitigation, the State proved that the killing of Gaynell Brown was defendant’s second criminal homicide. He admits that in 1943 he was found guilty and sentenced to the penitentiary for manslaughter and that in 1950 he was convicted of armed robbery and sentenced to a term of imprisonment. Prior convictions of a defendant are relevant and pertinent in determining the appropriate sentence which a trial court should impose on him for a crime of which he is convicted. (People v. Mace, 79 Ill.App.2d 422, 223 N.E.2d 725.) The trial court in this case obviously took into account defendant’s two previous felony convictions and imposed a sentence within the limits of the murder statute. (Compare People v. Hart, 132 Ill.App.2d 558, 270 N.E.2d 102.) It is our opinion that the sentence imposed is not excessive. (See People v. Holmes, 12 Ill.App.3d 713, 298 N.E.2d 738; People v. Richards, 120 Ill.App.2d 313, 256 N.E.2d 475.) The judgment is affirmed.

Affirmed.

HAYES, P. J., and STAMOS, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Mario Tomaso Tripkovich, Defendant-Appellant.
    (No. 58951;
    First District (2nd Division)
    September 17, 1974.
    James J. Doherty, Public Defender, of Chicago (Phillip A. Olson and John M. Kalnins, Assistant Public Defenders, of counsel), for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Kenneth L. Gillis and Dennis J. O’Hara, Assistant State’s Attorneys, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Walter Szymanski, Defendant-Appellant.
    (No. 58862;
    First District (3rd Division)
    September 19, 1974.

      Edward M. Genson, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Thomas D. Rafter, Perry L. Fuller, Dennis J. Horan, and Robert J. Kennedy, Assistant State’s Attorneys, of counsel), for the People.


author: Mr. JUSTICE DEMPSEY

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Gene Hope, Defendant-Appellant.
    (No. 59093;
    First District (3rd Division)
    September 19, 1974.

      Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Scott W. Peterson, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DEMPSEY

delivered the opinion of the court:

The defendant, Gene Hope, was convicted at a jury trial of robbery and was sentenced to a term of not less than IVz and not more than 4% years. He appeals the conviction on the grounds that: he was not proven guilty beyond a reasonable doubt; he was denied a fair trial because of the closing argument of the prosecutor; a jury instruction on show-up identification was improperly denied, and a mistrial was not granted after the admission of prejudicial evidence.

The victim of the robbery, Earl Barefield, testified that on March 21, 1971, at about 8:30 A.M., he left the Dawes Center at 12 South Peoria Street, Chicago, where he lived and began to walk to the Northwestern train station. He stopped on the comer of Peoria Street and Madison Street to rest. Across the street on the opposite corner, he saw Hope with some women and another man. Hope walked across the street and brushed past Barefield touching Barefield’s left pocket which contained a coin purse. Hope looked back at him and Barefield stared at Hope.

Barefield became apprehensive and he decided to return to the Dawes Center. Hope foHowed him. As he reached the door of the Center, Hope seized him, forced him to the ground and took the coin purse which contained $20.25 from his pocket. Hope then ran diagonally across Peoria Street toward the corner of Madison.

Leonard Kelly was approaching the Dawes Center and saw Barefield and Hope walking toward the Center from the opposite direction. He proceeded up the stairs inside the Center but stopped and looked through the open front door when he heard noises outside. He saw Barefield on the ground and saw Hope taking something from Barefield’s pocket. Kelly ran after Hope; he stopped running when he reached the corner of Madison and Peoria, but watched Hope until he turned north on Green Street.

Kelly stood on the comer for several minutes. Then he saw a man, dressed as the robber had been, board an eastbound bus at the southwest comer of Madison and Halsted Streets.

A few minutes later, Kelly saw a police car and flagged it down. He told police officer John Murray about the robbery and about the man he saw board a bus. Murray drove to the Dawes Center, picked up Barefield and drove along the Madison Street bus route. Barefield described the robber to Murray as having hair combed straight up in front and wearing a light brown corduroy coat. Kelly described the robber as a black man about 6 feet tall between the ages of 20 and 25 years, wearing light blue pants and a brown corduroy jacket. When they overtook the bus, Murray drove his car with its blue lights flashing, to the front of the bus and stopped it. Murray boarded the bus and arrested Hope. He was wearing a brown corduroy coat and light blue pants. Kelly was waiting outside the bus and identified him as the robber. Murray then took Hope to the police car where Barefield also identified him. Murray searched him and found only $3 in change in his pockets. Murray went back to the bus and checked the area outside the bus, and inside around the defendant’s seat looking for the stolen purse and money but he found nothing.

Murray drove Hope, Barefield and Kelly to the police station. KeHy was allowed to testify over defense objections that Hope asked him about the missing $30 before anyone had told him it had not been found.

The defendant testified that he was on his way to his sister’s home when he was arrested. He said that he left home about 7 A.M., took a Halsted bus to Madison Street and got off to transfer to a Madison Street bus. Between buses, he had something to eat at a restaurant on Halsted Street Then he boarded the Madison bus on which he was later arrested. He denied asking Kelly about the missing money. He said that he was employed at the time of the robbery putting dies in a punchpressing machine at the Regal Manufacturing Company at 917 West 21st Place.

Officer Murray was called in rebuttal. He testified that the Regal Manufacturing Company manufactured dinette tables and bar stools; that it did not employ anyone to handle dies and did not employ Gene Hope. The defense objected to Murray’s testimony as hearsay. The court said the testimony that Hope was not employed at the Regal Company would be stricken and the jury was instructed to disregard that testimony.

The defendant offered, but was refused, the following instruction:

“Where one accused of a crime is brought alone before the witness for the purpose of identification, such identification is not entitled to the same weight and credibility as where the witness picks out the accused from a number of persons brought before the witness.”

The defendant’s contention that he was not proved guilty beyond a reasonable doubt is based on the identifications made by Barefield and Kelly. He asserts that neither of these was credible and that the identification made by Barefield was unfairly influenced by Kelly’s prior identification.

The procedure used by Murray was proper investigative conduct. Murray had a duty to determine as quickly as possible whether the victim of the crime could identify the person arrested, and the prompt confrontation between the victim and the suspect enabled him to determine whether the latter should remain in custody or be released. (People v. Prignano (1971), 2 Ill.App.3d 1063, 278 N.E.2d 128, cert. denied, 409 U.S. 851 (1972).) Barefield had had a sufficient opportunity to view Hope before and during the crime to offset any suggestion caused by Kelly’s identification. A prior independent origin of a witness’ identification can furnish insulation against a subsequent suggestive confrontation. People v. Ashford (1974), 17 Ill.App.3d 592, 308 N.E.2d 271.

The adequacy of both Barefield’s and Kelly’s identification was a question of credibility for the trier of fact and a reviewing court will not reverse the verdict of a jury unless the testimony is so unsatisfactory that it creates a reasonable doubt of the defendant’s guilt. (People v. Knowles (1970), 130 Ill.App.2d 78, 264 N.E.2d 716, cert. denied, 404 U.S. 965 (1971).) Barefield saw Hope from across the street before the robbery, saw him when he came over and walked past him, and saw him during the robbery. Kelly saw Hope before the robbery, saw him during the daylight robbery, saw him running away and saw him during the chase. Both men viewed him long enough to enable them to make positive identifications, and the short time that elapsed between the crime and the identifications enhances their credibility.

It is contended that all of Murray’s testimony concerning Hope’s employment at the Regal Manufacturing Company was hearsay, that its reception into evidence was prejudicial and that a mistrial should have been granted after its admission. It is further contended that the rebuttal testimony, which was not disclosed prior to trial, violated the spirit of Supreme Court Rule 412. (Ill. Rev. Stat. 1971, ch. 110A, par. 412.) The trial court stated that the testimony was admissible as long as Murray testified from his own observation. The court instructed the jury to disregard the testimony that Hope had never worked at the company because it was based on hearsay information. The balance of the testimony, even if hearsay, was not so prejudicial as to require a new trial.

It was not necessary for the State to disclose Murray’s rebuttal testimony in advance of his taking the stand. Section 114 — 9 of the Code of Criminal Procedure (Ill. Rev. Stat. 1971, ch. 38, par. 114 — 9) requires the State, on motion of the defendant, to provide the defense with a list of prosecution witnesses. Subsection (c) of section 114 — 9 states that this requirement does not apply to rebuttal witnesses. Supreme Court Rule 412 was intended to implement section 114 — 9, not to abrogate it. People v. Porter (1973), 13 Ill.App.3d 893, 300 N.E.2d 814.

The tendered instruction on the weight to be given identification testimony was properly rejected. The Illinois Pattern Jury Instructions (IPI-Criminal, No. 315 (1968)) recommends that no instruction be given on identification testimony because the subject can be adequately covered by general instruction on the credibility of witnesses. (People v. Fox (1971), 48 Ill.2d 239, 269 N.E.2d 720.) The State submitted such an instruction and it was given to the jury.

The defense made only three objections to the prosecutor’s closing argument. One was when the prosecutor asked why Hope was in the neighborhood at the time of the crime. It is asserted that this suggested to the jury that the defendant was under an obligation to explain his whereabouts. Because of the presumption of innocence, a defendant need not explain his presence in the vicinity of a crime. (People v. Bean (1970), 121 Ill.App.2d 290, 257 N.E.2d 558, cert. denied, 402 U.S. 1009 (1971).) However, the prosecutor’s statements only questioned the plausibility of tire defendant’s explanation of what he was doing on the morning of the robbery and did not suggest that he had to explain his whereabouts.

A second objection was to the prosecutor’s statement that deputy sheriffs were present in the courtroom because of the defendant’s antics. No prejudice resulted from that statement because the objection was promptly sustained and the court told the jury that deputies were present at all jury trials.

The prosecutor incorrectly stated what constituted the burden of proof:

“So what we are going to have to do now is take the defendant’s case, as opposed to the State, see if that rebuts the presumption of reasonable doubt. In other words, create reasonable doubt. I ask you to scrutinize this case by the same standards you scrutinize ours.”

A defendant does not have to “create” a reasonable doubt. The burden of proof never shifts to the accused, but remains the responsibility of the prosecution throughout the trial. (People v. Weinstein (1966), 35 Ill.2d 467, 220 N.E.2d 432.) However, the correct description of the burden of proof was stated at other times during the trial and was fully sét out in an instruction. We cannot say, therefore, that the jury relied on the prosecutor’s faulty explanation in deciding the outcome of the case.

An objection to an allegedly prejudicial argument will not be considered on appeal if the objection was not made at the trial, unless the argument is so prejudicial that it prevents a defendant from receiving a fair trial. People v. Payton (1967), 82 Ill.App.2d 51, 227 N.E.2d 87.

The other asserted errors in the prosecutor’s closing argument are raised for the first time on appeal; they do not appear to have resulted in prejudice that denied the defendant a fair trial and we have not considered them for that reason.

The judgment is affirmed.

Affirmed.

McGLOON and MEJDA, JJ., concur.


author: Mr. JUSTICE DIERINGER

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Herbert F. Everhart, Defendant-Appellant.
    (Nos. 58480, 58895 cons.;
    First District (4th Division)
    August 28, 1974.

      Robert B. McGee, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Zachary L. Stanger, and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

This is an appeal from a judgment entered by the Circuit Court of Cook County. The defendant was convicted of the crime of taking indecent liberties with a child and was sentenced to a term of 4 to 8 years in the Illinois State Penitentiary.

The issues presented on appeal are (1) Whether the defendant was proven guilty beyond a reasonable doubt; and (2) Whether the trial court abused its discretion in receiving in evidence the defendant’s prior conviction.

On Saturday, August 14, 1971, the complaining witness, Donna Marie Danek, 11 years old, was delivering newspapers for her girlfriend, Nancy Smith, who was on vacation. At approximately 4 P.M. she arrived at the home of the defendant, Herbert Everhart. Complainant was using a bicycle for transportation and was carrying the newspapers in a canvas bag around her neck. The bag was hanging down in front of her below her waistline. She placed a newspaper between the screen door and the wooden door of defendant’s home and returned to her bicycle, 25 feet away on the sidewalk. The defendant, hearing someone at the screen door, opened the house door and saw the complaining witness at her bicycle. The defendant inquired about the regular newspaper girl, Nancy Smith, and the complainant began walking back toward the screen door.

The complaining witness testified she went into the defendant’s home and he partially closed the front door. The defendant inquired if complainant liked boys and she said yes. He then inquired “Were you ever virginity [sic] before?” and she said no. Complainant also testified that the defendant then began feeling her breasts and between her legs on top of her clothing. She estimated this lasted 5 or 10 minutes but was not sure of the time. She further testified she was asked to kiss the defendant on the cheek before she left. Complainant did not cry or make any protest. There was no violence and she was not injured. She .stated she went home immediately, one block away, and told her mother what happened. Mrs. Danek called the police, who arrived approximately 10 or 15 minutes later. The police took the complainant back to the defendant’s house where she identified him. Complainant said she had a chart with the name and address of every person to whom she was to deliver newspapers, but she did not tell the police about it.

The defendant testified he was home on the day in question with his stepdaughter, Camille Powell. He heard a noise at the front screen door and when he opened the house door he saw the complaining witness about to get on her bicycle, 25 feet away on the sidewalk. He inquired “Where is my girl, Nancy?” and complainant said “Oh, she is on vacation. I am filling in for her right now.” Defendant then asked “Oh, are you her sister?” and she said “No, I am just a girlfriend delivering papers for her.” While she was talking the complainant walked toward the house to within approximately 15 feet from the screen door and then turned around and returned to her bicycle. She then left.

The defendant’s stepdaughter, Camille Powell, testified she was at home with the defendant and in the bathroom putting on makeup with the door “ajar” at the time of the alleged incident. She was only 10 or II feet from the front door, and she heard the defendant say “Hello” and “Where is my girl, Nancy?” and “Tell her I said hi.” The conversation lasted only a minute or two. Miss Powell testified she did not hear tire defendant ask for a kiss on the cheek or anything along those lines. She did not see or hear the complainant enter the house.

In rebuttal, the State offered into evidence for impeachment purposes, a prior conviction of the defendant for the crime of taking indecent liberties with a child. The defendant had been sentenced to 3 to 15 years in the penitentiary in January, 1964, and was released in November, 1966. Defendant has not been in any trouble since his release. He has been married 4Vz years and has a grown stepdaughter living at home, owns Iris own home in Hickory Hills, and operates a television repair business. Defendant objected to the admission of the prior conviction into evidence on the ground that it in no way affected his credibility and only prejudiced the court against the defendant.

The trial court found the defendant guilty of taking indecent liberties with a child and sentenced him to 4 to 8 years in the Illinois State Penitentiary.

The defendant first contends he was not proven guilty beyond a reasonable doubt. It is well established that a reviewing court will not disturb a conviction for indecent liberties with a child, where the defendant denies the charge, where there is either some corroboration of the testimony of the complaining witness or that testimony is otherwise clear and convincing. (People v. Falk (1970), 121 Ill.App.2d 1.) By either standard, the defendant in the instant case was not proven guilty beyond a reasonable doubt. The testimony of the complaining witness was not clear and convincing and there was no corroboration. Section 11 — 4 of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, par. 11 — 4) states:

“(a) Any person of the age of 17 years and upwards who performs or submits to any of the following acts with a child under the age of 16 commits indecent liberties with a child:
# # a
(3) Any lewd fondling or touching of either the child or the person done or submitted to with the intent to arouse or to satisfy the sexual desires of either the child or the person or both.”

On the evidence presented in the case at bar it cannot be found that the defendant had any intent to arouse his own sexual desires or the desires of the complainant, with defendant’s stepdaughter only a few feet away from the alleged incident. The evidence, at best, does not sufficiently establish the requisite intent.

The defendant was in his own home repairing a television set on the date in question. He denied having invited the complainant into his home. Complainant testified the defendant felt her breasts and between her legs, but on cross-examination stated the canvas bag in which she was carrying the newspapers was around her neck and hanging down in front of her below her waistline. It would, therefore, have been most difficult if not impossible for the defendant to perform the complained of acts.

Camille Powell, a grown woman, testified she was in the bathroom only 10 or 11 feet from the front door and heard an innocent conversation between her stepfather and someone else, which lasted only a minute or two. Miss Powell’s testimony was not contradicted and is entitled to great weight. It corroborates the testimony of the defendant.

No statement was ever taken from the complainant or her mother by the police or the State’s Attorney, and the only recorded recollection was made by the complainant at her home with no indication as to when it was made except that her father had returned home. The complainant’s statement was in her own writing, about one-half page long, not dated, not signed, and not revealed until she was asked on cross-examination if she had talked to anyone concerning the alleged incident. She stated she had only spoken to the State’s Attorney the morning of the trial when he handed her two typewritten pages to read and she wanted to see the page she wrote, which he then gave her. These documents are not in evidence, therefore not read into the record before us, but it is apparent that a half-page longhand statement could not be transcribed into two typewritten pages without a great deal of exaggeration. We also note that on the back of the indictment the only witnesses listed are the complainant and an arresting officer, yet the child said nothing about talking to the grand jurors. Officer Philip Boshltoff, the arresting officer whose name appears on the indictment, did not testify at the trial. Officer James White, the other arresting officer, was not listed on the indictment but testified at the trial. His testimony was hearsay as to the complaint and was so ruled by the trial judge. These facts raise grave doubts as to the validity of the proof in this case.

When the complainant was first questioned by the police in the instant case she did not mention the name or address of the defendant. She testified, however, that she had a cardboard chart with the name and address of every person to whom she was to deliver newspapers. She further testified she knew the defendant’s name and address and told her mother the defendant “had done those things to her.” The arresting officer testified he was never shown the cardboard chart. If the complaining witness knew the name and address of the defendant and had a card with such information on it, the natural and spontaneous reaction would have been to inform the police of such information when questioned.

The complainant’s mother was present at the defendant’s trial but was never called as a witness by the State. Such an omission is most strange in a sex case involving a child since an irate mother can testify to the immediate complaint of the child. Tire failure of the complainant’s mother to testify in the instant case leaves the testimony of the complainant totally uncorroborated. In Biel v. Wolff (1970), 126 Ill.App.2d 209, the appellate court quoted from McCormick on Evidence § 249 (1972), as follows:

“It is generally agreed that when a potential witness is available, and appears to have special information relevant to the case, * * s and where his relationship with one of the parties is such that the witness would ordinarily be expected to favor him, then if such party does not produce his testimony, the inference arises that it would have been unfavorable.” (126 Ill.App.2d at 223.)

Such unfavorable inference arises in the case at bar where complainant’s mother failed to testify in behalf of complainant regarding her complaint.

Cases involving indecent liberties with a child are sensitive and difficult to determine. A charge of indecent liberties is an accusation easily made, hard to prove, and harder to be defended by the party accused. (People v. Nunes (1964), 30 Ill.2d 143.) Where the State has a witness such as the complainant’s mother in the instant case, who could testify to the initial complaint of the child and fails to do so, grave doubt arises as to why she failed to testify. A reasonable conclusion is she could not endure cross-examination for whatever reasons. The defendant lived only one block from the complainant’s home. The police were called after the complainant related the incident to her mother. The record does not show how much time elapsed before the mother called the police. The police arrived approximately 10 or 15 minutes after being called. The mother therefore had considerable time to talk to the complainant alone. It is of utmost importance for the court to ascertain what ■ took place between the two during that period of time, and also if there was any animosity between complainant’s mother and the defendant for other reasons. A trial judge experienced in this type of case knows how an enraged mother could ask leading questions and plant ideas in the child’s mind. Experience teaches that children of this age sometimes engage in fantasy and sometimes create stories which are easily enlarged by mothers. In the present case, the child used the word “virginity” in her testimony, yet stated on the witness stand she did not know what the word “virgin” meant. In view of the corroboration afforded defendant’s testimony by his stepdaughter, and the absence of corroboration of the complaining witness by her mother as to when she allegedly first complained of the incident, we believe the State failed to prove its case beyond a reasonable doubt.

Defendant also contends the trial court abused its discretion in allowing into evidence for impeachment purposes the defendant’s prior conviction. It is apparent to us that the introduction of the prior conviction, allegedly for impeachment purposes, along with the argument of the State’s Attorney regarding it, was very prejudicial to the defendant. The nature of the prior conviction was for the same crime for which the defendant was being tried. The standards for the admission of a conviction of another crime beyond which the court may not go are set out in People v. Montgomery (1971), 47 Ill.2d 510. However, within those restrictions the court still has discretion in the matter. (People v. Montgomery (1971), 47 Ill.2d 510, 515, 519.) Although the trial judge stated he was not allowing the prior conviction to control his thinking, he did discuss it and said he would not sentence the defendant as a repeater. We believe the trial judge was subconsciously influenced by the prior conviction when he found the defendant guilty on such flimsy evidence and sentenced him to 4 to 8 years in prison.

We are well aware of the principle that the credibility of witnesses and the weight to be given their testimony is primarily a question for the trial court. (People v. Falk (1970), 121 Ill.App.2d 1.) However, we have a duty to study the record and determine whether it supports the trial judge’s conclusions. Where acts or circumstances are attributable to either an innocent or a criminal cause, the innocent hypothesis will be adopted. (People v. Lynn (1943), 385 Ill. 165.) A review of the record in the instant case reveals the evidence and the circumstances give rise to a hypothesis of innocence and does not establish the defendant’s guilt beyond a reasonable doubt. In People v. Gardner (1966), 35 Ill.2d 564, the Illinois Supreme Court stated that where, from the entire record of the case, there was a reasonable doubt of the guilt of the accused, the judgment of guilty would be reversed.

For the reasons stated herein, the judgment of the Circuit Court of Cook County is reversed.

Reversed.

ADESKO, P. J., and BURMAN, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Howard Evans, Defendant-Appellant.
    (No. 58900;
    First District (4th Division)
    August 28, 1974.

      Paul Bradley, of State Appellate Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., Frank Baumgart, and Mary Ellen Dienes, Assistant State’s Attorneys, of counsel), for the People.
   Mr. JUSTICE DIERINGER

delivered the opinion of the court:

The defendant, Howard Evans, was tried by the court sitting without a jury in the Circuit Court of Cook County and was convicted of both possession of a concealed weapon and for possession of a weapon within 5 years of a felony conviction. He was sentenced to concurrent terms of not less than 2 nor more than 5 years.

The issues on appeal are whether a court may hold a hearing on a motion to suppress physical evidence concurrently with a bench trial where the defense counsel has expressly consented, whether it was error to deny the defendant’s motion to suppress physical evidence, and whether the sentence for the lesser offense of possession of a concealed weapon should be vacated and the sentence for the more serious offense should be reduced pursuant to the Unified Code of Corrections.

A Chicago pohceman testified that while he and his partner were patrolling in an unmarked squad car on September 26, 1972, he saw the defendant with three other men in the area of 4349 West Gladys in the city of Chicago. When the officers stopped their car in the middle of the street, one of the four men broke away and ran up a flight of stairs to the open porch of a two-flat and threw something into the yard below. When the object was recovered, it was found to be a .32-caliber chrome-plated revolver.

After recovering the revolver the other three men were patted down, and another revolver was found on the defendant. Neither he nor the other two men attempted to flee.

At trial the motion to suppress the revolver was denied and the defendant was found guilty of both possession of a concealed weapon and possession of a weapon within 5, years of a felony conviction.

The defendant first contends he was denied due process of law in that his defense counsel was forced into waiving a formal hearing on the motion to suppress physical evidence. The defendant suggests the facts of People v. Pugh (1971), 133 Ill.App.2d 168, are similar to this case. In that case the court reversed and remanded a judgment against the defendant when the trial judge insisted on hearing a motion to suppress with the trial even over the objection of trial counsel. However, in this case defendant’s counsel agreed to have the motion heard along with the trial after a brief discussion with the judge as shown by the record:

“THE COURT: Bring out Evans now. Let’s try him. Mr. Norris, on this Evans case you filed a motion to suppress evidence?
MR. NORRIS: Yes, Judge.
THE COURT: Do you agree to let that go with the trial?
MR. NORRIS: Yes, Judge.”

It is well settled a defendant can waive certain rights through the action of his attorney. People v. Sailor (1969), 43 Ill.2d 256.

The defendant next complains the court erred in denying the motion to suppress because the search was not justified, citing the case of Terry v. Ohio (1968), 392 U.S. 1, 20 L.Ed.2d 889, 88 S.Ct. 1968. The defendant contends the fact the police officer saw the man who discarded the gun in the company of the defendant for only a few seconds does not justify a conclusion they were together, and the police may not detain and search a person simply because he is close to or even in the company of another person lawfully arrested. People v. Galloway (1956), 7 Ill.2d 527.

However, that case does not preclude police from conducting a pat-down of the companions of one who was lawfully arrested in order to protect themselves or others who may be nearby. In People v. Lee (1971), 48 Ill.2d 272, Terry was applied to sustain a weapons search by a police officer who had reasonable grounds to believe that persons they were confronting might be dangerous. The court quoted from Terry.

“‘We merely hold today that where a police officer observes unusual conduct which leads him reasonably to conclude in light of his experience that criminal activity may be afoot and that the . persons with whom he is dealing may be armed and presently dangerous, where in the course of investigating the behavior he identifies himself as a policeman and makes reasonable inquiries, and where nothing in the initial stages of the encounter serves to dispel his reasonable fear for. his own or others’ safety, he is entitled for the protection of himself and others in the area to conduct a carefully limited search of the outer clothing of such persons in an attempt to discover weapons which might be used to assault him.’ ” 48 Ill.2d at 275.

In U.S. v. Berryhill (9th Cir. 1971), 445 F.2d 1189, 1193, the court stated:

“It is inconceivable that a peace officer effecting a lawful arrest of an occupant of a vehicle must expose himself to a shot in the back from defendant’s associate because he cannot, on the spot, make the nice distinction between whether the other is a companion in crime or a social acquaintance. All companions of the arrestee within the immediate vicinity, capable of accomplishing a harmful assault on the officer are constitutionally subject to the cursory pat-down’ reasonably necessary to give assurance they are unarmed.”

On the issue of whether the defendant is entitled to have the lesser sentence vacated, the State confesses error because the record reveals no evidence to indicate the two offenses were independent or separable in any way. Judgment should have been entered only for the more serious crime of possessing a weapon within 5 years of a felony conviction. Therefore, the judgment of guilty for possession of a concealed weapon is reversed.

The defendant also maintains the sentence of 2 to 5 years for the more serious offense is excessive under the Unified Code of Corrections. That offense, in violation of section 24 — 1(b) of the Criminal Code (Ill. Rev. Stat. 1971, ch. 38, §24 — 1(b)) is now designated as a Class 3 felony for which the minimum term may not be greater than one-third of the maximum term set. (Ill. Rev. Stat. 1973, ch. 38, § 1005 — 8—1(c) (4).) Therefore, the minimum term in this case must be no greater than one-third of 5 years, or 1 year and 8 months, and the judgment is so modified and affirmed in all other respects.

Reversed in part and affirmed as modified.

ADESKO, P. J., and JOHNSON, J., concur.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Larry Felder et al., Defendants-Appellants.
    (No. 58779;
    First District (1st Division)
    September 3, 1974.

      Modified opinion upon denial of rehearing September 27, 1974.

      Paul Bradley and Kenneth L. Jones, both of State Appellate Defender’s Office, of Chicago, for appellants.
    Bernard Carey, State’s Attorney, of Chicago (Patrick T. Driscoll, Jr., and Roger L. Horwitz, Assistant State’s Attorney, of counsel), for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Eddie Perry, Defendant-Appellant.
    (No. 58024;
    First District (3rd Division)
    September 5, 1974.

      Paul Bradley and Robert E. Davison, both of State Appellant Defender’s Office, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.


text:
    The People of the State of Illinois, Plaintiff-Appellee, v. James Bobby Boy, a/k/a Freddie E. Brown, Defendant-Appellant.
    (No. 58165;
    First District (3rd Division)
    September 5, 1974.

      James J. Doherty, Public Defender, of Chicago, for appellant.
    Bernard Carey, State’s Attorney, of Chicago, for the People.