{ "id": 1598847, "name": "People of the State of Illinois, Appellee, v. Paul Durant, Appellant", "name_abbreviation": "People v. Durant", "decision_date": "1969-01-28", "docket_number": "Gen. No. 51,924", "first_page": "216", "last_page": "228", "citations": [ { "type": "official", "cite": "105 Ill. App. 2d 216" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "225 NE2d 730", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill App2d 372", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2542764 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0372-01" ] }, { "cite": "222 NE2d 479", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "36 Ill2d 392", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5378196 ], "opinion_index": 0, "case_paths": [ "/ill-2d/36/0392-01" ] }, { "cite": "213 NE2d 651", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill App2d 302", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5291091 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/66/0302-01" ] }, { "cite": "189 NE2d 299", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill2d 257", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5360808 ], "opinion_index": 0, "case_paths": [ "/ill-2d/27/0257-01" ] }, { "cite": "147 NE2d 316", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1958, "opinion_index": 0 }, { "cite": "13 Ill2d 63", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2776029 ], "weight": 2, "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-2d/13/0063-01" ] }, { "cite": "138 NE2d 556", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "9 Ill2d 522", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5320238 ], "opinion_index": 0, "case_paths": [ "/ill-2d/9/0522-01" ] }, { "cite": "219 NE2d 653", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill App2d 256", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2583880 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/73/0256-01" ] }, { "cite": "188 NE2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "26 Ill2d 557", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5356110 ], "opinion_index": 0, "case_paths": [ "/ill-2d/26/0557-01" ] }, { "cite": "229 NE2d 404", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill App2d 403", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2552885 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/85/0403-01" ] }, { "cite": "225 NE2d 713", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "81 Ill App2d 34", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2542947 ], "pin_cites": [ { "page": "49" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/81/0034-01" ] }, { "cite": "207 NE2d 449", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill2d 478", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2838509 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0478-01" ] }, { "cite": "211 NE2d 560", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "64 Ill App2d 479", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5294479 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/64/0479-01" ] }, { "cite": "357 Ill 610", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5282773 ], "opinion_index": 0, "case_paths": [ "/ill/357/0610-01" ] }, { "cite": "50 NE2d 716", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "383 Ill 608", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2485418 ], "opinion_index": 0, "case_paths": [ "/ill/383/0608-01" ] }, { "cite": "171 NE2d 782", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "21 Ill2d 114", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2732039 ], "opinion_index": 0, "case_paths": [ "/ill-2d/21/0114-01" ] }, { "cite": "219 NE2d 554", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill App2d 12", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2581518 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0012-01" ] } ], "analysis": { "cardinality": 858, "char_count": 17736, "ocr_confidence": 0.56, "pagerank": { "raw": 4.03580807328026e-08, "percentile": 0.05985831606398674 }, "sha256": "40a266fd1f02c336742b295709d9436087e59eb4498a077c6a77117fdb5293f9", "simhash": "1:b321879d67228c96", "word_count": 3116 }, "last_updated": "2023-07-14T19:13:26.011257+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "LYONS, P. J. and BUEKE, J., concur." ], "parties": [ "People of the State of Illinois, Appellee, v. Paul Durant, Appellant." ], "opinions": [ { "text": "MR. JUSTICE MCCORMICK\ndelivered the opinion of the court.\nPaul Durant, defendant, was indicted for the crimes of robbery and aggravated battery. He was tried before a jury which returned a verdict of guilty, and the defendant was sentenced to a term of five to ten years in the Illinois penitentiary, the sentence on each count of the indictment to run concurrently.\nIn this court the defendant complains that he was not properly identified; therefore, was not proved guilty beyond all reasonable doubt; that irrelevant evidence was introduced; that the prosecutor\u2019s arguments were improper; and that the defendant was denied a fair and impartial jury. (The defendant offered no evidence whatsoever in the case.)\nThere is no question that the complainant, Frank Wilkes, had parked his truck on Homer Street, four feet west of Damen Avenue, in the City of Chicago; that he was attacked by two men and a woman, and suffered head injuries, broken ribs and bruises; and that his wallet was taken, with two fives and a one-dollar bill removed from it. Shortly after the crime Officer Victor Hoffman arrested the defendant and James Catalano in an alley east of Damen and 100 feet south of Homer Street, where they were seen at a \u201cT\u201d in the alley, coming from the north and turning west. Defendant\u2019s shirt was out and his pants were unzipped. Catalano was carrying one ten-dollar bill and two singles; defendant carried no money.\nDr. William Haines, a psychiatrist, had examined the defendant three months before the trial and reported he was competent to stand trial. The report indicated that the defendant had been in Elgin State Hospital a few months for observation, and had previously been in the hospital from October 24, 1962 to January 24, 1968; the defendant was described as \u201cemotionally unstable.\u201d\nOn July 5, 1966, a sanity hearing regarding the defendant was held before a jury. At that hearing Dr. Haines testified that he had examined the defendant on June 6 and found that the defendant understood the nature of the charges against him and was able to cooperate with his attorney. The jury returned a verdict finding the defendant competent to stand trial.\nWhen the defendant was brought into the courtroom he was struggling with two deputy sheriffs. The trial judge excused the prospective jurors and asked the defendant if he wished to be present at the trial proceeding. The defendant began mumbling and crying, and said, \u201cLeave me alone.\u201d The court then held that defendant had waived his right to be present and ordered him removed from the courtroom until he decided to conduct himself properly. The court noted then that the defendant had behaved normally on prior court dates and during the morning in question; that there had never been any outbursts.\nThe jury was selected from the panel which had observed defendant\u2019s outburst, and the court told the jury that the defendant did not choose to attend the proceedings and was in custody. The jury was carefully examined both by counsel and the court as to whether or not the defendant\u2019s conduct in the courtroom would have any effect on their verdict, and the only jurors selected were those who categorically answered that it would not.\nThe first witness for the State was Frank Wilkes, who testified that on April 21, 1966, at about 7:30 p. m., he and his partner unloaded some merchandise at his antique shop at 1944 North Damen Avenue, after which his partner went inside. Wilkes pulled the truck around the corner on Homer Street, about 20 feet from the shop, and at that time some people threw open both doors of the truck and began clubbing him. (He identified the defendant as one of the assailants.) The defendant then struck him twice with a pressure cooker, and the defendant\u2019s companion hit Wilkes from the other side; during this time a girl who was with the assailants was shouting, \u201cGrab him, kick him, grab his purse, grab his wallet, kick him hard.\u201d The defendant then picked up a hammer and swung it at Wilkes\u2019 head; it struck a glancing blow and the head of the hammer flew across the street. The woman then grabbed Wilkes\u2019 legs; he fell, and the three persons kicked him as he lay on the ground.\nWilkes testified that after the three had escaped, he noticed that $11 was missing from his wallet, as well as a valuable gold coin piece he wore around his neck. Shortly afterwards a squad car arrived and Wilkes got into the car to talk with the officers. At this time another squad car (with the two suspects in it) pulled up and parked about seven feet away. Wilkes was unable to see the suspects well enough to recognize them from that distance. When both squad cars went to the police station Wilkes got out and faced the suspects and identified them as the men who had attacked him.\nWilkes testified that he had jerked a jacket off the defendant when he tried to get away, and that the other man (Catalano) was wearing a dark sweater, either black or maroon. Wilkes stated that during the attack he was struck on the side four or five times, resulting in swelling, two broken ribs and a swollen ear.\nOfficer Victor Hoffman testified that he was in a patrol car on April 21, 1966, about 8:30 p. m., when he was stopped by a citizen on North Damen Avenue; that he then went to Damen and Homer, where he saw Wilkes and noted his bruised and swollen neck and torn trousers. After talking with Wilkes, Hoffman and his partner proceeded to an alley south of Homer and Damen, where they saw the defendant and Catalano running out of an adjoining alley; the men were disheveled in appearance, and when searched by the police Catalano was found to have $12 on his person; no money was found on the defendant. The defendant was wearing a white shirt, gray trousers with hanging suspenders, and the shirt was outside the trousers. Catalano wore a maroon sweater and dark trousers. The officer placed both men under arrest.\nAt the trial the State offered in evidence a dark shirt which was found in the alley; this exhibit was objected to but was admitted over the objection.\nThe first objection made by the defendant in this court is that the identification was suggestive and violated due process of law. During the attack Wilkes had grappled with the assailants; shortly after the robbery he confronted the defendant at the police station, and at the trial he pointed out the defendant as the man who had beaten and robbed him; and he stated that he had seen the defendant a couple of times before in the neighborhood. The defendant claims that Wilkes should have identified him while he was sitting in the squad car; however, Wilkes\u2019 explanation of his failure to do so was sufficient.\nThe defendant complains of the fact that a police officer, prior to the identification at the police station, said to Wilkes: \u201cWe have the men who assaulted you.\u201d\nDefendant also complains that Wilkes identified him without his having been placed in a lineup. In People v. Snell, 74 Ill App2d 12, 219 NE2d 554, the court held that while it is preferable to have a witness identify a party from a group of unknown persons, failure to follow this practice goes only to the weight of the evidence, and is not necessary. The court said at page 22:\n\u201cWhere, as here, the witness was present during the commission of the crime, had ample opportunity to observe his assailant, and was called upon to make the identification after a lapse of less than an hour from the time of the occurrence, his testimony, if otherwise credible, can be sufficient for conviction notwithstanding failure to employ an ideal identification procedure.\u201d\nIn People v. Byrd, 21 Ill2d 114, 171 NE2d 782, the court said at 117:\n\u201cDefendant also contends that at the lineup the police officers pointed out and identified defendant before the witnesses had identified him. The evidence is conflicting on this point. However, this circumstance, even if proved, would go only to the weight and credibility of the witnesses\u2019 testimony.\u201d\nThe defendant cites People v. Botulinski, 383 Ill 608, 50 NE2d 716, in which the rule is set out that the proper way to have a witness identify, without suggestion from any officers or any interested persons, is to pick out the guilty party from a number of persons unknown to the witness. However, on page 615 the court said:\n\u201cWe have held that 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. [Citing People v. Sanders, 357 Ill 610.]\"\nIn the Sanders case the court held that where the witness is told in advance of the identification that the guilty party is in the custody of the police and the prisoner is produced alone for the purpose of identification, the weight of the evidence of identification is impaired. And it has been held that a positive identification by one credible witness is sufficient to support a conviction. People v. Saravia, 64 Ill App2d 479, 211 NE2d 560; People v. Soldat, 32 Ill2d 478, 207 NE2d 449.\nIn the instant case, during the struggle, Wilkes had full opportunity to observe the defendant, and he testified that his recognition of the defendant was aided by the fact that he had seen him a couple of times before in the neighborhood. He identified the defendant at the police station shortly after the robbery, and again in court. His identification was sufficient, and the trial court properly accepted it.\nWilkes also testified that when the police talked to him in the squad car he told them the assailant had bushy black hair; that he was a little taller than Wilkes, who was 5' 9\"; and that he was a very young man. (The police officer testified that in his opinion the defendant was 19 or 20 years old.) He did not mention the matter of the man\u2019s weight. The defendant complains that the prosecutor said to the jury that Wilkes had stated that he thought the defendant was probably Mexican or Indian. No such statement was made by Wilkes, but this inadvertent remark on the part of the State, while improper, was not reversible error.\nThe defendant also argues that the foregoing argument of the prosecutor was improper, as well as his statement about a shirt found by the police in the alley near the place of arrest. The defendant was said to have walked out of an alley a few feet from where the incident took place, and that the shirt matching the description given by Wilkes was found in the alley. It is true that Wilkes gave no description of the shirt worn by defendant, and the police officers testified that the defendant was wearing a white shirt at the time of his arrest. The argument was not prejudicial.\nThe prosecutor also stated that Wilkes had testified he saw the defendant \u201ctake off across Damen Avenue, across the street\u201d; Wilkes did not testify to such a fact. What he did say was that at the time the police officers first came to question him, the defendant had already fled; \u201cthey were across the street, yes.\u201d At the time of the assault the truck was parked on Homer, approximately 4 or 5 feet west of Damen. Officer Hoffman testified that after the conversation with Wilkes, he and his partner went looking for two men, and they went into the alley south of Homer Street, which was eastbound from Damen, about 100 feet from the intersection. The statement of the prosecutor concerning the testimony of the police officers was not improper. Furthermore, no objection was made to the argument at the trial. In People v. Conrad, 81 Ill App2d 34, 49, 225 NE2d 713, the court said:\n\u201cDefendant attempts to raise on appeal for the first time the alleged prejudicial nature of other statements made by the prosecutor. However, since no objection was made at trial the issue is waived.\u201d\nAnd the court in People v. Gaston, 85 Ill App2d 403, 229 NE2d 404, said:\n\u201cWhere the defendant\u2019s attorney does not object to the argument deemed improper, the court will not reverse unless it appears that he was deprived of his right to a fair trial.\u201d\nIt has been held that statements based on the evidence or on legitimate inferences deducible therefrom do not transcend the bounds of legitimate argument. People v. Woods, 26 Ill2d 557, 188 NE2d 1; People v. Allen, 73 Ill App2d 256, 219 NE2d 653.\nThe arguments made by the prosecutor in the instant case did not have the effect of depriving the defendant of a fair trial, and therefore should not be considered by this court.\nDefendant also argues that he was deprived of a fair trial because of improper remarks by the court. As we have pointed out earlier in the opinion, the court ordered the defendant excluded from the courtroom in accord with the rule laid down in People v. DeSimone, 9 Ill2d 522, 138 NE2d 556, in which case the defendant refused to enter the courtroom at various stages of the proceeding, and thus voluntarily absented himself from the trial. On other occasions he caused disorder in the court by profane outbursts directed at witnesses in the court. After one such outburst the court caused the defendant to be removed from the courtroom. The Supreme Court held that the provision of section 9 of Article II of the Illinois Constitution (which ordains that an accused shall have the right to appear and defend in person) may be waived; and the court further held that the defendant did waive his right.\nIn the instant case, after the defendant was removed from the courtroom the following colloquy occurred between the court and defense counsel (Van Zeyl):\nThe Court: Mr. Van Zeyl, did you have any conversations with him about being present during the trial?\nVan Zeyl: Yes, I did.\nThe Court: What did he say ?\nVan Zeyl: Yesterday afternoon at the County Jail he indicated to me by inference\u2014not positively, but just asked me the question as to what would happen if he did something in the courtroom. I made the remark to him, not to play games with me, I am his lawyer. I told him that if he so chooses he would voluntarily absent himself from the courtroom. He wanted to know what that meant and I explained, I told him that he had a right to waive his presence during the trial.\nThe Court: And he has chosen not to be present.\nVan Zeyl: I also spoke to him back in the lockup in back of the courtroom.\nThe Court: Today?\nVan Zeyl: Yes. I went back there at two o\u2019clock before the jury was summoned into the courtroom and I asked him what he wanted to do here today. He told me \u201cleave me alone.\u201d I asked him, \u201cWell, I\u2019m your lawyer, I have to know what I am doing when he stepped out before your Honor.\u201d\nHe said, \u201cleave me alone,\u201d and he grabbed me by the tie and tried to pull me through the bars. At this point I saw no further use in conducting any kind of a discussion with him, so that\u2019s all I know at this time.\nDuring the trial defense counsel made the following statement to the jury:\nConfine your deliberations solely to what you heard from the stand, irrespective of what mental problem the defendant may have now or may have had yesterday or\u2014\nAt this point the Assistant State\u2019s Attorney objected, saying there was no showing of any mental problem, and the objection was sustained. Defense counsel said, \u201cWell, judge, I think that\u2019s obvious.\u201d The court said: \u201cNow, I said sustained, Mr. Van Zeyl.\u201d Mr. Van Zeyl said, \u201cAll right.\u201d The court said, \u201cI don\u2019t think there is.\u201d\nOn September 8, 1966, the defendant had a fair trial and was proved guilty beyond a reasonable doubt. The Criminal Code of 1961 (Ill Rev Stats 1963, c 38, \u00a7 1-7 (m)) is as follows:\nWhen a person shall have been convicted of 2 or more offenses which did not result from the same conduct, either before or after sentence has been pronounced upon him for either, the court in its discretion may order that the term of imprisonment upon any one of the convictions may commence at the expiration of the term of imprisonment upon any other of the offenses.\nThe Committee which prepared the draft of the Code adopted by the legislature has said in its comments:\nSubsection (m) is intended to codify the holding in People v. Schlenger, 13 Ill2d 63, 147 NE2d 316 (1958), by the implicit converse of the provision stated, i. e., if the offenses resulted from the same conduct the defendant may not be sentenced on both, either concurrently or consecutively. \u201cConduct\u201d is defined in section 2-4 and is used in the sense of \u201cthe same transaction\u201d discussed in Schlenger, supra.\nSee People v. Schlenger, 13 Ill2d 63, 147 NE2d 316; People v. Duszkewycz, 27 Ill2d 257, 189 NE2d 299; People v. Ritchie, 66 Ill App2d 302, 213 NE2d 651; and People v. Ritchie, 36 Ill2d 392, 222 NE2d 479. In People v. Peery, 81 Ill App2d 372, 225 NE2d 730, it was held that even where the question of the improper sentences is not raised (as it was not in the case before us) in the reviewing court, the reviewing court must take notice of it.\nUnder the authority of the statute and the above cited cases, concurrent sentences for crimes resulting from the same conduct are improper, and the conviction of the lesser crime must be reversed. Therefore, the conviction on the robbery charge is affirmed, and the conviction for aggravated battery is reversed.\nAffirmed in part, reversed in part.\nLYONS, P. J. and BUEKE, J., concur.", "type": "majority", "author": "MR. JUSTICE MCCORMICK" } ], "attorneys": [ "Gerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.", "John J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Appellee, v. Paul Durant, Appellant.\nGen. No. 51,924.\nFirst District, Second Division.\nJanuary 28, 1969.\nGerald W. Getty, Public Defender of Cook County, of Chicago (George L. Lincoln and James J. Doherty, Assistant Public Defenders, of counsel), for appellant.\nJohn J. Stamos, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and Robert B. Rosen, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0216-02", "first_page_order": 222, "last_page_order": 234 }