{ "id": 2472829, "name": "People of the State of Illinois, Plaintiff-Appellee, v. Alfred Armstrong and Jerry Sumlin, Defendants-Appellants", "name_abbreviation": "People v. Armstrong", "decision_date": "1970-07-31", "docket_number": "Gen. Nos. 52,995, 52,996. (Consolidated.)", "first_page": "457", "last_page": "466", "citations": [ { "type": "official", "cite": "127 Ill. App. 2d 457" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "235 NE2d 819", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill2d 436", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857997 ], "pin_cites": [ { "page": "443" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0436-01" ] }, { "cite": "232 NE2d 702", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "38 Ill2d 510", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2860234 ], "pin_cites": [ { "page": "518" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/38/0510-01" ] }, { "cite": "233 NE2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "39 Ill2d 119", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857303 ], "opinion_index": 0, "case_paths": [ "/ill-2d/39/0119-01" ] }, { "cite": "214 NE2d 9", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill App2d 384", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 5289033 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/67/0384-01" ] }, { "cite": "221 NE2d 778", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "77 Ill App2d 55", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2571960, 2572995 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/77/0055-02", "/ill-app-2d/77/0055-01" ] }, { "cite": "133 NE 263", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "300 Ill 361", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2426418 ], "pin_cites": [ { "page": "365" } ], "opinion_index": 0, "case_paths": [ "/ill/300/0361-01" ] }, { "cite": "246 NE2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill2d 139", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2847545 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0139-01" ] }, { "cite": "221 NE2d 73", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "74 Ill App2d 418", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2580040 ], "pin_cites": [ { "page": "429-30" } ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/74/0418-01" ] }, { "cite": "356 US 571", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6164793 ], "opinion_index": 0, "case_paths": [ "/us/356/0571-01" ] }, { "cite": "211 NE2d 744", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "33 Ill2d 445", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2886212 ], "opinion_index": 0, "case_paths": [ "/ill-2d/33/0445-01" ] }, { "cite": "207 NE2d 68", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "32 Ill2d 398", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2841481 ], "opinion_index": 0, "case_paths": [ "/ill-2d/32/0398-01" ] }, { "cite": "243 NE2d 825", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill2d 390", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2851935 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0390-01" ] } ], "analysis": { "cardinality": 794, "char_count": 14410, "ocr_confidence": 0.602, "pagerank": { "raw": 6.638630937555235e-08, "percentile": 0.40479541471336744 }, "sha256": "6bec5fa8c4c38a728aee8085ed317304209b96023ec22bb47e2883948e42bf10", "simhash": "1:8f3ef3d784a43def", "word_count": 2410 }, "last_updated": "2023-07-14T19:26:04.940549+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "People of the State of Illinois, Plaintiff-Appellee, v. Alfred Armstrong and Jerry Sumlin, Defendants-Appellants." ], "opinions": [ { "text": "MR. JUSTICE ENGLISH\ndelivered the opinion of the court.\nOFFENSE CHARGED\nArmed robbery. Ill Rev Stats 1963, c 38, \u00a7 18-2.\nJUDGMENT\nAfter a jury trial, both defendants were found guilty and sentenced to terms of 15 to 20 years (Armstrong) and 10 to 15 years (Sumlin), to run consecutively with defendants\u2019 prior sentences for murder, if the latter are finally upheld.\nDEFENDANTS\u2019 CONTENTIONS ON APPEAL\n1. Defendants were denied due. process of law by being prosecuted and convicted twice for the same conduct.\n2. The trial court erred when it denied defendants\u2019 pretrial motion to prohibit the State\u2019s use of a prior murder conviction for impeachment purposes.\n3. The trial court erred in refusing one of defendants\u2019 tendered jury instructions.\n4. The sentences imposed on defendants are excessive.\n5. Defendant Armstrong was denied adequate representation by counsel.\nEVIDENCE\nEmil Misiunas, for the State:\nOn April 18 and 19, 1966, he owned a tavern at 2419 West Marquette Road. At around 10:30 to 11:00 p. m., on the 18th, he was at the tavern when Charles Size-more arrived. Sizemore\u2019s wife came about midnight. They were the only persons present, and he was serving them. During the evening, Sizemore had four or five seven-ounce beers and his wife had one or two. At approximately 1:00 a. m., on April 19, three men entered the premises. One man, who was short, ran by him toward the cooler. Another, identified as defendant Armstrong, held a shotgun and said, \u201cHands up and don\u2019t look around.\u201d Armstrong also told the customers to keep their hands on the bar. The witness kept watching the man with the shotgun until the third man, identified as defendant Sumlin, came behind the bar. Sumlin asked him where the gun was, so he turned and faced Sumlin and told him he had no gun. Sumlin then told him to open the cash register and took money from his shirt pocket and bottles from the bar. He heard the short man say that he discovered some whiskey cases in the storage room, and Armstrong said, \u201cAll right, take it.\u201d\nArmstrong then ordered the witness to come out from behind the bar and face the wall alongside the customers. Then Armstrong ordered all three into the washroom and told them to stay there. A few minutes later, the witness opened the door of the washroom, saw that defendants were gone, and called the police.\nHe testified that the tavern was well lit, bright enough to \u201cread a newspaper on the bar.\u201d He couldn\u2019t tell what color clothes the three men were wearing because he was \u201cscared,\u201d not because it was too dark. He identified both defendants in a lineup the day after the occurrence.\nCharles Sizemore, for the State:\nHe was in the tavern on the night in question when four fellows came in and defendant Armstrong, slamming shut the bolt on a shotgun, said, \u201cIt is a holdup. Put your hands on the bar.\u201d Defendant Sumlin went behind the bar to the cash register. Another went to the back room and the fourth began taking bottles off the back bar.\nArmstrong then took the witness\u2019 wallet, and asked for and took money from his wife\u2019s purse. He was told by Armstrong to get up and face the wall and was then made to get in the washroom. He heard some noise, the slam of the front door, and, after waiting for a few minutes, came out and called the police. The bar was lit well enough to see people\u2019s faces.\nHe identified both defendants in a lineup on the night following the occurrence.\nLoretta Sizemore, for the State:\nHer testimony was substantially similar to that of her husband.\nEunice Sumlin, on behalf of defendant Sumlin:\nShe is the mother of Jerry Sumlin and attested to his good reputation for \u201cpeaceableness and lawabidingness.\u201d\nOPINION\nDefendants initially contend that they were denied due process of law by being prosecuted twice for the same criminal conduct. In order to understand the context of defendants\u2019 argument, it is necessary to consider the appropriate facts as set forth in defendants\u2019 brief, although they are not to be found in this record. On the night of April 18 and 19, 1966, defendants robbed Misiunas\u2019 tavern, robbed another tavern, and shot and killed an off-duty policeman in an attempted robbery of yet a third tavern. All three crimes occurred within a short distance and a short time of one another. Three indictments were returned and the one for felony-murder was tried in September, 1966. Both defendants were convicted. Sumlin\u2019s conviction was affirmed, while Armstrong\u2019s was reversed and the cause as to him remanded for a new trial. People v. Armstrong (Sumlin), 41 Ill2d 390, 243 NE2d 825. The instant case was brought to trial in November, 1967.\nThe Illinois Criminal Code provides the following pattern for multiple prosecutions:\n(a) When the same conduct of a defendant may establish the commission of more than one offense, the defendant may be prosecuted for each such offense.\n(b) If the several offenses are known to the proper prosecuting officer at the time of commene-ing the prosecution and are within the jurisdiction of a single court, they must be prosecuted in a single prosecution, except as provided in Subsection (c), if they are based on the same act.\n(c) When 2 or more offenses are charged as required by Subsection (b), the court in the interest of justice may order that one or more of such charges shall be tried separately.\nIll Rev Stats 1965, c 38, \u00a7 3-3.\nDefendants argue that the State was bound to prosecute \u201call known related indictments\u201d at the first trial. This contention is without merit, as the statute merely requires that multiple offenses \u201cbased on the same act\u201d must be tried together. See the Committee Comments to the above-quoted statute, where it is stated that \u201cSection 3-3 is not intended to cover the situation in which several offenses . . . arise from a series of acts which are closely related with respect to the offender\u2019s single purpose or plan.\u201d SHA, c 38, \u00a7 3-3.\nDefendants place reliance on People v. Golson, 32 Ill2d 398, 207 NE2d 68, and People v. Mullenhoff, 33 Ill2d 445, 211 NE2d 744. However, there are pertinent factual differences between those cases and the case at bar. In Golson, the court, in reversing the conviction of the defendants in a second trial, commented that \u201cthese defendants engaged in but a single act of misconduct.\u201d Golson, supra, at 412. They had been tried under the felony-murder doctrine for two murders, and neither had been physically responsible for the simultaneous deaths. (Felony-murder is now part of the Criminal Code. Ill Rev Stats 1963, c 38, \u00a7 9-1(3).) Mullenhoff also involved a single act, for which defendant was tried separately for deviate sexual assault and attempted rape. The court invoked the \u201cfundamental unfairness\u201d doctrine (Ciucci v. Illinois, 356 US 571; Golson, supra), in holding that the State was barred by the first acquittal from proceeding on the second offense.\nThe separate trials under our consideration, however, resulted from separate and distinct acts of defendants. The evidence in the two causes was completely different, and the offenses were committed in two separate taverns at different, albeit closely related, times. See People v. Calloway, 74 Ill App2d 418, 429-30, 221 NE2d 73. We hold that defendants\u2019 rights were not violated because they were prosecuted for the criminal act which is the subject of this case, it being separate and distinct from the act for which they had previously been convicted.\nDefendants\u2019 next contention is that the trial court erred by denying their pretrial motion that would have prevented the State from introducing evidence of defendants\u2019 prior murder convictions, for the purpose of impeaching defendants as witnesses if they were to testify. Defendants claim that this effectively denied their right to testify in contravention of their constitutional right to due process of law. The record, in fact, shows that defendants did not testify on their own behalf and, correspondingly, that evidence of the convictions was not offered at trial. Therefore, we believe that defendants\u2019 claim that they were effectively denied their right to testify, is mere conjecture. Defendants opted not to testify for reasons not apparent in the record, and speculation will not serve as a legitimate basis for reversal of this appeal.\nThe issue, however, remains as to whether the trial court erred in denying defendants\u2019 motion, particularly in view of the fact that their murder convictions were pending on appeal. This question was recently answered in People v. Bey, 42 Ill2d 139, 246 NE2d 287, where the court held such impeachment to have been proper, stating at page 146:\nThe statutory provision allowing prior convictions to be shown for the purpose of affecting the witness\u2019s credibility makes no mention of convictions on appeal. (Ill Rev Stats 1965, ch 38, par 155-1.) Even in this day of virtually automatic appeals, the judgment of the trial court is still a determination of guilt which stands until it is reversed.\nWe hold that the trial court\u2019s ruling was proper, given the circumstances of this case.\nDefendants claim that the court erred in refusing to give the following instruction to the jury:\nThe Court instructs the jury that it is your duty to resolve all facts and circumstances in evidence on the theory of innocence rather than guilt, if that reasonably may be done.\nOur review of the record indicates that three instructions (all tendered by defendants) were given to the jury pertaining to the presumption of innocence and the State\u2019s burden of proving guilt beyond a reasonable doubt. We believe that when the instructions are considered as a whole \u2014 as they properly should be\u2014 the jury was adequately informed as to the applicable law. The refused instruction would not have added to the jury\u2019s, understanding of the law, and, on account of its repetitive effect alone, it should not have been given. See People v. Burns, 300 Ill 361, 365, 133 NE 263; People v. Payne, 77 Ill App2d 55, 221 NE2d 778; People v. Dilworth, 67 Ill App2d 384, 214 NE2d 9.\nDefendants also contend that their sentences are excessive, objecting especially to the court\u2019s directive that the sentences run consecutively with defendants\u2019 prior convictions for murder, if such convictions are finally upheld. They ask that this court exercise its power to make the sentences concurrent with the prior sentences and also to reduce them. Supreme Court Rule 615; Ill Rev Stats 1967, c 110A, \u00a7 615 (b) (4).\nSection 1-7 (m) of the Criminal Code (Ill Rev Stats 1967, c 38, \u00a7 1-7 (m)) provides that the court in its discretion may impose consecutive sentences \u201cwhen a person shall have been convicted of 2 or more offenses which did not result from the same conduct . . See People ex rel. Starks v. Frye, 39 Ill2d 119, 233 NE2d 413. We have already determined that defendants\u2019 convictions resulted from separate and distinct acts or conduct, and we find no basis for disturbing the trial court\u2019s exercise of its discretion in imposing consecutive sentences. \u201cThe sentence imposed was within the statutory limits and will not be disturbed unless it constitutes a clear departure from fundamental law or is not proportioned to the nature of the offense.\u201d People v. Gold, 38 Ill2d 510, 518, 232 NE2d 702. It was brought out, in the hearing in aggravation and mitigation, that both defendants had criminal records other than their prior murder convictions. The trial judge stated that he was not considering the murder convictions as matters in aggravation in view of the fact that they were pending on appeal. We believe that a sound determination was made by the court concerning the punishment to be imposed, and we will not modify that penalty.\nDefendant Armstrong finally contends that he was denied adequate representation by counsel. His specific objections are twofold: first, the Public Defender\u2019s unwarranted delay in proceeding to trial deprived him of his right to a speedy trial; second, the Public Defender who represented him at trial did not have sufficient time to prepare his case adequately.\nArmstrong was arrested on April 19, 1966. The trial on the murder indictment commenced on September 12, 1966, and the instant trial began on November 2, 1967. The instant record is replete with motions for continuance, some requested by the prosecution and others by defense counsel. Armstrong himself delayed the proceedings on several occasions by moving for substitution of judges and appointment of private counsel. It is also worthy of note that he did not make any objections to the actions of his attorney, nor did he complain of the delay.\nDefendant relies on People v. Love, 39 Ill2d 436, 443, 235 NE2d 819, for the proposition that \u201cdelay before trial may be so prolonged that prejudice will be presumed.\u201d The court there goes on to state at page 443:\nHowever, in a case where it is not clear that the right to a speedy trial was denied, the fact whether the accused was or was not in fact prejudiced through delay must be importantly considered in deciding that the delay was reasonable or unreasonable.\nDefendant has made no showing or claim that prejudice resulted to him by the delay in this case. Under the circumstances, we cannot say that \u201cprejudice will be presumed,\u201d and, absent any showing of prejudice, we believe that defendant\u2019s right to a speedy trial and right to due process have not been violated.\nDefendant Armstrong also claims that the Public Defender did not adequately represent him at the trial. There is nothing to indicate that the Public Defender\u2019s performance showed a lack of preparation which could have affected the outcome of the case. On the contrary, a review of the record indicates that he conducted a well-prepared and thorough defense, considering the factual circumstances of the case. We find that defendant was not prejudiced in his representation by the Public Defender and that he was not denied effective assistance of counsel.\nThe judgment is affirmed as to both defendants.\nAffirmed.\nDRUCKER and LEIGHTON, JJ., concur.", "type": "majority", "author": "MR. JUSTICE ENGLISH" } ], "attorneys": [ "Melvin B. Goldberg, of Chicago, for appellants.", "Edward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State\u2019s Attorneys, of counsel), for appellee." ], "corrections": "", "head_matter": "People of the State of Illinois, Plaintiff-Appellee, v. Alfred Armstrong and Jerry Sumlin, Defendants-Appellants.\nGen. Nos. 52,995, 52,996. (Consolidated.)\nFirst District, Fourth Division.\nJuly 31, 1970.\nMelvin B. Goldberg, of Chicago, for appellants.\nEdward V. Hanrahan, State\u2019s Attorney of Cook County, of Chicago (Elmer C. Kissane and James Veldman, Assistant State\u2019s Attorneys, of counsel), for appellee." }, "file_name": "0457-01", "first_page_order": 463, "last_page_order": 472 }