{ "id": 5475989, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLEN McEWEN, Defendant-Appellant", "name_abbreviation": "People v. McEwen", "decision_date": "1982-02-09", "docket_number": "No. 80-1613", "first_page": "410", "last_page": "414", "citations": [ { "type": "official", "cite": "104 Ill. App. 3d 410" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "422 N.E.2d 627", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "85 Ill. 2d 261", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5470220 ], "pin_cites": [ { "page": "278" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/85/0261-01" ] }, { "cite": "385 N.E.2d 671", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "74 Ill. 2d 329", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2994485 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-2d/74/0329-01" ] }, { "cite": "368 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "362 N.E.2d 312", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 290", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5465392 ], "pin_cites": [ { "page": "297" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0290-01" ] }, { "cite": "280 N.E.2d 230", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. 2d 390", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2910797 ], "pin_cites": [ { "page": "394-95" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0390-01" ] }, { "cite": "261 N.E.2d 314", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 514", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2896381 ], "pin_cites": [ { "page": "519" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0514-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "pin_cites": [ { "page": "282" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] }, { "cite": "402 N.E.2d 746", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "82 Ill. App. 3d 386", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3224842 ], "pin_cites": [ { "page": "393" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/82/0386-01" ] }, { "cite": "69 S. Ct. 1045", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1980, "opinion_index": 0 }, { "cite": "93 L. Ed. 1722", "category": "reporters:federal", "reporter": "L. Ed.", "year": 1980, "opinion_index": 0 }, { "cite": "337 U.S. 910", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 572384, 572298, 572397, 572317, 572592, 572626, 572308, 572663, 572445 ], "year": 1980, "opinion_index": 0, "case_paths": [ "/us/337/0910-06", "/us/337/0910-07", "/us/337/0910-08", "/us/337/0910-01", "/us/337/0910-03", "/us/337/0910-05", "/us/337/0910-02", "/us/337/0910-09", "/us/337/0910-04" ] }, { "cite": "83 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1949, "opinion_index": 0 }, { "cite": "402 Ill. 74", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2617944 ], "year": 1949, "pin_cites": [ { "page": "80" } ], "opinion_index": 0, "case_paths": [ "/ill/402/0074-01" ] }, { "cite": "392 N.E.2d 347", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "73 Ill. App. 3d 577", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3262489 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/73/0577-01" ] } ], "analysis": { "cardinality": 524, "char_count": 7443, "ocr_confidence": 0.897, "pagerank": { "raw": 7.910444093458357e-08, "percentile": 0.46116279366094315 }, "sha256": "f33c18cc55d465ea8ea5bd4cc0f6201f30e0644640674e6c7174ae4ae96a522b", "simhash": "1:6b6bbb1cb6afd5e7", "word_count": 1235 }, "last_updated": "2023-07-14T21:00:33.067215+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLEN McEWEN, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE HARTMAN\ndelivered the opinion of the court:\nA jury found defendant guilty of armed robbery and armed violence based on the predicate felony of unlawful restraint. He was sentenced to a term of 8 years for each offense to be served concurrently. Defendant appeals. Among the issues presented are whether: the trial court properly allowed testimony of a witness that defendant asked her not to \u201ccome to court\u201d; the trial court properly denied defendant\u2019s motion for a continuance to talk to the victim when defendant found new evidence; and defendant\u2019s conviction of both armed violence based on unlawful restraint and armed robbery was improper.\nThe State\u2019s evidence included testimony from Herbert Ferguson, the victim (victim), who stated that on August 17,1978, between 5 and 6 p.m., three men walked towards him as he approached his auto. He entered the driver\u2019s side of his car but the \u201cleader\u201d pushed him over to the passenger side and \u201cgrabbed\u201d his keys. The \u201cleader\u201d drove while the other two were seated in the back, one of whom was defendant, who pointed a black revolver with brown handles at his head. He was told not to make any \u201cfunny moves\u201d or else \u201chis brains would be blown out.\u201d The trip lasted about 55 minutes and they told him to get out. The offenders drove off with his car, eyeglasses, wallet, watch and briefcase containing travel brochures.\nDoretha Hammond testified for the State. She shared an apartment with Elgin James (who initially was a co-defendant until defendant\u2019s motion for severance was granted). In the evening hours on the day in controversy, James, McEwen, and Steven Levy entered her apartment possessing a wallet containing victim\u2019s license and picture, a briefcase containing travel brochures and a black gun with brown handles. The three men told her that they waited outside a parking lot for a car owner and then held him at gunpoint. Defendant privately told her \u201chow scared the man was when they held him at gunpoint.\u201d In March 1980, defendant approached her outside of her school and asked her not to come to court.\nAt the close of the State\u2019s case, defense counsel requested a continuance in order to interview the victim concerning a conversation he allegedly had with defendant\u2019s father and brother-in-law to the effect that he was \u201creally unsure who had the gun.\u201d The motion was denied.\nI\nDefendant contends that the trial court failed to weigh the potential prejudice to defendant as against its probative value when it improperly allowed Hammond to testify that defendant asked her not to \u201ccome to court,\u201d because this constituted evidence of another crime, namely, intimidation of a witness. (Ill. Rev. Stat. 1979, ch. 38, par. 32 \u2014 4(b).) Defendant cites People v. Smith (1979), 73 Ill. App. 3d 577, 392 N.E.2d 347, in support of his assertion that a court\u2019s failure to recognize its discretion is reversible error. That case, however, is easily distinguishable since it involved the admission of defendant\u2019s prior conviction of indecent liberties with a child 8)i years before the offense charged. The instant case involves the admission of evidence of another crime clearly relevant to consciousness of guilt. Assuming, arguendo, that such a conversation could be construed as intimidation of a witness, in a criminal case it is admissible and relevant to show consciousness of guilt. People v. Gambony (1948), 402 Ill. 74, 80, 83 N.E.2d 321, cert, denied sub nom. Gambony v. Ragen (1949), 337 U.S. 910, 93 L. Ed. 1722, 69 S. Ct. 1045; People v. Jones (1980), 82 Ill. App. 3d 386, 393, 402 N.E.2d 746.\nII\nDefendant next assigns reversible error to the trial court\u2019s denial of his motion for a continuance for the purpose of seeking an opportunity to talk to the victim about his purported statements to his father and brother-in-law in the hallway of the courtroom at the close of the State\u2019s case, to the effect that he was unsure who really held the gun. The State maintains that defendant failed to preserve this issue on appeal by failing to raise it in his written motion for a new trial. People v. Pickett (1973), 54 Ill. 2d 280, 282, 296 N.E.2d 856.\nAssuming the asserted error had been properly preserved, defendant\u2019s assertion is unpersuasive. The right to a continuance is not absolute, but is a matter for the sound discretion of the trial court. (People v. Davis (1970), 45 Ill. 2d 514, 519, 261 N.E.2d 314.) In order to reverse the trial court\u2019s exercise of discretion, it must be demonstrated that the denial of the continuance embarrassed the accused in the preparation of his defense so as to prejudice his rights. (People v. Arndt (1972), 50 Ill. 2d 390, 394-95, 280 N.E.2d 230.) In determining whether a denial of a continuance violates the accused\u2019s right to prepare an adequate defense, the circumstances of each case must be weighed, including the reasons presented to the trial judge at the time the request is denied. (People v. Lott (1977), 66 Ill. 2d 290, 297, 362 N.E.2d 312.) Defendant argues that the newly discovered evidence cast doubt on the victim\u2019s ability to identify McEwen as a party to the incident. From the argument presented to the trial court in the form of an offer of proof, however, it appears that the victim\u2019s extrajudicial statement did not change any material aspect of his identification testimony. We find no basis for disturbing the jury\u2019s verdict under these circumstances.\nIll\nDefendant maintains, finally, that the armed violence conviction arose out of the same conduct that provided the grounds for the armed robbery conviction in violation of People v. King (1977), 66 Ill. 2d 551, 368 N.E.2d 838. The State contends that defendant waived this issue by failing to raise it at trial or in his post-trial motion.\nAssuming, for the purpose of argument, that the point had been properly preserved, defendant\u2019s position must be rejected for two reasons. First, the convictions involved multiple acts. The armed violence charge arose out of the unlawful restraint which occurred when the offenders accosted the victim at gunpoint and pushed him into the car. (Ill. Rev. Stat. 1979, ch. 38, pars. 10 \u2014 3(a) and 33A \u2014 2.) The armed robbery charge arose from later conduct when the offenders took the victim\u2019s watch, wallet, briefcase, glasses and car. (Ill. Rev. Stat. 1979, ch. 38, par. 18 \u2014 2(a).) Second, armed robbery and armed violence based on unlawful restraint are separate crimes; each requires the existence of different facts to sustain a conviction. (People v. Vriner (1978), 74 Ill. 2d 329, 385 N.E.2d 671.) Finally, it should be noted that there is no \u201cdouble\u201d enhancement involved here since the predicate felony of unlawful restraint by definition may be committed without a dangerous weapon. People v. Haron (1981), 85 Ill. 2d 261, 278, 422 N.E.2d 627.\nFor the reasons aforesaid, defendant\u2019s convictions cannot be set aside. The jury verdict and judgment accordingly must be affirmed.\nAffirmed.\nSTAMOS, P. J., and DOWNING, J., concur.", "type": "majority", "author": "JUSTICE HARTMAN" } ], "attorneys": [ "Ralph Ruebner and Bradley S. Bridge, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David A. Shapiro, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GLEN McEWEN, Defendant-Appellant.\nFirst District (2nd Division)\nNo. 80-1613\nOpinion filed February 9, 1982.\nRehearing denied March 1, 1982.\nRalph Ruebner and Bradley S. Bridge, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Casimir J. Bartnik, and David A. Shapiro, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0410-01", "first_page_order": 432, "last_page_order": 436 }