{ "id": 3591373, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND SHEPARD, Defendant-Appellant", "name_abbreviation": "People v. Shepard", "decision_date": "1983-05-09", "docket_number": "No. 82\u20140096", "first_page": "598", "last_page": "604", "citations": [ { "type": "official", "cite": "114 Ill. App. 3d 598" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "374 N.E.2d 194", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "71 Ill. 2d 166", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5448796 ], "opinion_index": 0, "case_paths": [ "/ill-2d/71/0166-01" ] }, { "cite": "432 N.E.2d 861", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "89 Ill. 2d 352", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5493967 ], "pin_cites": [ { "page": "364" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/89/0352-01" ] }, { "cite": "431 N.E.2d 1210", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "103 Ill. App. 3d 792", "category": "reporters:state", "reporter": "Ill. 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Ct.", "year": 1979, "opinion_index": 0 }, { "cite": "54 L. Ed. 2d 181", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1979, "opinion_index": 0 }, { "cite": "434 U.S. 894", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6405124, 6405222, 6405325, 6406317, 6405935, 6405421, 6405041, 6405555, 6404951, 6405786, 6405661, 6406111 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/us/434/0894-03", "/us/434/0894-04", "/us/434/0894-05", "/us/434/0894-12", "/us/434/0894-10", "/us/434/0894-06", "/us/434/0894-02", "/us/434/0894-07", "/us/434/0894-01", "/us/434/0894-09", "/us/434/0894-08", "/us/434/0894-11" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "year": 1977, "pin_cites": [ { "page": "559" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "288 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 374", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5394202 ], "pin_cites": [ { "page": "390" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0374-01" ] }, { "cite": "389 N.E.2d 1200", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "76 Ill. 2d 19", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2984278 ], "weight": 2, "pin_cites": [ { "page": "30" }, { "page": "29-30" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/76/0019-01" ] }, { "cite": "418 N.E.2d 739", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "84 Ill. 2d 350", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3046232 ], "pin_cites": [ { "page": "358-59" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/84/0350-01" ] }, { "cite": "97 S. 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Ed. 2d", "opinion_index": 0 }, { "cite": "431 U.S. 918", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1666, 1667, 1830, 1607, 1608, 2058, 1803, 1777, 1778, 2166, 1751, 1562, 2206 ], "opinion_index": 0, "case_paths": [ "/us/431/0918-11", "/us/431/0918-04", "/us/431/0918-07", "/us/431/0918-05", "/us/431/0918-01", "/us/431/0918-02", "/us/431/0918-03", "/us/431/0918-06", "/us/431/0918-08", "/us/431/0918-12", "/us/431/0918-09", "/us/431/0918-10", "/us/431/0918-13" ] }, { "cite": "358 N.E.2d 1116", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1977, "opinion_index": 0 }, { "cite": "65 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435628 ], "year": 1977, "pin_cites": [ { "page": "412" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0401-01" ] } ], "analysis": { "cardinality": 781, "char_count": 13569, "ocr_confidence": 0.749, "pagerank": { "raw": 1.3332492529068752e-07, "percentile": 0.6293428690244103 }, "sha256": "816709ad6467711df9beea94d0863c0569a15a6969505bcc699140346f01b915", "simhash": "1:b7a706c9bc6f8a87", "word_count": 2298 }, "last_updated": "2023-07-14T18:05:13.547892+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. ROLAND SHEPARD, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE GOLDBERG\ndelivered the opinion of the court:\nAfter a jury trial, Roland Shepard (defendant) was convicted of rape, armed robbery, two counts of home invasion, attempted murder, and three counts of aggravated battery. Defendant was sentenced to 60 years\u2019 imprisonment for each offense, all to run concurrently. He appeals.\nComplainant testified that on June 16, 1981, a man she identified as defendant came to her door. He was wearing a yellow hard hat, a white shirt and black pants. Defendant told her he had been sent by her husband to look at the gas meter. She let him in. He grabbed a flashlight she was holding and hit her on the side of her face. He demanded money. She gave him $55 or $60. He pushed her into the bedroom, undressed her and raped her. Defendant told her he had a gun. After the rape, defendant demanded guns. He took two shotguns, a pistol, and shotgun shells and left. This took about half an hour.\nComplainant\u2019s father-in-law testified he was working in the garage. Complainant ran out from the apartment. She was crying and pale. She had a bruise on her face. She told him she had been raped and that the assailant went toward North Avenue. They went inside the building and called the police.\nMichael Goy testified that on the afternoon in question at 1 to 1:30, he was driving on Keeler Avenue crossing North Avenue. He noticed a man, whom he identified as defendant, wearing a yellow hat, white shirt, and black pants. Defendant was carrying a long parcel from which a gun butt protruded. The witness was eight to 10 feet from defendant. He watched defendant walk into a gangway. The witness drove down an alley and saw defendant \u201ccome out\u201d of the gangway without the parcel and without the hard hat. The witness then walked into the gangway. He saw two guns up against a wall. He identified two shotguns in court as the guns he recovered in the gangway. Complainant identified these guns as the property of her husband. An \u201cold tablecloth\u201d was wrapped around the guns. The witness rewrapped the guns and put them in his car. He saw squad cars in the area. He turned the guns over to the police.\nPolice officer John Scheckells testified he talked to complainant and put out a \u201cflash message\u201d describing the offender. The officer then \u201ctoured the area.\u201d He observed Mr. Goy flagging down a police car. He stopped and Mr. Goy gave him the shotguns. The witness found the yellow hard hat in the gangway where Mr. Goy had found the guns. He identified a hat as the hat he found in the gangway.\nChicago police officer John Amoroso testified he was called to search for the offender. He observed defendant driving a blue Mercury. He followed defendant into a gas station. The officer demanded defendant\u2019s driver\u2019s license. While he was observing the license, defendant knocked him to the ground and pulled out the officer\u2019s revolver. Defendant told the officer, \u201cI\u2019m going to kill you. You\u2019re not taking me in for nothing.\u201d As they struggled for the gun, more police officers arrived and pulled defendant off the witness. The witness was so enraged he hit the defendant twice before being restrained by the other officers. The witness saw a .22-caliber revolver in defendant\u2019s car. This gun was identified as belonging to complainant\u2019s husband.\nChicago police officer Korhonen testified he was touring the area searching for the offender. He saw Officer Amoroso wrestling with defendant at a gas station with the officer\u2019s gun out of its holster. Defendant was holding the handle of the gun and Officer Amoroso had his hands on the cylinder. The gun was pointed at the face of Officer Amoroso. Officer Korhonen got on top of the two men and wedged his hand against the hammer to prevent the gun from firing. The trigger was pulled but the hammer struck the witness in the web of the right hand. The hammer did not hit the firing pin. Defendant was subdued and arrested.\nDefendant testified he has never had a yellow hard hat. On the day of the rape, defendant was visiting his ex-wife and stopped for a couple of hours at a factory where he formerly worked. He stopped at the gas station because his car became overheated. Officer Amoroso asked him for his driver\u2019s license. As he gave the officer his license, he noticed his car begin to roll. He tried to jump in and put it in park. Officer Amoroso pulled out his gun and struck defendant in the back of the head. Defendant grabbed the officer\u2019s arm and they began to wrestle. During the scuffle another officer came and knocked defendant unconscious. After a few seconds he awoke to find himself handcuffed and being beaten. He was taken to the police station where he was questioned and beaten some more. Defendant was admitted to the hospital. He remained there from three to five days.\nDefendant denied raping the complainant, trying to kill Officer Amoroso, or having a gun in his car. On cross-examination defendant admitted having been convicted of rape and deviate sexual assault in 1975.\nOn rebuttal, Detective Michael Heridogt testified he interviewed defendant on June 16, 1981, at the 14th District lockup. After advising defendant of his Miranda rights, defendant told the detective he had visited a woman whom he knew as \u201cDelores.\u201d Defendant gave the detective \u201cDelores\u2019 \u201d address which was complainant\u2019s address. Defendant told the detective he had intercourse with \u201cDelores\u201d on numerous occasions. \u201cDelores\u201d told defendant she was having some problems with her husband and asked him to take the guns out of the house. Defendant took the guns and secreted them in a gangway.\nThe jury had no obligation to believe the defendant\u2019s alibi which was uncorroborated and discredited by contrary evidence. (People v. Tennant (1976), 65 Ill. 2d 401, 412, 358 N.E.2d 1116, cert. denied (1977), 431 U.S. 918, 53 L. Ed. 2d 229, 97 S. Ct. 2184.) In our opinion the evidence proves defendant\u2019s guilt beyond reasonable doubt and to an overwhelming degree. No point is made by defendant regarding proof beyond a reasonable doubt.\nI\nDefendant complains of improper final arguments by the prosecution:\n(1) Reference to defense counsel as using \u201csmoke screens\u201d to confuse the jurors. This occurred twice but no objection was made to this argument. Also the prosecutor referred to defendant as a \u201cdog.\u201d No objection was made to this argument. Thus, these points are waived. People v. Jackson (1981), 84 Ill. 2d 350, 358-59, 418 N.E.2d 739.\n(2) The prosecutor said the defense attorney\u2019s role was \u201cto beat this case so that animal can walk out of here laughing at you ***.\u201d He said the jury should not be afraid of defendant and they could \u201clook that lying raping attempt murdering dog in the eye and tell him what you think of him.\u201d In these instances, the trial court sustained objections by defense counsel and instructed the jury to disregard the objectionable matter. These errors were therefore cured. People v. Baptist (1979), 76 Ill. 2d 19, 30, 389 N.E.2d 1200.\n(3) The prosecutor stated:\n\u201cOfficer Korhonen could have killed him right then and there, he would have been justified, he would have saved all the tax payers\u2019 money if he did kill him right there and he could have done it because he was trying to kill Officer Amoroso. He would have done us all a favor by killing him there.\u201d\nWe find this statement by the prosecutor to be reprehensible and uncalled for. This type of argument constitutes an insult to the court and to the dignity of the trial bar. The situation is aggravated by the fact that the evidence of guilt is overwhelming. Against overpowering evidence of guilt, we have simply an alibi by defendant which was absolutely uncorroborated and which is negated by the rebuttal testimony such as that of Detective Heridogt. There was no need for the prosecutor to engage in these ugly tactics. Perhaps some reports to the Attorney Registration and Disciplinary Commission are required to provide an antidote for this virulent condition. In view of the overwhelming nature of the evidence, we are impelled to conclude that defendant was not prejudiced by the improper argument. (People v. Baptist (1979), 76 Ill. 2d 19, 29-30.) Also, defendant has failed to show that any or all of the assailed arguments constituted a material factor in the conviction. People v. Clark (1972), 52 Ill. 2d 374, 390, 288 N.E.2d 363.\n(4) The trial court instructed the jury that remarks of counsel were not evidence. (Illinois Pattern Jury Instruction (IPI), Criminal, No. 1.03 (2d ed. 1981); see People v. King (1977), 66 Ill. 2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L. Ed. 2d 181, 98 S. Ct. 273.) Also, the trial judge instructed the jury that the facts were to be determined solely from the evidence before them. IPI Criminal No. 1.01; People v. Olejniczak (1979), 73 Ill. App. 3d 112, 121-22, 390 N.E.2d 1339.\n(5) It is manifest here that the evidence of guilt is so overwhelmingly strong that these assailed arguments were harmless error beyond any reasonable doubt. People v. Skorusa (1973), 55 Ill. 2d 577, 585, 304 N.E.2d 630, cited in People v. Battles (1981), 93 Ill. App. 3d 1093, 1099, 418 N.E.2d 22. See also People v. Warmack (1980), 83 Ill. 2d 112, 128-29, 413 N.E.2d 1254.\nOnly these reasons restrain us from reversing the conviction before us.\nII\nIn urging ineffective assistance of counsel, defendant cites trial counsel\u2019s \u201clack of preparation,\u201d his failure to remember the substance of a witness\u2019 testimony during his opening statement, and his failure to develop an alibi defense in accordance with defendant\u2019s testimony.\nIn Illinois a claim of ineffective representation by counsel is judged as follows (People v. Haywood (1980), 82 Ill. 2d 540, 543-44, 413 N.E.2d 410):\n\u201c[I]it must be established that counsel was actually incompetent in the performance of his duties and that substantial prejudice resulted from such incompetency, without which the results of the trial would have been different. [Citations.] However, if the alleged incompetency is a matter of trial tactics or strategy, which are purely matters of professional judgment, such allegations cannot support a claim of ineffective representation. [Citations.]\u201d\nFurthermore, the competence of defense counsel will be determined through an examination of the totality of the circumstances and the record as a whole. People v. Davis (1981), 103 Ill. App. 3d 792, 796, 431 N.E.2d 1210.\nIn the case at bar, at the end of trial, the trial judge stated to defense counsel, \u201cLet me say this, Mr. Sherwin, you are a fine lawyer.\u201d We find this unsolicited remark by the trial judge, who diligently watched and listened to the entire proceedings, to be quite informative.\nIn any event, because of the overwhelming nature of the evidence against defendant, we do not see how any alleged shortcomings of the defense counsel could possibly have affected the outcome. As regards failure of defendant\u2019s counsel to present witnesses to bolster defendant\u2019s alibi, it is painfully obvious that no such evidence existed. In any event, any such \u201cfailure\u201d is merely an element of an attorney\u2019s trial tactics which \u201ccannot support a claim of ineffective representation.\u201d (See People v. Haywood (1980), 82 Ill. 2d 540, 544.) We find no merit in this contention. No counsel for defendant could conceivably have changed the outcome of the instant trial.\nIll\nIn imposing sentence, the trial judge stated he was sentencing defendant to \u201csixty years, Department of Corrections, the extended term concurrent to all of the Class X felonies that you stand convicted before the bar of this court.\u201d The Orders of Sentence and Commitment as written show 60 years prison terms for each of the rape, armed robbery, two counts of home invasion, the attempted murder and also for three counts of aggravated battery.\nAggravated battery is a Class 3 felony. (Ill. Rev. Stat. 1981, ch. 38, par. 12 \u2014 4(e).) The maximum sentence is five years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20141(a)(6)), and the extended term is 10 years (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 8\u20142(a)(5)). Therefore, the sentences of 60 years for the three aggravated battery convictions are improper and will be vacated. However, all other crimes for which defendant stands convicted are Class X felonies. Defendant was subject to extended terms because he had been convicted of previous Class X felonies within 10 years prior to the instant convictions. (Ill. Rev. Stat. 1981, ch. 38, par. 1005 \u2014 5\u20143.2(bXl).) The 60-year sentences for the Class X felonies are within the statutory limits for an extended term. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-2(aX2).\nWe find the trial judge did not abuse his discretion in imposing the maximum 60-year sentence of the Class X felonies. (See People v. Willingham (1982), 89 Ill. 2d 352, 364, 432 N.E.2d 861.) Therefore, the sentences for the Class X felony convictions are affirmed.\nFor these reasons the judgment appealed from is affirmed in all respects except the sentences for aggravated battery are vacated.\nFinally, the State\u2019s motion for fees in the sum of $75 is granted. People v. Nicholls (1978), 71 Ill. 2d 166, 374 N.E.2d 194.\nAffirmed in part, vacated in part.\nBUCKLEY, P.J., and CAMPBELL, J., concur.", "type": "majority", "author": "JUSTICE GOLDBERG" } ], "attorneys": [ "Daniel F. Murray, of Chicago, for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROLAND SHEPARD, Defendant-Appellant.\nFirst District (1st Division)\nNo. 82\u20140096\nOpinion filed May 9, 1983.\nDaniel F. Murray, of Chicago, for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Michael E. Shabat, Paula Carstensen, and Thomas J. Finn, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0598-01", "first_page_order": 620, "last_page_order": 626 }