{
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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ALLEN et al., Defendants-Appellants",
  "name_abbreviation": "People v. Allen",
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  "docket_number": "Nos. 83\u20142487, 83\u20142488 cons.",
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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ALLEN et al., Defendants-Appellants."
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        "text": "JUSTICE BUCKLEY\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Michael Allen was found guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18 \u2014 2), and unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10 \u2014 3). The jury also found defendant Richard Harp guilty of armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 18 \u2014 2), unlawful restraint (Ill. Rev. Stat. 1983, ch. 38, par. 10 \u2014 3), and unlawful use of a weapon (Ill. Rev. Stat. 1983, ch. 38, par. 24 \u2014 1). The court sentenced Allen to 10 years and Harp to 20 years in the Illinois Department of Corrections. Both defendants appeal, contending that: (1) the trial court improperly denied the defendants\u2019 motion to suppress Harp\u2019s confession; (2) the trial court\u2019s statements during voir dire prejudiced the jury; (3) the trial court erred in admitting Harp\u2019s confession into evidence because it inculpated his co-defendant Allen, who did not have an opportunity to cross-examine the declarant; and (4) statements made during the prosecutor\u2019s rebuttal closing argument prejudiced the jury. For the following reasons, we affirm.\nThe testimony at trial established that on December 31, 1982, Alexis Manhart flagged down a police squad car at the comer of Briar and Broadway streets on the near north side of Chicago. After explaining to the police officers that she had been robbed at knife point inside a van, she entered the squad car and the police retraced the van\u2019s path. When they reached Belmont Avenue, the police parked and took down Manhart\u2019s statement. Immediately thereafter, Manhart observed the defendant\u2019s van proceeding west on Belmont. The van was subsequently apprehended, and Manhart identified its two occupants as her assailants.\nSergeant Gary Baronowski of the Chicago police department testified at trial that, while defendants Harp and Allen were being arrested and handcuffed, he looked into the van and found a Visa credit card, a small bracelet, and some papers which belonged to Manhart. He also discovered two knives which Manhart later identified as those used by the defendants during the robbery.\nThe van was then driven to the station house for an inventory search. Several other personal items belonging to the victim were recovered. No beer cans, whiskey bottles or traces of drugs were found in the van.\nBaronowski and the other arresting officer, Lieutenant Michael Powers, both testified that at the time of the arrest, the defendants did not appear drunk or \u201chigh\u201d on drugs. Moreover, the defendants did not smell of alcohol, stagger or slur their speech, or indicate that they were unable to comprehend instructions given to them.\nDetective Thomas Keane testified that following the arrest, he advised the defendants of their Miranda rights and proceeded to interview them. Harp indicated that he understood his constitutional rights and then gave two different statements relating to his involvement in the crime. Harp initiaEy stated that he had had too much to drink on the night in question and was asleep in the back of the van when he awoke to overhear a conversation between Manhart and Allen concerning the price of a sexual act. After Harp was shown several items belonging to Manhart found in the back of the van, however, he admitted \u201cthat he hadn\u2019t told the truth.\u201d He stated that he held a knife on Manhart, but denied taking any money from her. When asked if Allen had taken money, Harp replied that he did not want to say anything about Allen which would put him in prison.\nKeane also corroborated the testimony of Baronowski and Powers concerning the physical condition of the defendants. He stated that he did not notice anything unusual about the defendants\u2019 appearance or behavior. According to Keane, the defendants had no trouble moving, talking, walking, or responding to questions.\nAt the pretrial hearing on the motion to suppress Harp\u2019s confession, Harp testified that he was too intoxicated from alcohol and drugs to have voluntarily waived the Miranda warnings given before making his confession. The trial court rejected this testimony, finding it to be lacking in credibility. Even though the State failed to put on any witnesses, the court summarily denied defendant\u2019s motion to suppress.\nI\nDefendants initially argue that the trial court improperly denied their motion to suppress Harp\u2019s confession. The basis for this argument is that the State failed to call all material witnesses to prove the voluntariness of Harp\u2019s confession by a preponderance of the evidence. The relevant statutory provision provides:\n\u201cThe burden of going forward with the evidence and the burden of proving that a confession was voluntary shall be on the State. Objection to the failure of the State to call all material witnesses on the issue of whether the confession was voluntary must be made in the trial court.\u201d Ill. Rev. Stat. 1983, ch. 38, par. 114 \u2014 11(d).\nThe Illinois Supreme Court in People v. Kincaid (1981), 87 Ill. 2d 107, 429 N.E.2d 508, interpreted this provision stating that it is the State\u2019s burden to establish that a confession was \u201cknowingly, intelligently and voluntarily made.\u201d (87 Ill. 2d 107, 116, 429 N.E.2d 509.) It is, however, within the sound discretion of the trial court to reverse the order of proof requiring the defendants to present evidence before the State. (People v. Smith (1966), 71 Ill. App. 2d 446, 219 N.E.2d 82, cert. denied (1967), 386 U.S. 910, 17 L. Ed. 2d 784, 87 S. Ct. 859; People v. Davis (1957), 10 Ill. 2d 430, 140 N.E.2d 675.) Thus, the State may meet its burden of proof after the defense has presented evidence on the issue of voluntariness.\nDefendants rely on People v. Peck (1974), 18 Ill. App. 3d 112, 309 N.E.2d 346, for the proposition that the State must make an affirmative showing that a confession was voluntary and not simply impeach the credibility of the defendant\u2019s witnesses to sustain its burden of proof. Peck reversed the trial court\u2019s admission of the defendant\u2019s confession because the prosecutor failed to present any witnesses to show that defendant\u2019s confession was voluntary and not the product of police coercion. The court stated that \u201c[i]t was improper for the trial court to disregard defendant\u2019s uncontroverted testimony. [Citation.] The trial court\u2019s finding that defendant\u2019s testimony was unworthy of belief was *** nevertheless collateral to the main issue of whether defendant\u2019s confession was the result of police coercion.\u201d 18 Ill. App. 3d 112, 116, 309 N.E.2d 346.\nDefendants\u2019 reliance on Peck is misplaced. In contrast to Peck, the State, in the case before us, called all material witnesses at trial to prove the voluntariness of Harp\u2019s confession.\nIn the instant case, the State met its burden of proof at trial as in People v. McClure (1976), 43 Ill. App. 3d 1059, 358 N.E.2d 23, where the court stated:\n\u201c[T]he trial court committed error in denying defendant\u2019s motion to suppress his statements after defendant testified without contradiction at the [pretrial] hearing that the statements were obtained without the police officers having advised him of his constitutional rights. However, the testimony adduced at trial clearly demonstrates that defendant had been given his warnings prior to the taking of any statements. *** The error committed by the trial court in denying the motion to suppress the statements at the time of the hearing was cured by the convincing trial testimony that defendant had been given timely advice of his constitutional rights.\u201d 43 Ill. App. 3d 1059, 1061-62, 358 N.E.2d 23.\nSimilarly, in the case before us, the trial court erred when it summarily denied the defendant\u2019s motion to suppress Harp\u2019s confession. At trial, however, the State presented the \u201cconvincing testimony\u201d of the arresting officers, Baronowski and Powers, which was corroborated by Detective Keane. As in McClure, this evidence cured the trial court\u2019s error at the pretrial hearing, and the State met its burden of proof by showing that Harp properly waived his Miranda warnings and voluntarily gave his confession.\nII\nThe defendants next argue that they were unable to select a fair and impartial jury because of the trial judge\u2019s prejudicial comments made during voir dire. This argument is premised on the following exchange between the trial judge and a venireman:\n\u201cTHE COURT: Any policeman or law enforcement people that you know of?\nA: I know of none at the present time. But I *** [have] a close friend who is a retired police officer.\nTHE COURT: Do you ever talk to him about his job?\nA: We used to, yes.\nTHE COURT: I [sic] that in any way going to affect your ability to be fair and impartial?\nA: I would have to say that I think I would give more credence to a police officer\u2019s testimony. Only because I think they are trained observers.\nTHE COURT: Well, they are more professional, that\u2019s true. But the question is really not training, it is believability. They will testify like any other witness.\nBecause he is a police officer, he might be more accurate in certain instances. But would you consider just because he is a police officer - there are lots of police officers - his testimony should be more believable than any other witness because he is a police officer?\nA: Only because of the fact as I stated, that I believe he would observe the facts better than someone else.\nTHE COURT: Probably from the point of view of training?\nA: Right.\nTHE COURT: But I am only asking you about believability as to integrity.\nA: Truthfulness.\nTHE COURT: Truthfulness and integrity?\nA: No, I don\u2019t think so.\nTHE COURT: You would treat him as any other witness in that case?\nA: Yes.\nTHE COURT: I agree with you that to details they are probably trained for it and so forth. But integrity we are speaking of.\nA: I don\u2019t think so.\nTHE COURT: You would treat them like anybody else?\nA: Yes.\nTHE COURT: All right.\nAgain, do you agree with the statement that I made, that all victims are entitled to be protected under the law?\nA: Yes, sir.\nTHE COURT: And the fact that the alleged victim in this case is a prostitute, would this in any way prevent you personally from being a fair and impartial juror?\nA: I don\u2019t think so.\nTHE COURT: Can you think of any reason at all that you couldn\u2019t be fair and impartial?\nA: No, sir.\u201d\nThe purpose of voir dire is to permit counsel and the judge to ascertain whether the minds of prospective jurors are free from bias and prejudice. (People v. Carpenter (1958), 13 Ill. 2d 470, 150 N.E.2d 100, cert. denied (1958), 358 U.S. 887, 3 L. Ed. 2d 115, 79 S. Ct. 128; People v. Stack (1984), 128 Ill. App. 3d 611, 470 N.E.2d 1252; People v. Witted (1979), 79 Ill. App. 3d 156, 398 N.E.2d 68.) Furthermore, reversible error will only be found where the trial judge\u2019s conduct during voir dire amounted to an abuse of discretion and thwarted the selection of an impartial jury. See People v. Teague (1982), 108 Ill. App. 3d 891, 439 N.E.2d 1066.\nDefendants cite three cases in support of their argument that the trial judge\u2019s comments on the accuracy of police testimony prejudiced the jury. These cases, however, only highlight the deficiency of defendants\u2019 argument. For example, in People v. Santucci (1962), 24 Ill. 2d 93, 180 N.E.2d 491, relied on by defendants, the trial judge questioned every witness, emphasizing \u201ctestimony which pointed to guilt and, *** casting discredit upon *** a key witness for the defense.\u201d (24 Ill. 2d 93, 99, 180 N.E.2d 491.) Based upon this extremely prejudicial conduct, the supreme court ordered a new trial.\nThe case at bar is in sharp contrast to Santucci. Unlike Santucci, the effect of the judge\u2019s questioning here did not predispose the jury against the defendant\u2019s case. Rather, the record discloses that the purpose of the judge\u2019s questioning was to root out any jurors who would give undue weight to the credibility of police testimony. The judge\u2019s comments on the accuracy of police testimony certainly did not rise to the level of prejudice found in Santucci, and, therefore, are not sufficient to order a new trial. As a result, we reject defendants\u2019 contention that they were denied a fair and impartial trial.\nIll\nDefendants next argue that the trial court should not have admitted Harp\u2019s confession since it had incriminating implications as to Allen, and Harp was not subject to cross-examination. This argument is based on the constitutional principles enunciated in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620. In Bruton, the United States Supreme Court held that a codefendant\u2019s statement which acknowledged the commission of the crime by the declarant and directly implicated his codefendant violated his constitutional right to cross-examination.\nThe facts of the instant case do not constitute a Bruton violation. In Bruton, a codefendant confessed his own involvement as well as his codefendant\u2019s participation in the crime. (Bruton v. United States (1981), 391 U.S. 123, 125, 20 L. Ed. 2d 476, 478-79, 88 S. Ct. 1620, 1622.) The trial court admitted the statement into evidence, but gave a limiting instruction to its incompetence as against Bruton. The Supreme Court reversed, holding, in essence, that the confrontation clause of the sixth amendment gave the accused the right to confront the witnesses against him and this right was abridged when an out-of-court statement inculpating the accused was allowed into evidence and the accused had no opportunity to cross-examine the declarant. 391 U.S. 123, 126, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623.\nUnlike Bruton, in the instant case Harp\u2019s statements given to police investigators did not directly implicate Allen. While Harp confessed his own participation in the offense, he refused to make any statement as to Allen\u2019s activities. Any reference Harp made to Allen was nothing more than a reflection on Harp\u2019s reluctance to say anything incriminating about his codefendant. Indeed, it is highly speculative to say that the jury could have inferred guilt on Allen\u2019s part from Harp\u2019s confession. We cannot agree with this conclusion, nor is it supported by Bruton or Illinois case law that has followed Bruton.\nDefendants cite several Illinois cases in support of their argument, none of which are controlling in this case. People v. McVay (1981), 98 Ill. App. 3d 708, 424 N.E.2d 922, stands for the proposition that a codefendant\u2019s statement which clearly points toward his codefendant\u2019s guilt is inadmissible at trial. In MeVay, the defendant\u2019s statement was that if he \u201cwent down\u201d his codefendant would \u201cgo down with him.\u201d 98 Ill. App. 3d 708, 716, 424 N.E.2d 922.\nDefendants also cite People v. Miller (1968), 40 Ill. 2d 154, 238 N.E.2d 407, cert. denied (1968), 393 U.S. 961, 21 L. Ed. 2d 375, 89 S. Ct. 401, where a guilty verdict was reversed because the trial court admitted into evidence a codefendant\u2019s statement that his partner committed the criminal act, and the two split the proceeds. (40 Ill. 2d 154, 157, 238 N.E.2d 407.) Miller referred to People v. Clark (1959), 17 Ill. 2d 486, 162 N.E.2d 413, also cited in defendants\u2019 brief. Clark reversed the trial court\u2019s admission of a statement into evidence which directly included a codefendant in the same criminal act. (17 Ill. 2d 486, 490, 162 N.E.2d 413.) All of these cases relied on by defendants are inapposite because the statements made there directly inculpated the codefendants, as was not the case here. In the present case, Harp did not imply that his codefendant had engaged in any criminal acts, but rather was reluctant to say anything about Allen for fear of incriminating him. We therefore conclude that Harp\u2019s confession was properly admitted at trial.\nIV\nLastly, the defendants argue that they were denied a fair trial because of allegedly prejudicial comments made by the prosecutor during his rebuttal closing argument. Defendants\u2019 objections at trial ranged from the prosecutor stating personal beliefs concerning the case to making inflammatory insinuations about defense counsel.\nIn considering defendants\u2019 contentions, we note that a prosecutor is allowed great latitude in closing argument, and absent an abuse of discretion, the trial court\u2019s determination as to the propriety of the comments made will be followed. (People v. Maldonado (1981), 101 Ill. App. 3d 948, 428 N.E.2d 1087.) A prosecutor\u2019s remarks made during closing argument constitute reversible error only where those remarks were such that, without their having been made, the jury might have reached a different result. People v. Panczko (1980), 86 Ill. App. 3d 409, 407 N.E.2d 988.\nWhile the record before us reveals some excessive statements by the prosecutor, none of these statements viewed in light of all the evidence warrants a new trial. Given the overwhelming evidence of defendants\u2019 guilt, these statements were not so prejudicial as to have been a material factor in defendants\u2019 convictions or to have denied them a fair trial. (See People v. Jackson (1981), 84 Ill. 2d 350, 418 N.E.2d 739.) The trial court did not abuse its discretion and we will not disturb its determination as to the propriety of the prosecutor\u2019s comments.\nFor the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nCAMPBELL and O\u2019CONNOR, JJ., concur.",
        "type": "majority",
        "author": "JUSTICE BUCKLEY"
      }
    ],
    "attorneys": [
      "James J. Doherty, Public Defender, of Chicago (Luther S. Hicks and Frank P. Madea, Assistant Public Defenders, of counsel), for appellants.",
      "Richard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Peter D. Fischer, and Howard E. Towles, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL ALLEN et al., Defendants-Appellants.\nFirst District (1st Division)\nNos. 83\u20142487, 83\u20142488 cons.\nOpinion filed September 29, 1986.\nJames J. Doherty, Public Defender, of Chicago (Luther S. Hicks and Frank P. Madea, Assistant Public Defenders, of counsel), for appellants.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Joan S. Cherry, Peter D. Fischer, and Howard E. Towles, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0200-01",
  "first_page_order": 222,
  "last_page_order": 230
}
