{ "id": 2669758, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT WHEATLEY, Defendant-Appellant", "name_abbreviation": "People v. Wheatley", "decision_date": "1989-08-11", "docket_number": "No. 1\u201487\u20140143", "first_page": "371", "last_page": "383", "citations": [ { "type": "official", "cite": "187 Ill. App. 3d 371" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "362 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "292" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464792 ], "weight": 2, "pin_cites": [ { "page": "349-50" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0346-01" ] }, { "cite": "538 N.E.2d 461", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "opinion_index": 0 }, { "cite": "128 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3228708 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/ill-2d/128/0001-01" ] }, { "cite": "482 U.S. 730", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6219896 ], "weight": 3, "pin_cites": [ { "page": "739" }, { "page": "643" }, { "page": "2664" } ], "opinion_index": 0, "case_paths": [ "/us/482/0730-01" ] }, { "cite": "484 U.S. 554", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 601912 ], "weight": 12, "pin_cites": [ { "page": "559" }, { "page": "957" }, { "page": "842" }, { "page": "561" }, { "page": "959" }, { "page": "844" }, { "page": "561-62" }, { "page": "959" }, { "page": "844" } ], "opinion_index": 0, "case_paths": [ "/us/484/0554-01" ] }, { "cite": "538 N.E.2d 481", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 4, "pin_cites": [ { "page": "489" }, { "page": "489" }, { "page": "489" } ], "opinion_index": 0 }, { "cite": "128 Ill. 2d 66", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3229038 ], "weight": 4, "pin_cites": [ { "page": "88" }, { "page": "88" }, { "page": "88" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/128/0066-01" ] }, { "cite": "361 N.E.2d 823", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "47 Ill. App. 3d 296", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3366812 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/47/0296-01" ] } ], "analysis": { "cardinality": 925, "char_count": 26403, "ocr_confidence": 0.776, "pagerank": { "raw": 9.758514400346147e-08, "percentile": 0.5312720934695421 }, "sha256": "1dce9965c955597badc47775ce6eae15d625b3eb04d5642e1a5e818eb897788e", "simhash": "1:ceb9cb8ab31432e9", "word_count": 4362 }, "last_updated": "2023-07-14T19:20:22.173562+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. ROBERT WHEATLEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nDefendant, Robert Wheatley, appeals from his convictions for armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18 \u2014 2(a)) and unlawful use of a weapon by a felon (Ill. Rev. Stat. 1985, ch. 38, par. 24 \u2014 1). He received concurrent sentences of eight years\u2019 imprisonment for armed robbery and three years\u2019 imprisonment for unlawful use of a weapon. On appeal, he raises the following four issues: (1) whether the trial court committed reversible error when it allowed the State to amend its answer to discovery by adding a name to its list of witnesses on the third day of trial; (2) whether he was denied his sixth amendment right of confrontation when a witness\u2019 prior inconsistent statement was admitted in evidence; (3) whether he was proven guilty beyond a reasonable doubt; and (4) whether he is entitled to credit for time served in custody prior to sentencing. For the following reasons, we affirm.\nDefendant was tried for armed robbery and unlawful use of a weapon by a felon, and his brother, Kenneth Wheatley (Kenneth), was tried for armed robbery stemming from the same incident. Defendant waived his right to a jury trial but Kenneth was tried by a jury. The State presented its witnesses against both defendants with the jury present and the jury was excused from the courtroom when defendant\u2019s attorney was cross-examining the State\u2019s witnesses. When the State rested its case against Kenneth, he presented his defense to the jury without defendant present. Afterward, the State continued its case against defendant and defendant presented his defense to the trial judge.\nThe State\u2019s witnesses established the following. Richard Gillis, the complaining witness, testified that on October 9, 1985, shortly before 10:45 p.m., he was walking home from work when he saw two black men standing in front of him on the sidewalk near an alley. One of the men, whom Gillis identified as Kenneth, pulled out a chrome-colored gun and demanded his money. Gillis said, \u201cAlright. I\u2019ll give you my money,\u201d but Kenneth stated, \u201cGet into the alley.\u201d Gillis offered to give him his money where they were but Kenneth again demanded he move into the alley. At this point, the second man led Gillis into the alley while Kenneth also pushed Gillis. They shoved Gillis into a door, and when Gillis hit it, the door flew open. They pushed him into the vestibule area. As Kenneth pointed his gun at Gillis, the second man went through his pockets. At this point, Gillis noticed the second man also had a gun, which was blue or black steel with a rubber band wrapped around the barrel. The second man took $17 from Gillis\u2019 pocket and said he knew Gillis had more money. Gillis gave the second man an envelope that he pulled out from his boot containing $140, a $35 check, and a deposit slip from his bank. The deposit slip had Gillis\u2019 name, business address, and account number imprinted on it. Pointing their guns at him, the men told Gillis to walk down the stairs and stay there for 5 or 10 minutes. After the men left, Gillis waited a minute or two and immediately called the police when he arrived home at approximately 10:45 p.m.\nSergio Rajkovich, a Chicago police officer, testified that on October 9, 1985, at approximately 11:20 p.m., he and his partner, Reno Baiocchi, were driving in a marked squad car when they observed a vehicle without license plates driving ahead of them and pulled it over. Inside the vehicle were defendant, who was the driver, Ted McLeod, who was the front seat passenger, Kenneth, who was in the back seat behind McLeod, and Vincent Wheatley (Vincent), who was in the back seat behind defendant. Defendant did not have a driver\u2019s license and was arrested. When Rajkovich asked the remaining occupants if any of them had a license to drive the car, Kenneth responded that he had a license. McLeod exited the vehicle so that Kenneth, who was in the back seat, could drive. As Kenneth got out of the car, Rajkovich saw a chrome .357 magnum gun lying on the back seat where Kenneth was sitting. The occupants were ordered out of the car and all four men were handcuffed. Rajkovich searched the car and found a bluesteel .22 caliber gun with a rubber band wrapped around it. The gun was concealed under a seat cushion where Vincent was sitting. Both guns found in the car were loaded. On the floor of the driver\u2019s side, Rajkovich also found a bank deposit slip with the name \u201cR.W. Gillis\u201d imprinted on it.\nThe men were arrested and advised of their Miranda rights. At this time, Kenneth admitted that the chrome .357 magnum gun was his and they were in the area delivering phone books. At the station, the men were searched again and $61 was recovered from Vincent and $40 from McLeod.\nRajkovich testified that the four men were arrested approximately seven or eight blocks from where the robbery took place.\nAt approximately 1 a.m. on October 10, 1985, Gillis viewed a lineup of six persons which included defendant and Kenneth. Gillis identified Kenneth as one of the men who robbed him.\nThe State then rested its case against Kenneth and requested a continuance of defendant\u2019s trial to present additional witnesses against him. Over defendant\u2019s objection, his bench trial was continued for six days. Kenneth\u2019s jury trial proceeded and defendant\u2019s attorney did not participate in the court proceedings when Kenneth presented his defense to the jury.\nKenneth called his brother, Vincent, to testify in his behalf. Vincent testified that on the night in question, Kenneth, defendant, McLeod, and he were delivering telephone books. They made three stops, and each time defendant and McLeod got out of the car to make the delivery. Vincent and Kenneth remained in the back seat of the car. At the last stop defendant and McLeod left the car for approximately three to five minutes with two or three telephone books. When they returned, the group began to drive home. Shortly thereafter, Vincent noticed a police car following them with its emergency lights on. Before pulling over, McLeod handed defendant a gun and defendant handed two guns back to Vincent, telling him to \u201cput them up.\u201d Vincent put one of the guns behind him and the other behind Kenneth. Vincent\u2019s testimony exculpated Kenneth but inculpated defendant in the robbery.\nWhen the bench trial continued against defendant, the State moved to amend its answer to discovery to add Vincent\u2019s name to its list of witnesses. Defendant objected but the trial court granted the motion. The case was continued approximately two more weeks because another State witness was not present in court.\nAt the next date for trial, the State called Vincent as a witness against defendant. When asked what his name was, Vincent stated, \u201cI do not want to testify in this case, period, because I do not remember.\u201d When asked whether he was the same Vincent Wheatley who previously testified at Kenneth\u2019s trial he stated, \u201cI don\u2019t remember.\u201d He admitted defendant was his brother. Vincent testified he did not remember where he lived, whether he owned a car, or whether he was with defendant on the night of the robbery. When asked again whether he remembered testifying previously, he stated, \u201cI don\u2019t know, would you stop hassling me, I don\u2019t know, can I be excused, Judge?\u201d The court reminded Vincent he was subpoenaed to testify as a witness. When the State asked whether he previously testified at Kenneth\u2019s trial, Vincent stated, \u201cI have, did.\u201d Later, he again stated he did not remember testifying previously. During Vincent\u2019s testimony the trial court offered defendant\u2019s counsel the opportunity to speak with Vincent and continue the trial for two days but defendant\u2019s counsel declined. After further questioning by the State, Vincent stated he was claiming the fifth amendment. The court found he waived the fifth amendment privilege by testifying previously on the same matter. The State questioned Vincent concerning his prior testimony but Vincent continued to answer \u201cI don\u2019t know\u201d or \u201cI don\u2019t remember.\u201d\nOver defendant\u2019s objection, the trial court allowed the State to introduce Vincent\u2019s prior testimony at Kenneth\u2019s trial as substantive evidence under section 115 \u2014 10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 10.1). The State read portions of Vincent\u2019s prior testimony and asked whether he remembered testifying. He continued to answer \u201cI don\u2019t remember.\u201d\nDefendant cross-examined Vincent but he would only answer \u201cI don\u2019t remember\u201d to every question. Defendant\u2019s attorney then stated, \u201cI can\u2019t cross-examine him, that\u2019s all that I have, he said I doesn\u2019t [sic] remember to everything, it\u2019s fruitless for me to go on.\u201d\nOn the State\u2019s motion, the court found Vincent in contempt of court, citing his prior testimony 21k weeks earlier, and indicated that Vincent was subverting justice by feigning memory loss. The court sentenced him to 30 days\u2019 imprisonment.\nThe parties stipulated that Vincent previously testified under oath in the case against Kenneth and that the transcript of his testimony on that day was accurate.\nThe parties also stipulated that defendant was convicted of burglary in 1980, convicted of theft in 1982, and again convicted of theft in 1984. The State then rested and defendant\u2019s motion for a directed verdict was denied.\nDefendant testified that on the night of the robbery, he was working for Rueben H. Donnelly delivering telephone books. His brothers, Kenneth and Vincent, and his neighbor, Ted McLeod, went with him in Vincent\u2019s car. While they were delivering the telephone books, they smoked marijuana. They made 10 stops that evening. At different stops, two, three, or all four of the men would get out of the car to make the deliveries. On the last stop, Vincent and McLeod left the car to deliver the telephone books. Three or four minutes after the last delivery at approximately 11:40 p.m., they were stopped by the police, who asked whether they had drugs in the car. After the police officers searched each of them and searched the car, they were placed under arrest.\nDefendant admitted he was on parole on October 9, 1985, and he knew the consequences of parole violations. Defendant testified he did not have a gun with him that evening and did not know that any of the others had guns with them. Defendant denied committing the armed robbery and did not know whether any of the others robbed Gillis. He also denied that he handed two guns to Vincent when the police were following them.\nThe court found defendant guilty of armed robbery and unlawful use of a weapon by a felon and denied defendant\u2019s motion for a new trial. Defendant now appeals.\nOpinion\nI\nInitially, defendant argues the trial court erred when it allowed the State to add Vincent to its list of witnesses on the third day of trial. The trial court, in granting the State\u2019s request, noted that Vincent\u2019s name had previously appeared on the State\u2019s witness list filed for both defendants but was stricken before trial. The trial was then continued for two weeks because another State witness was not present in court.\nSupreme Court Rule 412 provides that upon a defendant\u2019s written motion, the State is required to disclose the names and addresses of the persons it intends to call as witnesses \u201cas soon as practicable.\u201d (107 Ill. 2d R. 412.) The trial court has the discretion to allow a previously unlisted witness to testify at trial and its decision will not be disturbed on review unless defendant was surprised or prejudiced. People v. Millan (1977), 47 Ill. App. 3d 296, 361 N.E.2d 823.\nOn appeal, defendant relies solely on Millan, which is clearly distinguishable from the present case. In Millan, the State moved to add a witness three days prior to trial. When defendant requested a continuance to prepare for the witness, the State withdrew the name and stated it would not call that witness in its case in chief. Three days later, on the first day of trial, the State reiterated that it would not call that witness. The next day, however, the State moved to add the witness for its case in chief. Defendant\u2019s objection was overruled. Defendant\u2019s counsel was allowed to interview the witness before he testified that day. Defendant was found guilty, but on appeal, the reviewing court reversed his convictions based on the surprise and prejudice to defendant. The court found that defense counsel\u2019s quick interview with the witness was not a substitute for the State\u2019s compliance with discovery rules and defendant\u2019s counsel should have been given ample time to prepare for the witness. The court, in reversing the convictions, found that the State\u2019s representations that it would not call the witness bordered on bad faith.\nUnlike the defendant in Millan, defendant here was not surprised or prejudiced by the addition of Vincent\u2019s name to the State\u2019s list of witnesses. In Millan, the witness\u2019 name did not appear on the State\u2019s witness list prior to trial. In the present case, however, defendant concedes Vincent\u2019s name appeared on the State\u2019s witness list prior to trial but was stricken the day trial began. Although the State moved to add Vincent to its list of witnesses on the third day of trial, the trial was continued two weeks before Vincent would testify. During Vincent\u2019s testimony defendant\u2019s counsel declined the trial court\u2019s offer to continue the trial an additional two days. Defendant\u2019s counsel then had ample time to prepare for Vincent\u2019s testimony.\nAlso unlike Millan, the record in the present case does not indicate that the State\u2019s conduct amounted to bad faith. In its reply brief, defendant contends that he was prejudiced by the State\u2019s \u201ctactics\u201d in removing Vincent\u2019s name from its witness list, continuing defendant\u2019s trial, and then calling Vincent as a witness after he testified for Kenneth. This conduct, however, does not rise to the level of the State\u2019s mispresentations that occurred in Millan.\nDefendant also argues, without citation to authority, that he was prejudiced because he should have been allowed to cross-examine Vincent when he testified on the stand in Kenneth\u2019s trial. It is important to note, however, that Kenneth called Vincent as a witness to testify in his behalf in what was essentially a separate trial. Vincent was not a State witness at that point under which circumstances defendant would have had the right to cross-examine him.\nFrom a review of the record, defendant had ample time to prepare for the witness and there was no evidence of bad faith on the State\u2019s part. Accordingly, the trial court did not abuse its discretion when it allowed Vincent to testify.\nII\nDefendant also argues that Vincent\u2019s statement was improperly admitted as substantive evidence under section 115 \u2014 10.1 because defendant did not cross-examine Vincent when he testified at Kenneth\u2019s trial and that his sixth amendment right of confrontation was violated.\nAt issue here is the application of section 115 \u2014 10.1, which in relevant part provides:\n\u201c\u00a7115.10.1. Admissibility of Prior Inconsistent Statements. In all criminal cases, evidence of a statement made by a witness is not made inadmissible by the hearsay rule if\n(a) the statement is inconsistent with his testimony at the hearing or trial, and\n(b) the witness is subject to cross-examination concerning the statement, and\n(c) the statement\u2014\n(1) was made under oath at a trial, hearing, or other proceeding ***.\u201d Ill. Rev. Stat. 1985, ch. 38, par. 115 \u2014 10.1.\nDefendant initially argues that under section 115 \u2014 10.1 the prior testimony should not have been admitted because defendant did not cross-examine Vincent at the time he previously testified. Defendant misinterprets the requirements of the section. The section requires that \u201cthe witness is subject to cross-examination concerning the statement.\u201d (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1(b).) This refers to the witness being subject to cross-examination at the time his prior inconsistent statement is admitted in evidence. See People v. Flores (1989), 128 Ill. 2d 66, 88, 538 N.E.2d 481, 489 (a declarant\u2019s prior grand jury testimony is admissible when \u201cthe declarant is testifying as a witness and [is] subject to full and effective cross-examination\u201d).\nThe Illinois Supreme Court has recently decided the issue presented by defendant in a case with similar facts. In Flores (128 Ill. 2d 66, 538 N.E.2d 481), the trial court admitted a witness\u2019 grand jury testimony under section 115 \u2014 10.1 when at defendant\u2019s trial the witness testified he could not remember the content of his prior grand jury testimony. Defendant appealed his convictions and argued, among other issues, that the witness\u2019 two statements were not inconsistent and that defendant was denied his right of confrontation under the sixth amendment. The court found the witness\u2019 prior grand jury testimony was properly admitted under section 115 \u2014 10.1.\nAlthough defendant here does not argue the point, the supreme court in Flores found the trial court did not abuse its discretion when it determined that the witness\u2019 \u201cprofessed memory loss\u201d on the stand and his prior grand jury testimony were inconsistent. (Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489.) Similarly here, the trial court did not abuse its discretion when it found Vincent\u2019s claimed memory loss was inconsistent with his prior testimony in Kenneth\u2019s trial.\nDefendant argues that his sixth amendment right to confront witnesses was violated when Vincent would only testify \u201cI don\u2019t remember\u201d to defendant\u2019s cross-examination questions.\nThe sixth amendment in relevant part states, \u201cIn all criminal prosecutions, the accused shall enjoy the right *** to be confronted with the witnesses against him ***.\u201d (U.S. Const., amend. VI.) In addressing the issue presented, we note the reasoning of our supreme court in Flores:\n\u201cThe confrontation clause [of the sixth amendment] is not violated by admitting a declarant\u2019s out-of-court statements, as long as the declarant is testifying as a witness and subject to full and effective cross-examination. [Citations.] Contrary to the defendant\u2019s assertions, a gap in the witness\u2019 recollection concerning the content of a prior statement does not necessarily preclude an opportunity for effective cross-examination.\u201d (Flores, 128 Ill. 2d at 88, 538 N.E.2d at 489.)\nThe supreme court in Flores relied on the recent United States Supreme Court decision in United States v. Owens (1988), 484 U.S. 554, 98 L. Ed. 2d 951, 108 S. Ct. 838. In Owens, the Supreme Court addressed the issue presented and stated, \u201c \u2018the Confrontation Clause guarantees only \u201can opportunity for effective cross-examination, not cross-examination that is effective in whatever way, and to whatever extent, the defense might wish.\u201d \u2019 \u201d (Emphasis in original.) Owens, 484 U.S. at 559, 98 L. Ed. 2d at 957, 108 S. Ct. at 842, quoting Kentucky v. Stincer (1987), 482 U.S. 730, 739, 96 L. Ed. 2d 631, 643, 107 S. Ct. 2658, 2664.\nIn Owens, the court determined that a witness is subject to cross-examination under Rule 801 of the Federal Rules of Evidence (Fed. R. Evid. 801) when the witness \u201cis placed on the stand, under oath, and responds willingly to questions.\u201d (Owens, 484 U.S. at 561, 98 L. Ed. 2d at 959, 108 S. Ct. at 844.) The phrase \u201csubject to cross-examination\u201d is also used in section 115 \u2014 10.1, and defendant argues that Vincent did not willingly respond to questions because he \u201crefused to answer questions.\u201d Defendant\u2019s characterization of Vincent\u2019s testimony is inaccurate, however, because Vincent, rather than having refused to answer questions, merely testified he did not remember. As stated in Owens:\n\u201c[Limitations on the scope of examination by the trial court or assertions of privilege by the witness may undermine the process to such a degree that meaningful cross-examination within the intent of the rule no longer exists. But that effect is not produced by the witness\u2019s assertion of memory loss \u2014 which *** is often the very result sought to be produced by cross-examination, and can be effective in destroying the force of the prior statement.\u201d (Owens, 484 U.S. at 561-62, 98 L. Ed. 2d at 959, 108 S. Ct. at 844.)\nAccordingly, we find Vincent was subject to cross-examination as required under section 115 \u2014 10.1.\nDespite defendant\u2019s arguments to the contrary, we note that when a witness\u2019 prior statement was made under oath at a trial, hearing, or other proceeding there is no requirement under section 115 \u2014 10.1 that the witness admit he made the prior statement before it can be introduced as evidence.\nWith the authority of Owens and Flores we find that defendant\u2019s sixth amendment right of confrontation was not violated by the admission of Vincent\u2019s prior testimony under section 115 \u2014 10.1.\nIII\nDefendant also argues he was not proven guilty beyond a reasonable doubt because his conviction was based in large part on the \u201cunreliable\u201d testimony of his brother, Vincent, and was otherwise based on insufficient evidence.\nWhen a defendant claims he was convicted with insufficient evidence, the evidence must be reviewed in a light most favorable to the prosecution and the court must determine whether any rational trier of fact could have found defendant guilty of the crime beyond a reasonable doubt. (People v. Young (1989), 128 Ill. 2d 1, 538 N.E.2d 461.) It is the function of the trier of fact to determine the reliability of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (Young, 128 Ill. 2d 1, 538 N.E.2d 461.) The reviewing court will not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses and will not reverse a criminal conviction unless the evidence presented is so unreasonable, improbable, or unsatisfactory as to raise a reasonable doubt of defendant\u2019s guilt. Young, 128 Ill. 2d 1, 538 N.E.2d 461.\nDefendant relies on People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291, where defendant was convicted of robbery based in part on the testimony of a witness who admitted he helped defendant plan the crime. Defendant contended the accomplice\u2019s testimony was uncorroborated and, therefore, he was not convicted beyond a reasonable doubt. On review, the court noted that the uncorroborated testimony of an accomplice is sufficient to justify a conviction but must be regarded with suspicion and caution. The court reversed the conviction because defendant was not proven guilty beyond a reasonable doubt. The court found the accomplice\u2019s testimony did not have the \u201cabsolute conviction of truth\u201d because he was incarcerated at the time on other indictments, he admitted planning the crime, and he was promised immunity. Wilson, 66 Ill. 2d at 349-50, 362 N.E.2d at 292.\nWilson does not support defendant\u2019s argument that he was not convicted beyond a reasonable doubt. Here, Vincent was never charged with the crime in question, was not in jail at the time with other pending crimes, and did not admit to having any role in the armed robbery. In fact, he denied any knowledge of the crime. He also did not testify with the promise of immunity. Vincent was not an accomplice as was the witness in Wilson, and therefore, there is no requirement that his testimony be viewed with skepticism and caution.\nThe evidence establishes that Gillis was robbed by two men, one carrying a chrome-colored gun and the other carrying a blue or black steel gun with a rubber band wrapped around it. Gillis identified Kenneth as one of the men who robbed him but could not identify the second man. Less than one hour later, defendant, who was with Kenneth and two other men, was stopped by the police near the area where the robbery took place. The police discovered two guns in the car that matched the description of those used in the robbery. Also in the car on the. floor near where defendant was sitting, the police discovered Gillis\u2019 bank deposit slip which he gave to the second man who robbed him. Vincent\u2019s prior testimony at Kenneth\u2019s trial, which was properly admitted in evidence in defendant\u2019s trial, established that defendant left the car on each of the stops they made. When Vincent noticed that the police were following them, defendant handed two guns to Vincent in the back seat and told him to \u201cput them up.\u201d\nBasically, defendant is arguing a credibility question between the testimony of Vincent and defendant. The trial court considered Vincent\u2019s testimony and found he was not credible and unworthy of belief in many respects. However, the court found that Vincent\u2019s testimony at Kenneth\u2019s trial was \u201ca matter of significance and importance when a person identifies a brother as having been involved in a commission of a crime.\u201d Based on the significance of Vincent identifying his brother, the court could not discount Vincent\u2019s testimony. On the other hand, the court found that defendant\u2019s testimony was not credible. The court, noting that the only issue was which two men in the car committed the offense, focused on defendant\u2019s testimony that he claimed he did not know who was involved in the robbery or that guns were in the car. The court found defendant\u2019s testimony was not truthful and did not make sense.\nWe will not substitute the trial court\u2019s judgment in determining that Vincent was credible and defendant was not. Also, after reviewing the evidence presented, we cannot say it was so unreasonable, improbable, or unsatisfactory to raise a reasonable doubt of defendant\u2019s guilt.\nIV\nLastly, defendant argued that he was entitled to credit for the time he served in custody prior to being sentenced. During the pendency of this appeal, the State\u2019s Attorney and the public defender filed a stipulation in this court agreeing that defendant was entitled to 447 days of sentence credit. By separate order of this court, we remanded this issue with directions that defendant be given 447 days of sentence credit.\nAffirmed.\nMURRAY, P.J., and COCCIA, J., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund and Kim A. Novi, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ROBERT WHEATLEY, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201487\u20140143\nOpinion filed August 11, 1989.\nRandolph N. Stone, Public Defender, of Chicago (Tina Liebling, Assistant Public Defender, of counsel), for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Inge Fryklund and Kim A. Novi, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0371-01", "first_page_order": 397, "last_page_order": 409 }