{ "id": 2565481, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE DAVIS, Defendant-Appellant", "name_abbreviation": "People v. Davis", "decision_date": "1990-10-26", "docket_number": "No. 1-87-1871", "first_page": "865", "last_page": "873", "citations": [ { "type": "official", "cite": "205 Ill. App. 3d 865" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "501 N.E.2d 781", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "150 Ill. App. 3d 431", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3503266 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/150/0431-01" ] }, { "cite": "520 N.E.2d 1017", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "167 Ill. App. 3d 7", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3472031 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/167/0007-01" ] }, { "cite": "456 N.E.2d 864", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "119 Ill. App. 3d 516", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3630345 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/119/0516-01" ] }, { "cite": "523 N.E.2d 1239", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1983, "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 1049", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3551130 ], "year": 1983, "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/1049-01" ] }, { "cite": "532 N.E.2d 843", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "176 Ill. App. 3d 1027", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3588199 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/176/1027-01" ] }, { "cite": "394 N.E.2d 496", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "75 Ill. App. 3d 580", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3272073 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/75/0580-01" ] }, { "cite": "410 U.S. 458", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11957586 ], "weight": 6, "pin_cites": [ { "page": "464" }, { "page": "431" }, { "page": "1070" } ], "opinion_index": 0, "case_paths": [ "/us/410/0458-01" ] }, { "cite": "405 N.E.2d 1245", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1981, "opinion_index": 0 }, { "cite": "85 Ill. App. 3d 74", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3194979 ], "year": 1981, "opinion_index": 0, "case_paths": [ "/ill-app-3d/85/0074-01" ] }, { "cite": "398 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "78 Ill. 2d 106", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3075278 ], "opinion_index": 0, "case_paths": [ "/ill-2d/78/0106-01" ] }, { "cite": "788 F.2d 1250", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1569598 ], "year": 1979, "opinion_index": 0, "case_paths": [ "/f2d/788/1250-01" ] }, { "cite": "475 U.S. 66", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6197245 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/475/0066-01" ] }, { "cite": "787 F.2d 477", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1560645 ], "opinion_index": 0, "case_paths": [ "/f2d/787/0477-01" ] }, { "cite": "475 N.E.2d 269", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "131 Ill. App. 3d 80", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3435464 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/131/0080-01" ] } ], "analysis": { "cardinality": 750, "char_count": 16882, "ocr_confidence": 0.777, "pagerank": { "raw": 9.707473097143206e-08, "percentile": 0.5299899723883515 }, "sha256": "6d5a4ab18434d6f943a8b524224a5c94f15c5b7bd38995ce64279284fe070759", "simhash": "1:8272ef72a35ae8bb", "word_count": 2836 }, "last_updated": "2023-07-14T21:56:36.258665+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. WILLIE DAVIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE EGAN\ndelivered the opinion of the court:\nA jury convicted the defendant, Willie Davis, of armed robbery and robbery. Following a sentencing hearing, the trial judge found the defendant to be an habitual criminal and sentenced him to natural life imprisonment.\nOn March 18, 1985, Delores Collins, an employee at a fast-food restaurant, opened the restaurant at 10:30 a.m. and went behind the register. The defendant entered the front door five minutes later. Collins asked if she could help the defendant, and he said, \u201cYou know what I want.\u201d While standing approximately two feet in front of Collins, he pulled a \u201cbig,\u201d \u201cdark-colored\u201d gun from a paper bag and pointed the gun at Collins; Collins emptied the contents of the restaurant\u2019s two cash registers into the paper bag and handed it to the defendant, who then \u201ccalmly walked out of the store.\u201d Collins admitted that she was not familiar with guns, but stated, \u201cIt wasn't made of plastic. It wasn\u2019t a funny gun, it was the real thing.\u201d She said it had \u201cthis big thing in the outside where the bullets go in it.\u201d\nTwo months later, after a separate robbery, the defendant was arrested in possession of a plastic toy gun. He confessed to the robbery of Delores Collins but said that he used a metal air pistol and that it was not the toy pistol in his possession when he was arrested. Delores Collins testified that the toy gun recovered from the defendant was not the gun she saw in his hand.\nThe defendant first argues that the armed robbery indictment against him was improperly based on the perjured testimony of a police officer and the misconduct of an assistant State\u2019s Attorney before the grand jury. The defendant filed a motion to quash the indictment in which he alleged that Detective Edward Winstead testified before the grand jury that a man approached Collins, produced a handgun, announced a robbery and demanded the cash register receipts. After that testimony Winstead said that the defendant gave a statement in which he admitted that which Winstead had just testified to. The defendant maintains that Winstead\u2019s testimony was not true and that Winstead knew it was not true because the defendant had given a statement admitting possession of a \u201ctoy gun,\u201d but never a handgun. The motion to quash also alleged that a copy of Winstead's testimony was attached to the motion. The grand jury transcript is not attached to the motion to quash and is not in the record before us. In his brief the defendant alleged that he was attempting to obtain the grand jury transcript; he has apparently not done so; and he has failed to explain the absence of the grand jury transcript. Consequently, we reject the defendant\u2019s claim for his failure to present proper record. See People v. Majer (1985), 131 Ill. App. 3d 80, 475 N.E.2d 269.\nThe defendant\u2019s claim of prosecutorial misconduct is based on alleged misstatements of law made by the prosecutor in response to a question by a grand juror. The defendant does not refer to any part of the record reflecting the alleged remarks; as noted, the defendant did not present any record of the grand jury proceedings. In addition, prosecutorial misconduct was not asserted as ground for quashal of the indictment in the defendant\u2019s motion. Therefore,, we will not consider this claim either.\nThe defendant maintains that we may take judicial notice of a Rule 23 order entered in another case in which the defendant was convicted of armed robbery and sentenced to natural life imprisonment by Judge Sophia Hall. The Rule 23 order (People v. Davis (1st Dist. 1989), No. 1 \u2014 87\u20140045 (unpublished order under Supreme Court Rule 23)) contained portions of the grand jury testimony of Winstead, but those portions refer to another robbery; they have no reference to Winstead\u2019s testimony concerning the robbery of Collins. The Rule 23 order does not support the defendant\u2019s position with respect to Win-stead\u2019s testimony in this case.\nThe order does purport to quote an assistant State\u2019s Attorney as defining a dangerous weapon as \u201ca metal object that looks like a gun.\u201d Assuming that that remark by the prosecutor is properly before us, we judge that it is insufficient to justify a reversal. A mere misstatement of the law by a prosecutor before a grand jury does not of itself require a dismissal of the indictment. (See United States v. Buchanan (10th Cir. 1986), 787 F.2d 477.) Public policy considerations dictate that convictions should not be reversed because of a misstatement of the law by the prosecutor before the grand jury. (Cf. United States v. Mechanik (1986), 475 U.S. 66, 89 L. Ed. 2d 50, 106 S. Ct. 938 (procedural errors before the grand jury do not require the reversal of a conviction by a petit jury); see also United States v. Thomas (7th Cir. 1986), 788 F.2d 1250.) As a general rule, after conviction, any misstatement of law made by a prosecutor before a grand jury is, for all practical purposes, immaterial, since the issue is whether or not the trial jury was instructed properly. Cf. People v. Linzy (1979), 78 Ill. 2d 106, 398 N.E.2d 1.\nThe defendant next contends that the testimony of Collins was insufficient to establish the use of a dangerous weapon because, he says, his written statement indicated that he used only a toy gun. The defendant specifically maintains that Collins\u2019 testimony that the gun was real was nothing more than an opinion of a \u201cyoung, extremely upset cashier with no experience with firearms\u201d which was \u201cworthless\u201d in comparison \"with the defendant\u2019s confession to the robbery in which he stated that he used an air pistol or pellet gun and the fact that almost two months after this incident he was arrested with a toy gun in his possession shortly after a separate robbery of a different restaurant. We note first that the defendant told the police that the plastic weapon recovered from him at the time of his arrest was not the same \u201cweapon\u201d he used in the Collins robbery. He said that he used an air pistol or pellet gun. Although we need not say at this time that air pistols and pellet guns are, per se, dangerous weapons, we can say that, in our judgment, they are not \u201ctoy\u201d guns. Moreover, it was for the jury to determine the weight to be given the testimony of Collins. Where the character of an instrument used in a robbery is in issue, it is for the jury to determine whether it was dangerous. (People v. Agee (1980), 85 Ill. App. 3d 74, 405 N.E.2d 1245.) Finally, the jury was not obliged to accept as true everything that the defendant told the police. It is for the jury to determine what weight should be given to the statement of the defendant. Illinois Pattern Jury Instructions, Criminal, No. 3.06-3.07 (2d ed. 1981).\nAfter the defendant\u2019s post-trial motion had been denied, a hearing began under the Habitual Criminal Act, which provides, in part, that the prosecutor \u201cmay file *** a verified written statement signed by the State\u2019s Attorney concerning any former conviction\u201d of certain offenses by the defendant. (Ill. Rev. Stat. 1987, ch. 38, par. 33B \u2014 2(a).) Before the State began presenting evidence the judge asked the State if it had anything in aggravation. At the request of the prosecutor, the judge then took judicial notice of the jury verdict in the robbery case before him and a presentence investigation report that the State had filed. The State also introduced certified copies of the defendant\u2019s previous armed robbery convictions and the testimony of the keeper of fingerprint records in the Bureau of Identification at Stateville Correctional Center and of an assistant State\u2019s Attorney. Their testimony established the identity of the defendant as the person named in the previous armed robbery convictions.\nAfter the State rested the defendant\u2019s attorney argued that the State had failed to present a properly verified petition as required under the Act. The assistant State\u2019s Attorney said that he had filed a written petition with the court some time before, that the clerk did not have the petition, but that the assistant State\u2019s Attorney had tendered it to the defense attorneys. The judge pointed out that his first inquiry was for evidence in aggravation; he did not know that a petition had been filed. The defendant\u2019s attorney acknowledged that he had received a copy of the petition, but said it was not verified. The judge noted that verification requires that the petition be made under oath. The defendant objected to the assistant State\u2019s Attorney\u2019s attempt to swear to the petition. The judge then set the case over for five days.\nWhen the parties appeared at the later date, the judge said that he would strike the proceedings that had taken place and permit the State to start over again \u201cnow that I know what the State is proceeding on.\u201d The defendant objected, but the judge struck the earlier proceedings and permitted the State to file a properly verified petition seeking life imprisonment. The defendant argues that this procedure constituted a double jeopardy violation.\nThe State maintains that the double jeopardy provision of the Constitution does not apply to sentencing hearings in general and to hearings under the habitual criminal statute in particular. Both sides have cited a number of cases on this issue, but we need not decide whether the double jeopardy provision of the Constitution is applicable to hearings under the Habitual Criminal Act, since we conclude that, assuming that it is applicable to such hearings, no constitutional violation occurred here.\nIn Illinois v. Somerville (1973), 410 U.S. 458, 35 L. Ed. 2d 425, 93 S. Ct. 1066, the trial judge declared a mistrial over the defendant\u2019s objection because the indictment was defective. The Supreme Court rejected the defendant\u2019s double jeopardy claim and expressed the rule that \u201c[a] trial judge properly exercises his discretion to declare a mistrial *** if a verdict of conviction could be reached but would have to be reversed on appeal due to an obvious procedural error in the trial.\u201d (410 U.S. at 464, 35 L. Ed. 2d at 431, 93 S. Ct. at 1070.) In People v. Pendleton (1979), 75 Ill. App. 3d 580, 394 N.E.2d 496, relying in part on Somerville, the court expressed the applicable rule as follows:\n\u201cIf, after jeopardy has attached, a mistrial is declared at the prosecutor\u2019s request, or by the trial judge sua sponte, retrial ordinarily will not be barred if there was \u2018manifest necessity\u2019 for the act. [Citation.] Manifest necessity is usually found where, due to circumstances beyond the control of the parties and the court, it becomes no longer possible to conduct the trial, or no longer possible to reach a fair result based upon the evidence. However, manifest necessity has also been found where an impartial verdict could not be reached because of prosecutorial or judicial error [citations] and where an impartial verdict could have been reached but a procedural error by the prosecutor made reversal on appeal a certainty [Illinois v. Somerville].\u201d (Emphasis in original.) 75.Ill. App. 3d at 591-92.\nWe believe that the facts of this case are sufficiently similar to Somerville to make that case controlling. There is no substantial difference between the defective indictment in Somerville and the defective petition in this case. If it may be said that the petition could have been amended, our answer is that it was the defendant who objected strongly to any amendment. There was no overreaching by the prosecutor, and the judge recognized that proceeding further under a defective petition would be futile in that any finding against the defendant might be reversed on appeal. Under the circumstances, the judge exercised sound discretion; and the defendant\u2019s constitutional protection against double jeopardy was not violated.\n\u2022 8 The defendant next argues that the State failed to meet its burden of proving all material allegations of its petition seeking a sentence of life imprisonment under the Habitual Criminal Act. Under the Act the State must establish two prior convictions for Class X felonies, that the third conviction was based on conduct after the effective date of the Act and within 20 years of the first conviction. The State must also establish that the. second offense was committed after conviction on the first offense. (Ill. Rev. Stat. 1987, ch. 38, par. 33B\u2014 1(d)(4).) The State offered certified copies of convictions of armed robbery entered on May 21, 1975, and on October 2, 1978. The defendant contends that no evidence was introduced to establish the date of the commission of the offenses for which the defendant had been previously convicted. The specific issue, however, is whether the State has proved that the offense for which the defendant was convicted on October 2, 1978, was, in fact, committed after May 21, 1975, the date the defendant was convicted of the first offense.\nAt the outset, we deem it appropriate to address the State\u2019s argument that its burden of proof on a hearing under the Habitual Criminal Act is a preponderance of the evidence. Although there is some uncertainty on the question, we believe the better view is that the State must prove the material allegations of its petition beyond a reasonable doubt. People v. Mays (1988), 176 Ill. App. 3d 1027, 532 N.E.2d 843; People v. Gill (1988), 169 Ill. App. 3d 1049, 523 N.E.2d 1239; People v. Mason (1983), 119 Ill. App. 3d 516, 456 N.E.2d 864.\nThe defendant did not argue in the trial court the failure of the State to establish the date of the second offense for which he was convicted on October 2, 1978. Therefore, we could hold that his claim of error is waived. (People v. Poole (1988), 167 Ill. App. 3d 7, 520 N.E.2d 1017.) For the sake of finality, however, we will address the issue, although, for purposes to be illustrated later, we will consider the failure of the defendant to raise any question of the sufficiency of the evidence at the hearing.\nThe State\u2019s verified petition alleged that the crime for which the defendant had been convicted on October 2, 1978, was committed on May 12, 1978. During argument the prosecutor told the judge that the crime for which the defendant was convicted on October 2, 1978, was committed on May 12, 1978. The defendant\u2019s attorney made no response to that statement.\nThe defendant had previously been convicted of armed robbery by a jury before Judge Sophia Hall on October 22, 1986. On December 11, 1986, Judge Hall sentenced the defendant to natural life under the Habitual Criminal Act. In her sentencing order she made findings of fact which included findings that the defendant had been convicted of the same two previous offenses upon which the judge based his sentence in this case. Judge Hall also found that the October 2, 1978, conviction was based on an offense that had occurred on May 12, 1978. The defendant appealed from that judgment of Judge Hall, and that appeal was the subject of the Rule 23 order which the defendant has asked us to judicially notice.\nThe defendant was convicted in this case on February 19, 1987. At the hearing on its petition, the State offered the order entered by Judge Hall on December 11, 1986. The defendant objected to the court taking judicial notice of Judge Hall\u2019s \u201csentencing.\u201d The judge sustained the objection and said he would not consider Judge Hall\u2019s finding on the sentence but would consider her findings of fact. The defendant made no objection to that ruling. The State has called our attention to Judge Hall\u2019s order and the fact that the judge in this case judicially noticed her order. The defendant here makes no issue of the fact that the judge judicially noticed Judge Hall\u2019s order.\nUnder all these circumstances, particularly the finding of fact by Judge Hall which was judicially noticed by the trial judge, there was a sufficient basis for the trial judge to conclude that the State had established beyond a reasonable doubt the date of the commission of the second offense. We judge that no error occurred in the defendant\u2019s sentence as an habitual criminal.\nThe defendant\u2019s last contention is that his sentence of natural life violates several State and Federal constitutional provisions. The same constitutional challenges were addressed and rejected by this court in People v. Morissette (1986), 150 Ill. App. 3d 431, 501 N.E.2d 781.\nFor these reasons the judgment of the circuit court is affirmed.\nJudgment affirmed.\nLaPORTA, P.J., and McNAMARA, J., concur.", "type": "majority", "author": "JUSTICE EGAN" } ], "attorneys": [ "Kenneth L. Jones, of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, William D. Carroll, and Thomas O'Brien, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WILLIE DAVIS, Defendant-Appellant.\nFirst District (6th Division)\nNo. 1\u201487\u20141871\nOpinion filed October 26, 1990.\nRehearing denied November 21, 1990.\nKenneth L. Jones, of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Renee Goldfarb, Paul Gliatta, William D. Carroll, and Thomas O'Brien, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0865-01", "first_page_order": 887, "last_page_order": 895 }