{
  "id": 2838034,
  "name": "The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Gardner et al., Defendants-Appellants",
  "name_abbreviation": "People v. Gardner",
  "decision_date": "1971-12-01",
  "docket_number": "Nos. 54786, 54787 cons.",
  "first_page": "27",
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    "id": 8837,
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    {
      "cite": "358 Ill. 642",
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  "last_updated": "2023-07-14T16:53:03.474127+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Gardner et al., Defendants-Appellants."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE ADESKO\ndelivered the opinion of the court:\nAnthony Gamer, who is also referred to in the briefs as Anthony Gardner, was indicted as Anthony Gamer and will be referred to in this opinion as Gamer.\nAfter a jury trial, Anthony Garner and Nevin Woods were found guilty of armed robbery. On August 25, 1969, the trial court sentenced the defendants to the Illinois State Penitentiary for a period of not less than seven years and not more than fourteen years. The defendants raise the following four issues for review:\n1. Defendants were not proven guilty beyond a reasonable doubt.\n2. Defendants were denied a fair trial when the prosecutor asked one of the defendants about his failure to register a firearm and when the prosecution\u2019s witnesses, not being experts, were permitted to testify that one of the defendants was shot by a \u201c38\u201d caliber firearm.\n3. The trial court abused its discretion by allowing the prosecution\u2019s witnesses to testify in rebuttal where such testimony was repetitious, cumulative and outside the scope of proper rebuttal.\n4. The defendants received an improper sentence.\nLouis McEwing, ticket agent at the Chicago Transit Authority (hereinafter C.T.A.) elevated station at 63rd and Dorchester, testified that on Saturday, February 18, 1967, at approximately 4:00 A.M. he heard a tapping on the ticket booth window. McEwing testified that he looked up and saw a \u201c22\u201d or \u201c25\u201d automatic staring him in the face. McEwing stated that defendants told him to open the ticket booth door after which the defendants entered. McEwing testified that the booth and the station were \u201cwell lighted\u201d and that he could see the defendants\u2019 faces. The defendants walked McEwing to the platform washroom.\nWilliam Spaulding, a C.T.A. policeman at the time of the robbery, testified that he was in the washroom when McEwing knocked on the door. Spaulding stated that he opened the door and noticed the defendants standing behind McEwing. Spaulding testified that when he determined a robbery was in progress he stated that he was a \u201cpolice officer\u201d and pulled his gun. The defendants fled, but Spaulding was able to wound Garner, the defendant carrying the small automatic.\nHenry Stinson, an alibi defense witness, testified that the defendants were in his mother\u2019s apartment at the time of the robbery. Stinson also testified that Woods shot Garner accidently on Sunday, February 19, 1967. Defendant Garner testified that Woods shot him. Garner also testified that he told someone at the hospital that two unknown men shot him.\nPolice officers Burrell Albertson and Michael Belice, rebuttal witnesses, testified that Garner told them that two unknown men, not Woods, shot him.\nThe defendants\u2019 first contention is that they were not proven guilty beyond a reasonable doubt. The two eye-witnesses observed the defendants in a \u201cwell lighted\u201d elevated station. McEwing stated that he could see the defendants\u2019 faces and what they were wearing. Spaulding, a police officer, stated he observed the defendants for almost twenty seconds. The defendants did not attempt to conceal their faces.\nThe case of People v. Peck, 358 Ill. 642, cited by defendants is easily distinguished since the robbery in that case occurred outside on a dark night and the robber\u2019s face was covered by a mask and there was only one eye-witness.\nThe defendants cite People v. Blumenshine, 42 Ill.2d 508 as an authority to back up their contention that the identification of Garner was the result of a highly suggestive line-up. In Blumenshine, the witness viewed the defendant standing alone through a one-way mirror. In the instant case, McEwing viewed Garner in a five man line-up. The fact that Garner wore his green felt hat during the line-up was not suggestive, especially since McEwing\u2019s identification had been corroborated by Spaulding\u2019s identification of Garner. There was other evidence, such as the gun and Garner\u2019s wound.\nThe defendants cite People v. Gardner, 35 Ill.2d 564, a rape case where there was only one eye-witness, the woman raped, as authority that an alibi cannot be overcome when the only contradicting evidence was the identification of the defendants. The Gardner case does not apply here because defendants\u2019 alibi was impeached by the testimony of two eye-witnesses, one a police officer, placing the defendants at the scene of the crime.\nThe defendants\u2019 second contention is that they were denied a fair trial when the prosecutor asked Gamer about his failure to register a firearm and the prosecution\u2019s witnesses not being experts, were permitted to testify that one of the defendants was shot by a \u201c.38\u201d caliber firearm.\nThe trial court sustained the defense counsel\u2019s objection to the prosecutor\u2019s question asking Gamer whether he had ever registered the gun with anyone. The court instructed the jury to disregard the question and answer. The question was connected with the line of questioning which was being allowed by the prosecutor. The prosecutor was attempting to determine who owned the gun.\nTwice the prosecutor attempted to ask police officers whether Garner was shot by a \u201c38\u201d caliber firearm. In both situations the court sustained the defense objection to the question and instructed the jury to disregard the question and answer. The size of the wound was also mentioned by the prosecution in its closing argument, but the court also sustained the defense objection and told the jury to disregard what the prosecution had just said. Such stricken testimony and argument were not material factors in the conviction.\nThe defendant\u2019s third contention was that the trial court abused its discretion by allowing the prosecution\u2019s witnesses to testify in rebuttal where such testimony was repetitious, cumulative and outside the scope of proper rebuttal.\nThe prosecution called the two police officers as rebuttal witnesses in order to prove that Garner did in fact talk to police officers at the hospital. Garner stated that he did not remember talking to a police officer at the hospital. The rebuttal testimony of the police officers was also introduced to explain Garner\u2019s false statement that he was shot by two unknown persons. The admission of the rebuttal testimony was a matter within the sound discretion of the trial court.\nThe final contention of the defendants is that they received an improper sentence in that they were sentenced for lying on the witness stand as well as for the armed robbery they were charged with. The trial court did not impose a heavier penalty because the defendants committed perjury. The trial judge stated that he was revolted by the fact that the defendants lied on the witness stand in an effort to defeat justice. The trial judge never intimated that he was sentencing the defendants for anything other than armed robbery.\nIn People v. Moriarty, 25 Ill.2d 565, cited by the defendants, the trial judge imposed a heavier sentence on the defendant because he chose a jury trial. Consequently, the Moriarty case is not on point.\nThe defendants also contend that the minimum sentence was excessive. The minimum sentence imposed upon the defendants was not excessive. In People v. Lillie, 79 Ill.App.2d 174, the court stated that the adequacy of punishment should determine the minimum sentence. A hearing in aggravation and mitigation was conducted. Garner had previous convictions for theft, disorderly conduct and criminal damage to property. Woods had a previous conviction for grand theft. Armed robbery is a very serious offense. The court in People v. Taylor, 33 Ill.2d 417, stated that the power to reduce sentences should be used with considerable caution and circumspection, for the trial judge has a superior opportunity in the course of the trial and the hearing in aggravation and mitigation to make a sound determination concerning the punishment to be imposed than do the appellate tribunals.\nFor the reasons given, the judgment of the circuit court of Cook County is affirmed.\nJudgment affirmed.\nBURMAN and DIERINGER, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE ADESKO"
      }
    ],
    "attorneys": [
      "Gerald W. Getty, Public Defender, of Chicago, (Vincent J. Cerri, Ronald P. Katz and James J. Doherty, of counsel,) for appellants.",
      "Edward V. Hanrahan, State\u2019s Attorney, of Chicago, (Robert A. Novelle and Richard S. Jalovec, Assistant State\u2019s Attorneys, of counsel,) for the People."
    ],
    "corrections": "",
    "head_matter": "The People of the State of Illinois, Plaintiff-Appellee, v. Anthony Gardner et al., Defendants-Appellants.\n(Nos. 54786, 54787 cons.;\nFirst District\nDecember 1, 1971.\nGerald W. Getty, Public Defender, of Chicago, (Vincent J. Cerri, Ronald P. Katz and James J. Doherty, of counsel,) for appellants.\nEdward V. Hanrahan, State\u2019s Attorney, of Chicago, (Robert A. Novelle and Richard S. Jalovec, Assistant State\u2019s Attorneys, of counsel,) for the People."
  },
  "file_name": "0027-01",
  "first_page_order": 47,
  "last_page_order": 52
}