{ "id": 2634636, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE TURNER, Defendant-Appellant", "name_abbreviation": "People v. Turner", "decision_date": "1976-02-18", "docket_number": "No. 74-435", "first_page": "77", "last_page": "82", "citations": [ { "type": "official", "cite": "36 Ill. App. 3d 77" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "342 N.E.2d 371", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. 2d 393", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2972188 ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0393-01" ] }, { "cite": "329 N.E.2d 845", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "29 Ill. App. 3d 113", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2499535 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/29/0113-01" ] }, { "cite": "26 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "304 Ill. App. 601", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 3305932 ], "opinion_index": 0, "case_paths": [ "/ill-app/304/0601-01" ] }, { "cite": "90 S. Ct. 905", "category": "reporters:federal", "reporter": "S. Ct.", "opinion_index": 0 }, { "cite": "25 L. Ed. 2d 89", "category": "reporters:federal", "reporter": "L. Ed. 2d", "opinion_index": 0 }, { "cite": "397 U.S. 908", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12061873, 12062385, 12062321, 12062006, 12061914, 12062108 ], "opinion_index": 0, "case_paths": [ "/us/397/0908-01", "/us/397/0908-06", "/us/397/0908-05", "/us/397/0908-03", "/us/397/0908-02", "/us/397/0908-04" ] }, { "cite": "248 N.E.2d 685", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. App. 2d 62", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1594818 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/109/0062-01" ] }, { "cite": "125 N.E.2d 711", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "291 Ill. 52", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2420800 ], "opinion_index": 0, "case_paths": [ "/ill/291/0052-01" ] }, { "cite": "176 N.E.2d 145", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "342 Ill. 158", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5251992 ], "weight": 2, "pin_cites": [ { "page": "166" } ], "opinion_index": 0, "case_paths": [ "/ill/342/0158-01" ] }, { "cite": "318 N.E.2d 715", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "717" } ], "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 115", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2508421 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0115-01" ] }, { "cite": "224 N.E.2d 675", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "80 Ill. App. 2d 77", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2561657 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/80/0077-01" ] }, { "cite": "155 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "15 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2764899 ], "opinion_index": 0, "case_paths": [ "/ill-2d/15/0450-01" ] }, { "cite": "270 N.E.2d 565", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "132 Ill. App. 2d 733", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2535619 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/132/0733-01" ] }, { "cite": "197 N.E.2d 45", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "30 Ill. 2d 437", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2827929 ], "opinion_index": 0, "case_paths": [ "/ill-2d/30/0437-01" ] }, { "cite": "288 N.E.2d 102", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "52 Ill. 2d 525", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5395078 ], "opinion_index": 0, "case_paths": [ "/ill-2d/52/0525-01" ] } ], "analysis": { "cardinality": 659, "char_count": 10621, "ocr_confidence": 0.739, "pagerank": { "raw": 2.0427998377491248e-07, "percentile": 0.7479374280122123 }, "sha256": "8b72f8512432fefec0942896a38a63d4b097e22954936c7dcc3d9fb2df03e39d", "simhash": "1:eac296ebb68a87bf", "word_count": 1731 }, "last_updated": "2023-07-14T20:55:53.941211+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. JOHNNIE TURNER, Defendant-Appellant." ], "opinions": [ { "text": "Mr. JUSTICE EBERSPACHER\ndelivered the opinion of the court:\nThis is an appeal by the defendant, Johnnie Turner, from the judgments of conviction entered by the circuit court of St. Clair County after a bench trial on two counts of aggravated incest and the concurrent terms of 5 to 15 years imposed thereunder.\nThe defendant first contends that he was denied a fair trial because the trial court actively solicited and considered irrelevant and highly prejudicial evidence. We find no merit in this contention.\nThe trial judge\u2019s \u201cactive solicitation\u201d consisted of asking one of the prosecution\u2019s witnesses to repeat her answer to a question interposed by defense counsel. While we agree with the defendant that the response contained irrelevant, hearsay testimony concerning another possible offense committed by the defendant, we note that the defense counsel, not the trial judge, pursued the matter with further questioning. Nevertheless, the defendant argues that this testimony had a prejudicial impact on the trial judge. The defendant finds evidence of the impact in a colloquy which occurred at the defendant\u2019s sentencing hearing. The defendant claims that the trial judge\u2019s reference to the improper testimony at the sentencing hearing establishes, ipso facto, that such evidence did influence his findings of guilt. We do not agree.\nThe trial judge had had the testimony of the defendant\u2019s trial transcribed and had reviewed the transcript prior to imposing sentence. Obviously, the objective of such a review is not to reassess the defendant\u2019s guilt or innocence, but rather to determine the suitability of the defendant for probation and the degree of imprisonment required. Such an inquiry involves, among other things, the aggravating circumstances of the offense(s), the length of time the defendant was involved in the criminal activity, the other activities of the defendant, and the defendant\u2019s remorse. Consequently, we do not find the trial court\u2019s reference to improper testimony at the defendant\u2019s sentencing hearing sufficient to overcome the presumption that in a bench trial the trial court is presumed to have considered only admissible and relevant material in reaching its verdict (see People v. Pagan, 52 Ill. 2d 525, 288 N.E.2d 102; People v. Robinson, 30 Ill. 2d 437, 197 N.E.2d 45).\nThe defendant next contends that he was not proven guilty of either offense beyond a reasonable doubt.\nIn support of this contention the defendant first argues that both of the material witnesses, his 13- and 9-year-old daughters, were incompetent to testify. We disagree. The preliminary questions asked each witness established that each daughter did possess a sufficient degree of intelligence, was able to understand and describe the acts complained of, and did appreciate the moral duty to tell the truth. We further note that no objection was raised to their competency in the court below.\nIn addition the defendant argues that neither daughter\u2019s testimony is clear and convincing. Our review of the foregoing evidence, however, yields a contrary conclusion. Each of the defendant\u2019s daughters testified that the defendant had committed the act of sexual intercouse with them on, at least, one occasion. Each was able to describe the act with sufficient particularity to ensure that intercourse had, in fact, occurred. The only frailty of either witnesses\u2019 testimony was the actual date of the occurrence. Under the facts here present, we do not consider the absence of a date certain to be fatal.\nThe defendant specifically complains about the State\u2019s motion to amend the information to conform to the proof presented during its case-in-chief. Misstatement of a date, however, is a formal defect (e.g., People v. Price, 132 Ill. App. 2d 733, 270 N.E.2d 565) which may be amended at any time (Ill. Rev. Stat. 1973, ch. 38, par. 111 \u2014 5).\nThe critical element in this case, i.e., whether the defendant committed an act of sexual intercourse with each of his daughters, was established by clear and convincing testimony. Regardless of the difficulty in establishing the precise time, each witness clearly and consistently maintained that the defendant had committed the acts they described, and on this point they did not waver under the close cross-examination of defense counsel. Consequently, we consider the testimony to be clear and convincing. Cf. People v. Knapp, 15 Ill. 2d 450, 155 N.E.2d 565; People v. Armstrong, 80 Ill. App. 2d 77, 224 N.E.2d 675.\nAlbeit our foregoing conclusion is sufficient to sustain each of the judgments of conviction entered against the defendant, we would be remiss not to mention that the testimony of the defendant\u2019s 13-year-old daughter was corroborated, to a greater or lesser extent, by the testimony of the defendant\u2019s 14-year-old son and by the admission defendant made to his wife after his arrest.\nThe third contention raised by the defendant is that he was denied effective assistance of appointed counsel. The defendant argues that his counsel assisted the prosecution witness in securing immunity for his testimony. An examination of the record reveals that defense counsel, a deputy public defender, merely requested that the witness be admonished that he could be prosecuted for any of his own criminal activities that his testimony might disclose. We see no divided allegiance manifested by such action. Instead, we see an effort on the part of defense counsel to make a potential witness realize the risk to which he exposes himself if he testifies. Nowhere does the record show that defense counsel initiated any suggestion of immunity. Nor does the record show any impropriety in the appointment of another member of the public defender office to counsel the witness. The remaining claims of incompetence concerned the defense counsel\u2019s exercise of discretion, judgment or strategy and provide no basis for a finding that the defendant was inadequately represented. People v. Rogers, 23 Ill. App. 3d 115, 318 N.E.2d 715, 717.\nThe defendant\u2019s fourth contention is that the joinder of two distinct counts of aggravated incest deprived the defendant of a fair trial. We find it unnecessary to determine whether the two counts were distinct, as alleged by the defendant, or part of the same comprehensive transaction, since defendant\u2019s counsel saw fit not to seek a severance of the counts in the trial court. While, in hindsight, the decision not to seek a severance may have proved unwise, we cannot say that the decision to meet both charges at the same time was not a conscious, deliberate choice of strategy calculated to improve tire defendant\u2019s chances of acquittal. The statutory provision for joinder of offenses and defendants is found in section 111 \u2014 4(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1973, ch. 38, par. Ill \u2014 4(a)). According to the commentary following this section, it \u201cis substantially a restatement and codification of former Illinois law.\u201d (Ill. Ann. Stat., ch. 38, \u00a7 111 \u2014 4, Committee Comments (Smith-Hurd 1970).) Citing People v. Stilson, 342 Ill. 158, 176 N.E.2d 145, the commentary notes that the defendant \u201cmust move for the election.\u201d In People v. Stilson, our supreme court applied the following quotation from People v. Jones, 291 Ill. 52, 125 N.E.2d 711: \u201cNor is the court required to compel the State to elect the count or counts upon which conviction is to be sought, in the absence of a motion to that effect on the part of the defendant.\u201d (342 Ill. 158, 166.) More recent decisions show no indication of repudiating the requirement that tire defendant must move for a severence of counts or be barred from raising such issue for the first time on appeal. (People v. Mowen, 109 Ill. App. 2d 62, 248 N.E.2d 685, cert. denied, 397 U.S. 908, 25 L. Ed. 2d 89, 90 S. Ct. 905; People v. Poe, 304 Ill. App. 601, 26 N.E.2d 415.) Misjoinder of offenses is a formal defect. Ill. Rev. Stat. 1973, ch. 38, par. Ill \u2014 5.\nThe defendant\u2019s fifth contention is that the Illinois aggravated incest statute denies the defendant equal protection of the laws because, unsupported by a compelling State interest, it subjects him to a greater penalty than similarly situated females. We rejected a similar contention in People v. York, 29 Ill. App. 3d 113, 329 N.E.2d 845, and our supreme court has recently resolved this issue in People v. Grammer, 62 Ill. 2d 393, 342 N.E.2d 371.\nThe final issue raised by the defendant is that the trial court abused its discretion in denying probation and in sentencing tire defendant to two concurrent terms of from 5 to 15 years\u2019 imprisonment. The record reflects that the defendant had two prior convictions. In 1970 the defendant was charged with peace disturbance and was fined $45 plus costs. In 1971 the defendant was placed on 2 years\u2019 probation on the charge of carrying a concealed weapon. The record also reflects that as a result of the defendant\u2019s commission of the instant offenses at least one of his teenage sons was induced to have intercourse with his 13-year-old daughter. There was also testimony evidencing the disruption of the defendant\u2019s family and the fear which the defendant instilled in his family. Considering these circumstances, together with the continuing aspect of these acts with the defendant\u2019s 13-year-old daughter, we find no abuse of discretion in denying the defendant\u2019s request for probation. Nor do we find any error in the trial court\u2019s imposing a minimum sentence in excess of the 1-year minimum provided by statute. Ill. Rev. Stat. 1973, ch. 38, pars. 11 \u2014 10, 1005 \u2014 8\u20141(c) (3).\nWe are, however, unable to justify the concurrent terms of 5 to 15 years imposed in the instant case. Consequently, pursuant to the power invested in this court by Supreme Court Rule 615(b) (4) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)(4)), we reduce the sentences imposed in this case to concurrent terms of 3 to 9 years\u2019 imprisonment.\nAccordingly, the judgments of conviction entered against the defendant are affirmed and this cause is remanded to the trial court for issuance of a corrected mittimus showing the modification of sentences as ordered by this court.\nAffirmed, sentences modified, remanded with directions.\nG. J. MORAN and CARTER, JJ., concur.", "type": "majority", "author": "Mr. JUSTICE EBERSPACHER" } ], "attorneys": [ "Stephen P. Hurley and John H. Reid, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.", "Robert H. Rice, State\u2019s Attorney, of Belleville (Robert L. Craig, Assistant State\u2019s Attorney, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHNNIE TURNER, Defendant-Appellant.\nFifth District\nNo. 74-435\nOpinion filed February 18, 1976.\nStephen P. Hurley and John H. Reid, both of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellant.\nRobert H. Rice, State\u2019s Attorney, of Belleville (Robert L. Craig, Assistant State\u2019s Attorney, of counsel), for the People." }, "file_name": "0077-01", "first_page_order": 103, "last_page_order": 108 }