{ "id": 2641382, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SMITH (Impleaded), Defendant-Appellant", "name_abbreviation": "People v. Smith", "decision_date": "1976-09-07", "docket_number": "No. 62415", "first_page": "109", "last_page": "116", "citations": [ { "type": "official", "cite": "42 Ill. App. 3d 109" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "61 Ill. 2d 598", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "347 N.E.2d 264", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "37 Ill. App. 3d 55", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2715011 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/37/0055-01" ] }, { "cite": "334 N.E.2d 831", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "31 Ill. App. 3d 433", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2707212 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/31/0433-01" ] }, { "cite": "289 N.E.2d 601", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. 2d 62", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2927578 ], "opinion_index": 0, "case_paths": [ "/ill-2d/53/0062-01" ] }, { "cite": "314 N.E.2d 723", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "20 Ill. App. 3d 948", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5347505 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/20/0948-01" ] }, { "cite": "309 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 493", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5405202 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0493-01" ] }, { "cite": "280 N.E.2d 433", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "51 Ill. 2d 39", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5391361 ], "opinion_index": 0, "case_paths": [ "/ill-2d/51/0039-01" ] }, { "cite": "320 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "59 Ill. 2d 402", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2960026 ], "weight": 2, "pin_cites": [ { "page": "406" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/59/0402-01" ] }, { "cite": "257 N.E.2d 3", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 38", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895594 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0038-01" ] }, { "cite": "330 N.E.2d 857", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 152", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414894 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0152-01" ] }, { "cite": "327 N.E.2d 574", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 712", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2866510 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0712-01" ] } ], "analysis": { "cardinality": 774, "char_count": 15357, "ocr_confidence": 0.885, "pagerank": { "raw": 7.065761459745577e-08, "percentile": 0.4257593782494655 }, "sha256": "220e4b59eb738d344ef5cb94998f96a533cc8fb78dd4bf0781471399516d5e6d", "simhash": "1:0daa78685e68621e", "word_count": 2516 }, "last_updated": "2023-07-14T15:00:19.600233+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. DONALD SMITH (Impleaded), Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court:\nDefendant, Donald Smith, was charged with two counts of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18 \u2014 2.) After a bench trial, defendant was found guilty as charged and sentenced to 8 to 24 years\u2019 imprisonment. Defendant now appeals and presents three issues for our review: (1) whether the State, by delaying indictment of defendant and by failing to respond to defendant\u2019s request for discovery, violated defendant\u2019s right to due process by forcing defendant to trial with unprepared counsel; (2) whether the trial court erred in finding defendant guilty of both counts of armed robbery; and (3) whether defendant\u2019s sentence was excessive in light of an accomplice\u2019s lesser sentence. A summary of the facts follows.\nCharlie Berry owned a barber shop. He was in his shop with a friend, Frank Madison, and was working on a customer when defendant entered. Defendant stated that he wanted a haircut and sat down to wait. While defendant waited, he was joined by another individual who indicated that he was with defendant. As Berry worked on the customer, defendant produced a gun and announced, \u201cThis is a stick-up.\u201d\nDefendant took an overnight bag from a display counter and forced Berry and the customer into a back room. On defendant\u2019s order, the other individual forced Madison into the back room also. Once there, both Berry and Madison were relieved of their wallets, but the customer was not robbed. Defendant and his accomplice then locked their victims in the back room, rifled the cash register for coins, and departed.\nAfter 5 or 10 minutes, the victims managed to break out of the room, and upon going out to the street, observed their assailants in the custody of the police.\nThe evidence disclosed that some youths had observed the robbery in progress and summoned the police to the scene. Upon arrival, the police saw no one in the shop, but did observe defendant and his accomplice running down an alley. Although ordered to stop, both men continued to flee. Defendant was pursued, apprehended, and found to be in possession of a revolver, a wallet, and an overnight bag containing *7.50 in coins. Defendant\u2019s accomplice was also apprehended nearby.\nBoth men were brought back to the barber shop and instantly identified by Berry and Madison as the perpetrators of the robbery. Berry later identified the wallet and overnight bag recovered from defendant as his property which was taken during the robbery.\nDefendant admitted being in the barber shop but said he went to the shop to collect *100 owed him by Berry. Defendant asserted that Berry conducted gambling games in the rear of the shop and had borrowed *100 from defendant the previous week while they had been gambling.\nOn the day in question, defendant went to the shop armed with a gun because Berry and Madison were known to carry weapons. When defendant entered the shop, Berry was busy with a customer and told defendant to wait. While waiting, he was joined by a friend. At this time, there were five or six individuals gambling in the back. Defendant became impatient waiting for Berry, and he and Berry got into an argument.\nBoth men went into the back, and, although a scuffle ensued, neither man drew a gun. Defendant left the shop without getting any money and started down the alley to join his friend who had left earlier when the fight broke out.\nJust as defendant was about to enter his friend\u2019s house, a police officer arrived with his gun drawn. He did not run from the officer, nor did he have a wallet or overnight bag when arrested.\nDefendant initially contends that because the State delayed indicting him and failed to respond to his request for discovery, he was denied due process by being forced to trial with unprepared counsel.\nDefendant was arrested on August 9,1974, and thereafter Temained in custody, but was not indicted until November 18,1974. On December 4, 1974, defendant was arraigned and counsel appointed to represent him. On that same date, defendant\u2019s counsel served the State with a motion for discovery. On December 6, 1974, the 120th day of defendant\u2019s incarceration, his case was called for trial.\nDefendant\u2019s counsel answered ready and demanded trial. After the court informed defendant of his right to a jury trial and after defendant waived that right, the following colloquy occurred:\n\u201cDefendant\u2019s counsel: For the record, I would state that I am not actually prepared for trial, and it is against my recommendation to go to trial today. However, I will defend him to the best of my ability.\nDefendant: Your Honor, I don\u2019t have but two or three questions to ask, that\u2019s all. I\u2019m ready for trial.\nCourt: You understand that your attorney hasn\u2019t had much time to go into this.\nDefendant\u2019s counsel: He thinks it is not necessary.\nCourt: All right. Well, have you discussed it?\nDefendant\u2019s counsel: Yes, your Honor, we have discussed it.\u201d\nOn these facts, defendant now argues that he was faced with the unconscionable choice of choosing to waive his right to a speedy trial or his right to competent representation.\nIllinois has statutorily implemented a defendant\u2019s right to a speedy trial with what is known as the Fourth Term Act. (Ill. Rev. Stat. 1973, ch. 38, par. 103 \u2014 5.) Under the Act, unless a defendant occasions delay, a defendant in custody must be tried within 120 days of his arrest, or discharged. While it would be impermissible to force a defendant to make a prejudicial choice between discharge under the Act and competent representation (People v. Lee, 27 Ill. App. 3d 712, 327 N.E.2d 574), the fact that defendant is forced to make a choice is not, by itself, a denial of due process. People v. Lewis, 60 Ill. 2d 152, 330 N.E.2d 857; People v. Johnson, 45 Ill. 2d 38, 257 N.E.2d 3.\nThus, in the instant case, the mere fact that defendant was not arraigned and counsel appointed until the 118th day of his incarceration is not, by itself, a denial of due process. Rather, in such situations, we are required to carefully examine the record and ascertain whether defendant was prejudiced in any way by such a procedure. People v. Williams, 59 Ill. 2d 402, 320 N.E.2d 849.\nDefendant makes two claims of prejudice. First, defendant claims that he was prejudiced by the State\u2019s failure to respond to his motion for discovery filed two days before trial. However, defendant proceeded to trial without complaint or notice to the court of this failure. The absence of any such complaint by defendant at trial is understandable since even now, on appeal, defendant has not suggested, nor can we envision, any prejudice that resulted from this failure. Defendant points to no prior testimony or reports which he was unable to utilize at trial or with which he was surprised. Indeed, it was defendant who introduced a police report into evidence. While the failure of the State to respond to discovery is to be condemned and discouraged, there is simply no indication in this record that the defense was hampered by the prosecution\u2019s failure to provide discovery, or that the defense would have benefited by any response to defendant\u2019s discovery motion.\nDefendant\u2019s second claim of prejudice involves counsel\u2019s failure to present witnesses in support of defendant\u2019s version of the incident. Although unclear from his brief, defendant is apparently referring to the individuals allegedly gambling in the rear of the barber shop at the time of the incident.\nThere are only two references in the present record to these individuals. The first occurs during defendant\u2019s direct examination. The second occurs during defendant\u2019s cross-examination. During cross-examination, defendant testified that he expected these individuals to appear for him on the 19th. The examination continued:\n\u201cProsecutor: Who is going to be here on the 19th, who do you expect on the 19th?\nDefense counsel: I object. He said he doesn\u2019t know for sure, he just talked to some people.\nCourt: Overruled.\nDefense counsel: Judge, the defendant answered ready for trial, we are going to trial with the witnesses\u2014\nCourt: Overruled.\u201d\nThe matter was then abandoned.\nNow, on appeal, defendant has not offered any additional information concerning these individuals. There is nothing in the record to indicate that counsel did not question defendant regarding these individuals and then determine either that they did not exist or that their testimony would not aid defendant. Indeed, counsel\u2019s remarks during the above colloquy indicate that counsel did question defendant regarding these individuals and a conscious decision was made to proceed without them. And, as evidenced in the colloquy that occurred prior to trial and after a discussion with his attorney, defendant, not a novice to criminal proceedings, did not think further investigation was necessary, but had only \u201ctwo or three questions to ask.\u201d\nWe can only conclude that, for whatever reason, defendant and counsel chose to proceed to trial without the testimony of the questioned individuals. (See People v. Williams.) Any claim of prejudice that further investigation would have produced favorable testimony from these individuals is pure speculation. However, a claim of prejudice cannot be based on mere conjecture. (People v. Thomas, 51 Ill. 2d 39, 280 N.E.2d 433.) We will not indulge in such conjecture, and we find no support for defendant\u2019s claims that he was prejudiced by the procedure employed below.\nMoreover, our own independent examination of the record reveals no resultant prejudice from the procedure employed below. Defendant\u2019s counsel vigorously cross-examined the State\u2019s witnesses and ably presented defendant\u2019s version of the incident to the trial judge. That counsel was unable to obtain an acquittal for defendant was not due to counsel\u2019s alleged lack of preparation, the delay in the arraignment, or the State\u2019s failure to respond to discovery. Defendant was convicted because of the overwhelming evidence of his guilt. Defendant was positively identified by both his victims and was apprehended moments after the robbery with the victim\u2019s wallet and overnight bag in his possession. No additional preparation would have aided defendant, and thus, there was no error in the chronology of events below.\nTwo additional comments are necessary. The State has never offered any explanation for the delay in indicting and arraigning defendant. Such unexplained delay is to be discouraged. It is a \u201cpractice which harbors the danger of denying the defendant the effective assistance of counsel.\u201d (People v. Williams, 59 Ill. 2d 402, 406.) Although we find no prejudice resulting from such a delay, we are compelled to remind the State that there is an invitation to injustice by such conduct. The appearance of impropriety is often as damaging as impropriety itself. Nor can we approve of defense counsel\u2019s attempt to inject error into the record at the very outset of trial. Counsel originally answered ready and demanded trial. However, minutes later, counsel was representing to the court that he was not actually prepared for trial and was \u201cobjecting for the record.\u201d From counsel\u2019s remarks during trial, it seems that the desirability of requesting a continuance had been discussed and rejected. In any event, we do not condone counsel\u2019s endeavor to \u201chave it both ways.\u201d\nDefendant next argues that the trial court erred in finding him guilty of both counts of armed robbery. Defendant argues that the armed robbery of Berry and Madison was \u201cobviously a single act, motivated by a single intent,\u201d and therefore, defendant\u2019s conviction for one of the armed robberies should be vacated.\nDefendant correctly cites People v. Lilly, 56 Ill. 2d 493, 309 N.E.2d 1, for the proposition that two convictions for a single act cannot be sustained. In Lilly, a single assault upon one victim was held insufficient to sustain convictions for rape and indecent liberties. However, in the instant case, there was more than one act committed against one individual. The conduct of defendant and his accomplice constituted two separate criminal acts, the armed robbery of Berry and the armed robbery of Madison. Such conduct does not fall within the parameters of Lilly.\nRather, such conduct is governed by the general rule that offenses involving separate elements and separate victims will sustain separate convictions. (People v. Davis, 20 Ill. App. 3d 948, 314 N.E.2d 723.) Where one or more individuals robs separate individuals, the crimes, though related in time, will support separate convictions. People v. Prim, 53 Ill. 2d 62, 289 N.E.2d 601.\nWe are aware of contrary holdings in People v. Butler, 31 Ill. App. 3d 433, 334 N.E.2d 831, and People v. Thomas, 37 Ill. App. 3d 55, 347 N.E.2d 264. However, we find the dissent in Butler more persuasive and note that the Illinois Supreme Court has granted leave to appeal in Butler (61 Ill. 2d 598.) In any event, on the facts of this case, we find the rule announced in Prim to be controlling. The trial court did not err in finding defendant guilty of both counts of armed robbery.\nDefendant finally argues that in light of his accomplice\u2019s lesser sentence, his own sentence is excessive. Defendant was sentenced to a term of 8 to 24 years imprisonment. After defendant had been sentenced, defendant\u2019s accomplice pled guilty to the same two counts of armed robbery and was sentenced to a term of 6 to 8 years imprisonment. Defendant now argues that in light of his accomplice\u2019s lesser sentence, his own sentence should be reduced.\nDefendant\u2019s accomplice was not tried with defendant. Thus, the instant record is completely silent as to his accomplice\u2019s prior criminal record and the circumstances relating to his prosecution and sentence. Consequently, it is impossible for this court to determine the propriety of defendant\u2019s sentence vis-a-vis his accomplice\u2019s sentence. Instead, we will examine defendant\u2019s sentence in light of his own prior criminal record.\nWhen sentenced, defendant was 57 years old and had a prior criminal record dating back to 1935 that involved at least 13 different felonies in two States. Indeed, the pre-sentence report states that defendant told an investigator that the reason he moved to Illinois from Michigan was that \u201cwhat is a petty crime in Chicago is a felony in Detroit, Michigan.\u201d After reading the pre-sentence report, the able trial judge stated:\n\u201cWell, Mr. Smith, you are one of the few people who has come up before me who by your past record has demonstrated that you have almost forfeited \u2014 not almost, I think you probably have forfeited your right to freedom.\u201d\nWe agree, and, in light of defendant\u2019s prior criminal record, we are not persuaded to reduce defendant\u2019s sentence.\nFor the reasons set out above, the convictions and sentence are affirmed.\nAffirmed.\nDOWNING and JIGANTI, JJ., concur.\nDefendant\u2019s extensive criminal record will be discussed later.", "type": "majority", "author": "Mr. PRESIDING JUSTICE STAMOS" } ], "attorneys": [ "James R. Streicker and Kenneth L. Jones, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Eugene J. Rudnik, Jr., and Iris E. Sholder, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DONALD SMITH (Impleaded), Defendant-Appellant.\nFirst District (2nd Division)\nNo. 62415\nOpinion filed September 7, 1976.\nJames R. Streicker and Kenneth L. Jones, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Eugene J. Rudnik, Jr., and Iris E. Sholder, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0109-01", "first_page_order": 139, "last_page_order": 146 }