{ "id": 2642896, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GARY, Defendant-Appellant", "name_abbreviation": "People v. Gary", "decision_date": "1976-09-24", "docket_number": "No. 62419", "first_page": "357", "last_page": "362", "citations": [ { "type": "official", "cite": "42 Ill. App. 3d 357" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "492 F.2d 1245", "category": "reporters:federal", "reporter": "F.2d", "opinion_index": 0 }, { "cite": "331 F.Supp. 792", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 3565431 ], "opinion_index": 0, "case_paths": [ "/f-supp/331/0792-01" ] }, { "cite": "257 N.E.2d 536", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "121 Ill. App. 2d 388", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1582617 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/121/0388-01" ] }, { "cite": "78 S. Ct. 1394", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1970, "opinion_index": 0 }, { "cite": "2 L. Ed. 2d 1556", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1970, "opinion_index": 0 }, { "cite": "357 U.S. 943", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6201344, 6200870, 6201129, 6200717, 6201551, 6200277, 6200506, 6201758 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/us/357/0943-06", "/us/357/0943-04", "/us/357/0943-05", "/us/357/0943-03", "/us/357/0943-07", "/us/357/0943-01", "/us/357/0943-02", "/us/357/0943-08" ] }, { "cite": "148 N.E.2d 455", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "13 Ill. 2d 84", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2774181 ], "year": 1970, "opinion_index": 0, "case_paths": [ "/ill-2d/13/0084-01" ] }, { "cite": "295 N.E.2d 228", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "10 Ill. App. 3d 762", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5396517, 5399055 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/10/0762-01", "/ill-app-3d/10/0762-02" ] }, { "cite": "277 N.E.2d 866", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "50 Ill. 2d 104", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2912294 ], "opinion_index": 0, "case_paths": [ "/ill-2d/50/0104-01" ] }, { "cite": "160 N.E.2d 818", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "17 Ill. 2d 55", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5334512 ], "opinion_index": 0, "case_paths": [ "/ill-2d/17/0055-01" ] }, { "cite": "133 N.E.2d 257", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "8 Ill. 2d 116", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2716297 ], "opinion_index": 0, "case_paths": [ "/ill-2d/8/0116-01" ] }, { "cite": "221 N.E.2d 256", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "35 Ill. 2d 501", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5380332 ], "opinion_index": 0, "case_paths": [ "/ill-2d/35/0501-01" ] }, { "cite": "353 N.E.2d 287", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "opinion_index": 0 }, { "cite": "41 Ill. App. 3d 53", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2490611 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ill-app-3d/41/0053-01" ] } ], "analysis": { "cardinality": 660, "char_count": 10991, "ocr_confidence": 0.878, "pagerank": { "raw": 2.6944726840738554e-07, "percentile": 0.8278872629253675 }, "sha256": "bd49099eb5620bc12bd1748929954c5f152ba1fc897c2e0a1dda4b07ec8890c7", "simhash": "1:8ec05c44b68384ad", "word_count": 1867 }, "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. JOHN GARY, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was convicted of the kidnaping and armed robbery of Morris Franklin and the aggravated kidnaping and attempt (armed robbery) of Joan Bellaire in violation of section 10 \u2014 1, 18 \u2014 2,10\u20142, and 8 \u2014 4 of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 10 \u2014 1, 18 \u2014 2, 10 \u2014 2, and 8 \u2014 4.) He was sentenced to concurrent terms in the penitentiary of 20-40 years for aggravated kidnaping, 20-40 years for armed robbery, and 3-10 years for kidnaping. Co-defendant Walter Melvin was acquitted on all charges. Co-defendant Chester Boyce was also convicted of the offenses stated and this court affirmed that judgment in People v. Boyce, (1976), 41 Ill. App. 3d 53, 353 N.E.2d 287.\nOn appeal, he contends: (1) he was denied a fair trial by references to his absence from the proceedings and by improper conduct during the State\u2019s closing arguments, and (2) he was not proved guilty beyond a reasonable doubt.\nAlthough he was present when the first 11 jurors were selected, he failed to appear for the selection of the remaining jurors and alternate jurors and for the beginning of his trial three days later. The trial court advised the jury that he was represented by counsel. Defense counsel inquired whether the jury would give defendant a fair trial even in his absence and the jury members replied in the affirmative. During opening argument defendant\u2019s absence was mentioned and his counsel stated defendant was not on trial for bail jumping. The trial court sustained the State\u2019s objection and instructed the jury that they might consider defendant\u2019s absence.\nThe following pertinent evidence was adduced at trial.\nFor the State:\nJoan Bellaire\nShe and Morris Franklin, her boy friend, left her home at 2717 West Polk in his automobile at 11:30 p.m. on August 9, 1973. The car malfunctioned at Washtenaw and Polk and Franklin repaired it. Several people were in the area at the time. After Franklin reentered the car, three men approached. Chester Boyce put a pistol to Franklin\u2019s head and ordered them out of the vehicle. Boyce then gave the gun to defendant and after searching Franklin\u2019s pockets gave defendant the papers he took from Franklin\u2019s pockets. Defendant asked her if she had any money and she told him she did not. When they reentered the car, Boyce drove, Franklin sat in the front passenger seat. She was in the middle of the rear seat between defendant and Walter Melvin. The doors were locked and the windows were closed. They drove through Douglas Park and then proceeded on the Eisenhower expressway to the Loop. Throughout the trip, defendant was holding the pistol and occasionally would rub it against her face. He suggested raping her, but Melvin objected. While she was crying, Boyce told Franklin to calm her or he would blow her head off. The Loop was crowded and well lighted. At Monroe Street and Lake Shore Drive, a blue Chevrolet pulled alongside their car and Officer Jim De Leo showed his badge. After Boyce stopped the car at Randolph Street he and defendant cautioned her to be quiet and to act natural. When De Leo ordered everyone to leave the car, she exited and stood by Franklin.\nMorris Franklin\nHe substantially corroborated the testimony of Joan Bellaire. In addition, he added that Boyce took a five dollar bill, a money order receipt, and a check stub from him. After the car had stopped at about Randolph Street and Lake Shore Drive, he jumped out and announced that defendant had a pistol in the back seat. Although he saw him holding a pistol Franklin always looked forward while they were driving. He identified a picture of defendant. He admitted that he had previously stated that defendant had searched him. Over defense objection, he stated that defendant had previously failed to appear and that arrest warrants had been issued. Defendant\u2019s motion for a mistrial on the basis of this testimony was denied by the trial court.\nJim De Leo\nHe was a deputy sheriff of Cook County on August 9, 1973. After having dinner and one drink with friends earlier in the evening, he was driving along Lake Shore Drive and came alongside Franklin\u2019s car at Monroe Street. Defendant was holding a gun in Bellaire\u2019s face. After Franklin jumped out of the parked car near Randolph he ordered the remaining passengers out of the back seat. Defendant was holding a pistol. When he gave a second command to exit and fired a shot into the air, defendant dropped the pistol and exited. He recovered a five dollar bill, a money order receipt and a check stub from defendant and the pistol from the floor of Franklin\u2019s car.\nChester Boyce and Walter Melvin testified on their own behalf. Since defendant has not adopted their testimony we will not discuss it in this opinion, but refer the reader to this court\u2019s decision, People v. Boyce (1976), 41 Ill. App. 3d 53, 353 N.E.2d 287.\nDuring closing argument, defendant\u2019s counsel argued:\n\u201cAnd if you are going to do these deeds, you are going to pull your.. car in a place where there are no people around, a place where you are not going to be seen. You are not going to go to downtown Chicago and then up Lake Shore Drive to get into a white neighborhood, not if you are a black fellow who lives around the West Side. You don\u2019t lose yourself in a white neighborhood. You lose yourself in the neighborhood where you come from.\u201d\nDuring the State\u2019s rebuttal argument the prosecutor argued, over defendant\u2019s objections:\n\u201cThere should be indignation. There should be anger at the attack on the system. There should be disgust that crime is committed on the streets, a crime where an off-duty Deputy Sheriff does what we hope in our hearts someone would do if we were in that position\u2014 \u00bb a a \u2014 are maligned \u2014 * \u00b0 \u201care attacked. Do you honestly believe that the victims in this case were white people from Highland Park. * * * Or the North Shore, that you would have heard this conclusion? * 9 * Well, you wouldn\u2019t have. It\u2019s because they are black and it\u2019s because it happened on the West Side of Chicago that you heard this defense.\u201d\nAfter judgment was entered, defendant presented his oral post-trial motion. No specific grounds for reversal were presented for the trial court\u2019s consideration. The State did not object to the form of motion. The trial court denied the oral motion and this appeal followed.\nOpinion\nInitially, the State argues that defendant has waived review of his contentions on appeal by failing to file a written post-trial motion in conformance with sections 116 \u2014 1 or 116 \u2014 2 of the Code of Criminal Procedure of 1963. (Ill. Rev. Stat. 1975, ch. 38, pars. 116 \u2014 1 and 116 \u2014 2.) To the contrary, the statutory requirements of sections 116 \u2014 1 and 116 \u2014 2 are waived by the State if a defendant makes a nonspecific oral motion for a new trial which is not objected to by the State. (People v. Whitehead (1966), 35 Ill. 2d 501, 221 N.E.2d 256; People v. Flynn (56), 8 Ill. 2d 116, 133 N.E.2d 257.) In the instant case, defendant\u2019s oral post-trial motion did not contain allegations of error. Nonetheless, the State failed to object or claim that it was prejudiced by the form of the motion. Consequently, he is not precluded from having his contentions reviewed on appeal.\nDefendant contends the references to his absence and to the issuance of warrants for his arrest deprived him of a fair trial. Evidence of his flight after indictment and before trial can be considered as one factor in determining his guilt. (People v. Allen (1959), 17 Ill. 2d 55, 160 N.E.2d 818.) In the instant case, his absence arose after several jury members had been selected. The trial court protected his right to a fair trial by advising the jury that although he was not present, he was still being represented by counsel. The court allowed defendant\u2019s counsel to explore for any possible prejudice that may have arisen by the absence during the remaining voir dire. We cannot say that the trial court erred in subsequently allowing the jury to consider defendant\u2019s flight as some evidence of his guilt.\nDefendant also contends he was not proved guilty beyond a reasonable doubt. To the contrary, we believe the corroborating testimony of the three eyewitnesses, Bellaire, Franklin and De Leo, present overwhelming evidence of guilt and proof beyond a reasonable doubt. While the testimony of a single credible victim of the crimes would be legally sufficient to support a conviction (People v. Clarke (1971), 50 Ill. 2d 104, 277 N.E.2d 866), the evidence in this case is bolstered by the testimony of a disinterested third party who observed a crime in progress. Any inconsistencies in the testimony are of a minor nature and, in any event, would only affect the credibility of the witnesses. (People v. Bergeron (1973), 10 Ill. App. 3d 762, 295 N.E.2d 228.) The jury had ample opportunity to observe the demeanor of the State\u2019s witnesses, assess their credibility and weigh the evidence. The evidence showed that defendant confined Bellaire and Franklin against their will and that, while armed, he aided and abetted in the taking or attempted to take property from them. Based upon this record, we must reject defendant\u2019s contention that he was. not proved guilty beyond a reasonable doubt.\nDefendant finally contends he was denied a fair trial by the State\u2019s improper conduct during closing argument. Conduct not objected to during argument and statements derived from exhibits and evidence properly before the jury will not be considered in this appeal. (People v. Miller (1958), 13 Ill. 2d 84, 148 N.E.2d 455, cert, denied, 357 U.S. 943, 2 L. Ed. 2d 1556, 78 S. Ct. 1394; People v. Jordan (1970), 121 Ill. App. 2d 388, 257 N.E.2d 536.) On the other hand, defendant timely objected to certain remarks related to the race of the victims and has preserved that issue for our consideration. We note that the prosecutor\u2019s statement was directed to the race of the victims and not to the defendant\u2019s race. The remark was not a direct slur against the defendant designed to arouse the prejudice of the jury. (See United States ex rel. Kirk v. Petrelli (N.D. Ill. 1971), 331 F.Supp. 792, aff\u2019d, 492 F.2d 1245.) Moreover, the prosecutor\u2019s argument followed defense counsel\u2019s attacks on the life style and credibility of the State\u2019s witnesses and the plausibility of their version of the crime. After carefully reviewing all of the arguments presented, we believe the prosecutor\u2019s isolated remarks did not deprive defendant of his right to a fair trial.\nThe judgment of the circuit court is affirmed.\nAffirmed.\nBARRETT and SULLIVAN, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "James E. Staruk, of Worth, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Joan S. Cherry, and Myra J. Brown, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN GARY, Defendant-Appellant.\nFirst District (5th Division)\nNo. 62419\nOpinion filed September 24, 1976.\nJames E. Staruk, of Worth, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Joan S. Cherry, and Myra J. Brown, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0357-01", "first_page_order": 387, "last_page_order": 392 }