{ "id": 2814005, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY BLACKMAN, Defendant-Appellant; THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALLACE RUTH, Defendant-Appellant", "name_abbreviation": "People v. Blackman", "decision_date": "1976-11-24", "docket_number": "No. 62461", "first_page": "137", "last_page": "142", "citations": [ { "type": "official", "cite": "44 Ill. App. 3d 137" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "252 N.E.2d 693", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "114 Ill. App. 2d 450", "category": "reporters:state", "reporter": "Ill. 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Ed. 2d", "year": 1962, "opinion_index": 0 }, { "cite": "419 U.S. 965", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6406016, 6405891, 6405382, 6405641, 6405771, 6405516, 6404976, 6406165, 6405175, 6405082, 6405275, 6404894 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/us/419/0965-11", "/us/419/0965-10", "/us/419/0965-06", "/us/419/0965-08", "/us/419/0965-09", "/us/419/0965-07", "/us/419/0965-02", "/us/419/0965-12", "/us/419/0965-04", "/us/419/0965-03", "/us/419/0965-05", "/us/419/0965-01" ] }, { "cite": "308 N.E.2d 590", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1962, "opinion_index": 0 }, { "cite": "56 Ill. 2d 432", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404227 ], "year": 1962, "opinion_index": 0, "case_paths": [ "/ill-2d/56/0432-01" ] }, { "cite": "80 S. Ct. 1255", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1974, "opinion_index": 0 }, { "cite": "4 L. 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Ed. 2d", "opinion_index": 0 }, { "cite": "396 U.S. 1016", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 11418880, 11418916, 11418950, 11418989, 11419030, 11418842 ], "opinion_index": 0, "case_paths": [ "/us/396/1016-02", "/us/396/1016-03", "/us/396/1016-04", "/us/396/1016-05", "/us/396/1016-06", "/us/396/1016-01" ] }, { "cite": "245 N.E.2d 771", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. 2d 91", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2848334 ], "opinion_index": 0, "case_paths": [ "/ill-2d/42/0091-01" ] }, { "cite": "264 N.E.2d 140", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "46 Ill. 2d 554", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2900728 ], "opinion_index": 0, "case_paths": [ "/ill-2d/46/0554-01" ] }, { "cite": "309 N.E.2d 537", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "56 Ill. 2d 523", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5404456 ], "opinion_index": 0, "case_paths": [ "/ill-2d/56/0523-01" ] }, { "cite": "326 N.E.2d 507", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 171", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2865748 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0171-01" ] }, { "cite": "296 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "54 Ill. 2d 280", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2933485 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/ill-2d/54/0280-01" ] } ], "analysis": { "cardinality": 677, "char_count": 12018, "ocr_confidence": 0.862, "pagerank": { "raw": 1.6928033437192792e-07, "percentile": 0.6995037162398271 }, "sha256": "a4ea544111972b704d93472caa91226c84ff93f1427f1ff3439ab7c5bd083731", "simhash": "1:abfb1448f35d3f0f", "word_count": 2009 }, "last_updated": "2023-07-14T18:25:08.154218+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. JERRY BLACKMAN, Defendant-Appellant.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALLACE RUTH, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE LORENZ\ndelivered the opinion of the court:\nDefendants were each indicted for two counts of aggravated battery and one count of armed robbery. Following separate jury trials, Blackman was convicted of aggravated battery causing great bodily harm (Ill. Rev. Stat. 1973, ch. 38, par. 12\u20144(a)) and aggravated battery by use of a deadly weapon (Ill. Rev. Stat. 1973, ch. 38, par. 12\u20144(b)(1)), and Ruth was convicted of both aggravated batteries and of armed robbery. (Ill. Rev. Stat. 1973, ch. 38, par. 18\u20142.) Blackman was sentenced to a term of not less than 3 years, 4 months nor more than 15 years on the aggravated battery causing great bodily harm conviction, and Ruth was sentenced to a term of not less than 10 years nor more than 25 years on the armed robbery conviction.\nIn this joint appeal, both defendants contend: (1) they were denied fair trials by the State\u2019s closing arguments; and (2) multiple convictions are improper when each arose from a single transaction or course of conduct.\nOn August 19, 1973, at 8:45 p.m., Lawrence Mitchell was walking near 8100 South Western Avenue when defendants approached him. Blackman pressed a knife into Mitchell\u2019s ribs and demanded Mitchell\u2019s money. When Mitchell resisted, he was wrestled to the ground and one of the defendants stabbed him in the eye. Blackman then took *12 from his right front pocket and a wristwatch from his left arm. When Blackman felt Mitchell\u2019s wallet in his left pocket, he passed the knife to Ruth and told him to cut the wallet out. As the knife was being passed, Mitchell grabbed it, threw it away, and yelled for help. Defendants then kicked Mitchell and Ruth hit him on the head with a two by four approximately 10 times. Mitchell continued to scream and defendants fled. Later that evening Mitchell identified both defendants in a lineup at the police station.\nChicago police officer John Kosiewicz testified that he observed Blackman departing the area in a 1962 Pontiac and chased him into a dead end alley near 8100 South Bell. He observed Blackman\u2019s face as they both exited their vehicles, but lost Blackman during a chase through some nearby bushes. A subsequent license check showed the Pontiac was registered to a Lorine Blackman who lived at 5201 South Federal Street.\nChicago police officer Anthony Zawilla testified that he and his partner, Edward Kevin, observed Ruth running on 83rd Street approximately one mile west of the scene. Ruth was not wearing a shirt. He arrested Ruth in a nearby alley and informed him of his constitutional rights. He recovered a pocket knife with reddish brown spots on the blade. As they proceeded to the police station, Ruth admitted that he and Jerry Blackman, who lived at 5201 South Federal, committed the crime, and that Blackman had the money. Officer Edward Kevin testified in rebuttal at the Ruth trial and corroborated Zawilla\u2019s testimony.\nOfficer Wilburt Jamison testified that during his investigation of the incident he arrested Blackman at 5201 South Federal. He observed Mitchell identify both defendants at the lineup.\nDefendant Ruth testifying in his own behalf stated that he left his home at 5201 South Federal to visit his aunt, and, by mistake, left the bus at the wrong stop. He was accosted by a group of whites who hit him and tore off his shirt. After he was arrested in an alley near 79th Street, he was advised \u201cabout some constitutional right.\u201d He denied giving a confession, implicating Blackman, and seeing the police recover a pocketknife from his person.\nDuring closing argument at Ruth\u2019s trial, the prosecutor made several remarks which Ruth contends in this appeal were error, but which he failed to object to during the trial or specificaUy refer to in his post-trial motion. Over Ruth\u2019s objection, the prosecutor was allowed to argue that if the jurors acquitted Ruth they should not \u201clet this man beat you back to your cars.\u201d\nSimilarly, several remarks made during closing argument by the prosecutor in Blackman\u2019s trial were not objected to nor specifically included in the post-trial motion. Over Blackman\u2019s objection, the prosecutor also argued that Blackman and Ruth were \u201cbuddies\u201d who \u201cwent out that night and \u00b0 # tried to stick up a man\u201d and also that if the jurors acquitted Blackman \u201c * 6 * I strongly suggest, folks, that you stay away from 81st and Western 0 *\nOpinion\nDefendants contend they were denied fair trials by the State\u2019s closing arguments. We note at the outset that remarks not objected to at trial nor argued in a post-trial motion are waived for review. (People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856; People v. Bell (1975), 27 Ill. App. 3d 171, 326 N.E.2d 507.) Moreover, since the evidence of defendants\u2019 guilt is not closely balanced, the remarks are not subject to review as plain error under Supreme Court Rule 615(a). (Ill. Rev. Stat. 1973, ch. 110A, par. 615(a).) For this reason, we will not discuss in this appeal those isolated remarks which neither defendant contested in the trial court.\nBlackman contends the prosecutor\u2019s statement that Blackman and Ruth were \u201cbuddies\u201d who intended \u201cto stick up a man\u201d that night was reversible error. To the contrary, the prosecutor could properly argue from evidence which showed Ruth\u2019s own confession and implication of Blackman and their similar residence at 5201 South Federal and theorize that defendants were friends who intended to commit a robbery on the night in question. See People v. Wright (1974), 56 Ill. 2d 523, 309 N.E.2d 537.\nHowever, we believe it was error for the prosecutors to argue that the jurors, if they acquitted, should avoid the area of 81st and Western and should not let Ruth beat them back to their parked cars. Appeals to the prejudices and fears of the jurors are clearly prohibited. (People v. Davis (1970), 46 Ill. 2d 554, 264 N.E.2d 140.) The prosecutors\u2019 remarks here were clearly designed to appeal to the jurors\u2019 fears, and cannot be justified as exhortations to fearlessly administer the law. Nonetheless, unless the error is a material factor in a defendant\u2019s conviction, the trial court\u2019s judgment will not be reversed on appeal. (People v. Nicholls (1969), 42 Ill. 2d 91, 245 N.E.2d 771, cert. denied, 396 U.S. 1016, 24 L. Ed. 2d 507, 90 S. Ct. 578.) An accused is guaranteed a fair trial, not one totally free from error. (People v. Ashley (1960), 18 Ill. 2d 272, 164 N.E.2d 70, cert. denied, 363 U.S. 815, 4 L. Ed. 2d 1157, 80 S. Ct. 1255.) Thus, when the evidence adduced is so overwhelming that a conviction would, of necessity, result even if the error were eliminated, a court of review will not reverse the trial court\u2019s judgment. People v. Dukett (1974), 56 Ill. 2d 432, 308 N.E.2d 590, cert. denied, 419 U.S. 965, 42 L. Ed. 2d 180, 95 S. Ct. 226; People v. Naujokas (1962), 25 Ill. 2d 32, 182 N.E.2d 700; People v. Smith (1972), 6 Ill. App. 3d 259, 285 N.E.2d 460.\nIn this appeal neither defendant has contended that he was not proved guilty beyond a reasonable doubt. Indeed, we believe Ruth\u2019s confession, Mitchell\u2019s identifications, the recovery of the pocketknife, and the policemen\u2019s testimony present overwhelming evidence of defendants\u2019 guilt. Consequently, we believe beyond a reasonable doubt that the prosecutors\u2019 isolated remarks did not contribute to the guilty findings, and that the verdicts would not change if the errors were removed through new trials. For this reason, the remarks were harmless errors at worst and we reject defendants\u2019 initial contentions.\nDefendants also contend multiple convictions are improper when each arose from a single transaction and course of conduct. The State has conceded on appeal that Ruth\u2019s aggravated battery by use of a deadly weapon conviction was the same force necessary to effectuate the armed robbery, and, therefore, should be vacated. (See People v. Ashford (1974), 17 Ill. App. 3d 592, 308 N.E.2d 271.) Accordingly, we will reverse the judgment of the circuit court on Ruth\u2019s conviction for aggravated battery by use of a deadly weapon.\nA defendant may not be convicted of multiple offenses which arise from a single act or course of conduct. (People v. Lilly (1974), 56 Ill. 2d 493, 309 N.E.2d 1.) However, where more than one offense arises from a series of closely related acts and the crimes involved require different elements of proof, multiple judgments are permissible. People v. Williams (1975), 60 Ill. 2d 1, 322 N.E.2d 819.\nThe trial court in sentencing Blackman stated \u201cThat is also only one offense, primarily the offense of aggravated battery causing great bodily harm.\u201d We agree and believe that it was error to enter judgment on the remaining conviction for aggravated battery by use of a deadly weapon. In considering defendant\u2019s course of conduct for purposes of the Lilly rule, section 2\u20144 of the Criminal Code of 1961 allows an analysis of \u201c\u201c * ' an act or series of acts, and the accompanying mental state.\u201d (Ill. Rev. Stat. 1973, ch. 38, par. 2\u20144.) (Emphasis added.) Where defendant\u2019s series of acts were not \u201cindependently motivated or otherwise separable,\u201d multiple convictions for aggravated battery cannot be sustained. (People v. Fleming (1975), 36 Ill. App. 3d 612, 345 N.E.2d 10; People v. Hines (1975), 34 Ill. App. 3d 97, 339 N.E.2d 489.) Here, the evidence shows Blackman was engaged in a series of acts all designed to subdue the victim and effectuate the robbery. Consequently, the acts were not independently motivated and Blackman\u2019s conviction for aggravated battery by use of a deadly weapon must be reversed.\nSimilarly, Ruth\u2019s remaining conviction of aggravated battery causing great bodily harm was part and parcel of a general intent to subdue and rob Mitchell. As in People v. Stewart (1970), 45 Ill. 2d 310, 259 N.E.2d 24, and People v. Redmond (1974), 59 Ill. 2d 328, 320 N.E.2d 321, nothing appears in this record to suggest Ruth\u2019s beating Mitchell was independently motivated or otherwise separable from the armed robbery. Unlike People v. Johnson (1971), 3 Ill. App. 3d 19, 278 N.E.2d 837, and People v. Baker (1969), 114 Ill. App. 2d 450, 252 N.E.2d 693, where the robberies were completed before the acts constituting the aggravated batteries occurred, the instant case shows a continuing effort to separate Mitchell from his property while the beating was being administered. For this reason, the acts involved were all in the same course of conduct and only the conviction for armed robbery can be sustained.\nFinally, in order to correct an error which appears in the report of proceedings of the Blackman trial and pursuant to our power under Supreme Court Rule 615(b) (Ill. Rev. Stat. 1973, ch. 110A, par. 615(b)), we reduce Blackman\u2019s maximum sentence of 15 years imprisonment to a maximum term of not less than 10 years in compliance with section 5\u20148\u20141(b)(4) of the Unified Code of Corrections. Ill. Rev. Stat. 1973, ch. 38, par. 1005\u20148\u20141(b)(4).\nFor the reasons stated above, we affirm defendant Blackman\u2019s conviction for aggravated battery causing great bodily harm; reverse his conviction for aggravated battery by use of a deadly weapon and modify his sentence to a term of imprisonment of not less than 3 years, 4 months nor more than 10 years. We also affirm defendant Ruth\u2019s conviction for armed robbery and his sentence of not less than 10 years nor more than 25 years imprisonment, but reverse both of Ruth\u2019s aggravated battery convictions.\nAffirmed in part; reversed in part; modified in part.\nSULLIVAN and BARRETT, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE LORENZ" } ], "attorneys": [ "James J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellants.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Joan S. Cherry, and Timothy Quinn, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JERRY BLACKMAN, Defendant-Appellant.\u2014THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WALLACE RUTH, Defendant-Appellant.\nFirst District (5th Division)\nNo. 62461\nOpinion filed November 24, 1976.\nJames J. Doherty, Public Defender, of Chicago (Donald S. Honchell, Assistant Public Defender, of counsel), for appellants.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Joan S. Cherry, and Timothy Quinn, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0137-01", "first_page_order": 167, "last_page_order": 172 }