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    "parties": [
      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY WILLIAMS et al., Defendants-Appellants."
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      {
        "text": "Mr. JUSTICE STAMOS\ndelivered the opinion of the court:\nDefendants, Larry Williams, Richard Hall and Marcel Moore, were charged by indictment with the offense of armed robbery in violation of section 18 \u2014 2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 18\u20142). Upon a joint jury trial each defendant was found to be guilty as charged and judgments were entered on the verdicts. Defendant Williams was sentenced to serve a term of confinement in the Illinois State Penitentiary of 4 years to 4 years, 1 day; defendant Hall was sentenced to serve a term of 5 to 15 years; and, defendant Moore was sentenced to serve a term of 25 to 60 years.\nEach defendant has appealed and presents several issues for our consideration. Defendant Hall contends that his constitutional right to confront a witness was violated by the testimony of a State\u2019s witness who testified regarding a confession made by defendant Moore outside the presence of defendant Hall and that such error was prejudicial in view of defendant Hall\u2019s contention that the evidence properly adduced was insufficient to establish his guilt beyond a reasonable doubt. Defendants Williams and Hall also contend that the trial court erroneously instructed the jury as to the definition of circumstantial evidence. Defendant Moore asserts that the prosecutor\u2019s closing argument, comparing the viciousness of the instant crime to life in the jungle, was improper and served to deny defendant a fair trial and that his sentence was excessive in comparison to those meted out to his co-defendants.\nA review of the evidence adduced at trial reveals that on June 24,1972, Ollie Wilson owned and operated the W&W Food and Liquor Store located at 401 W. 95th Street in Chicago, Illinois. At approximately 10:30 p.m. on that date Wilson was present in the store along with his cashier, Herman Williams, and a customer, Rufus Willis. Wilson was standing at the rear of the store between the meat counter and a beer cooler. Williams was tending the cash register located at the front of the store. Willis was standing in an aisle near the beer cooler.\nAt 10:40 p.m., two men entered the store and stopped near the cash register. Within seconds they were joined by two other men who walked to the rear and positioned themselves near a telephone on the wall. At this point, one of the individuals near the cash register drew a gun, placed it to Williams\u2019 face and announced a holdup. The man removed *250-300 from the till.\nAs the holdup was announced, the two men who had positioned themselves at the rear of the store displayed weapons. One bandit put a gun to Willis\u2019 head and took his wallet. The other assailant accosted Wilson and threatened to shoot unless Wilson came out from behind the counter. Wilson refused and at this point a shot was fired. Wilson also drew a weapon, fired in the direction of the four assailants and heard someone say, \u201cI\u2019m hit.\u201d The assailants fled the premises and Wilson summoned police.\nChicago Police Department Investigator John Burge arrived on the scene shortiy thereafter and interviewed Wilson and Williams who provided descriptions of the suspects. Burge also observed a trail of blood on the floor. Burge\u2019s investigation revealed that Englewood Hospital had admitted one Marcel Moore.\nOn June 28, 1972, Burge went to the hospital where officials provided him with a bullet which had been surgically removed from Moore\u2019s person. Burge submitted the recovered bullet for ballistics examination by the Chicago Police Department Crime Laboratory. The examination established that the bullet recovered from Moore\u2019s body had been fired from Ollie Wilson\u2019s gun.\nUpon his admission to the hospital, Moore said that he was the victim of an armed street gang. However, when advised of his constitutional rights and after being confronted with the ballistics evidence, Moore admitted to Burge that he had participated in the liquor store robbery. During the course of a pretrial hearing Investigator Burge testified that Moore also named two of his confederates \u2014 Larry Williams and Richard Hall. Williams and Hall were arrested later that day and were identified by Ollie Wilson and Herman Williams from photographs and a lineup as two of the participants in the armed robbery.\nAt trial, Ollie Wilson testified that on the night of the robbery, the lights in his store were on \u201cfull blast\u201d during the 7-10 minutes in which the assailants were on the premises. Wilson was unable to identify the two men who stopped by the cash register. He identified the two who had proceeded to the store as Hall and Moore and further indicated that he was familiar with Moore inasmuch as Moore had visited the establishment prior to the date in question. Wilson observed Hall during the course of the robbery from a distance of 4-5 feet and identified him as the assailant who accosted Rufus Willis. Wilson identified Moore as the individual who had ordered Wilson from behind the counter upon a threat of death.\nOn cross-examination, Wilson also stated that at a preliminary hearing held one month after the incident he was asked to identify the participants in the robbery. Wilson identified Moore and, although he had previously identified Hall, Wilson did not identify Hall at the preliminary hearing. Wilson explained that he did not observe Hall in the courtroom on that occasion which Wilson described as a \u201cfast shuffle\u201d in a crowded room.\nHerman Williams, the store\u2019s cashier, also testified that the robbery was begun by the entrance of two men who stopped near the cash register. One of these individuals positioned himself 10 feet from the register. Williams identified the latter individual as defendant, Larry Williams. The cashier further testified that after the holdup was announced he was ordered to the rear of the store in the vicinity of a customer, Rufus Willis. The cashier also identified defendant Hall as the robber who subsequently accosted Willis.\nOn cross-examination, Williams admitted that he had previously lied when he testified that he had initially heard co-defendant Moore\u2019s name mentioned in court. Williams stated that prior to his being called to the witness stand he had heard the name mentioned by a passerby. Williams also admitted that earlier that morning and prior to the commencement of trial proceedings, he had identified another man to defense counsel as defendant Moore. It appears that on the latter occasion counsel for defendant Moore managed to be in the room where Williams was waiting to be called to testify. Counsel seized this opportunity to engage in some last minute \u201cdiscovery\u201d and, as the defendants were being led out to the courtroom, counsel interrogated the witness as to the identity of a defendant-prisoner. Williams explained that the misidentification occurred because, \u201cI don\u2019t like to be bothered when I\u2019m out.\u201d Based upon that brief encounter, a protracted cross-examination was developed which quickly deteriorated into a colloquy of nonresponsive answers by the witness to the potentially impeaching questions of counsel. No effort was made to complete this impeachment by the admission of rebuttal evidence.\nThe State also adduced the testimony of Rufus Willis who corroborated the other witness\u2019 description of the robbery. Willis was unable to identify any of the perpetrators.\nInvestigator Burge testified for the State and detailed his investigation of the matter. In particular, Burge stated that immediately after his conversation with Marcel Moore on June 28,1972, Burge proceeded to a particular address at which he identified and arrested Hall and Williams.\nDefendants did not offer any testimony in their own behalf.\nDefendant Hall initially contends that his constitutional right to confront a witness was violated by the testimony of Officer Burge who testified regarding a confession made by defendant Moore. According to Hall, this testimony served to implicate him in commission of the armed robbery in violation of the teachings of Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.\nInvestigator Burge testified on direct examination that co-defendant Moore admitted participating in the robbery of Ollie Wilson\u2019s store and that he was joined in this endeavor by three other \u201cindividuals.\u201d Burge was then asked:\n\u201cQ. Now, Investigator Burge, did you have any further conversation with Marcel Moore about this particular robbery at this time?\nA. Yes sir.\nQ. What, if anything, did you immediately do after having any further conversations?\u201d\nBurge responded that he proceeded to a particular address, knocked on the door, was admitted by an unidentified female, ascertained the identity of Williams and Hall and immediately placed them under arrest in connection with the Wilson robbery.\nOn redirect examination, Burge was questioned further:\n\u201cQ. Weren\u2019t there three other offenders in the robbery?\nA. Yes sir. [Objection; overruled]\nQ. Did you attempt to learn anything from Marcel Moore about the other defendants?\nA. Yes sir.\nQ. Was that your purpose in questioning them further?\nA. Yes sir.\u201d\nAt the outset, it may be noted that defendant Hall has failed to properly preserve this issue for appeal. The record fails to establish that Hall filed an oral or written motion for new trial. Consequently the court need not consider the instant allegation of error. People v. Pickett (1973), 54 Ill. 2d 280, 296 N.E.2d 856.\nIn any case, where several persons are jointly indicted the general rule and preferred procedure is that they should be tried together. (People v. Canaday (1971), 49 Ill. 2d 416, 275 N.E.2d 356.) The resolution of a motion for severance turns on whether the defenses are of such an antagonistic nature that defendants cannot receive a fair trial when tried together. (People v. Gendron (1968), 41 Ill. 2d 351, 243 N.E.2d 208.) When a motion for separate trial is based on the fact that a co-defendant\u2019s confession implicates the moving defendant, a severance should be granted unless the prosecution declares that the admission will not be offered in evidence at the trial, or if offered, that all references to the party applying for a severance will be eliminated. People v. Miller (1968), 40 Ill. 2d 154, 238 N.E.2d 407.\nIn the instant case, the precise holdings of Bruton and its progeny are inapplicable. Burge did not expressly testify to a confession, admission or statement of Moore\u2019s that implicated defendant Hall in any crime. Burge merely testified that he effected Hall\u2019s arrest subsequent to Moore\u2019s confession. (See People v. Nelson (1970), 124 Ill. App. 2d 280, 260 N.E.2d 251.) No testimony was elicited from Burge to the effect that Moore identified Hall as an accomplice or that Moore detailed any role which Hall might have played in the robbery.\nHall further contends that the mere fact that Burge effected Hall\u2019s arrest immediately after Moore confessed leads inexorably to the conclusion that Moore provided Burge with Hall\u2019s identity and that Moore identified Hall as an accomplice in the Wilson robbery. It has been held that where the names of co-defendants are omitted from the body of a confession the co-defendants may still suffer prejudice if it is apparent from the context that it was the names of the co-defendants which were deleted. (People v. Bravos (1969), 114 Ill. App. 2d 298, 252 N.E.2d 776.) In People v. Harper (1968), 91 Ill. App. 2d 179, 234 N.E.2d 171, it was held that eliminating the defendant\u2019s name from the co-defendant\u2019s confession and substituting the word \u201cblank\u201d so that the confession was read to the jury in the form \u201cMe and blank\u201d was insufficient to prevent the confession from implicating defendant and his denial for severance was reversible error. The confession detailed the participation of each defendant in the commission of the offense.\nHowever, a different view of this type of evidence was taken by the Illinois Supreme Court in People v. Hudson (1970), 46 Ill. 2d 177, 263 N.E.2d 473, which we find is dispositive of this issue. In Hudson, the defendant complained that evidence of an admission by one Riggins, implicating Hudson, was improperly admitted. The testimony in question was elicited from one McFadden. McFadden testified that prior to trial he had occasion to speak to law enforcement officials after which he turned State\u2019s evidence against Hudson. McFadden testified that upon his return to the police station, one of the jailers told him that \u201cthe boys they got back there are mad at you.\u201d McFadden also testified that he had a conversation with Riggins during which Riggins called McFadden a \u201cstool pigeon.\u201d Defendant Hudson argued that the hearsay statement of the jailer that \u201cthe boys\u201d were mad at McFadden could only mean that Hudson and Riggins were angry with him for implicating them and that testimony that Riggins called McFadden a stool pigeon was an implied admission that Riggins and Hudson were guilty. The court noted that \u201c[t]he testimony in question does not readily lead to the conclusion asserted by the defendant and falls far short of the type of incriminating statement forbidden by Bruton \u201d \u201d 46 Ill. 2d 177, 196.\nThe testimony at issue in the instant case is akin to that found in Hudson. In both cases the co-defendant\u2019s statements did not expressly or directly implicate the defendant. To be sure, the jury could reasonably infer from the testimony in question that Moore implicated defendant Hall in the Wilson robbery but that inference is not so immediate as to mandate reversal pursuant to Bruton. Burge\u2019s testimony was confined to his physical activities and to the bare occurrence of his conversations with Moore. (See People v. Sanders (1976), 37 Ill. App. 3d 236, 345 N.E.2d 757.) The officer\u2019s testimony concerning his investigatory procedures was necessary and properly admitted under the circumstances. See People v. Byrd (1976), 43 Ill. App. 3d 735, 357 N.E.2d 174; People v. Colletti (1968), 101 Ill. App. 2d 51, 242 N.E.2d 63, aff'd (1971), 48 Ill. 2d 135, 268 N.E.2d 397.\nDefendant Hall further contends that the two witnesses who identified him as a perpetrator of the armed robbery were inherently incredible and unworthy of belief. He attacks the credibility of Ollie Wilson on the ground that the witness failed to identify Hall at a preliminary hearing. Wilson testified that the courtroom in which the hearing was held was crowded and rushed and explained that he did not observe Hall in the courtroom on that date. Hence, Wilson did not identify Hall. This testimony evinces no uncertainty as to Wilson\u2019s identification of Hall. His testimony was based upon ample opportunity to observe the assailants at close range, under adequate lighting conditions and for an extended period of time. Such testimony is sufficient to support defendant\u2019s conviction. People v. Canale (1972), 52 Ill. 2d 107, 285 N.E.2d 133.\nHall was also identified by Herman Williams and defendant attacks his testimony based upon the witness\u2019 hostile attitude and demeanor. It appears that the witness was generally unimpressed with the quality of our judicial system and all its participants and was offended by endeavors of defense counsel to make the witness look foolish before the jury. Defense counsel\u2019s cross-examination and the witness\u2019 response thereto dealt with collateral matters. While Williams\u2019 conduct on the stand was less than exemplary his identification testimony was not shaken. Like Wilson\u2019s, Williams\u2019 testimony was grounded upon an ample opportunity to observe the assailant.\nFinally, Hall points out that Rufus Willis was unable to identify him as an assailant although Willis was personally robbed by Hall according to Williams and Wilson. Willis testified that he was frightened and intimidated by the robber. A gun was placed to Willis\u2019 head during the course of the robbery and his failure to observe the assailant was understandable. His testimony does not serve to exculpate defendant and does not detract from the testimony of Williams or Wilson.\nDefendants Williams and Hall jointly contend that the trial court erred in giving the jury the definitional instruction on circumstantial evidence since it is their contention that only direct evidence was presented against them. The trial court gave State\u2019s Instruction No. 7, which is IPI-Criminal No. 3.02, and provides:\n\u201cCircumstantial evidence is the proof of facts or circumstances which give rise to a reasonable inference of other facts which tend to show the guilt or innocence of the defendant. Circumstantial evidence should be considered by you together with all the other evidence in the case in arriving at your verdict.\u201d\nIn light of the fact that considerable circumstantial evidence was adduced against co-defendant Moore, the instruction was properly given.\nDefendants Williams and Hall assert that the instruction, on its face, was not limited to Moore. Williams and Hall contend, and the State concedes, that the only evidence adduced against them was direct evidence. This evidence consisted of the eyewitness identifications of Ollie Wilson and Herman Williams.\nIt does not appear that defendants Williams and Hall proffered an instruction limiting State\u2019s Instruction No. 7 in a manner satisfactory to them. It was incumbent upon them to do so and their failure in this regard precludes assertion of this matter as grounds for reversal on appeal. People v. Lane (1974), 23 Ill. App. 3d 287, 319 N.E.2d 90.\nIn any case, the instructions tendered to the jury, considered as a whole, inform the jury that circumstantial evidence adduced against Moore, such as the bullet removed from the latter\u2019s body, was not to be considered as evidence against defendants Williams and Hall. In this vein, the jury was instructed that:\n\u201cYou should give separate consideration to each defendant. Each is entitled to have his case decided on the evidence and the law which is applicable to him.\nAny evidence which was limited to some defendants should not be considered by you as to any other defendants.\u201d (IPI-Criminal No. 3.05.)\nEvidence of the bullet and ballistics tests performed upon it was limited to defendant Moore. Indeed, the circumstantial evidence instruction at issue, on its face, concerns and uses the word \u201cdefendant\u201d in its singular form.\nDefendants Hall and Williams have failed to establish that they suffered any prejudice, that the instruction was misleading, or that it led the jury improperly to speculate that there were irrelevant facts and circumstances proved which might, or did, authorize defendants\u2019 conviction. Cf. People v. Gardner (1954), 4 Ill. 2d 232, 122 N.E.2d 578.\nDefendant Moore contends that the prosecutor\u2019s references in closing argument to defendant\u2019s conduct as animalistic and reminiscent of life in the jungle were unfounded and served to deny defendant a fair trial. The remarks in question were improper, however, in light of the various eyewitness and ballistics evidence adduced at trial in support of defendant\u2019s confessed participation in the crime, the prosecutor\u2019s comments cannot be said to have contributed to defendant\u2019s conviction. People v. Mackey (1964), 30 Ill. 2d 190, 195 N.E.2d 636.\nDefendant Moore finally contends that his sentence is excessive in proportion to that meted out to his accomplice, Richard Hall. The differences in their criminal backgrounds and their respective roles in the commission of the offense of which they currently stand convicted do not justify the relatively gross disparity in their sentences. Accordingly, the sentence imposed upon Marcel Moore is vacated and the cause is remanded for new sentencing.\nFor the aforementioned reasons, the judgments of the trial court are affirmed; the sentence of defendant Moore is vacated and the cause is remanded for further proceedings consistent with this opinion.\nAffirmed in part; reversed in part and remanded.\nDOWNING, P. J\u201e and PERLIN, J., concur.",
        "type": "majority",
        "author": "Mr. JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "Robert E. Zeitner, of Chicago, for appellant Marcel Moore.",
      "James Geis, of State Appellate Defender\u2019s Office, of Chicago, for appellant Richard Hall.",
      "James Doherty, Public Defender, of Chicago, for appellant Larry Williams.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Iris E. Sholder, and Edward D. Stem, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LARRY WILLIAMS et al., Defendants-Appellants.\nFirst District (2nd Division)\nNo. 62453\nOpinion filed August 9, 1977.\nRobert E. Zeitner, of Chicago, for appellant Marcel Moore.\nJames Geis, of State Appellate Defender\u2019s Office, of Chicago, for appellant Richard Hall.\nJames Doherty, Public Defender, of Chicago, for appellant Larry Williams.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Iris E. Sholder, and Edward D. Stem, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0081-01",
  "first_page_order": 103,
  "last_page_order": 112
}
