{ "id": 3418065, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LEE LOTT et al., Defendants-Appellants", "name_abbreviation": "People v. Lott", "decision_date": "1978-01-31", "docket_number": "No. 76-84", "first_page": "706", "last_page": "711", "citations": [ { "type": "official", "cite": "57 Ill. App. 3d 706" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "336 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "61 Ill. 2d 353", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2965025 ], "opinion_index": 0, "case_paths": [ "/ill-2d/61/0353-01" ] }, { "cite": "322 N.E.2d 819", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "60 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5414551 ], "opinion_index": 0, "case_paths": [ "/ill-2d/60/0001-01" ] }, { "cite": "343 N.E.2d 489", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. 2d 448", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2971950 ], "opinion_index": 0, "case_paths": [ "/ill-2d/62/0448-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "391 U.S. 123", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1767670 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/391/0123-01" ] } ], "analysis": { "cardinality": 682, "char_count": 12961, "ocr_confidence": 0.915, "pagerank": { "raw": 7.213921928365483e-08, "percentile": 0.43099983821450594 }, "sha256": "607cdbdae5287927f95aa09032972b38b033f4caedfb21971348fb8a451a960d", "simhash": "1:4b270f07cdc0c994", "word_count": 2179 }, "last_updated": "2023-07-14T21:27:43.340261+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. DAVID LEE LOTT et al., Defendants-Appellants." ], "opinions": [ { "text": "Mr. JUSTICE CARTER\ndelivered the opinion of the court:\nDefendants, David Lee Lott and Willie Cotton, were jointly tried and convicted of the murders of two men at a jury trial in the Circuit Court of St. Clair County. The jury trial was concluded on November 14, 1974. After a hearing in aggravation and mitigation, the trial judge on November 26, 1975, sentenced Lott to two consecutive terms of imprisonment of 150 to 300 years, and Cotton to two consecutive terms of imprisonment of 100 to 150 years.\nIn this joint appeal, the defendants contend: (1) that Cotton was denied his sixth amendment right to confront the witnesses against him because the jury could infer from testimony of Lott\u2019s oral confession that Lott had implicated Cotton; (2) that evidence they had committed two armed robberies the preceding night was improperly admitted; and (3) that consecutive sentences were improper.\nAt the trial, Marcel Holton, the proprietor of Lulu\u2019s Package Liquor Store, testified that both decedents, Walter McDowell and Rosco Gilmer, and the defendants were in his establishment until approximately 10 p.m. on July 28,1974. The defendants left shortly before the decedents. Three persons sitting on a porch near the store saw the decedents enter their car and saw them stop to allow two men to enter the backseat on the passenger\u2019s side. According to these witnesses, one of the passengers was short and stocky, and the other was tall, thin and wearing a wide-brimmed light colored hat. Shortly after the car pulled away from the store, these three witnesses heard a single shot followed by two more shots.\nEzell Holton, an employee of the liquor store, testified that Lott returned to the store around 12:30 p.m. of the same evening. He was sitting on the end of the candy counter and his coat was pulled up. Holton saw a gun in his right hip pocket and he pulled it out of his pocket. He stated that it was a .38 revolver, short barrel with a brown handle, and he observed \u201cone shell getting ready to go in the chamber and there was another one already in the chamber.\u201d\nPolice Chief Thomas Windom of Alorton testified that a call was received at approximately 11:15 p.m. on July 28,1974, concerning the fact that there were bodies lying in the street at 3700 Converse Avenue which is a short distance from Lulu\u2019s Package Liquors. Dr. Robert Sueper testified that he performed an autopsy on the bodies of Rosco Gilmer and Walter McDowell, the victims, on July 29,1974. McDowell had died from two gunshot wounds to the upper part of his body, and Rosco Gilmer had been killed by a gunshot wound to the neck.\nLinda Carter testified that she lived with David Lott during the latter part of July 1974. She stated that she was given a gun by David Lott who instructed her to give it to his brother if the \u201cpolice came around.\u201d Linda stated that she took the gun to her sister\u2019s (Brenda) home shortly after Lott was arrested. Brenda Carter identified the gun as the one which had been brought to her by her sister. She further testified that sometime after her sister had brought the gun to her house, Linda was picked up by the police. Brenda then called Lott\u2019s father who came to her house where she gave him the gun in question. During the investigation the murder weapon was recovered from a subfloor in an outbuilding at Lott\u2019s father\u2019s home.\nSergeant Joseph Bresser, a firearms identification expert, testified that the slug recovered by State Police Detective Terrance Delaney on July 29, 1974, near the scene where the bodies were discovered and the slug removed from the body of Rosco Gilmer were \u201cdefinitely\u201d fired by the gun recovered from the residence of Lott\u2019s father. Police Officer Gerald Johnson testified that he searched a home that had been occupied by Irene Gardner and Willie Cotton and recovered a pair of sunglasses. These sunglasses were identified by Maggie McDowell, widow of one of the decedents, as belonging to her husband. Elinor Chapman, daughter of Maggie McDowell, testified that Walter McDowell had the sunglasses in question when she saw him at about 6 p.m. on July 28, 1974.\nSeveral witnesses who were in the area of Lulu\u2019s Package Liquors on the night in question testified that they saw the decedents as they got into their car. Then they saw two other men enter the car from the passenger\u2019s side. Several witnesses identified the defendants as being the two passengers who entered the rear seat of the decedent\u2019s automobile just prior to the car driving away from the liquor store. Three witnesses stated that shortly after the decedents\u2019 car left the scene they heard what they thought to be a single shot followed by two more. In addition to this evidence, the State called two men who had been robbed by Lott and Cotton the night before. One victim testified that the defendants forced their way into his car about 4 a.m. the morning of July 28, 1974. This incident took place on the parking lot of a night club near East St. Louis, Illinois. After hitting him in the face with the butt end of a pistol and knocking two teeth out, Cotton drove the automobile to a service station where the victim was forced out of his automobile. As Cotton drove the automobile away, Lott pointed a gun at the victim. The State also called a cabdriver who stated that he was \u201cflagged down\u201d about 2 a.m. by the defendants on a street in East St. Louis and they took his billfold and money changer. Cotton forced him out of the cab and fired a shot at him.\nAt trial two witnesses testified concerning various statements made by the defendants. A St. Clair County jailer testified that Lott stated that he had shot the passenger because he was old and had shot the driver because the driver begged him not to harm him. At approximately 5 p.m. on July 30, Detective Terrance Delaney interrogated Willie Cotton, after which he gave a written statement. Delaney then read Cotton\u2019s statement to Lott, whereupon Lott in an oral confession admitted robbing and murdering both victims. Delaney testified that he had occasion to interview Cotton again, this time at Cotton\u2019s request. On this occasion, Cotton made a statement which was at variance with his earlier written statement and admitted being in the car when the first victim was shot and outside the car when the second victim was killed. When the State asked Detective Delaney to describe the substance of Lott\u2019s statement, detective Delaney began his description with the following statement: \u201cHe [Lott] said that he was in * \u00b0 \u00b0 Lulu\u2019s Packaged Liquor Store 000 the evening of the 28th and an armed robbery was planned \u00b0 *\nCotton contends that this statement violated his sixth amendment right to confront the witnesses against him. While this statement does not refer to Cotton by name, other testimony places him in the liquor store in Lott\u2019s company; and, the jury could, therefore, infer that Lott was planning a robbery with Cotton. (Bruton v. United States, 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620.) Because Cotton\u2019s defense is that he had no knowledge of Lott\u2019s plan to rob and murder the victims, Cotton argues that this statement was critical in the trial. In reply, the State argues that no violation of Bruton occurred. The jury could have, just as easily, concluded from this statement that Lott was planning the robbery with someone else. The State also argues that even if a technical violation of Bruton occurred, the use of this statement was harmless beyond a reasonable doubt in light of the overwhelming evidence of guilt.\nWe agree with the State that no violation of Bruton occurred. In Bruton, the Supreme Court held the introduction of an out-of-court statement by one co-defendant which implicates a second co-defendant violates the latter\u2019s right to confront the witnesses against him. Unlike Bruton, the nontestifying co-defendant was not identified by name. In Harrington v. California, 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726, the Supreme Court held that a violation of Bruton could occur if the statements clearly referred to the co-defendant. In Harrington, the Negro co-defendants described Harrington as \u201cthis white guy\u201d in their confessions. The jury could reach no other conclusion but that the co-defendants were referring to Harrington.\nUnlike Harrington, we do not think that detective Delaney\u2019s reference to Lott\u2019s statement that a \u201crobbery was planned\u201d clearly implicates Cotton. Furthermore, since this statement occurred at the beginning of a lengthy description of Lott\u2019s confession, we doubt that the jury analyzed these three words in the manner propounded by the defense.\nIn order to show Cotton\u2019s knowledge and intent, the State offered testimony of two men who stated that the defendants had robbed them at gunpoint the preceding night. The defendants argue that the probative value of this evidence is far outweighed by its prejudicial impact upon the jury.\nGenerally, evidence of crimes other than one for which an accused is being tried is not admissible unless the evidence tends to prove a fact in issue or goes toward showing motive, intent, identity, absence of mistake or modus operand!. (People v. McDonald, 62 Ill. 2d 448, 343 N.E.2d 489.) It was because of the similarity between the two prior crimes and the crime for which Cotton was on trial that the State was able to show Cotton\u2019s intent and to refute the theory that Cotton was merely present at the scene of the crime. This evidence clearly demonstrates that Cotton had the intent to rob and had knowledge of Lott\u2019s plans. While the State admits that Lott was implicated in a discussion of these crimes, the State contends that Lott was not prejudiced because Lott\u2019s guilt had been established by other evidence including his confession. We agree with the State that evidence of Lott\u2019s guilt was overwhelming, and, therefore, the admission of this evidence against Lott was harmless.\nThe defendants argue that the trial judge improperly imposed consecutive sentences. Section 5 \u2014 8\u20144 of the Unified Code of Corrections (Ill. Rev. Stat. 1973, ch. 38, par. 1005 \u2014 8\u20144) states: \u00b0 \u00b0 The court shall not impose consecutive sentences for offenses which are committed as part of a single course of conduct during which there was no substantial change in the nature of the criminal objective. \u00b0 \u201d The defendants argue that they had the intent to rob and murder their victims from the beginning and, therefore, there had been no change in the nature of their criminal objective. The defendants attempt to distinguish the facts of this case from People v. Williams, 60 Ill. 2d 1, 322 N.E.2d 819. In Williams, the supreme court held that the nature of the criminal objective changed from robbery to murder during the course of the incident, and, therefore, consecutive sentences were proper.\nWhile the appellants\u2019 brief failed to argue that Lott\u2019s and Cotton\u2019s cases should be considered separately, we believe that separate treatment is necessary in order to properly analyze the chain of events. The nature of Lott\u2019s criminal objective clearly changed during the course of the incident. By his own admission, he did not form the intent to kill the driver until after he had murdered the passenger. Defendant Lott clearly formed the intent to commit two separate and distinct murders and his consecutive sentences are affirmed.\nThe evidence against defendant Cotton indicates that Cotton had formed the intent to rob the victims. The evidence indicates that Lott committed both murders, and no evidence indicates that Cotton had knowledge that Lott intended to commit two murders. Cotton was convicted on an accountability theory and his sentences are hereby made to run concurrently.\nThe judgment of the Circuit Court of St. Clair County as to defendant Lott\u2019s conviction and the sentences imposed therein will be affirmed; the judgment as to defendant Cotton\u2019s conviction will be affirmed but the sentences to two consecutive terms of imprisonment of 100 to 150 years is hereby modified so that the sentences are to be served concurrently. An amended mittimus will be issued as to Cotton\u2019s sentence.\nJudgments affirmed as modified.\nEBERSPACHER, P. J., and KARNS, J., concur.\nBy way of explanation of the hiatus between the date of the jury verdict and the date of the sentencing, it is noted that the State sought to have the death penalty imposed upon the defendants, such effort culminating in a decison by the supreme court that the death penalty legislation was unconstitutional. People ex rel. Rice v. Cunningham, 61 Ill. 2d 353, 336 N.E.2d 1.", "type": "majority", "author": "Mr. JUSTICE CARTER" } ], "attorneys": [ "Michael J. Rosborough, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellants.", "Clyde L. Kuehn, State\u2019s Attorney, of Belleville (Bruce D. Irish and John A. Clark, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. DAVID LEE LOTT et al., Defendants-Appellants.\nFifth District\nNo. 76-84\nOpinion filed January 31, 1978.\nMichael J. Rosborough, of State Appellate Defender\u2019s Office, of Mt. Vernon, for appellants.\nClyde L. Kuehn, State\u2019s Attorney, of Belleville (Bruce D. Irish and John A. Clark, both of Illinois State\u2019s Attorneys Association, of counsel), for the People." }, "file_name": "0706-01", "first_page_order": 728, "last_page_order": 733 }