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  "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. GOMEZ, Defendant-Appellant",
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      "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. GOMEZ, Defendant-Appellant."
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        "text": "Mr. PRESIDING JUSTICE GOLDBERG\ndelivered the opinion of the court:\nAfter a jury trial, John R. Gomez (defendant) was found guilty of armed robbery (Ill. Rev. Stat. 1977, ch. 38, par. 18 \u2014 2) and sentenced to 8 years. Defendant appeals.\nJoseph Bradtke and Steven Treskow testified that on March 17,1977, they were employed at Meier\u2019s Standard Gas Station. At approximately 11:30 p.m., defendant entered the station and asked where the washroom was located. Defendant left the lobby of the station and returned minutes later. Defendant asked Mr. Treskow for some change. Mr. Treskow told defendant to speak with Mr. Bradtke who was in the bay area of the station.\nDefendant approached Mr. Bradtke and requested change for a $5 bill. Defendant received the change, turned away from Mr. Bradtke and then turned toward him holding a gun. Defendant ordered Mr. Bradtke into the back room and pushed him against some lockers.\nMr. Treskow entered the back room and was ordered to stand over near Mr. Bradtke. Defendant then demanded money from the complainants. Complainants gave defendant the money they carried in their pockets, approximately $400. Defendant then ran out of the station.\nMr. Bradtke picked up a broom and started chasing defendant. Mr. Bradtke caught up with defendant as defendant ran down a side street and attempted to hide in a blue and white Mustang automobile. Mr. Bradtke threw a bottle at the car but defendant drove away. The incident was reported to the police.\nBoth complaining witnesses testified all areas of the gas station were brightly lighted with fluorescent tubing and they viewed defendant\u2019s face for several seconds.\nOn April 5, 1977, both complainants identified defendant from a lineup photograph shown to them by police officer Moreth. On April 6, 1977, Mr. Bradtke viewed a lineup and positively identified defendant as the armed robber. Both complainants made positive in-court identifications of the defendant.\nOn direct examination Mr. Bradtke testified defendant called him the night before trial and told complainant not to testify. Defendant said that it (the robbery) was a small crime and he could be sent to jail for 5 to 6 years. Defendant offered to give the complainants a ride to court the next day. When Mr. Bradtke refused to accept the invitation, defendant asked the complainant to meet him in the cafeteria before trial. Mr. Bradtke did not respond and defendant told him to \u201cthink it over and we\u2019ll talk about it tomorrow in court.\u201d\nMr. Bradtke testified that when he and Mr. Treskow arrived at the State\u2019s Attorney\u2019s office next morning, Mr. Bradtke told the prosecutors about this phone conversation with the defendant. Mr. Bradtke further testified that the State\u2019s Attorney told the complainants to stand in the hall before trial began and see if defendant approached them. They did so.\nDefendant approached the complainants and asked what they had decided to do. He told complainants about \u201canother station he had robbed and he got caught in the act.\u201d Complainants told defendant they intended to testify against him.\nPolice officer Konior testified that on March 22,1977, he stopped the defendant while driving a white and blue Mustang automobile and arrested him.\nJoseph Leone, Jr., testified he and defendant had attended a Jethro Tull concert on March 17, 1979. He testified that after the concert was over, he and defendant went to two bars and he dropped defendant off at his house at about 2 a.m. He stated defendant was never out of his sight during the evening. Another friend of the defendant, Robert Sipusich, testified he saw defendant and Mr. Leone at the concert at approximately 11 p.m.\nDefendant testified to substantially these same facts. He denied any connection with the armed robbery. He further testified he owned a blue and white Mustang automobile. He denied having a conversation with Mr. Bradtke the night before the trial. He admitted speaking to the complainants in the hall, but did not testify to the content of that conversation.\nIn this court, defendant contends the jury was improperly advised he had previously been charged with armed robbery; he was prejudiced by the inadvertent reading of a withdrawn instruction by the court to the jury; he was denied his constitutional right to counsel as a result of the admission into evidence of the alleged conversation between defendant and the complainant; he was prejudiced by an improper prosecutorial closing argument and his identification was the result of suggestive identification procedure.\nI.\nAt trial, over a defense objection, a certified statement of defendant\u2019s prior conviction for robbery was read to the jury for purposes of impeachment. The statement referred to the original charge of armed robbery. Defendant contends reversible error occurred because the jury was advised he was charged with an offense for which he was not convicted.\nThe instant action is analogous to People v. Orr (1977), 45 Ill. App. 3d 660, 359 N.E.2d 1237. In Orr, certified official transcripts of defendant\u2019s prior convictions were admitted into evidence. One transcript contained information that defendant was initially charged with both theft and burglary although he was not tried or convicted on the burglary charge. This court held there was \u201cno reasonable probability that the evidence complained of contributed to the defendant\u2019s conviction.\u201d Orr, 45 Ill. App. 3d 660, 666.\nIn the instant action, it was error to present evidence of an offense of which defendant was not convicted. However, here, as in Orr, there is \u201cno reasonable probability that the evidence complained of contributed to the defendant\u2019s conviction.\u201d (Orr, 45 Ill. App. 3d 660, 666.) This is particularly true in the instant case where the evidence against defendant \u201cwas so strongly convincing of his guilt beyond reasonable doubt.\u201d People v. Lucas (1978), 58 Ill. App. 3d 541, 546, 374 N.E.2d 884.\nIn instances such as this which involve \u201conly an alleged error in the admission of evidence, and no constitutional error is involved * * *. \u201d # \u00b0 we are not concerned with the \u2018harmless error beyond a reasonable doubt\u2019 test of Chapman v. California (1967), 386 U.S. 18, 17 L. Ed. 2d 705, 87 S. Ct. 824. We are instead concerned with whether the competent evidence is sufficient to prove the defendant\u2019s guilt beyond a reasonable doubt.\u201d People v. Bailey (1975), 60 Ill. 2d 37, 46-47, 322 N.E.2d 804 (Ryan, J., dissenting).\nThe cases relied upon by defendant in this area are distinguishable from the instant case. In People v. Patterson (1976), 44 Ill. App. 3d 894, 899, 358 N.E.2d 1164, the prosecutor repeatedly made references to defendant\u2019s conviction for armed robbery when defendant had only been convicted of robbery. These \u201cprejudicial insinuations\u201d were objected to by defense counsel. The objections were sustained by the trial judge. This court characterized the record in Patterson as reflecting \u201cmultiple violations of the fundamental principle that statements of fact not based upon the evidence may not properly be argued before a jury.\u201d (Patterson, 44 Ill. App. 3d 894, 896.) The record in the instant action does not indicate the type of flagrant and repetitive abuses evidenced in Patterson.\nIn People v. Brown (1971), 131 Ill. App. 2d 5, 268 N.E.2d 202, an incorrect certificate which indicated a conviction for armed robbery was presented to the trial court. The defendant had actually been convicted of robbery. This court reversed defendant\u2019s conviction and remanded for a new trial. We concluded that defendant\u2019s credibility had been prejudiced both by the evidence of the more serious offense and by the apparent contradiction between his testimony and the certified transcript of defendant\u2019s prior conviction. In the case before us, there is no testimony which could have been contradicted by the certificate presented at trial.\nPeople v. Gregory (1961), 22 Ill. 2d 601, 177 N.E.2d 120, involved the prejudicial effect of the admission into evidence of the confession of one defendant which implicated a codefendant and is not applicable to the instant action.\nII.\nAt trial, the court inadvertently read an instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.14 (1968), (hereinafter cited as IPI Criminal)) to the jury which had been tendered by the defendant but had been subsequently withdrawn. Defendant did not object to the instruction until the jury had begun its deliberation. The trial court then immediately recalled the jury and fully admonished them that the instruction was given to them in error and should be disregarded. The incorrect written instruction was never given to the jury.\nThus, the trial judge responded quickly to the situation and clearly advised the jury that the instruction should be disregarded. This prompt action coupled with the fact that only correct, written instructions had been submitted to the jury renders this error harmless. People v. Lewis (1979), 75 Ill. App. 3d 259, 286, 393 N.E.2d 1098.\nIII.\nDefendant contends his right to counsel was denied by admission into evidence of alleged conversations between defendant and a victim of the crime. Defendant argues that the instant action is analogous to Massiah v. United States (1964), 377 U.S. 201, 12 L. Ed. 2d 246, 84 S. Ct. 1199. In Massiah, defendant was charged with violating Federal narcotics laws. After defendant had been indicted, Federal agents worked with a co-defendant who agreed to place electronic devices in his car to record conversations with the defendant. Defendant made admissions of guilt to the co-defendant which were recorded and subsequently admitted into evidence at trial. The Supreme Court reversed defendant\u2019s conviction holding that he had been denied his right to effective assistance of counsel. The court concluded that defendant\u2019s constitutional rights had been violated \u201cwhen there was used against him at his trial evidence of his own incriminating words, which federal agents had deliberately elicited from him after he had been indicted and in the absence of his counsel.\u201d Massiah, 377 U.S. 201, 206, 12 L. Ed. 2d 246, 250, 84 S. Ct. 1199.\nIt is this element of deliberate elicitation which is absent from the instant case. The State\u2019s Attorney did not instigate the initial phone call made by the defendant to Mr. Bradtke. After this phone call had been made, the complainants were not instructed to gather additional information from the defendant. Rather, they were merely told to \u201ccome up here [in the hall outside the courtroom] and stand around.\u201d\nThe instant action is more closely analogous to People v. Milani (1968), 39 Ill. 2d 22, 233 N.E.2d 398, cert. denied (1968), 393 U.S. 865, 21 L. Ed. 134, 89 S. Ct. 148; People v. Georgev (1967), 38 Ill. 2d 165, 230 N.E.2d 851, cert. denied (1968), 390 U.S. 998, 20 L. Ed. 2d 97, 88 S. Ct. 1202; or People v. Smrekar (1979), 68 Ill. App. 3d 379, 385 N.E.2d 848, appeal denied (1979), 75 Ill. 2d 593. In Smrekar and Milani, defendants, while held in jail pending trial, confessed their guilt to jailmates. In Georgev, an admission of guilt was made both to jailmates and to the sheriff in the lockup. In all the instances the jailmates testified at trial. In affirming defendant\u2019s conviction in Milani (39 Ill. 2d 22, 26), the supreme court summed up these cases by stating:\n\u201cIn the instant case there is no evidence of deliberate elicitation from the defendant by Devens [a fellow inmate] of incriminating facts concerning the murder; rather Milani volunteered a confession of his criminal acts to his confidant who was at the time of the initial discussion in no way associated with the investigative authorities. It is appropriate in this regard to note that while the Federal agents were receptive to Devens\u2019s periodic reports, the record is devoid of any evidence that they exercised control over the informer or gave him instructions to guide his conduct. We do not believe that Massiah or any later case prohibits the use of volunteered incriminatory statements which are gathered because of the co-operativeness of an informer in whom a criminal has misplaced his confidence, for the Massiah court cautioned, \u2018We do not question that in this case, as in many cases, it was entirely proper to continue an investigation of the suspected criminal activities of the defendant and his alleged confederates, even though the defendant had already been indicted.\u2019 377 U.S. at p. 207.\u201d\nIV.\nDefendant next contends he was prejudiced by the prosecution\u2019s closing argument which erroneously supported the credibility of the prosecutor\u2019s witnesses. Defendant complains of the statement by the prosecutor, \u201cI couldn\u2019t believe what we heard when Joe Bradtke came down here\u201d. This argument was made with reference to the phone call received by Bradtke from the defendant.\nProsecutors are allowed \u201cwide latitude\u201d in presenting closing arguments. (People v. Dykes (1978), 66 Ill. App. 3d 403, 407, 383 N.E.2d 1210.) Moreover, \u201cit is always proper for a prosecutor to comment in final argument on facts appearing in the proof, or on legitimate inferences which can be deduced from the evidence.\u201d (People v. Mitchell (1975), 35 Ill. App. 3d 151, 164, 341 N.E.2d 153, appeal denied (1975), 60 Ill. 2d 599.) It is clear this closing argument did not result in \u201csubstantial prejudice to the accused\u201d (People v. Baptist (1979), 76 Ill. 2d 19, 29, 389 N.E.2d 1200); did not constitute \u201c \u2018a material factor in the conviction \u00b0 \u00b0 \u00b0\u2019 and it cannot be said that \u201c \u2018the verdict would have been different had the improper closing argument not been made e \u00b0 \u00b0\\\u201d People v. Singletary (1979), 73 Ill. App. 3d 239, 253-54, 391 N.E.2d 440, and cases cited therein.\nIn addition, defendant\u2019s counsel objected immediately to these remarks of the prosecutor. The trial court sustained the objection. This \u201cact of promptly sustaining the objection and instructing the jury to disregard such argument has usually been viewed as sufficient to cure any prejudice.\u201d (Baptist, 76 Ill. 2d 19, 30, and cases there cited.) We judge, in the case at bar, that any possibility of prejudice made was thus avoided. Furthermore, the jury was told twice by the trial court that they should disregard questions which were \u201cwithdrawn or to which objections were sustained.\u201d Also IPI Criminal No. 1.03, which states that closing arguments not based on the evidence should be disregarded and that such arguments are not evidence, was given to the jury. (Singletary, 73 Ill. App. 3d 239, 254; and People v. Olejniczak (1979), 73 Ill. App. 3d 112, 123, 390 N.E.2d 1339.) In our opinion, no possibility of prejudice remained.\nEntirely aside from the above decisive factors, assuming that the assailed argument constituted error, it is necessarily classified as harmless error because of the strength of the evidence against defendant. Olejniczak, 73 Ill. App. 3d 112, 124.\nV.\nFinally, defendant contends his identification was the result of suggestive identification procedure. Defendant argues the photographs shown to complainants were suggestive because he was the only person with a mustache and not wearing a shirt or jacket. Defendant wore only a T-shirt. Defendant further argues that the actual lineup viewed on April 6, 1977, was suggestive because defendant \u201cis totally dissimilar in appearance to anyone else in the lineup.\u201d\nIn regard to defendant\u2019s first contention, we cannot agree that the lineups were factually subject to this criticism. In People v. Jones (1979), 70 Ill. App. 3d 338, 343, 387 N.E.2d 1010, this court rejected a similar argument that a lineup was highly suggestive because defendant was the only person not wearing shoes. We concluded that \u201cthis fact alone did not make the lineup \u2018so suggestive or prejudicial as to fatally taint the identification.\u2019 \u201d Jones, 70 Ill. App. 3d 338, 343, and cases cited therein.\nThe Illinois Supreme Court held in People v. Allender (1977), 69 Ill. 2d 38, 42, 370 N.E.2d 509, \u201c \u2018that convictions based on eyewitness identification at trial following a pretrial identification by photograph will be set aside on that ground only if the photographic identification procedure was so impermissibly suggestive as to give rise to a very substantial likelihood of irreparable misidentification.\u2019 \u201d We do not find the instant identification procedure to be impermissibly suggestive in any manner. The photographs which are a part of this record support our conclusion. We reject defendant\u2019s assertion that he was prejudiced in any manner by the composition of the lineups in which he appeared. In our opinion defendant has failed to demonstrate that the lineup procedures here were unfair. People v. Brown (1972), 52 Ill. 2d 94, 100, 285 N.E.2d 1.\nAssuming, arguendo, any impropriety in the identification procedure, the crucial issue is whether the in-court identification had an origin independent of any possibly suggestive procedures. Allender, 69 Ill. 2d 38, 43.\nIn the instant case both complainants testified they viewed defendant under good lighting conditions and at close range during the course of the robbery. Both complainants identified defendant without hesitation from the lineup photograph. We find the identification well within the criteria established in Neil v. Biggers (1972), 409 U.S. 188, 199, 34 L. Ed. 2d 401, 93 S. Ct. 375, as cited in People v. Manion (1977), 67 Ill. 2d 564, 571, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 55 L. Ed. 2d 533, 98 S. Ct. 1513.\nThe judgment appealed from is accordingly affirmed.\nJudgment affirmed.\nMcGLOON and CAMPBELL, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE GOLDBERG"
      }
    ],
    "attorneys": [
      "Julius Lucius Echeles and Frederick F. Cohn, both of Chicago, for appellant.",
      "Bernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, and Michael M. Lorge, Assistant State\u2019s Attorneys, of counsel), for the People."
    ],
    "corrections": "",
    "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JOHN R. GOMEZ, Defendant-Appellant.\nFirst District (1st Division)\nNo. 78-2109\nOpinion filed January 14, 1980.\nJulius Lucius Echeles and Frederick F. Cohn, both of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Marcia B. Orr, Iris E. Sholder, and Michael M. Lorge, Assistant State\u2019s Attorneys, of counsel), for the People."
  },
  "file_name": "0708-01",
  "first_page_order": 730,
  "last_page_order": 738
}
