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People v. Rogers

MARCH 25, 1971.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

EARL ROGERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS A. WEXLER, Judge, presiding.

MR. JUSTICE MCGLOON DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 22, 1971.

Defendant, Earl Rogers, appeals from a conviction by a jury of three counts of armed robbery. (Ill. Rev. Stat. 1967, ch. 38, par. 18-2.) He was sentenced to from 3 to 10 years in the State Penitentiary. The defendant alleges that the evidence was insufficient to prove him guilty beyond a reasonable doubt and that the trial counsel was so incompetent as to deny him a fair trial.

We affirm.

There is no question that there was a robbery on the night of April 6, 1968, at the Friendly Tap Tavern. The only question is whether the defendant participated in it.

The evidence discloses that five robbers were already in the tavern when a sixth man entered, forcing in Phil Czechowski, one of the regular customers of the tavern who had just pulled into the adjacent parking lot. Czechowski was unable to identify the defendant. However, Caroline Paston, the co-owner of the tavern, and John Small, another customer, were able, in open court, to positively identify the sixth man who came into the tavern as the defendant and the man who pushed Phil Czechowski into the tavern.

The testimony showed that the lighting in the tavern was moderate with no indication in the record that it was insufficient for identifying the defendant. Caroline Paston testified that the lighting was comfortable, not bright or dark. As a matter of fact, the customers who were inside the tavern all testified to the effect that the lighting was comfortable and moderate, which would certainly indicate that there was sufficient lighting to make a good identification.

The witness, John Small, identified the defendant in court and stated that the defendant had his right hand placed in Czechowski's back, and that the defendant and Czechowski had passed by him going to the rear of the tavern. He further stated that his eyes followed them for approximately two to three feet, and that the six men passed by him while leaving the tavern. Small further testified that he had occasion to see the defendant when the defendant was standing to Small's left in front of the door. The witness had a clear, unobstructed view of defendant and was positive in his identification of him.

Shortly after the robbery the police trapped the getaway car, and the defendant was apprehended while fleeing with the other five men.

• 1, 2 A reviewing court will not disturb a guilty verdict on grounds of insufficient evidence unless it is so unsatisfactory, improbable or unreasonable or so palpably contrary to the evidence as to justify the court in entertaining a reasonable doubt of the defendant's guilt. (People v. Woodruff, 9 Ill.2d 429, 137 N.E.2d 809.) The guilty verdict based on the positive identification of the two eyewitnesses will not be disturbed.

• 3 The charge that defendant's counsel was incompetent is without merit. A review of the record shows that counsel took an active role in the defense of his client.

• 4 It is true that a criminal defendant is entitled to the effective assistance of counsel. (People v. Somerville, 42 Ill.2d 1, 245 N.E.2d 461.) Gideon v. Wainwright, 372 U.S. 335 (applying the Sixth Amendment to the states through the Fourteenth Amendment). 1870 Constitution of Illinois, Article II, par. 9. See 1970 Constitution of Illinois, Article I, par. 8.

• 5, 6 However, the record shows that the defendant was represented by competent counsel. Exercise of judgment and discretion and decisions as to tactics are for the counsel to determine, not the reviewing court. (People v. Green, 36 Ill.2d 349, 223 N.E.2d 101.) Effective counsel is not denied even if counsel chooses a course which turns out less desirable than some alternative or even if counsel errs. People v. Dean, 31 Ill.2d 214, 201 N.E.2d 405.

• 7 In order for a conviction to be overturned, the record must show that substantial prejudice resulted to defendant such that the outcome would have been different. People ...


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