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People v. Mcvet

SEPTEMBER 11, 1972.




APPEAL from the Circuit Court of Lake County; the Hon. CLARENCE PARTEE, Judge, presiding.


A two count indictment charged the defendant with the offenses of armed robbery and robbery. Tried by a jury, he was found guilty of the later offense, his petition for probation denied and he was sentenced to the penitentiary for a term of four to ten years.

On appeal, defendant contends: 1) the evidence was not sufficient to sustain the judgment of conviction; 2) he was denied effective assistance of counsel; 3) the court encouraged a compromise verdict; 4) he was denied a fair trial by prejudicial cross-examination; 5) the court erred in forcing him to take a lie detector test and in denying probation on the results of the examination.

In the early morning hours of February 21, 1969, a car with five occupants drove into a gas station in Lake County. As attendant Roger Prince approached the car, the front seat passenger (alleged to be McVet) got out, asked where the washroom was, and was directed by the attendant. Prince was instructed by the driver (Foucher) to fill the tank and, while so engaged, Prince noted the car's license number. As he returned to the station to get a cloth, Foucher came up to the attendant, put a gun to his abdomen and led him into the restroom where they were joined by the passenger who had first gotten out of the car. Prince was told to stand with his hands against the wall, feet spread; he was frisked and robbed by the pair. The two left the restroom for a short period during which, Prince testified, he could hear noises in the office. Returning to the restroom, they harassed Prince as to the amount of money he had, and one, Prince testified, threatened to shoot him. Directing that Prince should not come out, the two left the room. About ten minutes later, the attendant emerged from the restroom, found the car and its occupants gone and the office of the station ransacked.

Prince ran to the gas station across the street, the police were called and when they arrived, Prince related the occurrence. A bulletin describing the car and its occupants was broadcast and, within a short time, the car and occupants were apprehended in a gas station in Kenosha County, Wisconsin. The police escorted Prince to that station where he identified the car and its occupants.

Only two of the five occupants (defendant and one O'Connor) were brought to trial, Foucher and the other two not being amenable to the court's jurisdiction. At trial, Roger Prince, principal witness for the State, identified defendant as the passenger who assisted Foucher with the robbery. Prince was unable to identify O'Connor, although other evidence established that the latter had been a passenger in the back seat of the car. Both defendants testified, corroborating each other, that all parties in the car had met in Chicago on the night of the robbery, that they had been on their way to take entrance examinations at a university in Wisconsin, that they had been asleep in the back seat of the car during the ride, that they had not discussed any possibility of a robbery, and that they had in no way participated in robbing Prince or the gas station. The only substantial difference in the testimony of the two defendants was that, while McVet testified he awoke during the robbery but pretended to be still asleep, the other defendant testified he was asleep throughout. The jury found McVet guilty and O'Connor, not guilty.

Contentions on appeal:

1. The evidence was not sufficient to sustain a judgment of conviction.

Defendant contends that since he and O'Connor testified to their both having been in the back seat of the car throughout the occurrence, the conviction rests solely on the uncorroborated identification of the gas station attendant. Defendant asserts that the guilty finding cannot be supported by this allegedly vague, uncertain and thoroughly impeached testimony, pointing to the fact that, at trial, the defense introduced Prince's preliminary hearing testimony in which he appeared somewhat uncertain in his identification of defendant as the front seat passenger who, with the driver, robbed him.

• 1-4 The law is well settled that the uncorroborated identification of a defendant by a single witness, including the complaining witness, is sufficient to convict if the testimony is positive and the witness credible, although contradicted by the accused. People v. Clarke, 50 Ill.2d 104, 110 (1971); People v. Gipson, 29 Ill.2d 336, 341 (1963); People v. Guido, 25 Ill.2d 204, 208-209 (1962); People v. Day, 2 Ill. App.3d 811, 812 (1972). In the instant case, the evidence shows that the gas station was well lit, that Prince had opportunity to see the front seat passenger when he first got out of the car and, again, on the way into the washroom, and that Prince's in-court identification of defendant (as the passenger) was positive. Prince's preliminary hearing testimony did indicate that he only got a glance at the passenger when the latter alighted from the car and that he "guessed" defendant was the passenger. However, at the same hearing, Prince testified that he knew what the passenger looked like and got a good look at him when first approached by him. The somewhat contradictory evidence created an issue of the credibility of the witness. People v. Jordan, 5 Ill. App.3d 7, 12, 282 N.E.2d 530, 535 (1972). The credibility of the witness and the weight to be given his testimony were questions for the jury and its determination will not be upset on review. People v. Elmore, 50 Ill.2d 10, 13 (1971); People v. Day, supra at 813. A conviction will be overturned when identification of a defendant is doubtful, vague and uncertain. It will be affirmed where, as here, the determination of the jury is based on adequate evidence and a proper consideration of credibility, establishing defendant's guilt beyond a reasonable doubt. People v. Davis, 126 Ill. App.2d 255, 264 (1970); People v. Price, 96 Ill. App.2d 86, 93-94 (1968).

2. Defendant contends he was denied effective assistance of counsel in two respects.

• 5 To prove inadequacy of representation, defendant must establish: "1) actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney; (2) substantial prejudice resulting therefrom, without which the outcome would probably have been different." People v. Stepheny, 46 Ill.2d 153, 157 (1970); People v. Morris, 3 Ill.2d 437, 449 (1954).

• 6 Defendant alleges error in the failure of the assistant public defender to withdraw from the case to testify at trial. This argument relies on the fact that, at the hearing before sentencing, counsel was a witness and testified that one of the occupants of the car (who was not tried) admitted to counsel that he was the front seat passenger who took part in the robbery while McVet was in the back seat. We do not feel defendant has proven counsel's failure to testify constituted incompetency. The decision may as readily have been one of trial strategy or counsel may have reasoned himself to be more valuable as defendant's attorney than as a prospective witness offering evidence of doubtful admissibility. See, People v. Lettrich, 413 Ill. 172, 178 (1952).

• 7 Defendant then alleges error in the attorney's failure to object, at the sentencing hearing, to the court's request that defendant take a lie detector test. We do not feel that this failure constituted inadequate representation. The propriety of the court's request will be met subsequently, but it appears from the record that the court customarily requested such examinations at sentencing; defendant was as likely to be prejudiced by his failure to take the test as he was by ...

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