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People v. Nelson

MAY 16, 1973.

THE PEOPLE OF STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

CLARENCE NELSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. PRESIDING JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:

The defendant, Clarence Nelson, was found guilty of armed robbery after a jury trial and sentenced to a term of 5 to 20 years in the penitentiary.

On appeal, defendant contends that (1) the prosecutor committed prejudicial error when he elicited testimony of another offense, and (2) the sentence imposed was excessive.

The complaining witness, Sheila Elcock, testified that at about 9 P.M. on January 19, 1970, she entered the vestibule of her apartment building at 307 S. Kilpatrick. A man (the co-defendant who was not tried with the defendant, Clarence Nelson) entered the vestibule armed with a pistol and demanded her money. She threw her purse and satchel to him, and he rifled through them. At this time, the defendant Nelson appeared. He came toward the victim and took the pistol from the other man. Nelson grabbed the victim by the neck, took away her fur coat and hat and began to search her. She said he ripped away her dress and searched her bra and girdle for more money. Then he handed the pistol back to the other man, took the victim's hat and coat out of the building and returned quickly. When Nelson came back, he again took the pistol and demanded Mrs. Elcock's apartment keys. When she did not give them to him, he grabbed her by the neck and choked her. Nelson had his hand to her throat and the pistol to her head when two policemen came into the vestibule. Mrs. Elcock testified that she had about $15 in her purse at the time of the robbery.

Officers Cornell Brooks and Curtis Baker testified that they received a call of a rape in progress at 307 S. Kilpatrick. When they arrived, they observed the two defendants in a hallway with a lady. Nelson had his arm around Mrs. Elcock's neck. When the officers walked into the hallway, Mrs. Elcock screamed that she had been robbed. At this time, Officer Brooks observed the defendant putting something in his pocket and Mrs. Elcock said that he had a gun. The officers arrested the defendant and found a .22 caliber revolver in his right pocket. They also recovered about $15, and a coat and hat belonging to Mrs. Elcock.

The defendant, Clarence Nelson, took the stand in his own defense. He stated that on the occasion in question, he went to 307 S. Kilpatrick with Carlos Smith for the purpose of visiting two young ladies who lived in the area. When they entered the vestibule, the defendant noticed a lady in the corner picking up the contents of her purse. The defendant told Smith that they better leave because he had a pistol in his pocket. Before they could leave, the police arrived.

The defendant first contends that the trial court erred in allowing the prosecutor to elicit testimony of another offense committed by the defendant. On direct examination of Officer Brooks, the following colloquy occurred:

"Q. Was anything recovered from the two individuals you placed under arrest?

A. Yes, there was some identification, I believe that was recovered from the two defendants belonging to another victim.

Q. Anything else?

A. And money was recovered from them."

The defendant argues that the reference to "another victim" prejudiced his case.

• 1 We note first that no objection was made at trial to the officer's answer, nor was a motion to strike made or an instruction directing the jury to disregard requested. Thus the defendant has waived his right to raise this issue on appeal. People v. Trefonas, 9 Ill.2d 92, 98, 136 N.E.2d 817, 820; People v. Karatz, 365 Ill. 255, 259, 5 N.E.2d 842, 844.

• 2 Even if the defendant had not waived the issue, however, the reference to "another victim" could not have affected the jury's verdict. The testimony of the complaining witness and of the arresting officers was so overwhelming as to preclude any possibility of prejudice to the defendant. As our Supreme Court has stated, "It is not our policy to reverse a judgment of conviction merely because error has been committed, unless it appears that real justice has been denied or ...


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