Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Collins, Judge, presiding.
MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:
The defendants, Robert Stock, Charles Wilfong and Dianne Stock, were tried on a two-count indictment in the circuit court of Cook County, which charged them with armed robbery and burglary. Dianne Stock was acquitted on the armed robbery charge and all three defendants were convicted on the burglary charge. Dianne Stock was sentenced to one to three years in the penitentiary. Robert Stock and Charles Wilfong were convicted on both counts, and each was sentenced to 20 to 40 years. This is a direct appeal from the circuit court of Cook County. Jurisdiction here is based on the existence of a constitutional question; the notice of appeal was filed before the amendment of Supreme Court Rule 302.
A common fact situation applies to all three defendants. Roger Sticken and Janet Meyer lived together in an apartment at 1517 West Byron Street in Chicago in December of 1968. One evening, when Janet Meyer was alone in the apartment, Dianne Stock came to the door at about 10:00 P.M. and said she was looking for Roger Sticken. Janet Meyer had not seen Dianne Stock previously, but allowed her to come inside to wait for Sticken. After having a drink, Dianne Stock said she was going to the store and Janet Meyer gave her some money and a short list of items to be purchased.
Approximately 15 minutes later, Dianne Stock returned and rang the doorbell. Janet Meyer looked out, saw her, and opened the door to let her in. When the door was opened, two unmasked men, at least one of whom was armed, pushed their way into the apartment, tied, blind-folded and robbed Janet Meyer and took from the apartment items of personal property which belonged to Sticken and Meyer.
After the two men had departed taking Dianne Stock with them, Janet Meyer worked herself free and ran outside, where she located a policeman. Dianne Stock had sounded as though she had been gagged, but Janet Meyer could see through the corner of her blindfold, and she testified that Dianne Stock was neither gagged nor physically restricted.
The defendants do not refute these facts. Rather, they attempt to raise the defense that they had been hired by Roger Sticken to steal his goods so that he could collect the insurance proceeds thereon. Besides this specific defense, the defendants also raise various procedural and substantive reasons why their convictions should be reversed.
Defendants Robert Stock and Charles Wilfong argue that since Dianne Stock was acquitted on the armed robbery charge and since the testimony of Janet Meyer was the only proof which related to that charge, Dianne Stock was acquitted on the identical evidence on which they were found guilty, and the verdicts are inconsistent and their respective convictions for armed robbery must be reversed. We do not agree.
Dianne Stock's role in the robbery was passive and different from that of the armed male defendants.
Inconsistency in verdicts may arise from the nature of the particular offense charged, or from the relationship shown to have existed between the parties. The inconsistency alleged here is of the latter type. Consistency is not necessary in criminal verdicts.
The defendants urge that the evidence was insufficient to establish their guilt beyond a reasonable doubt; and that they should not be convicted of armed robbery, or indeed of anything at all.
The general rule in Illinois and the majority rule elsewhere is that the failure of a jury to convict one co-defendant does not raise a reasonable doubt as to the guilt of the other co-defendants. (People v. Rogers (1959), 16 Ill.2d 175; Annot. (1968), 22 A.L.R.3d 720.) For a reasonable doubt to be raised in such cases, it must be shown that the evidence given against all of the defendants is identical in all respects. (People v. Mirabella (1920), 294 Ill. 246, 248.) Such is not the case here.
The acquittal of one of two or more jointly indicted defendants is no reason why the other defendant cannot be convicted. In People v. Stone (1963), 213 Cal.App.2d 260, 28 Cal.Rptr. 522, the court affirmed the appellant's convictions of murder and robbery, even though a co-defendant had been acquitted of murder and convicted of robbery. The evidence had shown that the appellant, and not the co-defendant, had fired the fatal shot. The appellant argued that the jury had made an improper discrimination in convicting only him of murder and robbery because, under the law, if the co-defendant was guilty of robbery, he was also responsible for the resulting murder. While the court agreed that the jury's verdict was in fact inconsistent, it noted that it may be explained by the jury's reluctance to convict of murder someone who had not fired a shot, so that the discrimination was not against the defendant but against the law.
In the case at bar, the fact that the jury did not convict Dianne Stock on the armed robbery charge is no reason for reversing the verdicts against Robert Stock and Charles Wilfong. People v. Hovnanian (1962), 16 App. Div.2d 818, 228 N.Y.S.2d 771, cert. denied (1963), 373 U.S. 939, 10 L.Ed.2d 694, 83 S.Ct. 1544.
Defendants Robert Stock and Charles Wilfong were incarcerated at all times before trial, and they argue that they should have been discharged for failure of the People to comply with the terms of the 120-day rule (Ill. Rev. Stat. 1969, ch. 38, par. 103-5(a)), which provides:
"(a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, by an examination for competency ordered pursuant to Section 104-2 of this Act, by a competency hearing, by an adjudication of incompetency for trial, by a continuance allowed pursuant to Section 114-4 of this Act after a court's determination of the defendant's physical incapacity for trial, or by an interlocutory appeal."
All of the parties agree that the relevant 120-day period began to run on January 16, 1970. However, there is no agreement as to what constitutes the start of a trial for the purposes of this statutory provision, or, assuming the trial had not been started on time, as to whether or not the delay was attributable to the defendant. We will consider only this latter disputed point.
Delay here was attributable to the defendant, even if trial was started on the 124th day. The court took the case on May 14, 1970, the 118th day of the relevant period. The defendants' pretrial motions, or ones substantially the same, had been on file for many months prior to May 14. The defendants claim that the practice or custom in criminal trials in Cook County is that all "pretrial" motions are heard immediately before the "trial." This is said to be a matter of accommodation, so that witnesses need not be brought in twice.
This court has previously stated that, "In the varied fact situations which involve the 120-day rule, we have carefully examined the facts to prevent `a mockery of justice' either by technical evasion of the right to speedy trial by the State, or by a discharge of a defendant by a delay in fact caused by him." (People v. Fosdick (1967), 36 Ill.2d 524, 528-529.) It appears that here the only parties not ready for trial within the 120-day period were the defendants. The defendants' consideration and generosity in attempting to avoid inconvenience to witnesses does not relieve them of the responsibility of having their pretrial motions heard. We need not discuss at length the cases cited by the defendants because they are not inconsistent with the approach enunciated in Fosdick and turn on their respective facts. We would note, however, that the defendants' failure to seek an earlier hearing on their pretrial motions leaves those motions in a situation analogous to motions made on the eve of trial. Such motions may be considered to cause delay. (People v. Rankins (1960), 18 Ill.2d 260, 262.) Had the defendants been diligent, the trial would have begun on the 118th day, and they would have been accorded all the protection provided by the statute.
The defendants claim that they were deprived of a fair trial by the prejudicial closing arguments of the prosecutors. We agree.
The prosecutors of this State have a substantial amount of leeway in this regard. In People v. Wright (1963), 27 Ill.2d 497, at pages 500 and 501, the court stated: "It is proper for the prosecuting attorney to reflect unfavorably on the accused, and to denounce his wickedness and even indulge in invective; he may dwell on the evil results of crime and urge a fearless administration of the law. [Citations.]" (Also see: People v. Hairston (1970), 46 Ill.2d 348, 375; People v. Ostrand (1966), 35 Ill.2d 520, 531-532.) The prosecuting attorneys in the case before us, not only went outside of the record in their argument, but also accused the defense attorneys of making up the defense case and suborning perjury, and commented on the fact that two of the defendants had not taken the stand to testify.
In order to clarify what was objectionable in the prosecutor's closing arguments, we will set forth several excerpts therefrom:
"Mr. Magnes: From the very beginning, Mr. Toomin and Mr. Bloom [the defense attorneys] with very little investigation realized that unfortunately the State was saddled, and I say that advisedly, with witnesses who are less than perfect in terms of character or reputation, and being experienced Defense attorneys, they grabbed at it like an animal at his prey."
The defense objection to this was sustained, yet the prosecutor continued:
"Mr. Magnes: We saw it coming. We knew what was about to develop during the course of this trial.
The Court: I will sustain the objection. Please confine yourself to the ...