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People v. Van Pelt

APRIL 17, 1974.




APPEAL from the Circuit Court of Rock Island County; the Hon. RICHARD STENGEL, Judge, presiding. MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

Rehearing denied May 16, 1974.

Donald John Van Pelt, referred to hereinafter as the defendant, was indicted by a grand jury of Rock Island County for the crime of armed robbery. After trial by jury the defendant was found to be guilty and he was sentenced to a term of not less than 10 nor more than 30 years in the penitentiary. A recital of the facts regarding the defendant's alleged crime will be set forth as they become pertinent to the issues raised in this appeal.

The first contention of the defendant is that the trial judge erred in not disqualifying himself when after a jury had been selected he received an oral communication from defense counsel that he, the judge, at a previous time, to-wit, in the year 1964, had served as a State's Attorney and had prosecuted the defendant in a criminal action.

• 1-3 The Code of Criminal Procedure (Ill. Rev. Stat. 1969, ch. 38, par. 114-5(c)) provides that "any defendant may move at any time for substitution of judge for cause, supported by affidavit. Upon the filing of such motion the court shall conduct a hearing and determine the merits of the motion." The change of venue statute, while liberally construed, cannot be read so as to contravene its express provisions and the applicants are held to the statutory requirements. A defendant must show cause and his motion for change of venue must be supported by affidavit. (People v. Tucker, 3 Ill. App.3d 273, 278 N.E.2d 141.) While the defendant in the instant case may well have had the requisite cause to support a motion for change of venue, he failed to comply with the statutes in that his motion was made orally and there was a failure to support it by affidavit which is a specific requirement. Further it is clear from the record that the defendant had knowledge 1 full week prior to trial as to what judge had been assigned to hear his case; yet he did not make his objections known until after the jury had been completely selected. A petition for substitution of judge must be filed at the earliest practicable time. (People v. Lawrence, 29 Ill.2d 426, 194 N.E.2d 337, cert. denied 376 U.S. 946, 11 L.Ed.2d 770, 84 S.Ct. 804 (1964); People v. Jones, 51 Ill. App.2d 391, 201 N.E.2d 194.) It has been held that a motion for change of venue comes too late when made after the selection of a jury has been completed. People v. Scott, 63 Ill. App.2d 232, 211 N.E.2d 418.

• 4 The defendant in support of his argument that the trial judge should have disqualified himself would have us interpret Supreme Court Rule 67 (Ill. Rev. Stat., ch. 110A, sec. 67 (effective March 15, 1970)) as requiring such disqualification. This rule provides that a judge shall not participate in any case in which he had previously acted as counsel. In the instant case the trial judge had not previously acted as counsel in the case before him and therefore no violation of the rule had occurred. (Emphasis ours.) In the instant case the defendant was convicted after a mistrial had occurred on the same charge. The trial judge specifically stated that he "knew nothing" about the defendant's first trial and the allegations to the contrary set forth in the defendant's brief are not supported by the record. We cannot agree with the defendant that reversible error was committed by the trial judge when he refused to substitute another judge for himself during the trial of the defendant.

The defendant next assigns as error that his representation by an attorney not licensed to practice law in the State of Illinois was so ineffective as to constitute a denial of due process of law.

• 5 This court has held that a defendant is not denied effective assistance of counsel merely because his attorney was not licensed to practice in Illinois. (See People v. Cornwall, 3 Ill. App.3d 943, 277 N.E.2d 766.) The defendant contends that People v. Morris, 3 Ill.2d 437, 121 N.E.2d 810, is authority for his allegations of incompetency of counsel. In examining Morris we find that the court stated:

"There are many Illinois cases where alleged incompetency of counsel has been urged on writ of error as a reason for setting aside a conviction. There are two broad categories of these cases: (1) cases wherein the defendant was represented by counsel of his own choice, and (2) cases wherein the defendant was represented by counsel appointed by the court. A different rule has evolved for each type of case.

`Ordinarily, a defendant who retains counsel of his own selection is responsible if that counsel does not faithfully serve his interest. Any other rule would put a premium upon pretended incompetency of counsel; for, if the rule were otherwise, a lawyer with a desperate case would have only to neglect it in order to ensure reversal or vacation of the conviction.'" People v. Morris, 3 Ill.2d 437, 444, 121 N.E.2d 810.

In the instant case the defendant was represented by retained counsel and an examination of the record discloses that the representation afforded him was far from questionable as far as competency was concerned. On the contrary it is clear that the defendant was ably and diligently represented. Prior to trial defense counsel filed numerous motions on the defendant's behalf, including a motion for bill of particulars, a motion to quash the indictment, a motion for a list of the state's witnesses and additional information pertaining to the exact time and date of the offense charged. In addition to the foregoing defense counsel filed and argued a motion to dismiss pursuant to the 120-day rule. During the course of the trial counsel for the defendant made timely objections, a number of which were sustained.

• 6 It is noted that the defendant had employed the same counsel on a previous occasion, to-wit, in 1964. We cannot agree with the defendant in his contention that the representation provided him was of such low caliber as to amount to no representation at all, for such is clearly not the case.

The defendant further contends that a prosecution witness was asked outside the courtroom if he recognized the defendant seated in the courtroom.

The record shows that an occurrence witness, one Jens Johansen, stated on cross-examination that he was brought to the door of the courtroom and told to look through it at the defendant because the State wanted to know if he recognized the accused. He stated that he did not know the person who brought him to the door. Three other witnesses positively identified the defendant as the armed robber and Johansen stated on direct examination that the defendant resembled the robber except that his beard was longer and his hair lighter.

We do not agree with the defendant that under the circumstances surrounding the witness Johansen's identification of him from a position outside the courtroom that we had a situation that constituted a "lineup" or "showup" so as to require the presence of counsel. (See People v. Catlett, 48 Ill.2d 56, 268 N.E.2d 378.) Three other witnesses positively identified the defendant and while the inquiry made of Johansen was unnecessary and irregular we do not consider it to be of such import as to permit it to vitiate a conviction which was otherwise based upon strong eyewitness identification. (See also People v. Tuttle, 3 Ill. App.3d 326, 278 N.E.2d 458.) The record in this case is replete with ...

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