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People v. Nicks

NOVEMBER 21, 1974.

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

v.

CEDRIC NICKS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Macon County; the Hon. RODNEY A. SCOTT, Judge, presiding.

MR. JUSTICE SIMKINS DELIVERED THE OPINION OF THE COURT:

Defendant, Cedric Nicks, appeals from three judgments entered on three jury verdicts finding him guilty of three counts of armed robbery and from a sentence imposed of 10 to 30 years to be served consecutively to a prior armed robbery sentence. Defendant raises the following issues: (1) Whether the trial court abused its discretion in not ordering a competency hearing, (2) Whether defendant was proven guilty beyond a reasonable doubt, (3) Whether the trial judge erred in implying that defendant had been charged with prior criminal offenses, (4) Whether only one judgment should have been entered because the three counts of armed robbery arose from a single transaction, and (5) Whether the sentence is excessive.

On April 7, 1972, defendant appeared pro se for arraignment after being charged by information with the February 12, 1972, robbery of Rudow's Market in Decatur, Illinois. On April 13, 1972, defendant appeared without counsel and told the court that he had dismissed his counsel. Defendant promised to obtain other counsel. On April 17, 1972, defendant again appeared pro se and told the court that he did not try to obtain counsel. Defendant did not respond to further questioning. The court then appointed the public defender to represent defendant. On June 12, 1972, Alan Bennett, the Macon County public defender, moved to withdraw as counsel for defendant stating that he had previously represented defendant in another case, that defendant would not cooperate or give the information or assistance needed in the defense of that case, that defendant's family has complete control over litigational decisions made by defendant, and that defendant has told him that he no longer wanted his representation. After a hearing the court granted Mr. Bennett's motion to withdraw as counsel. On June 30, 1972, defendant once again appeared pro se and refused to respond to questions regarding representation. The court then appointed new counsel.

At the trial, Douglas Whitfill, the manager of Rudow's Market, testified that on the evening of February 12, 1972, a man walked into the store, pushed a sack through his office window, pointed a gun at him, and stated, "This is a hold-up, give me all your money." He then proceeded to put the money into the sack. After handing the robber the sack, he left the office and walked with the robber to the check-out counters where the robber asked the two checkers for their money, put it in his sack, and ran out of the store. He further stated that the robber was in the store approximately 5 minutes and described him as black, having a goatee, weighing about 150 pounds, being about 5'8", and wearing a beret, sun glasses, and a green jacket. He stated that two weeks after the robbery he viewed a line-up and identified defendant as the robber. On cross-examination he stated that he identified defendant on the basis of size, and that he could not positively identify defendant as the robber.

Paula Percival testified that on the evening in question she was working check-out at the market when she saw a man behind her with a gun. She stated that the robber told her to give him the money which she proceeded to do. She stated that defendant was carrying a bag and described the robber in a fashion similar to that given by Whitfill, adding that the beret was green and the robber was wearing green pants. She further stated that several weeks after the robbery she viewed a lineup and identified defendant as the robber. On cross-examination she stated that she identified defendant because he looked similar to the robber (although he no longer had a goatee), was the same size and was black. She stated that other than that she could not identify defendant as the robber.

Paul Layton testified that on the evening in question he was working in the store and saw a man standing between the two check-out counters. He proceeded to describe the robber in a fashion similar to that given by Whitfill and Percival. He further stated that several weeks after the robbery he viewed a line-up and identified defendant as the robber mainly on the basis of height and color.

Joe Nathan Davis, defendant's half-brother, was called by the State and testified that on the evening in question defendant asked Debbie Schwenker to take him to see a girl friend in her car. Debbie and he proceeded to take defendant, but the girl wasn't home. He stated that they drove defendant over by Hess Park near Broadway to see another woman, but he didn't see where defendant went. He further stated that while defendant was gone, he and Debbie waited in the car and talked. He stated that after a while defendant returned with a bag, the same bag he had when he left home. He stated that he wasn't certain what was in the bag, and that there was no conversation between the three upon defendant's return. The three then drove to the Marilyn McKenna residence. He stated that while there defendant lent him approximately $100, along with another $100 the next evening. This money was divided between Debbie and himself. He stated that the following day defendant, Marilyn, Debbie and he went shopping in Springfield. After this witness was excused the record reads as follows:

"(At this point the defendant violently overturns counsel table. Defendant starts shouting at prosecutor and jury such words as "Shoot me" and "I'll kill you." A black woman from spectator section comes rushing up to defendant and starts addressing the jury panel. Defendant and woman began praying, getting on knees at counsel table, loudly sobbing and yelling. Court bailiffs and personnel attempt to restrain.)

The Court: Just a moment. Will you take her out of the courtroom. We will have no such demonstration at any time. Take her out of the courtroom. She is excluded from the courtroom. For right now leave her here until we have — leave her here, and she will be quiet or she will be removed. Now you hear that? We will have no such demonstration at any time. This court will absolutely not tolerate that. Now you know better than that. You've had experience * * *."

The next day the court stated in reference to the disturbance:

"The Court: * * * There was quite a disturbance in the courtroom with a table being up-ended, defendant on his feet yelling and pointing, a woman in the courtroom coming up and addressing the jury about `the defendant has brain damage.' Also had to be forcibly removed from within the bar * * *"

The woman was identified as defendant's mother:

"The Court: She came through the gate up by the jury stand yelling and crying `he's got brain damage' and started to use prayers and what not and it was with some difficulty that we got her back to the audience side * * * The record I'm sure doesn't show that she started yelling, talking, and getting down on her knees around the counsel table * * *"

Debbie Schwenker testified that on the evening in question defendant asked her and Davis to take him somewhere. They then drove in front of a house off Main where defendant left the car and returned 10 minutes later. They then took defendant to visit a lady and parked near Garfield Street on Central Avenue. She stated that where they parked was about two or four blocks from Rudow's Market. She stated that defendant then got out of the car, told them to wait, returned a half-hour later, ducked down on the floor and in a very loud voice said "Go." They then drove to Marilyn McKenna's house without any conversation. She stated that Davis and defendant went into the house first, and when she finally entered she went into the bedroom and "there was some money on the bed and Cedric and Marilyn was standing, counting the money." She stated that she received money from Davis on that evening and the next, at which time defendant, Davis, McKenna and she went ...


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