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People v. Nicks

NOVEMBER 21, 1974.




APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.


Defendant appeals from a judgment entered on a jury verdict finding him guilty of armed robbery and from a sentence imposed of 12 to 20 years. Defendant raises the following issues: (1) Whether the trial court abused its discretion in not ordering a competency hearing, (2) Whether the trial court erred in not suppressing evidence of the gun, (3) Whether allegedly prejudicial hearsay testimony was improperly admitted, (4) Whether defendant was proven guilty beyond a reasonable doubt, (5) Whether defendant was deprived of a fair trial because of certain prosecutorial closing remarks, (6) Whether defendant's 1964 armed robbery conviction was improperly admitted, and (7) Whether defendant's sentence is excessive.

On April 13, 1972, defendant appeared and informed the court that he had dismissed his attorney. On April 17, 1972, defendant indicated that he was unable to hire an attorney and refused to respond to further questioning by the court. The court then appointed the public defender to represent defendant. On May 17, 1972, after completion of the jury selection process the record reads as follows:

"The Court: Just a minute, this court isn't recessed yet. Mr. Bennett, there is one matter I want to take up here. Show the jury is out of the courtroom and is excused. I have noticed all day today that this defendant has been trading messages and glances and looks with people on the front row who are returning that. This has been distracting to the jurors and it's taking the attention of the jurors.

Defendant: I will continue to do it until you give me an equal opportunity. My rights have been violated.

The Court: The record will indicate the attitude of the defendant and the Court will deal with that at the appropriate time."

At the trial Tom Erlenbusch testified that on the evening of March 2, 1972, he was working as a bartender at the Industrial Workers Hall in Decatur, Illinois. He stated that the door buzzer rang and he proceeded to open the door when an individual appeared with a gun in his hand. The individual then stated to him "I want your money" and "Tom, get the money out of the safe." He stated that he then put money from the safe and cash register into the robber's bag. In the process the robber told the three store patrons to put their hands on the bar and keep them there. At this point the gun held by the robber accidentally discharged. The robber then fled out the back door. He described the robber as weighing approximately 150 pounds, 5'6" tall, black, and wearing an army fatigue jacket with hood pulled up, a handkerchief over his face, and sunglasses, and stated that none of his face could be seen.

William Leslie Warren testified that he was a customer in the lounge on the evening in question, but that he couldn't identify the robber because his face was too well covered.

Leonard Tappendorf, another customer in the lounge, identified the robber in a similar fashion to that given by Erlenbusch. He also stated that a few days after the incident he viewed a line-up and identified the defendant as the robber. He stated on cross-examination that he was not positive defendant was the robber, that he couldn't see the robber's face, and that he based his identification on height and weight.

Clifford Grunden testified that he was also a customer in the bar on the evening in question and identified the robber in a fashion similar to that given by the other witnesses. He further stated that the lighting conditions in the bar were good and that he could see the robber's skin above the tops of his eyelids to his hair. He stated that he saw defendant at the union hall playing bingo on the day following the robbery and clearly recognized him as the robber. He stated that he also viewed a line-up the following week and clearly identified defendant as the robber. He further stated that he was certain of his identification of defendant because he stared at him constantly during the robbery, because he noticed that the robber had two little knots on his forehead, and because he could see his eyes through the sunglasses when the robber turned to the side.

At this point defense counsel moved to suppress evidence and a hearing was held outside the presence of the jury. Jack Coventry, a Decatur police officer, testified that on March 6, 1972, he talked with Pauline May and David Daker at headquarters. He stated that May was worried about her daughter, Marilyn McKenna, who was going with defendant, and she proceeded to implicate defendant in the union hall robbery. He stated that he then went to 644 East Leafland, Marilyn McKenna's residence, and arrested defendant. The defendant was taken from the premises after May and Daker arrived. He stated that he was told by Daker that the gun used in the robbery was in the house, and such a gun was found in a false ceiling by Officer Brown. He stated that Brown did not remove the gun and was told to leave it there. He further stated that just prior to the initial finding a phone call was received relating that Marilyn McKenna had just signed a permission to search statement, "It was all so close together — I can't really be positive, but right at approximately the time that the gun was found the call was received, just prior to this * * * because I received the call * * *." He stated that the permission to search was then delivered to the house and the gun was then taken from the ceiling and seized by the officers. Pauline May testified that she went to police headquarters to complain about the suspicious activities of defendant and her daughter. Marilyn McKenna testified that on March 6, 1972, she was at police headquarters and signed a statement consenting to a search of her house. Gerald W. Hunk, a Decatur police officer, stated that the phone call relating that permission to search had been granted was received after the gun was first observed. Gerald Boehm, also a police officer, testified that he observed McKenna sign the permission to search form, and a call was then made from headquarters to the house informing the officers there of the signing. The court then denied the motion to suppress evidence seized at the house, including the gun, stating:

"Now I am not going to sit here and split hairs with a dueling knife on this time element. Clearly it was all one transaction. Coventry testified that everything happened all together, the finding of the gun, the consent, the call, the whole business * * * the record is quite clear that Marilyn McKenna was down at police headquarters, and the whole matter * * * was under discussion at the time * * * everything is a package here.

But I do not believe that when the consent emerges as the final bit of a whole set of circumstances that you can say at any precise instant during that period of time that there was or was not a consent * * * at the most we have a matter of forty-five minutes involved here and there is no ...

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