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People v. Dread

MARCH 18, 1975.

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

v.

LEON DREAD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS B. GARIPPO, Judge, presiding.

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

Leon Dread, defendant, appeals from the trial court's findings of guilty of robbery, attempt armed robbery and unlawful use of a weapon. Defendant received indeterminate sentences of 1 to 8 years for robbery, 1 to 8 years for attempt armed robbery, and 1 to 3 years for unlawful use of a weapon. All sentences were to run concurrently.

Defendant raises four issues on appeal: (i) did the State fail to meet its burden of proof on the charge of unlawful use of weapons by neglecting to introduce evidence that the barrel of the gun was less than 18 inches; (ii) did the State fail to meet its burden of proof on the sanity issue; (iii) was it improper to convict and sentence defendant for the three separate offenses charged; and (iv) were the sentences excessive.

The evidence elicited at the bench trial revealed the following factual situation. On August 15, 1972, between 9 and 10 P.M., defendant, dressed in a large coat, approached Gordon Goranson and John Porter while they were conversing in an alley near the Carl Sandburg apartments on the near north side of the City of Chicago. Porter was working on his car in the alley. Defendant pulled out a shotgun from under his coat and said he wanted money. Defendant reached into Goranson's pocket for his wallet and asked for Porter's car keys. Porter tried to dissuade defendant and moved toward him. When Porter made his move, defendant struck him on the head with the shotgun. The Sandburg security jeep appeared, and defendant grabbed Goranson's wallet and fled. The police were called and Porter was taken to the hospital.

The security guards pursued defendant and cornered him in a nearby church courtyard until the police arrived. Upon searching the area, the police found the defendant in a corner of the yard with the shotgun on the ground in front of him. Defendant was arrested and taken into custody.

Goranson and Porter both identified defendant in a lineup later in the evening after the arrest and at trial. Goranson, Porter and the arresting officer, William Disselhorst, identified the shotgun presented at the trial as the one in the defendant's possession on the night in question. This gun was admitted into evidence over defendant's objections.

Defendant testified at trial that he did not remember the events of August 15, 1972, and that he claimed to have severe headaches and blackout spells since the incident. He further stated he served in the Viet Nam war and suffered two injuries: a wounded thigh and injuries from a bullet ricocheting off his head. Defendant testified he had been a mental patient at the veterans hospital in Kentucky, Viet Nam [sic]. On the basis of this testimony, defendant attempted to raise the defense of insanity on August 15, 1972. *fn1 In response to this alleged defense, the State called as its witness the psychiatrist who had examined defendant after he was taken into custody.

Dr. Richard A. Malek, a psychiatrist for the Psychiatric Institute of the Circuit Court of Cook County, testified concerning two examinations of defendant. After the first examination, which was conducted on January 23, 1973, the doctor was of the opinion that the defendant was fit to stand trial. After the second examination, on April 25, 1973, *fn2 the doctor again was of the opinion that defendant was fit to stand trial, and that as of the time of the alleged incident, defendant had the substantial capacity to appreciate the criminality of his conduct and the capacity to conform his requirements to the law. At trial the doctor explained he believed the defendant suffered from a mental illness — schizophrenia — but that the schizophrenia was in remission:

"I could obtain no evidence, there was nothing in the arrest incident report, there was no indication of any interview I had done that he was not in remission at the time."

The doctor further testified that he did not observe anything that would indicate organic or brain damage; that he had the feeling defendant was somewhat manipulative and had a very good memory for many things, and perhaps conveniently could not recall the arrest incident itself. On cross-examination the doctor admitted he would have no way of knowing whether on August 15 the defendant was in a state of acute schizophrenia. Dr. Malek was the only psychiatrist to testify regarding defendant's mental condition.

The trial court found defendant guilty of robbery, attempt armed robbery and unlawful use of weapons. After considering defendant's prior record: 1971, shoplifting — 180 days, and 1972, disorderly conduct — 1 year probation, the recommendation of the State that defendant be sentenced to not less than 4 nor more than 12 years in the penitentiary, and the request on behalf of the defendant for probation, the trial court imposed a sentence of no less than 1 nor more than 8 years on the robbery and attempt armed robbery charges, and no less than 1 nor more than 3 years on the conviction of unlawful use of weapons. These sentences were to run concurrently. This appeal followed.

I.

• 1 Under Illinois law (Ill. Rev. Stat. 1971, ch. 38, par. 24-1(a)(7)), it is an offense to possess "* * * any shotgun with a barrel less than 18 inches in length." Defendant contends since the State did not introduce evidence of the actual length of the barrel, an essential element of proof was lacking. The State points out that defendant is attempting to raise this objection for the first time on appeal. Our search of the record indicates that at the time the shotgun was offered as an exhibit at trial, defendant objected to its admissibility on the grounds that the chain of evidence had not been proved and that there was no evidence that the shotgun was in a firing condition. These objections were overruled and are not now challenged. We have been unable to find any specific objection of the nature now raised. Thus, the point has not been properly preserved for review. People v. Adams (1968), 41 Ill.2d 98, 101, 242 N.E.2d 167; People v. Garner (2nd Dist. 1968), 91 Ill. App.2d 7, 12, 234 N.E.2d 39.

However, for the following reasons we prefer to consider the point. On review by this court, we found defendant failed to cause the exhibit, which would prove or disprove the point, to be filed for inspection by this court. In fact defendant's attorney, seeking to persuade this court that the shotgun did not meet the statutory requirement of "less than 18 inches in length," stated to this court at oral argument that there was no duty or need to make this exhibit available on review. We observe that the ...


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