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People v. Wilson

OPINION FILED MARCH 12, 1976.

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

v.

FLOYD WILSON, DEFENDANT-APPELLANT.



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

MR. JUSTICE DRUCKER DELIVERED THE OPINION OF THE COURT:

Defendant Floyd Wilson was charged by indictment with the offense of armed robbery. After a bench trial, defendant was found guilty of robbery and sentenced to the penitentiary for a term of two to six years. Two issues are presented on appeal: (1) whether it was error for the trial court to deny a continuance and (2) whether the complaining witness' identification of defendant was sufficient to establish his guilt beyond a reasonable doubt.

The complaining witness, Earl Fisher, testified as follows: He owned a candy store and penny arcade at 408-410 West 65th Street and resided above the stores. On August 18, 1973, at about 10 p.m., he closed his store and drove his daughter home. He returned about 11:20 p.m. As he arrived, he saw two men standing near an alley across the street from the store. He had seen both men together several days earlier outside of his store. At trial he identified the defendant as one of the two men.

As Fisher was unlocking the gate to the store, he noticed that defendant was crossing the street. Defendant came up to Fisher, put a gun to his head and said, "I have a contract to kill you." At first defendant ordered Fisher to open the door but then told him to get back into his car so that defendant could take him home "because we heard you have a lot of money." Before entering the car, defendant's companion searched Fisher and took a wallet containing approximately $90, a watch, a ring and an unregistered gun from him. Fisher sat in the driver's seat, defendant was next to him, and defendant's companion sat in the back seat. Defendant ordered Fisher to drive to his home, threatening that, "If you don't find no money, I'm going to kill your family."

Defendant's companion then suggested that they go into Fisher's store to take a television set located there. The three alighted from the car. Following the defendant's instructions, Fisher opened the door to his store, took the television set outside and placed it on the trunk of his car.

At this point three young men were seen walking towards them. Defendant put his gun down to his side in order to conceal the weapon. Taking advantage of this, Fisher ran across the street to the house of an acquaintance and shouted that he had been robbed. Defendant picked up the television set, dropped it, picked it up again and ran around the corner. Defendant's companion also ran.

The police arrived within several minutes. Fisher identified himself as the one who had been robbed, described the robbers as a tall boy and a short boy and stated that they had just run around the corner. The police immediately drove their car around the corner to a building half a block away. Fisher followed on foot. They saw defendant running towards them. A chase ensued, defendant finally running into a vacant building located across the alley from Fisher's store. The police went into the building and brought defendant out. Fisher identified him as one of the robbers.

Officer Earl Marshall of the Chicago Police testified that, in response to a call of a robbery in progress, he drove to 410 West 65th Street. Other police officers had already arrived and were positioned in the alley across from the candy store. Fisher went to Officer Marshall and spoke to him. Marshall, with other officers, entered the vacant building and began to search the basement of the building. He came upon the defendant who was sitting against a wall in the boiler room. Marshall placed defendant under arrest and took him outside.

On the day of trial the State indicated that it was ready to proceed. The defense made an oral motion for a continuance, stating that the transcript of the preliminary hearing was not available and that defendant was not psychologically prepared for trial. The court noted that defendant had made a speedy trial demand and that the case had been set for trial without the transcript. As a result, the motion was denied. Defendant stated that he would like to have the trial that day. A recess was granted to allow time for defendant to confer with his counsel.

Following the recess defense counsel stated that he wished to clarify certain things. Counsel restated that the transcript of the preliminary hearing was not available and informed the court that he had not received the Bureau of Identification report of the complaining witness' conviction record. The trial judge stated that if the record were found to be necessary for impeachment, it would be obtained. Trial then commenced. Earl Fisher and Officer Marshall testified for the State. The defense did not present any witnesses. At no time did the defense request production of the conviction record during trial. After finding defendant guilty of robbery, the court ordered a presentence investigation and the production of Fisher's conviction record.

OPINION

Since defendant is not now questioning the propriety of the denial of a continuance based upon the unavailability of the preliminary hearing transcript, it will not be considered.

On appeal defendant contends that the trial court erred in failing to grant his request for a continuance for the purpose of obtaining the conviction record of the complaining witness. However, it was not until after the recess that defense counsel informed the court for the first time that he did not have the conviction record. A motion for a continuance was not made at this time, and trial then commenced.

• 1 It is evident that defense counsel was calling the court's attention to the absence of the conviction record for the purpose of being allowed greater latitude for impeachment during cross-examination, and not for the purpose of obtaining a continuance. In fact, counsel did enjoy the opportunity to broadly question the complaining witness concerning his criminal record, the court making note of the fact that the conviction record was unavailable. Since a continuance was never requested at trial for the purpose of obtaining the conviction record, the issue will not be considered on review. (People v. Armstead, 28 Ill.2d 252, 190 N.E.2d 778; People v. Benford, 31 Ill. App.3d 892, 335 N.E.2d 106.) Furthermore, we note that the ...


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