APPEAL from the Circuit Court of Cook County; the Hon. LOUIS
B. GARIPPO, Judge, presiding.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT:
The defendant, Chester Boyce, and his co-defendants, Walter Melvin and John Gary, were indicted for aggravated kidnapping and armed robbery of Morris Franklin and aggravated kidnapping and attempt armed robbery of Joan Bellaire. The cause proceeded to be tried before a jury on January 29, 1974, with John Gary being tried in absentia. Chester Boyce and John Gary were found guilty as charged except that the aggravated kidnapping charge of Morris Franklin was reducted to simple kidnapping. Walter Melvin was acquitted on all charges. Boyce was sentenced to serve 15 to 30 years on the aggravated kidnapping and armed robbery charges and 3 to 10 years on the kidnapping charge, all sentences to run concurrently.
Defendant, Chester Boyce, pursues this appeal separately and contends as follows: (1) he was denied effective assistance of counsel; (2) the trial court erred in failing to sua sponte sever his cause when his co-defendant did not appear for trial; (3) improper comment by the prosecutor during closing argument deprived him of a fair trial; (4) he was not proved guilty beyond a reasonable doubt; (5) judgment should be vacated on the attempt armed robbery charge as an included offense of the aggravated kidnapping conviction, and the remaining offenses should merge into a single conviction since they arise out of a single course of conduct; and (6) his concurrent sentence of 15 to 30 years is excessive.
We summarize the evidence. Joan Bellaire and Morris Franklin, the two complaining witnesses, testified that on August 9, 1973, they were playing cards at the home of Joan Bellaire's mother. They left the residence at about 11:30 that evening and drove off in Franklin's car. After they had proceeded about five doors down the street, the car stopped. Franklin got out of the car, made the necessary repairs, and returned to the driver's seat. As they were about to drive on, the three defendants approached the car. Defendant Boyce put a gun to Franklin's head and ordered him out of the car. Boyce handed the gun to defendant Gary and instructed him, "If anybody makes a funny move, you shoot." He then proceeded to search Franklin and took a five dollar bill, a money order receipt and a check stub. At the preliminary hearing Franklin testified that it was Gary who searched him. While Franklin was being searched, Gary asked Bellaire if she had any money. She replied that she did not.
After Boyce had searched Franklin, the three defendants argued. Boyce then pushed Franklin into the front seat of the car, and he got in the driver's seat. The other two defendants sat in the back seat with Bellaire between them. Bellaire testified that they both proceeded to search her, but recovered nothing since her change purse was empty. At the preliminary hearing she testified that she left her purse at home. Boyce drove the car via Roosevelt Road to Douglas Park. Bellaire cried during this time and Boyce threatened to blow her head off if she did not stop. While they were in Douglas Park, Gary suggested raping Bellaire. Melvin rejected the idea and told her that if she stopped crying, he would not let them do anything to her.
From Douglas Park they proceeded to the Chicago Loop. When they stopped at a red light on Monroe Street, a blue Chevy pulled up next to their car. Jim DeLeo, an off-duty deputy sheriff, was riding in the front passenger seat of that car. He testified that through his window he observed what appeared to be a gun in Gary's hand pointed at Bellaire. DeLeo then flashed his badge at Boyce and motioned him to pull over. Boyce went through the red light and pulled over to the side. He ordered his victims not to make a move and further instructed Bellaire not to cry and to act naturally. As DeLeo approached to car, Franklin jumped out and told him that the man in the back seat had a gun. DeLeo, with his gun in hand, ordered Gary to drop his gun on the floor. When he didn't, the sheriff fired a warning shot in the air. Gary then dropped his gun, and DeLeo recovered it. He also recovered a five dollar bill, a check stub, and a money order receipt from Gary.
At trial, Boyce testified in his own behalf. He testified that he and his co-defendants were not the perpetrators of the crime, but rather the victims of it. Boyce related that on the day in question he was walking with Melvin and Gary. Joan Bellaire was standing at the corner of Washtenaw and Polk. As they approached her, she told Boyce that if he had the money, she had the time. He responded that he would slap her. Morris Franklin then appeared. After a brief exchange of words, Franklin pulled out a gun and ordered the three defendants to get in his car. As directed, Melvin and Gary got in the back seat, and Boyce sat behind the wheel. Franklin, who sat next to Boyce, then instructed him to drive to Douglas Park and later to downtown Chicago. Franklin had his gun out at all times.
On cross-examination Boyce stated that at the time DeLeo pulled up next to them, Franklin had the gun pointed at his side below the window level. He had not violated any traffic law. Boyce further testified that the first time he noticed a gun in DeLeo's hand was when he fired the shot. He also said that DeLeo conducted a search of everyone, and that as far as he could tell, the search produced nothing.
Defendant first contends that he was inadequately represented by his trial counsel. Much is made of the fact that when defendant appeared for trial, he requested the appointment of new counsel. Pursuant to his request, defendant's private counsel, Jack Rodgon, motioned the court for leave to withdraw as counsel. The court initially denied the motion since it was made on the day of trial; however, later that day the court reversed its ruling and appointed Charles Schwartz to represent defendant. On appeal it is argued that defendant never was apprised of the fact that Schwartz was Rodgon's law partner, and that his dissatisfaction with Rodgon logically would apply as well to his partner.
• 1 We have reviewed the record carefully and find it shows the contrary. On December 17, 1973, Boyce was present in court when Schwartz stated to the court:
"For the record my name is Charles Schwartz. I represent Mr. Melvin and Mr. Boyce, and this is Mr. Rodgon's case."
Thus, prior to trial defendant did in fact know that Schwartz was associated with Rodgon. Moreover, the record further establishes that Boyce not only failed to object to the appointment of Schwartz, but affirmatively expressed his satisfaction with the appointment. Accordingly, we find this argument to be without merit. See People v. Johnson, 45 Ill.2d 38, 257 N.E.2d 3.
Defendant further argues that his defense counsel was incompetent in that he failed to secure the presence of a material witness either at the hearing on defendant's motion to quash the arrest or at trial. The alleged material witness is Bruce Schumacher, who according to the testimony of Sheriff DeLeo was driving the automobile in which he was a passenger on the evening in question. Defense urges that Schumacher's testimony as an eyewitness to the arrest was crucial both on the question of DeLeo's probable cause for stopping the automobile driven by Boyce and on the credibility of the complainants' testimony at trial. We are not in accord.
At the conclusion of the hearing on defendant's motion to suppress and quash the arrest, Schwartz commented that he "did not know about a second person being in [DeLeo's] car until just a few minutes ago." He explained that it was not noted on the police report, and expressed his desire to call Schumacher as a witness. The court denied the motion to suppress, but granted Schwartz the opportunity to reopen the hearing if Schumacher were produced. Schwartz asked for Schumacher's address, and Officer DeLeo gave it to him. The court then inquired whether Schumacher could be brought in on ...