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People v. Gary

OPINION FILED SEPTEMBER 24, 1976.

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

v.

JOHN GARY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. LOUIS GARIPPO, Judge, presiding. MR. PRESIDING JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted of the kidnaping and armed robbery of Morris Franklin and the aggravated kidnaping and attempt (armed robbery) of Joan Bellaire in violation of section 10-1, 18-2, 10-2, and 8-4 of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 10-1, 18-2, 10-2, and 8-4.) He was sentenced to concurrent terms in the penitentiary of 20-40 years for aggravated kidnaping, 20-40 years for armed robbery, and 3-10 years for kidnaping. Co-defendant Walter Melvin was acquitted on all charges. Co-defendant Chester Boyce was also convicted of the offenses stated and this court affirmed that judgment in People v. Boyce, (1976), 41 Ill. App.3d 53, 353 N.E.2d 287.

On appeal, he contends: (1) he was denied a fair trial by references to his absence from the proceedings and by improper conduct during the State's closing arguments, and (2) he was not proved guilty beyond a reasonable doubt.

Although he was present when the first 11 jurors were selected, he failed to appear for the selection of the remaining jurors and alternate jurors and for the beginning of his trial three days later. The trial court advised the jury that he was represented by counsel. Defense counsel inquired whether the jury would give defendant a fair trial even in his absence and the jury members replied in the affirmative. During opening argument defendant's absence was mentioned and his counsel stated defendant was not on trial for bail jumping. The trial court sustained the State's objection and instructed the jury that they might consider defendant's absence.

The following pertinent evidence was adduced at trial.

For the State:

Joan Bellaire

She and Morris Franklin, her boy friend, left her home at 2717 West Polk in his automobile at 11:30 p.m. on August 9, 1973. The car malfunctioned at Washtenaw and Polk and Franklin repaired it. Several people were in the area at the time. After Franklin reentered the car, three men approached. Chester Boyce put a pistol to Franklin's head and ordered them out of the vehicle. Boyce then gave the gun to defendant and after searching Franklin's pockets gave defendant the papers he took from Franklin's pockets. Defendant asked her if she had any money and she told him she did not. When they reentered the car, Boyce drove, Franklin sat in the front passenger seat. She was in the middle of the rear seat between defendant and Walter Melvin. The doors were locked and the windows were closed. They drove through Douglas Park and then proceeded on the Eisenhower expressway to the Loop. Throughout the trip, defendant was holding the pistol and occasionally would rub it against her face. He suggested raping her, but Melvin objected. While she was crying, Boyce told Franklin to calm her or he would blow her head off. The Loop was crowded and well lighted. At Monroe Street and Lake Shore Drive, a blue Chevrolet pulled alongside their car and Officer Jim De Leo showed his badge. After Boyce stopped the car at Randolph Street he and defendant cautioned her to be quiet and to act natural. When De Leo ordered everyone to leave the car, she exited and stood by Franklin.

Morris Franklin

He substantially corroborated the testimony of Joan Bellaire. In addition, he added that Boyce took a five dollar bill, a money order receipt, and a check stub from him. After the car had stopped at about Randolph Street and Lake Shore Drive, he jumped out and announced that defendant had a pistol in the back seat. Although he saw him holding a pistol Franklin always looked forward while they were driving. He identified a picture of defendant. He admitted that he had previously stated that defendant had searched him. Over defense objection, he stated that defendant had previously failed to appear and that arrest warrants had been issued. Defendant's motion for a mistrial on the basis of this testimony was denied by the trial court.

Jim De Leo

He was a deputy sheriff of Cook County on August 9, 1973. After having dinner and one drink with friends earlier in the evening, he was driving along Lake Shore Drive and came alongside Franklin's car at Monroe Street. Defendant was holding a gun in Bellaire's face. After Franklin jumped out of the parked car near Randolph he ordered the remaining passengers out of the back seat. Defendant was holding a pistol. When he gave a second command to exit and fired a shot into the air, defendant dropped the pistol and exited. He recovered a five dollar bill, a money order receipt and a check stub from defendant and the pistol from the floor of Franklin's car.

Chester Boyce and Walter Melvin testified on their own behalf. Since defendant has not adopted their testimony we will not discuss it in this opinion, but refer the reader to this court's decision, People v. Boyce (1976), 41 Ill. App.3d 53, 353 N.E.2d 287.

During closing argument, defendant's counsel argued:

"And if you are going to do these deeds, you are going to pull your car in a place where there are no people around, a place where you are not going to be seen. You are not going to go to downtown Chicago and then up Lake Shore Drive to get into a white neighborhood, not if you are a black fellow who lives around the West Side. You don't lose ...


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