APPEAL from the Circuit Court of Cook County; the Hon. ROBERT
E. CHERRY, Judge, presiding.
MR. PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:
Defendant, Robert Monreal, was charged by indictment with the offenses of armed robbery and aggravated battery (Ill. Rev. Stat. 1971, ch. 38, pars. 12-4(b)(1) and 18-2). Upon a jury trial defendant was convicted solely of armed robbery and was sentenced to a term of confinement of 6-18 years in the Illinois State Penitentiary. From entry of the judgment of conviction defendant appeals contending (1) that he was denied his constitutional right to effective assistance of counsel; and (2) that the sentence imposed was excessive.
We affirm the judgment of the circuit court and the sentence imposed thereon.
A review of the record reveals that during the late evening hours of April 29, 1973, Edward Cunningham, a taxicab driver, had taken his passenger to his destination, and when he turned in his seat to collect the fare, his passenger seized this opportunity to produce a small, dark handgun and to relieve him of the day's receipts. Cunningham grabbed the gun and a struggle ensued during which it discharged resulting in injury to and partial loss of Cunningham's thumb. Having been subdued, Cunningham complied with the assailant's order to enter the rear seat of the cab and remove his trousers and shoes.
At about this time a vehicle drew alongside Cunningham's cab. Its operator spoke briefly with the assailant and then drove off. Cunningham noted the appearance of the vehicle and its license plate number. Within a few minutes thereafter the assailant fled with the proceeds of the robbery, his victim's trousers, a shoe and the ignition key.
Police officers arrived on the scene and were furnished a description of the assailant and the vehicle that had stopped, including its license number. An examination of the interior of the taxi led to the recovery of a .25 pellet and an expended shell casing.
Three days later, Cunningham, in the company of investigating officers, drove through the area where the robbery occurred and discovered an automobile that matched the description of the vehicle observed at the scene of the crime. Its owner, Orville Sandevul, testified that he had inadvertently been at the scene during the course of the armed robbery where he observed defendant, a man known to him for ten years, seated in the cab.
Based upon information supplied by Sandevul, the officers effected defendant's arrest the following day. Defendant was placed in a lineup and was positively identified by Cunningham as his assailant. Defendant was also observed to bear a small cut on his right hand at the vortex of the thumb and forefinger.
Upon questioning, defendant's wife provided the officers with a small caliber handgun which she indicated was owned by defendant. Cunningham positively identified this weapon as that wielded by defendant during the course of the robbery. Ballistics examination of the weapon established that it had discharged the pellet and shell casing recovered from the victim's cab. Moreover, according to the ballistics expert, defendant's weapon is so designed as to eject spent shell casings and position a live round in the evacuated chamber. He explained that if the weapon were held improperly when fired, an injury in the form of a minor laceration would result to the portion of one's hand between the thumb and index finger.
Defendant testified in his own behalf. He denied having robbed Cunningham or owning the gun recovered by police officers from his wife. Defendant's wife was not called to testify. Defendant attempted to establish as an alibi that he spent the evening in the company of his family and friends. To this end, he adduced the testimony of one such companion. Defendant's parents also testified as reputation witnesses. Defendant explained that the cut on his hand was incurred in the course of his employment.
It is within this factual setting that defendant now asserts that his representation at trial, though sufficiently able to secure his acquittal of the offense of aggravated battery, was otherwise constitutionally inadequate.
That a defendant in a criminal proceeding has a right to effective assistance of counsel cannot be doubted. While a defendant's right to assistance of counsel is not satisfied by the mere appearance of such an attorney, it is not expected nor does due process require that he prove infallible. (People v. Teague (1973), 15 Ill. App.3d 479, 305 N.E.2d 80.) The constitutional requirements of adequate representation are not met only when the defendant demonstrates (1) actual incompetence of counsel, as reflected in the manner in which his attorney discharges his duties and (2) as a result of which defendant suffers actual prejudice, without which the outcome would have been different. (People v. Goerger (1972), 52 Ill.2d 403, 288 N.E.2d 416.) However, a review of counsel's competency does not extend to areas involving the exercise of judgment, discretion or trial strategy. People v. Newell (1971), 48 Ill.2d 382, 268 N.E.2d 17.
This standard properly reflects the constitutional requirement of due process. Under all the foregoing criteria, an examination of the facts of the case at bar reveals that defendant was rendered effective assistance of counsel.
• 1 Defendant's broad assertion that his trial counsel's knowledge of criminal law and procedure was lacking is not borne out by the record. Counsel extensively cross-examined each occurrence witness as to their ability to observe, reflect and recollect their perceptions of the incident in question. Wherever possible counsel endeavored to impeach such witnesses on the basis of prior statements made during defendant's preliminary hearing. Similarly, ...