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People v. Middleton





APPEAL from the Circuit Court of Cook County; the Hon. IRWIN COHEN, Judge, presiding.


The defendant, Ceasar Middleton, was arrested on February 28, 1975 and charged with the following offenses: theft of services (Ill. Rev. Stat. 1973, ch. 38, par. 16-3(a)), unlawful use of weapons (Ill. Rev. Stat. 1973, ch. 38, par. 24-1(a)(10)), criminal damage to property (Ill. Rev. Stat. 1973, ch. 38, par. 21-1(a), and aggravated assault (Ill. Rev. Stat. 1973, ch. 38, par. 12-2(a)(1)). On May 15, 1975, the defendant received a bench trial in the First Municipal District of the Circuit Court of Cook County, and was found guilty of all of the above charges. He was fined $45 for criminal damage to property and theft of services, and was sentenced to concurrent 6 months terms to be served in the House of Correction for unlawful use of weapons and aggravated assault. Mr. Middleton appeals.

The issues presented for review are: (1) whether the defendant waived his right to raise on appeal the question of his jury waiver by his failure to make a post-trial motion for new trial; (2) whether the defendant made an understanding jury waiver; (3) whether the complaints charging the defendant with theft of services and criminal damage to property sufficiently state offenses where the alleged victim is identified as the "Checker Cab Co."; (4) whether the defendant was proved guilty of the offense of theft of services beyond a reasonable doubt; (5) whether the defendant was properly convicted and sentenced on all four of the charges; and (6) whether the sentence imposed upon the defendant is excessive.

The record reveals the facts involved to be as follows. The complainant, Lathan Lowery, a driver for the Checker Cab Company, picked up a passenger whom he later identified as the defendant. Mr. Lowery testified that the involved vehicle is owned by the company and that he is its "agent." The defendant entered the cab at Halsted and Lake Streets in Chicago and gave his destination as 7000 on Normal. According to Lowery, the defendant never advised him that the cab's meter was not running. The driver testified that some friends of his had asked him to take Mr. Middleton home, and told him that they knew Middleton. Lowery stated that the defendant slept during the journey and he guessed that the defendant was intoxicated. The cab proceeded to 7000 South Normal where Lowery stopped the cab and told the defendant that the fare was $5.30. The defendant then "threw" $4 into the front of the cab. Lowery informed him that this was not a full payment. The cab driver turned to look around and saw that the defendant was getting out of the cab and had a pistol in his hand. The complainant testified that the gun was pointed towards him. He asked Mr. Middleton, "What are you doing?" The defendant responded, "I ought to kill you." Lowery asked, "For what?" The defendant then exited the cab and proceeded to walk away. The driver advised the defendant that if he refused to pay his fare the police would be called. The defendant then began firing bullets at the vehicle in which the driver was seated. Lowery "pulled off" after the first shot. He testified that the cab was hit by bullets three times and that he heard three shots. Mr. Lowery first viewed the bullet holes in the cab when he stopped the police several minutes after the incident and showed them the damage.

The defendant related that he was picked up at Lake and Halsted Streets on the evening in question by a cab driven by Lathan Lowery, and taken to 7000 South Normal. According to the defendant, the cab's meter was not operating at any time during the ride. When the cab arrived at the Normal address and Lowery told him that the fare was $5.30, the defendant replied, "No, Mr. Lowery, I know how much it is. It is $4.80." He then informed Lowery that he had only $4.80 in change, but that he also had a $50 bill; he asked the driver if he could change the bill. When Lowery said that he had no change, the defendant offered, "I could owe you 20 cents." Lowery then began "getting loud," so the defendant said, "Forget about it. I will give your friend the other change." He then paid Lowery the $4.80. The defendant testified that he did not have a weapon in his hand when he exited the cab, and that at no time while he was in the cab was there a weapon on his person. A gun owned by the defendant was later confiscated from his person and was produced at trial. The defendant stated that at the time of the incident, the weapon was laying on his dresser in his home and that he had last seen the gun at "5:30 that Friday morning when I left and went to work and I didn't see it until I came home that night." The defendant's statements regarding the whereabouts of his gun were corroborated by the testimony of his wife, Martha Middleton.

When quesioned as to whether or not he had observed the condition of the cab at the time he entered the vehicle, the defendant replied, "Well, I seen him at the tavern." He then stated that he had been unable to observe the condition of the cab because it was night and he was not paying attention to the vehicle.

Officer James Green, one of the arresting officers, testified that on February 28, 1975, at approximately 6:40 p.m., he and his partner had stopped at a traffic light and were facing westbound on 71st Street at Normal. At that time, the officers heard several shots being fired. The noise came from somewhere north of the officers' location. The police car then made a right turn and headed north on Normal. They had proceeded for less than half a block before they were stopped by a "Checker Cab driver," later identified as Lathan Lowery. He told the officers what had occurred, gave them a description of his passenger, and pointed out the building that the defendant had entered. It was a corner two-flat building with a common stairway which led past the main door into a hallway, and then to the first and second floor apartments. Officer Green stated that he proceeded up the stairs and entered the hallway. He then saw the defendant standing on the stairs leading to the second floor apartment, holding a gun in his hand. The officer identified himself to the defendant and proceeded to disarm him. Green examined the revolver, discovering three spent and two unspent cartridges inside the weapon. An additional three unspent cartridges were found in the defendant's pocket. The defendant, who was "screaming and hollering" was then arrested.

Following the apprehension of Mr. Middleton, Officer Green first examined the condition of the cab. He stated that at that time, he observed three "bullet dents" on the cab, "[o]ne on the passenger door and two on the rear door." It was the officer's opinion that the dents had been caused by shots being fired at the cab, and that "[t]he dents appeared to look fresh because the paint section was all gone, and the metal was hanging." The officer admitted, however, that he could not be certain how long the dents had been in the cab.

The defendant denied that he ever fired his weapon at the cab or that the gun was in his possession at any time when he was outside of his apartment. According to the defendant, he had entered his apartment and was removing his clothing when he heard a commotion in the hallway. He heard an officer say, "Throw it down. Throw your gun down. I know you got one upstairs there and the best thing to do is throw it down." The defendant threw his gun outside of the apartment and went downstairs with his hands on his head where he was then arrested.

Mrs. Middleton testified that she heard the doorbell ring and that the lady on the first floor must have opened the main door for the police. The police then came into the stairway that led to the Middletons' second floor apartment. At this time, the defendant was "* * * standing in the stairway of the door." She stated, "After they told him to throw the gun down, I told him to go down and throw it down." Mrs. Middleton maintained that prior to this time her husband had been inside of the apartment.

• 1, 2 The defendant argues on appeal that he did not knowingly and intelligently waive his constitutional right to a jury trial, and that it was reversible error for the trial court to enter a jury waiver under the circumstances. The defendant requests that the convictions be reversed and the case remanded for a new trial. The State contends that the defendant waived his right to raise on appeal the question of whether or not his jury waiver was understandingly made, by his failure to make a post-trial motion for new trial. We must agree with the State.

In People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856, the Illinois Supreme Court held the law to be as follows: "Failure to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review." The defendant in Pickett made a written motion for new trial, but failed therein to mention specific issues objected to on review. We notice that issues of constitutional magnitude were before the supreme court in Pickett. The defendant therein argued that he had been denied his constitutional right to poll the jury and his right to counsel at a critical stage of the trial proceedings. The supreme court held that the general waiver rule "* * * applied to constitutional questions as well as to other issues." Under Supreme Court Rule 615(a) (Ill. Rev. Stat. 1973, ch. 110A, par. 615), a reviewing court may in its discretion consider issues not properly preserved for review, where a defendant was denied a fair and impartial trial. However, Rule 615(a) "* * * does not mandate that a reviewing court consider all errors involving substantial rights whether or not the same have been brought to the attention of the trial court." People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856.

The waiver rule of Pickett has been consistently followed by the Illinois courts. (People v. Howell (1975), 60 Ill.2d 117, 120-21, 324 N.E.2d 403; People v. Free (1976), 37 Ill. App.3d 1050, 1051, 347 N.E.2d 505; People v. Sheppard (1974), 20 Ill. App.3d 1036, 1038, 313 N.E.2d 287.) In Sheppard, where the defendant remained totally silent as his counsel moved to proceed to a bench trial, counsel's waiver was determined to be binding upon the defendant. The Illinois Appellate Court for the Fourth District specifically held: "Defendant's failure to raise the alleged impropriety of his jury waiver in his post-trial motion constitutes a waiver of that issue."

• 3 In the instant case, the defendant denies that he made an understanding jury waiver, and asserts on appeal that it was therefore reversible error for the trial court to proceed to a bench trial. However, the defendant did not raise this issue in the trial court by entering a timely motion for new trial. We find that the defendant has waived the issue of the quality of his jury waiver for purposes of appeal. The record affirmatively shows that the court asked the defendant personally if he was waiving a jury trial, and both he and his retained counsel answered in the affirmative. It is not apparent that the defendant's right to receive a fair and impartial trial was in ...

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