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People v. Glass

OPINION FILED MAY 24, 1977.

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

v.

LUTHER GLASS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. DAVID J. SHIELDS, Judge, presiding. MR. PRESIDING JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Rehearing denied June 8, 1977.

Following a bench trial, Luther Glass, defendant, was convicted of the unlawful use of a weapon (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(10)) and sentenced to one year conditional discharge and fine in the amount of his bond.

He contends: (1) his waiver of counsel before trial was improper because the court did not inform him of the nature of the charge as required by Supreme Court Rule 401(a) (Ill. Rev. Stat. 1975, ch. 110A, par. 401(a)); (2) the evidence did not establish a criminal violation because the weapon was not sufficiently accessible; (3) the doctrine of "plain error" requires this court to consider whether defendant was subjected to an improper search which disclosed the weapon; (4) he did not waive his right to counsel prior to sentencing; and (5) the sentence is vague and uncertain.

Prior to trial the court gave defendant a copy of the complaint and advised him that he was "charged with unlawful use of weapons * * * carrying a loaded gun on your person." The court asked defendant if he understood the nature of the charge and defendant replied affirmatively. The court then advised defendant of the maximum penalty if he was found guilty, asked defendant if he wanted to go to trial without a lawyer and without a jury, and advised him of his right to ask for a public defender if he could not afford a lawyer. Defendant said that he wanted to be tried by the court without a lawyer and without a jury, and he pleaded not guilty.

During the trial the arresting officer testified that he stopped defendant for a traffic violation. When defendant got out of his car, this witness saw what he "believed" to be a gun butt protruding from underneath the driver's seat. A search of the car was made and a .38-caliber revolver containing four bullets was found. Defendant told the police the gun was registered and produced his identification card to substantiate this claim.

The defendant did not raise any objections to the testimony given by the officer and declined to cross-examine him, but offered testimony in his own behalf. Defendant claimed the arresting officer could not see the gun which was under the seat in the back of the car. While he admitted he was in possession of the weapon, he explained that he was merely taking it to his brother's home. He denied knowledge that the weapon was loaded.

The court found defendant guilty, imposed a sentence of "a period of one year conditional discharge which means non-reporting probation" and a fine "in the amount of your bond."

I.

• 1 Defendant questions whether he properly waived the assistance of counsel at trial because he was not properly informed of the nature of the charge pursuant to Supreme Court Rule 401(a). (Ill. Rev. Stat. 1975, ch. 110A, par. 401(a).) The trial court advised defendant that he was charged with carrying a loaded gun on his person but did not further tell him the charge could be proved if the weapon was found "about" his person as set forth by statute. (Ill. Rev. Stat. 1975, ch. 38, par. 24-1(a)(10).) In People v. Jones (1st Dist. 1976), 36 Ill. App.3d 190, 193, 343 N.E.2d 644, this court held:

"The purpose of Rule 401 is to provide a procedure which will eliminate any doubt that the defendant understands the charge against him and its consequences, and to preclude a defendant from entering a plea of guilty or waiving the right to counsel without full knowledge and understanding. People v. Schrodt (1972), 8 Ill. App.3d 660, 289 N.E.2d 652; People v. Carle (1972), 7 Ill. App.3d 709, 288 N.E.2d 878."

In the instant case, the court gave defendant a copy of the complaint which thoroughly recited the charge as set forth by statute. The court then explained the charge as heretofore noted, and it asked defendant if he understood the nature of the charge, to which he affirmatively replied. Testimony offered by defendant leaves no doubt that he understood the nature of the charge against him in compliance with Supreme Court Rule 401(a).

II.

• 2 Defendant's contention regarding the propriety of the search is without merit. It has been held that where an officer makes an arrest for a traffic violation, and while he is standing outside of the car he observes what appears to be a portion of a gun inside the automobile, a search is "justified without regard to the arrest in that it was the auto itself which provided the locus of the offense which the officer had probable cause to believe was being committed." (People v. Zazzetti (1st Dist. 1972), 6 Ill. App.3d 858, 862, 286 N.E.2d 745; People v. Graham (1st Dist. 1974), 23 Ill. App.3d 685, 320 N.E.2d 156 (abstract).) The arresting officer had probable cause for searching defendant's car and seizing the weapon.

• 3 It is to be noted that the evidence showed defendant raised no objection to the admission of this evidence at trial, nor did he cross-examine the officer concerning his testimony. Having failed to make objection at trial to the officer's testimony, defendant is precluded from raising such objection on appeal. (See People v. Trefonas (1956), 9 Ill.2d 92, 98, 136 N.E.2d 817.) However, considering the defendant was representing himself, we do not rely ...


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