APPEAL from the Circuit Court of Madison County; the Hon.
MOSES W. HARRISON, Judge, presiding.
MR. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:
Defendant appeals his conviction for armed robbery following a jury trial in the Circuit Court of Madison County. He was sentenced to a term of 20 to 40 years. He assigns as reversible error the following: the refusal of the trial court to appoint counsel to represent defendant, thus forcing defendant to appear pro se; the denial of a continuance to retain counsel; the acquiescence of the State in the perjured testimony of one Bryan Outhouse; the characterization of defendant as a professional criminal in the State's opening statement; the prosecutor's expression of his personal opinion, not based on the evidence, of defendant's guilt and argument based on testimony which had been stricken; and that the evidence was not sufficient to establish defendant's guilt beyond a reasonable doubt. We have taken with the case the State's motion to strike that part of defendant's brief relating to the testimony of Bryan Outhouse which is part of the record in another case.
The evidence which was presented at trial is as follows: On April 11, 1975, the victim of the robbery, Roy Schneider, holding a hand gun, answered a knock on his front door and admitted into his house a man, later identified as Robert Cash, who stated that he had experienced car trouble and requested the use of Schneider's telephone. Almost immediately thereafter, a man armed with a gun, his features hidden by a ski mask, but later identified as David Fulks, entered the front door, told Schneider to drop the gun he was holding and lie on the floor. Schneider did so, received two blows on the head which rendered him unconscious, and was robbed of approximately $250, two silver dollars, his wallet, his .38 Rohm revolver, and his Chevelle automobile. When Schneider recovered consciousness, he freed his feet which had been tied, discovered the missing items and that the back door had been broken open.
Meanwhile, Lawrence Stivers, a security guard at Civic Memorial Airport, noticed a gold Camaro automobile pull into the airport parking lot at approximately 8 p.m. and remain there for almost two hours. It was subsequently discovered that defendant was the owner of this car. Later that evening Stivers saw a car pull off Highway 111 adjacent to the airport and flash its lights on and off. These events were reported to the Bethalto police. Shortly thereafter the three persons walking from the car parked off Highway 111, which was Schneider's car, were stopped by two policemen who had responded to Stiver's call. Upon learning of the robbery, the subjects were arrested. The three occupants were Cash, Fulks, and the defendant, Francis Sheridan. Upon their persons were found currency, two silver dollars, a ski mask, a blackjack, and a .38 Rohm revolver. Of these items, $259 in bills, two silver dollars, six .38 special cartridges, a brown ski mask, and the blackjack were found on the person of the defendant.
Schneider was immediately brought to the scene where he identified his car, recognized defendant, whom he knew, identified Cash as the "motorist" he had allowed into his home, and identified Fulks, by his voice, as the man in the ski mask. Subsequently, Cash, Fulks, Sheridan and Bryan Outhouse, the driver of the gold Camaro, were indicted for armed robbery.
Bryan Outhouse testified that he, David Fulks, Robert Cash, and Francis Sheridan had met that evening at a pool hall near Nita's Cafe, from which they all left in the Camaro. As they drove, Sheridan outlined a plan by which Cash would knock on the door of a house and say he had a flat tire, then Fulks and Sheridan were to run in. Outhouse further testified that Sheridan directed him to drop them off and then to drive to the airport and wait. Sheridan told him they would arrive at the airport in the car of the person they robbed. Outhouse drove to the airport in the defendant's Camaro and waited there from about 8 until 9:30 when he was arrested.
Defendant's version of these events differs markedly. He testified that at 8:30 that evening he was in Nita's Cafe with Janet Blackstone when Bryan Outhouse came in and asked to borrow his car, the Camaro. Approximately one-half hour later, Outhouse returned and accompanied Sheridan en route to the airport for the purpose of going flying in defendant's plane. As they were driving down Highway 111, they came upon two men walking, Cash and Fulks. At Outhouse's request, defendant picked them up and continued on to the airport. Cash and Fulks then paid defendant to fly them to New Mexico, presumably accounting for the money found on defendant. Upon arriving at the airport, they were apprehended by the policemen. In rebuttal, the State introduced the record of defendant's murder conviction for impeachment purposes.
Defendant's first contention is that it was reversible error for the trial court to refuse appointment of counsel for him, thereby forcing him to defend pro se when he had in fact never waived his right to counsel. For the reasons set out below, we disagree.
In order to explain our decision that the trial court properly refused to appoint an attorney for defendant, it is necessary to review the history of defendant's attorneys and fluctuating assets. An indictment was returned on April 17, 1975, charging defendant with armed robbery. On April 18, a written appearance was filed by retained counsel demanding a preliminary hearing and immediate jury trial. Other discovery motions were filed at this time. At arraignment on April 30, 1975, defendant informed the court he was represented by named counsel, and defendant was admitted to bail on a property bond after representing to the court that he owned four houses, unencumbered, two of which he valued at $35,000 and $18,000. In a sworn affidavit, defendant stated his net worth exceeded $50,000. Numerous motions were subsequently filed by counsel, including discovery motions, motions to suppress and a motion for substitution of judges. Then on June 16, 1975, retained counsel was allowed to withdraw for the stated reason that the defendant had failed to cooperate with counsel.
Two weeks later, another attorney entered his appearance as counsel for defendant. He represented defendant at his first trial on October 7, 1975, which resulted in a mistrial when the jury was unable to reach a verdict. On November 5, defendant's initial attorney, who had withdrawn as counsel, moved that defendant's property be released as security on his bond and that he be surrendered to the custody of the sheriff of Madison County on the instant charge. The reason assigned for this was that defendant had been charged subsequent to indictment in this case with the offense of murder in Jersey County and was incarcerated in the Jersey County jail on that charge. Original counsel, or his law firm, represented Sheridan on the murder charge in Jersey County. This motion was allowed and a mittimus was directed to the sheriff of Jersey County requiring him to surrender defendant to the sheriff of Madison County. Of course, this curious order was never served and, in fact, defendant was tried and convicted on the murder charge in Jersey County prior to the trial of this indictment in Madison County. (See People v. Sheridan, 51 Ill. App.3d 963, 367 N.E.2d 422 (4th Dist. 1977).) While defendant's property was released as security, first retained counsel never entered his appearance as defendant's counsel to defend the instant charge; although, the attorney who represented defendant at the trial resulting in a mistrial, withdrew as counsel on November 26, 1975, as defendant had terminated his employment.
On December 3, 1975, defendant filed pro se a motion, prepared by counsel first retained, who had not formally appeared for defendant at this time, requesting the appointment of the public defender to represent defendant, stating he was without assets to hire an attorney. The motion stated that his real estate, which as late as November 26 had been pledged as security on his property bond, and which he represented he owned unencumbered, was mortgaged for $10,000 and was "not worth much more than the mortgage," and that his airplane was subject to a $7,500 mortgage. On the basis of this unverified motion, presented ex parte, the court appointed the public defender of Madison County to represent defendant. The order required the public defender to enter his appearance as counsel for defendant within two days. Thereafter, a petition for a hearing to determine the true indigency of Sheridan was filed.
A hearing was held on January 28, 1976, and defendant was determined not to be indigent, the court later noting that defendant had "ample funds," which the defendant apparently acknowledged, simply explaining that the funds had been borrowed. The case was set for trial on February 17, 1976. On that date, defendant appeared without an attorney and was granted a continuance to March 18, over the objection of the State, to obtain counsel. He did not do so. On April 5, defendant again appeared in court and requested a continuance to obtain counsel and the case was continued for that purpose to May 4. It would appear that defendant never requested the appointment of counsel on the basis of indigency at any time after January 28, until during his trial on May 4.
Following the guilty verdict on May 5, the court set the sentencing hearing for June 11, 1976. On May 7, initial counsel again formally entered his appearance as defendant's counsel and a lengthy post-trial motion was filed on defendant's behalf.
The presentence report listed Sheridan's assets as a four-room house in Wood River, a two-room house in East Alton, a five-room house in Alton, a Skyhawk 172 airplane, an acre of ground near Grafton, a 1971 Camaro, a 1962 Chevrolet, a 1972 Chevrolet and $12,000 in securities in the Illinois State Bank of Alton. His liabilities were ...