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People v. Lambert

OPINION FILED MAY 31, 1978.

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

v.

ALAN LAMBERT, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of McDonough County; the Hon. SCOTT I. KLUKOS, Judge, presiding.

MR. JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant Alan Lambert from the circuit court of McDonough County which after trial by jury found him guilty of the offenses of burglary and theft and imposed a sentence of not less than 3 nor more than 9 years in the penitentiary on the burglary offense. The theft conviction was vacated.

During defendant's trial Marvin Farrell, age 16, testified that he went with the defendant and another individual, Joe Lathrop, to the Rural Equipment office in Macomb in the early morning hours of September 20, 1976. At the defendant's direction he (Farrell) broke a window in the building and stood watch while the defendant and Lathrop entered the building. When the defendant and Lathrop exited from the building they informed Farrell that they had only "got two rolls of pennies" and that he (Farrell) received no money or anything else from the defendant or Lathrop.

During the trial it was established that Farrell had quit school, was unemployed, and had a juvenile record for truancy and forgery and was on probation at the time of the trial. It was further established that he was testifying after being granted immunity from prosecution for his participation in the alleged crime. Farrell further admitted that he had committed perjury when he testified against the defendant at a preliminary hearing. The perjured testimony concerned Farrell's arrest record.

The only other witness called by the State was Ralph Hemp, operator of the Rural Equipment Company. The testimony of this witness was that upon arriving at his office on the morning of September 20, 1976, he saw broken windows and thereafter determined that there was missing $5.52 from a drawer, $88.96 contained in a cash bag, two rolls of pennies, and about $10.00 worth of stamps. He further testified that a check writing machine, a tool box, and file cabinet had been tampered with and that papers were scattered about the office.

A defendant's motion for directed verdict at the conclusion of the State's case was denied and the defendant presented no evidence. In the rebuttal argument to the jury the prosecutor stated:

"The fact is that that young man confessed to that crime and implicated this defendant in it long before he ever talked to me and was granted immunity."

The trial court sustained a defense motion to these remarks of the prosecutor and instructed the jury to disregard them.

The first issue presented for determination is whether the State failed to prove the defendant guilty of burglary beyond a reasonable doubt because his conviction was the result of the testimony of an accomplice whose testimony was impeached by establishing the fact that the accomplice had given perjured testimony when he testified against the defendant at a preliminary hearing.

• 1, 2 The uncorroborated testimony of an accomplice witness is not per se insufficient to establish the guilt of an accused. Such testimony even where subject to infirmities such as promises of leniency may be sufficient. The test is that the trier of fact must be satisfied beyond a reasonable doubt that the accomplice's testimony is true, and, once established that decision will not be reversed unless the quantum of proof is lacking. People v. Franz (1977), 54 Ill. App.3d 550, 368 N.E.2d 1091; People v. Farnsley (1973), 53 Ill.2d 537, 293 N.E.2d 600.

• 3 The defendant argues that the testimony of the accomplice was impeached because he misstated his prior arrest record at a preliminary hearing. Such an infirmity goes to the question as to the weight of the evidence, the credibility of the witness, and is a matter peculiarly within the province of the court or jury. (People v. Ross (1968), 41 Ill.2d 445, 244 N.E. 608.) In Ross the accomplice witness was an admitted perjurer, however, our supreme court while recognizing that testimony from such a witness is not of the most satisfactory character nevertheless refused to disturb the conviction of the defendant, since the determination of the credibility of such testimony is within the province of the court or jury. (People v. Ross (1968), 41 Ill.2d 445, 244 N.E.2d 608, 616.) The testimony of an accomplice which is subject to an infirmity such as a promise of leniency may be sufficient to prove a defendant guilty beyond a reasonable doubt. People v. Farnsley (1973), 53 Ill.2d 537, 293 N.E.2d 600.

The defendant cites several cases to support his contention that he was not proved guilty beyond a reasonable doubt because the character of the testimony was unsatisfactory in that it was provided by an accomplice. All of the cases cited by the defendant are distinguishable from the instant case. In People v. Hermens (1955), 5 Ill.2d 277, 125 N.E.2d 500, and People v. Marshall (1975), 26 Ill. App.3d 905, 326 N.E.2d 246, we have situations where in each case two alleged accomplices of the defendant testified. One testified that the defendant had participated in the crime and the other flatly contradicted this testimony by stating that the defendant had not participated in the crime. In People v. Price (1974), 21 Ill. App.3d 665, 316 N.E.2d 289, the reviewing court characterized the testimony of two accomplices as unbelievable and there was testimony from other witnesses that contradicted that of the accomplices. In People v. Williams (1976), 65 Ill.2d 258, 357 N.E.2d 525, the testimony of a primary witness for the State was characterized by the reviewing court as a fabrication and not merely a loss of memory. The reviewing court further noted that the inconsistencies in the witness's testimony were so numerous and blatant that it was simply unreasonable to attribute them solely to a loss of memory. In People v. Mostafa (1971), 5 Ill. App.3d 158, 274 N.E.2d 846, the reviewing court noted that the testimony of two accomplice witnesses contradicted each other and were materially and directly contradicted by other facts in the record.

• 4 In the instant case we can only conclude that the testimony of the accomplice satisfied the jury that the defendant was guilty beyond a reasonable doubt and we will not disturb a conviction on review unless it is plainly apparent that such degree of proof is lacking. We find no such lack of proof here.

The defendant further asserts that the prosecutor in his rebuttal argument improperly revealed the existence and contents of an accomplice's confession which had not been introduced into evidence and the ...


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