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People v. Howland





APPEAL from the Circuit Court of Cook County; the Hon. BENJAMIN S. MACKOFF, Judge, presiding.


Herbert Leroy Howland, a/k/a William Lee Howland (defendant), was charged with three counts of armed robbery in violation of section 18-2 of the Criminal Code of 1961. (Ill. Rev. Stat. 1975, ch. 38, par. 18-2.) After a jury trial, defendant was found guilty of two counts of armed robbery and sentenced to 10 to 30 years in the penitentiary. Defendant appeals, contending that (1) he was deprived of a fair trial by the cumulative prejudicial effect of the prosecutor's misconduct during cross-examination and closing argument and (2) the trial court incorrectly determined that his sentences in this case had to be consecutive to his Indiana sentence.

The record discloses that: Dale Vanderbilt, a security guard at the Robert Hall Village store in Homewood, Illinois, testified that on September 24, 1974, he arrived at the store at 7:45 a.m. with Luke Roberts, the store manager. Vanderbilt locked the door after they had entered and remained at the front door to allow employees to enter. At approximately 8:15 a.m., a man whom Vanderbilt identified at trial as the defendant came to the door. After defendant was admitted to the store, he stated that he was to start work and wanted to speak to Mr. Roberts. Defendant said he knew where the office was and went toward it. The preceding night defendant had asked Vanderbilt where to find the manager and Vanderbilt had directed him where to go.

Luke Roberts testified that on September 24, 1974, shortly after he arrived at the store, Vanderbilt called him and told him that a man in work clothes wanted to see him. Gerald Riske, associate general manager, brought a black man in a blue denim jacket to the office. Roberts identified him as the defendant. Defendant, who had spoken to Roberts twice previously about employment, discussed his maintenance job with Roberts. A few minutes later defendant pulled a revolver and demanded money. Defendant took Roberts' and Riske's wallets. They walked through the accounting office to the cash room where the safes were unlocked. When Ylo, the office manager, arrived, Roberts called him into the cash room. Roberts put cash from the safe into two large satchels. Roberts carried the satchels to the hallway outside his office. Defendant made Roberts, Riske, Ylo and three employees go into Roberts' office. When defendant asked about communications, Roberts pulled the telephone off the wall. Defendant locked all of the employees in the office.

Eugene Ylo, the store's office manager, testified that he saw Roberts, Riske and another person whom he identified as defendant in the cash room. Roberts requested Ylo to come into the cash room. Defendant had a silver-plated revolver. The safes were open and two cash satchels were on the floor. All four left the cash room and were made to go into Roberts' office along with some office employees. Defendant took $37,000, about $4,000 of it in checks. Defendant was with them for about 20 minutes in a well-lighted area. Ylo did not see defendant put the money into the satchels. Defendant left, carrying the two cash satchels, and locked the door.

Gerald Riske stated that he found defendant in the hallway outside the store's offices and took him to see Mr. Roberts. He corroborated Roberts and Ylo as to the details of the robbery and identified the defendant as the man who had committed the robbery.

Vanderbilt testified that approximately 15 minutes after he had let defendant in, defendant came to the front door carrying two large satchels. Vanderbilt asked defendant where he was going. Defendant responded that he was going to his car and would be back in a minute. When Vanderbilt demanded to inspect the satchels, defendant put down one satchel and reached toward his hip. Vanderbilt quit questioning defendant and defendant walked out of the building. Subsequently Vanderbilt identified a photograph of defendant.

Charles Taylor, a janitor, identified defendant as the man who robbed the store on September 24, 1974. He recalled defendant because defendant had been at the store the previous day asking if the store was hiring. Cynthia Sorensen and Sharon Cassano, employees of the store, also identified defendant as the man who robbed the store.

Eugene Ylo, Luke Roberts, Gerald Riske and Cynthia Sorensen testified that while in Roberts' office defendant threatened them with death if any alarm was given.

Defendant, William Lee Howland, testified in his own behalf that he was in Indianapolis on September 24, 1974, and had not been in Illinois at any time. He was 25 years old at the time of the trial and was the same height and weight as he was on September 24, 1974. He had pleaded guilty to a felony firearms charge in Indiana because he was guilty and had been sentenced to the penitentiary, but had not completed his sentence because he escaped from prison on June 24, 1974, by walking away while on a work detail outside the prison walls. After his escape, he went to Fort Wayne, Indiana, where he was in an automobile accident on September 5, 1974. He told the police there that he was Herbert Lee Howland because he was an escapee and the car he wrecked was registered to Herbert Lee Howland, defendant's brother. He was released from jail on September 11, 1974. He testified that he was in Indianapolis on September 21, 22, 23 and 24, 1974. On September 25, 1974, he went to Memphis, Tennessee. On October 4, 1974, he was arrested in Indiana by the Indiana authorities for his escape. He had never been in Homewood, Illinois, nor in the Robert Hall Village store there. He had never talked to Luke Roberts or anyone about employment. He had not seen any of that store's employees before they testified against him in this case. He had not held a gun on Riske or Roberts and had not taken their wallets or any money from the store. He had no other felony convictions.

On cross-examination, defendant stated that he was carrying a loaded gun when arrested in the firearms charge to which he pleaded guilty. There was an armed robbery charge dismissed prior to his plea of guilty to the firearms charge. He did not escape as soon as he was assigned to an outside work detail; he walked away two weeks after he was so assigned. The automobile he drove when arrested in Fort Wayne was not stolen. He did lie to the Fort Wayne police about his identity. After he made bond in Fort Wayne, he failed to appear to answer the charge. He has never held a job for more than a year. Although he lived with Gloria Johnson from September 21 through 25, 1974, in Indianapolis, he has no plans to marry her. He tried to tell the people who came to Indiana with an Illinois warrant that he was in Indianapolis on September 24, 1974. Aside from that, the first time he told anyone about being in Indianapolis on September 24, 1974, was in court.

Defendant contends that the cumulative prejudicial effect of the prosecutor's misconduct during cross-examination, combined with the prosecutor's closing argument, denied him a fair trial. The State argues that the claimed errors were waived because not included in defendant's written post-trial motion or were invited by defendant's direct examination or closing argument.

Although many of the contentions made by defendant were waived because of his failure to object at trial or to include them in his post-trial motion and are therefore not properly before this court, we have considered them and find that they are without merit, either individually or in combination.

Defendant argues that he was prejudiced by the State's cross-examination concerning his prior firearms conviction in Indiana. On direct examination he testified that he had pleaded guilty to a felony firearms charge because he was guilty, but had not completed his sentence because of his escape from prison. On cross-examination he testified that the gun he was carrying which resulted in his guilty plea to the ...

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