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People v. Finley

OPINION FILED JULY 24, 1978.

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

v.

JOHN FINLEY ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. RUDOLPH L. JANEGA, Judge, presiding.

MR. PRESIDING JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Mr. PRESIDING JUSTICE GOLDBERG delivered the opinion of the court:

After a jury trial, defendants John Finley and Lawrence Laney were convicted of robbery and were each sentenced to 5 to 15 years. Their separate appeals were consolidated. Separate briefs have been filed for each defendant.

In this court, Laney claims that the State failed to prove him guilty of robbery beyond a reasonable doubt in view of the refusal of the trial court to instruct the jury on the theory of accountability. Defendant Finley contends that he was denied a fair trial when the trial court permitted improper testimony to be placed before the jury; the trial court and the prosecutor improperly informed the jury that the co-defendant Laney had used an alias; the trial court improperly permitted the prosecutor to show that defendant was unemployed, and the prosecutor made improper closing arguments. Finley also contends that the post-trial proceedings were unfair because he was not granted counsel of his choice during the hearing of post-trial motions and sentencing.

The evidence shows that on September 24, 1976, the victim, a woman some 80 years old, went to her bank in Oak Park. At about 1 p.m. she started to walk home. She testified that a car stopped at the curb, a black man came out, pushed her against the fence, seized her purse and ran back into the car. She was too frightened to identify the car or her assailant.

Oak Park Police Officer Giammona was on routine patrol. About 12:30 p.m. he observed a black and cream Chevrolet without license plates. He attempted to follow this car but lost it in traffic. Shortly after 1 p.m. he saw the same automobile driving at a high rate of speed through a red traffic light. The officer curbed the vehicle. It was being driven by defendant Laney who stepped out and walked to Giammona's car. Finley was in the automobile. Giammona told Laney to wait in the car while he prepared a traffic citation. Officer Stachura drove by and observed the latter incident. He spoke briefly to Giammona and proceeded on his way. His car was stopped by an unidentified citizen with whom he had a conversation. Stachura then sent a radio message to Giammona and proceeded to join him. The two officers drew their guns and approached Laney's car. Laney exited the car on the driver's side and Finley exited on the passenger's side. Finley began walking south, away from the car. When ordered to halt, he began to run. The officers arrested both men. Stachura noted a brown vinyl ladies purse on the floor by the front seat between the passenger door and the center of the car. The purse contained a bank deposit slip with the victim's name.

Laney did not testify. Finley testified that he was a passenger and Laney drove the car. They picked up a third individual named Clarence Williams. They drove him a short distance and he asked to be let out. Finley stated that later their car was stopped by Officer Giammona. He used racist profanity towards Finley and threatened him with bodily injury. Finley further testified that he left the vehicle, began walking away and then ran. He first saw the victim's purse when Officer Stachura later showed it to him in the police car. He did not know where Clarence Williams lived.

The single argument raised by Laney is the absence of an instruction on accountability and the contention that the evidence is insufficient to prove Laney's guilt. The People tendered an instruction on accountability. (IPI Criminal No. 5.03.) The court sustained an objection to this instruction by counsel for defendant Laney and refused to give it to the jury.

• 1, 2 The Illinois Criminal Code states the principle of accountability which parallels the common law theory of accessories. The statute provides for legal accountability of a defendant for the conduct of another. This is predicated upon the fact that the defendant has solicited, aided, abetted, or agreed or attempted to aid in the planning or commission of the offense with intent to promote or facilitate such commission. (Ill. Rev. Stat. 1975, ch. 38, par. 5-2(c).) It has been held that proof of the presence of the defendant at the commission of the crime is not by itself sufficient to prove accountability, but, where the proof shows presence of the defendant at the commission of a crime without disapproving or opposing it, this evidence is properly considered as one of the circumstances which tend to prove guilt by accountability. (See People v. Morgan (1977), 67 Ill.2d 1, 8-10, 364 N.E.2d 56, and authorities there cited.) In this regard it has also been held that accountability need not necessarily be proved by direct evidence of a specific agreement for participation in the crime. Proof of accountability may be by circumstances which show a common design to do an unlawful act to which consent has been given by the participants. See People v. Tate (1976), 63 Ill.2d 105, 109-10, 345 N.E.2d 480, and authorities there cited.

• 3 The evidence in the case before us shows that defendant Laney was the driver of the automobile and Finley was a passenger. The purse, which was the property of the victim, was found on the floor of the car near the front seat where Finley was seated. Under these circumstances, the inference may readily be drawn that Laney drove the car and that Finley actually seized the purse from the victim. The automobile was stopped close to the scene of the crime, shortly after it occurred. It had no license plates and had just sped through a traffic light. All of these circumstances combined are ample to prove the accountability of Laney. The determination of the jury regarding the guilt of Laney should not be set aside by us unless the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of Laney's guilt. (Tate, 63 Ill.2d 105, 108.) We find no such reasonable doubt in the case before us. In our opinion, the trial court should have instructed the jury on the issue of accountability. However, failure of the trial court so to do was not error, upon which defendant Laney, who caused the error, can rely. In fact, the error in this regard may well have assisted Laney and redounded to his benefit. In our opinion, the evidence of guilt as to both defendants is strong beyond reasonable doubt.

We will next consider the various claims of error raised by defendant Finley. On direct examination Officer Stachura testified that he had a conversation for about 3 minutes with an unidentified individual. At this point, counsel for Finley stated, "Objection." Counsel for Laney joined in the objection. The trial court brushed these objections aside but the questions went no further and the substance of the conversation was never shown.

• 4 Counsel for defendant Finley claims that this testimony regarding occurrence of the conversation was improper because it permitted an inference that the unidentified eyewitness gave a description of the offenders to Officer Stachura. We reject this contention. Quite aside from the issue of the generality of the objection (see People v. Bell (1975), 27 Ill. App.3d 171, 176, 326 N.E.2d 507), the testimony of the witness was confined to the simple fact that the conversation had occurred. He did not testify to the substance of any part of the conversation. Therefore, his testimony was not hearsay. The entire testimony of this witness was in court, under oath and subject to cross-examination. See People v. Sanders (1976), 37 Ill. App.3d 236, 239, 345 N.E.2d 757; People v. Coleman (1974), 17 Ill. App.3d 421, 427, 308 N.E.2d 364, appeal denied (1974), 56 Ill.2d 583.

• 5 In speaking to the panel of prospective jurors, the trial judge mentioned the fact that defendant Laney was "otherwise called Frank J. Brown." The caption of the information herein refers to "Lawrence L. Laney otherwise called Frank J. Brown." Twice during trial the prosecutor referred to Laney "also known as Frank Brown." No objection was made at either time. Also, in questioning a group of prospective jurors, counsel for Laney asked them if the fact that Laney had used an alias would prejudice them. The jurors answered negatively. Counsel for defendant Finley now urges that these matters constitute reversible error. We disagree.

Since this issue was never raised in the trial court by objection or otherwise, it may not be raised for the first time in this court. We do not find that these incidents can possibly achieve the status of plain error. (People v. Howell (1975), 60 Ill.2d 117, 120-21, 324 N.E.2d 403; People v. Osborn (1977), 53 Ill. App.3d 312, 319, 368 N.E.2d 608, appeal denied (1978), 71 Ill.2d 600, and cases there cited.) We reject the argument that counsel for defendant Finley was in ...


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