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People v. Cain

OPINION FILED FEBRUARY 26, 1979.

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

v.

WILLIAM CAIN, A/K/A WILBUR CAIN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK J. WILSON, Judge, presiding. MR. JUSTICE BUCKLEY DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 THIS OPINION WAS PREPARED BY JUSTICE BUCKLEY WHILE ASSIGNED TO THE ILLINOIS APPELLATE COURT, FIRST DISTRICT.

Rehearing denied March 14, 1979.

The defendant, William Cain, also known as Wilbur Cain, was indicted jointly with Ronald McClellan for murder and armed robbery in connection with the September 12, 1974, slaying of Robert Dietz, a mail carrier. After a jury trial before Judge Frank J. Wilson in the Cook County Circuit Court, McClellan was found guilty of both murder and armed robbery; Cain was found guilty of armed robbery only and was sentenced to a term of from ten to thirty years. It is from this judgment of conviction and sentence that Cain now appeals.

For the reasons stated below, we affirm.

The facts which are pertinent to the issues presented on appeal may be summarized as follows:

The evidence relating to Cain's involvement in the crime charged included the testimony of Robert Haas. Haas testified that Cain had asked on September 12, 1974, to use a car belonging to Haas' step-brother to go to a liquor store. Haas said he agreed to this request on condition that he be allowed to accompany Cain. He said McClellan accompanied them, occupying the front passenger seat while Cain drove and Haas rode in the back. Haas testified that he noticed the barrel of a shotgun under McClellan's seat and that, when he asked about it, McClellan said he intended to rob someone. Haas said he told McClellan he wanted no part of it.

According to Haas, as the car was moving McClellan told Cain to pull over so he could rob a mail carrier. Cain did so, and got out of the car and stood on the sidewalk while McClellan went into a building. Haas heard a shot, McClellan came running out, both McClellan and Cain got into the car, and Cain drove away. Haas testified that he saw McClellan take some bills out of a wallet and throw the wallet away. He then heard Cain ask McClellan why he had shot the mail carrier and heard McClellan answer that it was an accident.

Later, Haas testified, he saw Cain and another person with the shotgun on the front porch of the apartment building where they had spent the previous night, and that he had taken the shotgun from Cain and placed it in a garbage can.

Haas stated that he had been convicted twice for theft and that, after the incident here in question, he had been placed in protective custody.

Jim E. Price testified that he lived in the same apartment building as Cain at the time of the incident here in question, and that Cain awakened him at about 11 a.m. on September 12, 1974, and stated that he had gone out to get some drinking money and someone got shot. Price said Cain later returned and urged him to go see a shotgun, but that he refused.

Price also testified that Cain had at no time said that he had shot anyone or taken anything from anyone.

Jody Akers, who said she was a close friend of Cain, testified that shortly after 11 a.m. on September 12, 1974, first Cain and then McClellan entered Cain's apartment, McClellan carrying a brown paper sack over his shoulder. She said that, after McClellan left, Cain told her he was in serious trouble, showed her two $10 bills, and said that was all he had gotten. She testified that during that afternoon she took a shotgun from a garbage can and put it in a closet. She also said that later, when she and Cain saw a newscast mentioning the Dietz slaying, Cain told her "that is what they were involved in or maybe it wasn't."

In connection with the presentation of this evidence at trial, three incidents occurred which are also of importance.

The first such incident concerns the following portion of the prosecution's opening remarks:

"(The evidence will show * * *)

PROSECUTOR: That McClellan struck up a conversation, introduced himself as Ronald and said that he lived next door with the Gonzalezes and that was understood and he interpreted that he was, in fact, a Gonzalez, but in any ...


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