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People v. Grant





APPEAL from the Circuit Court of Cook County; the Hon. THOMAS J. MALONEY, Judge, presiding.


Rehearing denied April 9, 1979.

The defendant, Nathaniel Grant, was charged by information with the offense of armed robbery. (Ill. Rev. Stat. 1977, ch. 38, par. 18-2.) After a bench trial, defendant was found guilty and was sentenced by the trial court to the Illinois Department of Corrections for a period of not less than 5 nor more than 15 years. Defendant appeals, contending that in sentencing him the trial court failed to comply with the presentence report provisions of the Unified Code of Corrections (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-3-1 et seq.) and that the court abused its discretion by considering certain information, contained in the presentence report, as aggravating evidence without first determining its factual accuracy.

The complainant, Carrie Mathews, testified that while on her way to work at 4:45 a.m. on March 18, 1977, she stood at the intersection of 83rd and South Cottage Grove in Chicago, waiting for a traffic light to change so that she could cross to her bus stop. At this time, the complaining witness carried a purse which contained her wallet, $6, identification and credit cards, eyeglasses and pink "Puff" paper tissues. The complaining witness further testified that at this time the streets were illuminated by neon lights. After a short time, the complainant observed defendant crossing Cottage Grove Avenue from the right. He then approached the complainant on the corner and told her to "give it up." The complainant looked at defendant and, after seeing what appeared to be a gun in his hand, began to walk away. Defendant then came after her and started pulling on her purse. When this was unsuccessful, defendant fired a shot in the air. At this point, the complainant realized that defendant was carrying a real gun and, because of this, gave her purse to him.

Defendant took the complainant's purse and ran into a lighted alley off 83rd Street, between Cottage Grove and Maryland Avenues. The complaining witness followed him to see if she could retrieve her purse. Defendant paused by a gangway leading to Maryland Avenue, fired two shots at the complainant, but missed. Defendant then fled into the gangway. The complaining witness followed him but lost sight of defendant and returned to the alley where she shouted for the police. After an unspecified period, two uniformed police officers arrived on the scene. The complaining witness described the offender to the officers, accompanied them around the neighborhood, and after several minutes, she pointed out defendant to them. The complainant then observed the two officers arrest defendant and take a gun from him. The complainant further stated that defendant, when arrested, had a pink tissue stuffed in his waistband. Lastly, the complaining witness testified that the police officers returned some identification cards to her which had been inside the purse. However, the purse, itself, was never returned. She stated that she did not know where the aforementioned items were recovered.

Officer Philip Kulak testified that he was one of the officers flagged down by the complaining witness on the date in question. Kulak further testified that he observed other black male pedestrians in the area, but stated that the complaining witness pointed out only defendant. Kulak arrested defendant as he walked past the squad car. When searched, the police officer discovered a .38-caliber revolver containing four expended shells and two live rounds in defendant's waistband. Additionally, there was a pink "Kleenex" in defendant's waistband. Officer Kulak also seized $13 from defendant but stated that he did not recover any personal identification or a wallet belonging to the complaining witness. Officer Kulak conceded that the complainant's purse was never recovered and that upon arrest defendant told him that he was a security guard.

It was stipulated that the revolver, which was seized from defendant upon his arrest, was listed as being owned by the A-Alert Security Agency of Chicago.

Defendant testified in his own behalf and stated that he had worked the night before the robbery as an armed A-Alert security guard at a Jewel Food Store. He further stated that he left work at midnight and went to a friend's house, which was located at 9019 South Clyde Avenue. Defendant stayed at this location until 3 or 4 o'clock in the morning at which time he returned to his home at 9120 South Dauphin Avenue. At 83rd and Cottage Grove, defendant testified that he saw a thief snatch the complaining witness' purse. Defendant claimed that he fired one shot in the air with a service revolver and then gave chase, but lost the offender in an alley gangway. He also stated that the other three expended shells in his revolver had been fired a month earlier at a gun shop.

Defendant conceded that he did not hail the police when they drove by him on the street. Defendant also denied having any pink tissue paper when arrested.

In rebuttal, the prosecution entered a stipulation to the effect that the owner of the A-Alert Security Agency, if called to testify, would state that defendant had been assigned to guard the New Halsted Motel on the night and morning of March 17-18, but had failed to report to work.

After hearing this evidence, the trial court found defendant guilty of armed robbery. Approximately two weeks later, a hearing in aggravation and mitigation was held. At the outset of this hearing, the trial court indicated that a presentence investigation report had been filed with the court on that date and that both the prosecution and defense counsel had been provided with a copy of such report. Defense counsel then indicated that he was ready to proceed with the hearing. The 11-page presentence report indicated that defendant had received a one-year probation for trespass to a vehicle in June 1973 which was terminated successfully and was on two years probation for theft at the time of his arrest in this matter; that defendant worked at a shoe store full time for one year and periodically over the past four years; and that he suffered a bullet wound in February 1976. The circumstances of the wound were not noted. In aggravation, the prosecution argued that defendant "has a background involving violation of the law, * * *" and also pointed out that the defendant used a dangerous weapon in committing the armed robbery. The prosecution then requested a greater than minimum sentence so that the Department of Corrections would have some leeway in determining when defendant was fit to be returned to society. In mitigation, defense counsel argued that this was defendant's first felony conviction and his only act of violence. Defense counsel also pointed out that defendant was only 21 years old and then requested a minimum sentence of 4 years to 4 years and one day. Defendant then expressed a desire to be rehabilitated.

After hearing these arguments, the trial court noted defendant's adult probation record and indicated that the reporting probation officer overlooked a one-year conditional discharge for unlawful use of weapons in January 1975. With respect to defendant's bullet wound, the court stated: "In 1976 you received a bullet wound, and I am sure that was not while you were in church or any other worthwhile place." Regarding defendant's job at the shoe store, the court concluded: "You evidently had employment there or could have had employment and you didn't care for employment."

The court then went on to state:

"* * * But what you did here is what is plagueing [sic] the court. This is the worst kind of crime. This is what all the citizens are fearful of. This is why people and citizens across the country don't go out in the ...

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