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People v. Elder

OPINION FILED MAY 31, 1979.

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

v.

MOSES ELDER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. FRANK B. MACHALA, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The defendant, Moses Elder, was convicted after a jury trial, of armed robbery and sentenced to a minimum of four years and a maximum of six years' imprisonment. He has appealed contending that (1) the court erred in denying his motion for a continuance and (2) he was denied a fair trial due to the incompetency of counsel.

We find no error and affirm.

At trial the only occurrence witness was the complaining witness Walter Clark. He testified that he had known Elder for about a year and a half prior to the robbery, although he did not, at that time, know his last name. At about 6 p.m. on July 31, 1976, he was at Cicero and Adams talking to some friends. Elder came by in his car and suggested Clark join him. Elder said he was looking for a friend who owed him some money. They drove to 5803 West Madison, parked and went into a tavern. His friend was not there. They were in the tavern less than five minutes and did not have a drink. When they returned to the car, it would not start so they took a bus back to Clark's car. They then drove in Clark's car to 1133 LeClaire because Elder wanted to get some money from his sister-in-law for a starter. Elder got out of the car and went upstairs for about 30 to 40 minutes. Clark sat there waiting for him and blew the horn a couple of times. He did not fall asleep. Elder came out and told Clark his sister had a $20 bill. Elder asked Clark to give him enough money to give her so he could get the bill. Clark gave him $4 or $5. Elder went back upstairs and was gone for about 15 to 20 minutes. He returned with another person; Clark never looked at that person and would not recognize him if he saw him. That person stood next to the driver's side of the car. Elder walked along the front of the car to the passenger side, leaned in the passenger side, pressed a short-handled butcher knife to Clark's side and told Clark to empty his pockets. He also told Clark the other man had a gun. Clark gave Elder his (Clark's) wallet which had about $35 or $40 in it. Both men ran and Clark left.

Clark did not report the occurrence that night but waited until the next day when he obtained Elder's last name from Elder's roommate. The robbery was finally reported at 2 p.m. August 1.

Several police officers also testified as to the details of Clark's complaint, the investigation and the arrest. The testimony revealed several discrepancies between Clark's testimony at trial and statements he made to the police, including the time of the robbery, the amount of money taken, why they went to the LeClaire address, and whether he told the police the other man had a gun. (Clark said he had, the officer in question denied it.) Furthermore, it appears that although he sat in front of the LeClaire address for an hour he was vague as to the building. Also, while Clark denied he had been drinking on either July 31 or August 1, the police officer who took the report testified Clark had been drinking and his eyes were bloodshot.

There was one other witness for the prosecution, a Joseph DeRose, who simply testified that Clark obtained a replacement union card on August 3.

The defense called only one witness: Marc Miller, an assistant public defender. He had been present at an interview with Clark in the State's Attorney's office. Clark's statement in that interview varied in several respects from that at trial, including the length of time he had known the defendant, whether they were drinking buddies, and the reason they went to 1133 North LeClaire.

In his final argument the defense counsel emphasized these discrepancies plus the implausability of Clark's story. Nevertheless, the jury found Elder guilty.

I.

The defendant's first contention is that the court abused its discretion when it denied the defendant's motion for a continuance on the day of trial.

On August 10, 1977, the case was called for trial. Before the jury selection commenced the defendant asked for a continuance on three grounds:

1. he had come to court from work and had he known a jury was going to be selected he would have dressed up;

2. he might want to call Dorothy Harris Elder as a witness, although she probably would not testify;

3. he is employed.

The judge, noting that this was the seventh time the case had been set for ...


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