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People v. Poll





APPEAL from the Circuit Court of Champaign County; the Hon. HAROLD L. JENSEN, Judge, presiding.


Defendant, Chris Poll, was found guilty of attempted burglary and armed violence in violation of sections 8-4 and 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 8-4, 33A-2), after a jury trial. He was sentenced to concurrent terms of imprisonment of 3 to 9 years for attempted burglary and 1 to 3 years for armed violence.

Defendant now asks that the convictions be reversed because of the State's failure to prove his guilt beyond a reasonable doubt; in addition, he requests reversal of the attempted burglary charge on grounds that the trial court improperly denied his motion to dismiss that charge for failure to state an offense. Defendant requests in the alternative that the convictions be reversed and remanded for retrial due to various alleged errors in the proceedings below. For the reasons set forth herein, we reject defendant's arguments and affirm the convictions. We are, however, persuaded that admission at the sentencing hearing, of evidence of charges pending against defendant was improper and sufficiently prejudicial to require remand for a new sentencing hearing.

• 1 The information in this case charged that Chris Poll, Terry Garrett, and John Weber committed attempt burglary in that they "threatened Patrick Wildenradt in order to gain admission to the home of said Patrick Wildenradt." The purpose of the indictment is to apprise the defendant of the offense charged with sufficient particularity to allow him to prepare a defense, and to bar further prosecution for the same matter. We have no doubt that those purposes were served in this instance. The Illinois Supreme Court has approved an indictment which stated only that the defendant "attempted to compel [the victim] * * * to submit to an act of sexual intercourse" (People v. Bonner (1967), 37 Ill.2d 553, 562, 229 N.E.2d 527, cert. denied (1968), 392 U.S. 910, 20 L.Ed.2d 1368, 88 S.Ct. 2067), and other appellate courts> have approved such general language as "`attempted to kill'" (People v. Drink (1967), 85 Ill. App.2d 202, 204, 229 N.E.2d 409), and "attempted to enter a building * * * with the intent to commit a theft" (People v. Bean (1975), 29 Ill. App.3d 584, 331 N.E.2d 148).

• 2 Nor do we find any merit to defendant's reasonable-doubt argument. While there was some conflict in the evidence, there was unequivocal testimony that defendant had participated in the planning of an attempted entry into the Wildenradt home; that one of the avowed purposes of that entry was "to look for some cash"; and that defendant, while he did not actually approach the house or seek entry himself, procured the gun, drove the others to the scene, and waited in the car while they threatened Wildenradt.

• 3 Defendant next asserts that the convictions should be reversed and the cause remanded because the Assistant State's Attorney inquired as to an accomplice's plea of guilty in front of the jury. While the question was improper (People v. Sullivan (1978), 72 Ill.2d 36, 377 N.E.2d 17), not every mention of a co-defendant's conviction is reversible error. (People v. Lotts (1977), 48 Ill. App.3d 684, 362 N.E.2d 1387; People v. Agans (1974), 24 Ill. App.3d 64, 320 N.E.2d 25.) Before the witness in these cases could answer, an objection was raised and the jury advised to disregard the question. Further, the co-defendant in question had testified fully as to his own participation in the offense. This is in marked contrast to Sullivan, where the guilty plea of a co-defendant was not only raised but stressed in both opening and closing argument and neither co-defendant admitted to participation in the crime. We find no reversible error in this instance.

In the course of the trial, the prosecutor was allowed to ask leading questions of Terry Garrett, an accomplice who had pleaded guilty and who appeared as a State's witness. The defendant contends these leading questions had the effect of impeaching the State's own witness and constituted reversible error.

• 4 The propriety of allowing leading questions is within the sound discretion of the trial court, which is not to be reversed unless there was an abuse of discretion. (People v. Merritt (1937), 367 Ill. 521, 12 N.E.2d 7; People v. Drake (1974), 20 Ill. App.3d 762, 314 N.E.2d 532.) Despite statements prior to trial that defendant had suggested going to the Wildenradt residence to get "easy money" and drugs, Garrett testified on the stand that defendant's only expressed motive had been to see his girlfriend. In chambers, however, in response to leading questions, Garrett readily repeated his pretrial statements about the defendant's intent to get money from the home. The trial court judge denied the State's request to impeach the witness with his pretrial statements, but allowed the prosecutor to elicit the desired testimony with leading questions. In view of the witness' reluctance to testify, his ready admission to the earlier statements, and the materiality of the evidence, we cannot agree that the slight tendency the leading questions may have had to impeach constituted an abuse of discretion or materially prejudiced defendant's case.

• 5 Nor can we agree that defendant was prejudiced by the State's improper failure to disclose, prior to trial, Garrett's pretrial statements about defendant's motives in going to the Wildenradt residence. While this court has ruled that statements attributable to the defendant are discoverable even if never reduced to writing (People v. DeBord (1978), 61 Ill. App.3d 239, 377 N.E.2d 1308), defendant's counsel had an opportunity to question Garrett about the statement in chambers prior to his testimony. No request for a continuance was made, nor is it clear in what way the State's failure to furnish this statement at an earlier date may have prejudiced the defendant.

• 6 We further reject defendant's contention that the following non-IPI Instruction on common design was improperly given and requires reversal:

"If you find that the defendant voluntarily attached himself to a group bent on illegal acts with knowledge of its design, there is an inference that they shared a common purpose and this will allow his conviction as a person responsible for a crime committed by another in furtherance of the venture."

This instruction was originally discussed in People v. Hill (1968), 39 Ill.2d 125, 233 N.E.2d 367, cert. denied (1968), 392 U.S. 936, 20 L.Ed.2d 1394, 88 S.Ct. 2305. In People v. Hunter (1978), 61 Ill. App.3d 588, 376 N.E.2d 1065, this court held that the giving of the quoted instruction did not constitute reversible error. In Hunter, however, we did state that Illinois Pattern Jury Instructions, Criminal, No. 5.03 (1968) (hereinafter IPI) was the proper instruction on accountability and should be given, and the instruction above quoted should not. While we hold that the giving of such instruction upon this record does not require reversal, we state again, as we did in Hunter, that IPI Criminal No. 5.03 is the appropriate instruction on accountability and it should be used.

Defendant further argues it was reversible error to restrict an offer of proof concerning a certain police officer's recollection of statements made by an accomplice. We note that, although the court initially indicated some concern about the time consumed by what appeared to be an irrelevant line of questioning, defense counsel was ultimately allowed to continue and in fact indicated that he had no further questions. Since the offer was allowed, we see no merit to defendant's suggestion of prejudice.

• 7 The offense in this case occurred on January 11, 1978, and defendant was charged by information later that day. At that time, the statutory definition of armed violence included armed violations of the aggravated assault statute, section 12-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 12-2). Prior to defendant's trial and sentencing, however, the armed violence statute was amended to remove misdemeanors, including the ones defined in section 12-2. Defendant argues that the armed violence conviction should therefore be reduced to aggravated assault with a corresponding ...

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