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People v. Cowherd

OPINION FILED JANUARY 14, 1980.

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

v.

WILLIAM T. COWHERD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. THOMAS R. DORAN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

The defendant was convicted of armed robbery and sentenced to a term of imprisonment of not less than 20 nor more than 60 years. In this appeal he raises four issues: (1) that the State failed to prove him guilty beyond a reasonable doubt where the only eye-witness to the robbery identified the court bailiff as the robber and the principal witness against the defendant was his co-defendant, who pleaded guilty and received a much lesser sentence; (2) the defendant was denied a fair trial when the State failed to disclose, until the second day of trial, that the State had in its possession and intended to use an alleged oral statement made to the State's only police witness; (3) the defendant was denied a fair trial when a statement made by him during the course of a plea discussion was admitted against him at trial and (4) the defendant's sentence was excessive, considering that his co-defendant, who admitted planning the robbery and who pleaded guilty, received a sentence of only 7 to 15 years, whereas the defendant was sentenced to not less than 20 nor more than 60 years.

The robbery of a jewelry store in Zion, Illinois, occurred at 9:30 in the morning of March 22, 1977. Jo Don Tvo testified as a State's witness that he planned the robbery and that the defendant and two other men actually carried it out, while Tvo and Tvo's wife waited outside in two getaway cars.

The store owner and a clerk testified that they opened up at 9:30 a.m. and a man entered and engaged the clerk in conversation. Two other men entered. Guns were pulled out and the owner and clerk threatened and tied up. The three men took approximately $70,000 worth of jewelry and loose diamonds and cash in the amount of $1349, placed the loot in a shopping bag and departed.

Tvo testified the three men returned after five to 10 minutes. Two men entered the car driven by Tvo's wife, and the defendant entered Tvo's car carrying a shopping bag filled with jewelry. The two cars were driven to Chicago where the group checked into a hotel. Tvo later sold the loot to fences and sent defendant his share of $2000.

I

The defendant contends he was not proven guilty beyond a reasonable doubt. During the trial of William Cowherd, the prosecutor asked Thomas Fortner, the clerk in the store, to identify one of the men involved in that robbery. The witness identified one of the court bailiffs as the robber, not the defendant.

• 1 The remaining evidence which implicated defendant came from two sources: Jo Don Tvo and Detective Vernon Summerford. Defendant asserts that Tvo's testimony is not credible and that Summerford's testimony was "manufactured" to bolster a weak case. The failure of the victim, Thomas Fortner, to identify the defendant in open court is not fatal to the State's case if the defendant was proved guilty beyond a reasonable doubt by other evidence.

The testimony of the owner and Thomas Fortner established without a doubt that the jewelry store had been robbed by three men. Jo Don Tvo, an accomplice witness, named defendant as a participant in the crime. Tvo testified he went to Zion three days before the robbery and cased the jewelry store. He returned to his motel and called the defendant, who then came to Waukegan and stayed with him. Tvo laid out the interior of the store to the defendant and Harris, another of the participants, and told them the location of a valuable bracelet. Tvo, his wife, defendant and Harris went to Zion to look in through the front window of the jewelry store. On the morning of the 22nd, they checked out of their motel and drove to the jewelry store. The defendant, Harris, and another person were in one car and Tvo and his wife in another. They parked in an area behind the store. The defendant, Harris and the third man got out of their car and Mrs. Tvo entered it as a driver, Tvo remaining in his car for the getaway. The men went around the block. They returned in five or 10 minutes. Two men entered the car now driven by Mrs. Tvo, and the defendant entered the car Tvo was driving. Defendant had a shopping bag filled with jewelry. They drove to Chicago.

The testimony before the jury of Jo Don Tvo as to the facts of the occurrence were prefaced by a lengthy recital of his criminal record. He testified that prior to 1967 he had pleaded guilty to three armed robberies. In 1977, he had pleaded guilty to Federal charges of counterfeiting and racketeering and received a 15-year sentence which he was currently serving in a Federal institution. In 1977, he also pleaded guilty to armed robberies in Decatur, Peoria and Champaign and received sentences to run concurrently with the maximum of 15 years. He pleaded guilty to the armed robbery of the Zion jewelry store in return for his testimony in the case at hand and was sentenced to a term of 7 to 15 years running concurrently with the other sentences.

• 2 The defense attack on Tvo's testimony really goes to promises of leniency and not to credibility. It has always been the rule in Illinois that the uncorroborated testimony of an alleged accomplice is sufficient to warrant conviction. (People v. Hermens (1955), 5 Ill.2d 277.) The fact that the accomplice is a self-confessed criminal and has expectation of leniency does not, of itself, raise a reasonable doubt. People v. Musgray (1976), 37 Ill. App.3d 48.

Corroboration of Tvo's testimony was provided by the store owner and Thomas Fortner, both of whom were present in the jewelry store at the time of the robbery. In People v. Wilson (1977), 66 Ill.2d 346, 349, the supreme court pointed out:

"* * * [W]hether accomplice testimony, corroborated or uncorroborated, is a satisfactory basis for conviction goes to the weight of the evidence and is, therefore, ...


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