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People v. Withers

OPINION FILED SEPTEMBER 26, 1980.

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

v.

DAVID ALAN WITHERS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Ford County; the Hon. SAM G. HARROD, III, Judge, presiding.

MR. JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was found guilty by a jury in Ford County of the offenses of theft and obstructing a police officer in violation of sections 16-1 and 31-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, pars. 16-1 and 31-1). He was sentenced to two concurrent 364-day terms of imprisonment.

The evidence revealed that defendant was observed by a police officer and another witness removing coins from a small cash box used by persons purchasing newspapers. He fled the area and was pursued and apprehended by the officer. At that time a scuffle took place between them.

This was, in brief, the State's evidence. The defendant did not present any evidence and does not raise any question of reasonable doubt in this court. He does present three issues for review: (1) whether he was denied a fair trial when the trial court refused to allow defense counsel to argue a motion for directed verdict at the close of the State's evidence, (2) whether in rebuttal argument the prosecutor improperly referred to defendant's failure to testify, and (3) whether the State improperly questioned the officer concerning prior knowledge of, or connection with, the defendant.

We are principally concerned with the first issue. At the close of the State's evidence the following dialogue occurred:

"DEFENSE COUNSEL: The State has rested, has it not? Does the court wish to entertain motions for directed verdict at this time or would it prefer to wait until after the lunch hour?

THE COURT: Do you feel the need for extended argument?

DEFENSE COUNSEL: No sir.

THE COURT: The record may show that the motion is made and is denied.

DEFENSE COUNSEL: That was quite a short argument, judge.

THE COURT: I think it was appropriate to the case."

The statutory basis for a motion for directed verdict at the close of the State's evidence is found in section 115-4(k) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 115-4(k)). There can be no question of the right of any defendant to make the motion. The right to argue the motion is perhaps less clear and admittedly is not of constitutional dimension. In Herring v. New York (1975), 422 U.S. 853, 45 L.Ed.2d 593, 95 S.Ct. 2550, a trial court refused to allow defense counsel to "be heard somewhat on the facts." The Supreme Court reversed, saying that "no aspect of such [partisan] advocacy could be more important than the opportunity finally to marshall the evidence for each side before submission of the case to judgment." (422 U.S. 853, 862, 45 L.Ed.2d 593, 600, 95 S.Ct. 2550, 2555.) In footnote 13, the Herring court also said, "Nothing said in this opinion is to be understood as implying the existence of a constitutional right to oral argument at any other stage of the trial or appellate process." 422 U.S. 853, 863 n. 13, 45 L.Ed.2d 593, 601 n. 13, 95 S.Ct. 2550, 2556 n. 13.

No Illinois case dealing with the right to argue a motion for directed verdict has been called to our attention. However, there are two authorities dealing with preemptory behavior by trial judges in bench trials which we find analogous. In People v. Manske (1948), 399 Ill. 176, 188, 77 N.E.2d 164, the supreme court said:

"It is also claimed that the trial court committed reversible error in declining to hear argument after the evidence was concluded. As a general rule, in a trial by the court without a jury, we are of the opinion that it is advisable in most instances for the court to listen to ...


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