APPEAL from the Circuit Court of Effingham County; the Hon.
GEORGE R. KELLY, Judge, presiding.
MME JUSTICE SPOMER DELIVERED THE OPINION OF THE COURT:
The defendant, Doran R. Bennett, was charged by information with armed robbery. Following a jury trial, he was found guilty and sentenced to 10 years' imprisonment. He appeals from his conviction and sentence.
Defendant raises five issues on appeal: that he was not proved guilty beyond a reasonable doubt where his conviction rested on uncorroborated accomplice testimony; that he was prejudiced when twice forced to appear before the jury in handcuffs; that he was prejudiced by discussion among the jurors of his failure to testify; that he was denied effective assistance of counsel where his attorney was subject to a conflict of interest; and that his sentence was excessive.
The record reveals that an armed robbery of D.J.'s Party Supply occurred on July 9, 1978. Two days thereafter, defendant was charged with that offense, after a co-defendant, Joseph Lawrence, was arrested and made a statement implicating him. The statement was made to Detective John Lange of the Effingham police department, who was the sole witness testifying at the preliminary hearing. Both defendant and Lawrence were represented by the same attorney at this time.
The trial began on November 8, 1978, the 120th day following defendant's arrest. Prior thereto, the trial was continued several times because of the State's inability to locate two witnesses, Helen Cline and Ruby Neeley. On the day of the trial defendant filed a petition for imposition of sanctions, asking that these witnesses not be allowed to testify since the State had failed to provide their addresses or telephone numbers to the defense. The State contended that Detective Lange was unable to locate them until two days prior to trial, but that their testimony would be consistent with their prior statements previously furnished to defendant. Cline was present when trial commenced and available for interviewing, and the State indicated that Neeley would be present later during the trial. Although the court was willing to grant defendant a short continuance to interview the witnesses, defendant declined, and the trial commenced.
The State presented several witnesses. Bob Devall, the clerk at the liquor store, testified that he was robbed about 10:30 p.m. on July 9. The robber, a white man, wore a stocking mask which covered his head down to his upper lip. Devall gave the man money from the cash register and a red cigar box containing pennies. He identified the box in court. He also identified a mask which resembled that worn by the robber and a gun which looked like that used in the robbery. Devall testified that the robber had a two- or three-day beard growth, and that he stood in a crouched position.
Detective Lange testified that on the night of the offense, because of a tip received that a robbery was to occur there, he and his supervisor had the store under surveillance. He was at the rear of the store in a vehicle, and the supervisor was parked across the street in front of the building. At about 10:30 p.m. a white 1968 Dodge Coronet pulled into the laundromat parking lot next to the liquor store. A male Caucasian got out of the driver's side, opened the trunk, entered the rear of the car, and then disappeared from view. When he returned to the car, he entered the passenger side. Detective Lange reported the license plate number to the other officer, and his inquiry revealed the car was registered to the defendant. Both cars gave chase, with Lange noting that the driver was a black male. Lange testified that during the chase the passenger in the Dodge threw several items out of the windows. The officers lost sight of the Dodge and returned to search along the highway. They found a cigar box, money taken in the robbery, a gun, and a paper sack.
Joseph Lawrence testified that he resided in Indianapolis, Indiana, and that he saw the defendant on the day of the offense, July 9, 1978. The defendant drove up to his house about 9 a.m. in his 1968 Dodge. The two proceeded to the house of Louis Batson, with whom they then went out drinking, accompanied by an old man whom Lawrence had never seen before. On this trip the defendant had a gun and holster, which resembled exhibits entered into evidence.
Later, the defendant and Lawrence dropped off the unidentified man and Batson, and went to Ruby Neeley's house in Dieterich, Illinois, where they stayed for about three hours and drank a few beers. They left about 9 p.m., prior to which defendant changed into a striped shirt and striped pants. Lawrence stated that a State exhibit looked like the shirt defendant had worn, but another exhibit was not the pants defendant had been wearing.
Defendant drove Lawrence to Effingham, Illinois, where defendant stopped in the parking lot of a laundromat, next to a liquor store. The defendant got out and opened the trunk. Lawrence knew defendant had a gun and that both the gun and the beer were in the trunk. Defendant then went into the liquor store. He returned in about two minutes with a paper bag, and had a gun in his hand. He asked Lawrence to drive. When Lawrence saw a police car behind them, the defendant admitted that he had robbed the liquor store. Lawrence sped up and lost the police. The men abandoned the defendant's car, and each went his separate way. Lawrence was apprehended a short time later.
Louis Batson, who lived in Clinton, Indiana, testified that on the day of the offense he was visited by Joe Lawrence, whom he knew, and defendant and an old man, whom he did not know. The group left together in defendant's white 1968 Coronet to go drinking. Batson identified a gun and holster in evidence as similar to those defendant had the day of the robbery, and said that defendant had twice shot the gun into the air.
Helen Burns, formerly Helen Cline, testified that on the day of the offense she lived in Dieterich, Illinois, with Ruby Neeley. On that day she saw the defendant and Joe Lawrence at her trailer. They had arrived in defendant's car about 8 or 8:30 p.m. and left between 9 and 10 p.m. When Helen saw the defendant the next day, he told her that his car had been wrecked in Effingham. She identified the holster in evidence as one she had seen in defendant's car.
Denise Neilson, a technician with the Illinois Bureau of Scientific Services, testified that the hair collected from a comb recovered in the defendant's car was similar in color and microscopic characteristics to a sample of defendant's hair.
As witnesses for the defense, Connie and Bill Brooker of West Terre Haute, Indiana, and their 15-year-old son, Todd, testified. Defendant was arrested in front of their house on the day after the robbery. Todd, who testified that he knew defendant well, said that sometime after noon they fed defendant a sandwich and lent him a razor to shave. Todd thought defendant had no more than a one-day beard growth.
Howard Reynolds, also of West Terre Haute, testified that he and defendant were together on July 9 at defendant's apartment or Reynolds' home, from 8:30 or 9 a.m. until 3 or 4 in the afternoon. During that time defendant did not have a gun.
Paul Reynolds, also of West Terre Haute, testified that he was with defendant before dark on the night before he was arrested. On cross-examination, however, he was not sure whether it was July 9 or the day before.
The defense also called Detective Lange, who identified the car title to the 1968 Dodge, which was registered in defendant's name. Lange obtained this document from Ruby Neeley, who reported to the police the day following the crime that the car belonged to her and that it had been stolen. The title was signed on the back by the defendant, but no name appeared on the line provided for a buyer.
The record reveals that Joseph Lawrence was originally charged with accountability armed robbery after his arrest. Following 68 days in jail, Lawrence pleaded guilty to an unrelated charge of criminal trespass to a motor vehicle. At that time the armed robbery charge was dropped. At trial he contended that he was not promised dismissal of the charge in return for his testimony against defendant. The defense called Marlin Worton, a jail cellmate of Lawrence, who testified that Lawrence had struck and intimidated him while both were in the county jail.
Following the presentation of evidence, the defendant was found guilty. On December 8, 1978, he filed a motion in arrest of judgment and a motion for new trial. Among matters alleged as grounds for a new trial was ineffective assistance of counsel. Defendant had sent several letters to the judge complaining of the representation he received, and copies of the letters were attached to the motion. At the hearing, counsel pointed out the apparent conflict he faced in arguing his own incompetency. The following colloquy ensued:
"THE COURT: I want to be sure, first, Mr. Bennett understands the position he is in and want it to be clear if you are willing to proceed ...