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People v. Hofstetter

OPINION FILED OCTOBER 27, 1980.

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

v.

JAMES HOFSTETTER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Peoria County; the Hon. CALVIN R. STONE, Judge, presiding.

MR. JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

This is an appeal by the defendant, James Hofstetter, from his convictions for armed robbery and the unlawful use of weapons. As a result of a jury finding the defendant guilty of these offenses, he was sentenced to concurrent terms of imprisonment of 14 years for armed robbery and three years for the unlawful use of weapons. In his appeal, the defendant raises two issues: whether his right to due process was violated by the failure of the State to provide, as part of pretrial discovery, a police report which contained the fact that no identifiable fingerprints were discovered on the weapon used in the charged offenses; and whether, because both offenses are carved from the same physical act or because unlawful use of weapons is a lesser included offense of armed robbery, the defendant's conviction for unlawful use of weapons must be vacated. A statement of the relevant facts follows:

On November 27, 1979, a two-count indictment was filed in the Circuit Court of Peoria County charging the defendant and his co-defendant, Daniel Giacinti, with armed robbery and unlawful use of weapons. Specifically, count I alleged that the defendant and Giacinti committed armed robbery in that they, while armed with a shotgun, took money from the person of James Ganion by threatening the imminent use of force. Count II charged unlawful use of weapons in that they knowingly possessed a shotgun with a barrel less than 18 inches in length.

On November 19, 1979, the defendant and Giacinti appeared in answer to the charges placed against them. The defendant was found to be indigent, and the public defender was appointed to represent him. He then entered a plea of not guilty and orally moved that the State furnish full discovery pursuant to Supreme Court Rule 412 (Ill. Rev. Stat. 1979, ch. 110A, par. 412). The trial court ordered that the State furnish discovery to defendant within one week. The case against Giacinti was continued to allow private counsel additional time to appear.

On January 7, 1980, the case proceeded to trial as to defendant Hofstetter only. The State's evidence established that on November 13, 1979, Cathy Crookham, the defendant's fiancee, was out socially with a friend, Daniel Giacinti. Crookham and Giacinti went to her home to meet Crookham's roommate, Gail Bamber, and the defendant. There, Crookham introduced the defendant to Giacinti, both of whom spent that night at Crookham's home.

The next day, Bamber returned from work at 5:30 p.m. When Crookham left the apartment to get beer, the defendant's ex-wife called and said that she had seen the defendant's car, which had been stolen earlier that day. The defendant and Giacinti asked Bamber if they could borrow Crookham's car in order to retrieve the defendant's car. After Bamber gave them the keys, they left. Crookham testified that she did not have a sawed-off shotgun in her car.

James Ganion testified that at 7:30 p.m. on November 14, 1979, he was employed at the Clark gas station at Adams and MacArthur Streets in Peoria. A person, whom Ganion identified as Daniel Giacinti, came into the office. Giacinti reached into his coat and pulled out a previously hidden sawed-off shotgun. He pointed the weapon at Ganion and demanded money. Ganion gave him his bills, his changer, and money from the station's safe. Ganion then went to the back room at Giacinti's directions. Several minutes later, Ganion left the back room and, seeing that Giacinti was gone, called the police.

In the meantime, Daniel Cronin, who was driving past the Clark Station, looked inside and saw one man with his knee on the floor and another man wearing a parka. The man with his knee on the floor then went to the back room and the other man quickly left the station. Cronin knew that there was a drop safe on the floor of the station, so he became interested in what was happening.

Half a block away Cronin saw a brown car parked in an empty lot behind a building with its motor running and with a man in the driver's seat. Cronin observed the man with the parka, identified as Daniel Giacinti, run across the street in front of him. Both Cronin and Giacinti stopped. In the process, some money and cigarettes fell out of Giacinti's pocket, and he attempted to retrieve them. Cronin thought he saw Giacinti reaching for a pipe, so Cronin sped up. Turning, Cronin saw the passenger door on the brown car slam shut, and he followed the brown car through town.

When he saw police officer Dennis Galloway, Cronin informed Galloway that the men in the brown car had just robbed the Clark Station. Galloway sent a message out over the radio regarding the brown car, and he and Cronin returned to the spot where Giacinti had dropped the money and cigarettes. There, Galloway recovered $21 and a pack of cigarettes.

Officer Phillip Geier was in a marked squad car when he observed a late model brown car, which he later learned contained the defendant and Giacinti, run through a red light. Geier turned on his flashing lights and siren and pursued the car. During this pursuit the brown car ran through three more red lights.

While in pursuit of the brown car, Officer Geier's squad car was passed by several other squad cars. A car driven by Officer Gary Richter pulled alongside the brown car and forced it to the curb. All four squad cars in the chase pulled up, and the officers drew their guns and ordered the occupants out of the car. The driver was the defendant, and the other occupant was Giacinti. Inside the car, Officer Geier observed a .410 sawed-off shotgun partially under the front passenger seat.

Officer Michael Johnson testified that Giacinti's coat pocket contained $278.02 and three .410 shotgun shells. Engraved on the shotgun was the name "Dave Giasenti [sic]." The shotgun was taken to the police lab where it was fingerprinted by Officer Bennett and measured by Officer Johnson. The barrel was found to be 11 5/8 inches long.

The State's final witness, Officer Carl Severino, testified that he had a conversation with the defendant on November 14, 1979. After being advised of, and waiving, his rights to counsel and to remain silent, the defendant told Severino that he had been driving his girlfriend's car looking for his own car, which had been stolen earlier that day. While stopped at a red light, a person whom the defendant had never seen before jumped into his passenger seat, pointed a sawed-off shotgun at him and told him to drive off. He also stated that while the police were chasing him, the man with the shotgun ...


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