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People v. Nash

OPINION FILED NOVEMBER 5, 1980.

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

v.

ALVIN NASH ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE DOWNING DELIVERED THE OPINION OF THE COURT:

Defendants, Alvin Nash and Joe Reed, were charged by information with robbery and aggravated kidnapping. A jury found them guilty of unlawful restraint. Nash received a three-year sentence, and Reed received a one-year sentence. Defendants appeal their convictions and ask this court (1) whether the information charge of aggravated kidnapping was defective because a judge at the preliminary hearing found no probable cause on the charge of unlawful restraint, (2) whether the trial court erred when it permitted two eyewitnesses, ages 12 and 13, to testify absent full competency hearings, (3) whether Reed was denied his right to confrontation where complainant testified to an inculpatory statement by Nash who did not testify, (4) whether defendants were prejudiced by the prosecutors' comments during closing arguments, and (5) whether defendants were proved guilty beyond a reasonable doubt.

On May 6, 1978, Nash and Reed were arrested and charged with the robbery and unlawful restraint of Alfred Watson. Two days later, at defendants' preliminary hearing, Watson testified that on the evening of May 6, defendants grabbed him by the neck, beat him, took his money and keys, and threw him in the back of his own car, which Nash then drove until he crashed into a nearby garage. The hearing judge found probable cause on the robbery charge, but no probable cause on the charge of unlawful restraint. One week later the State filed an information charging defendants with robbery and aggravated kidnapping.

Defendants' jury trial began three months later. Watson testified he was sitting in his car on the evening of May 6, when an acquaintance, Reed, approached him and offered $2 in exchange for a ride. After Watson agreed, Reed called Nash to the car, and the two drove off with Watson. Their destination was an apartment building where Nash's sister, Dorothy Turner, lived. When they arrived at the building, Reed asked Watson to accompany defendants to Turner's flat. Once there, the trio began to play cards for money. Watson drank a shot glass of vodka, won $6 in two hands, and then announced he was returning home. He testified he left the apartment and defendants followed him to the street where Nash grabbed his neck and Reed beat upon his head. They searched his pockets and took his keys, money, and wallet. Watson stated Nash said, "We going [sic] to kill you." Defendants threw complainant into the rear of his station wagon, got into the front seat of the car, and, with Nash driving, left the scene at a high rate of speed. Nash crashed into a garage a few blocks away and a police car arrived quickly thereafter. Watson's wallet and keys were recovered on the sidewalk near the right front door of the disabled vehicle.

Darrell and Sherri Shannon, ages 13 and 12 respectively, testified they saw Nash grab Watson's neck and Reed beat complainant's head while the trio was in the station wagon. They also saw defendants throw Watson into the rear of his auto before the trio sped away.

Chicago police officer Charles Bowers testified he arrived at the scene of the collision shortly after its occurrence. Nash and Reed were arrested and searched. Bowers detected the scent of alcohol on both Watson and Reed.

Reed, testifying in his own behalf, stated that when the trio arrived at Turner's apartment they began to drink vodka. Watson won the first two hands of cards, but lost every hand played subsequently. According to Reed, Watson became drunk and accused Reed and Nash of cheating. The trio then left the apartment. When they got to the car, Watson insisted that he drive. Reed thought Watson incapable and, after a brief scuffle, he pushed Watson into the rear of the auto. In response to questions by the assistant state's attorney, Reed indicated he did not recall ever saying a fourth man was involved in the scuffle with Watson.

Dorothy Turner testified consistently with Reed's statement relative to the events inside her apartment.

The State then provided a rebuttal witness, Assistant State's Attorney Frank Stachyra, who had interviewed Reed within a few hours of the collision. Stachyra testified that Reed claimed on that day Watson suffered scratches and cuts as a result of a fourth man's attack.

After arguments of counsel, the jury found defendants guilty of unlawful restraint, but not guilty of aggravated kidnapping or robbery.

I.

We first consider defendants' contention that the information charge of aggravated kidnapping was improper. The charge of aggravated kidnapping was added to the information's robbery charge after a preliminary-hearing judge found no probable cause on a charge against defendants of unlawful restraint. Defendants argue their subsequent conviction on the lesser-included offense (see Ill. Rev. Stat. 1977, ch. 38, par. 2-9) of unlawful restraint is unfair in the light of the finding by the hearing judge.

Prosecution of a felony by information must be preceded by a preliminary hearing where "probable cause to believe the defendant committed an offense was found." (Emphasis added.) (Ill. Rev. Stat. 1977, ch. 38, par. 111-2(a).) Where, however, a charge of an offense within an information is supported by a probable cause finding, prosecution for other offenses arising from the same transaction or conduct may be pursued without a prior probable cause determination. (Ill. Rev. Stat. 1977, ch. 38, par. 111-2(e); see generally People v. Johnson (1980), 82 Ill. App.3d 338, 341, 404 N.E.2d 531.) The rationale in support of this permitted "adding on" of offenses may be gleaned from language in People v. Redmond (1977), 67 Ill.2d 242, 367 N.E.2d 703, cert. denied (1978), 434 U.S. 1078, 55 L.Ed.2d 785, 98 S.Ct. 1272, where our supreme court states at 246: "[T]he first purpose of the [preliminary hearing requirement] provision is to insure that a defendant is not held without a prompt showing of probable cause." (See also Gerstein v. Pugh (1975), 420 U.S. 103, 114, 43 L.Ed.2d 54, 95 S.Ct. 854.) Redmond indicates that once probable cause has been found, and the accused properly detained, the underlying reason for a preliminary hearing has been satisfied. Thus, the subsequent prosecution of related offenses by information, absent such a hearing, offend no fundamental rights. See Redmond, 67 Ill.2d 242, 248.

• 1 Here, defendants were arrested and presented for a probable cause determination. At that hearing probable cause was found on the robbery offense. Any offense arising from that transaction, therefore, could be prosecuted without a second hearing. The alleged offense of aggravated kidnapping arose from that transaction. Thus, ...


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