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People v. Williams

OPINION FILED NOVEMBER 7, 1980.

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

v.

MELVIN WILLIAMS, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. HOWARD M. MILLER, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Defendant was indicted for attempt murder, attempt armed robbery and aggravated battery. (Ill. Rev. Stat. 1975, ch. 38, pars. 8-4, 9-1, 18-2 and 12-4(b)(1).) Following a jury trial, he was found guilty of all three charges and concurrent sentences of 40 and 30 years were imposed for the attempt murder and attempt armed robbery charges, respectively. In his State Appellate Defender's brief, defendant contends that: (1) he was deprived of his right to make an intelligent election between sentencing alternatives by the trial court's failure to explain the alternatives; and (2) the extended term provisions (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-8-2) were improperly applied in this case. In a pro se brief, defendant raises the following additional contentions: (1) the pretrial identification procedures were unnecessarily suggestive and conducive to mistaken identification; (2) he was denied effective assistance of counsel by the lineup procedures; and (3) he was not proved guilty beyond a reasonable doubt. We affirm.

A brief summary of the evidence will be sufficient here and further details will be set forth as necessary to resolve defendant's contentions. The evidence at trial established that on November 30, 1977, Willie White, a cab driver, picked up three men and a woman at about 10:30 p.m. at a well-lit intersection. Two of the men and the woman got into the back seat while a man whom White identified as defendant got into the front seat. White looked at defendant for about half a minute before he allowed him to enter the front seat.

As they drove along well-lit streets, White conversed with defendant and looked at him. At one point in the trip White came face to face with defendant when he helped defendant close his window. When they arrived at their destination, a person in the back pulled a gun and announced a stickup. White began to wrestle with the gunman when three shots were fired. While the people in the back seat fled, White looked at defendant for about 30 seconds and saw that he was armed with a gun. He told defendant that he had only $18 and defendant left.

White drove several blocks before collapsing and being taken to a hospital. On December 9, 1977, a police officer visited him in the hospital and showed him eight black-and-white photographs. White picked defendant's photo from them.

Following a police investigation, defendant was arrested on December 31, 1977, and advised of his constitutional rights. Later that day he appeared in a five-man lineup and was again identified by White as his assailant.

In defense, defendant presented White's preliminary hearing testimony in which he stated that after viewing the photographs in the hospital and selecting defendant's, he told the police officer, "I'm almost sure that this is the guy."

The jury found defendant guilty of attempt murder, attempt armed robbery and aggravated battery. Defendant elected to be sentenced under the new code (Ill. Rev. Stat. 1978 Supp., ch. 38, pars. 1005-8-1 and 1005-8-2) and the trial judge found both aggravating factors (Ill. Rev. Stat. 1978 Supp., ch. 38, par. 1005-5-3.2) to be present and sentenced defendant to concurrent terms of 40 and 30 years for the attempt murder and attempt armed robbery, respectively. Defendant appeals.

OPINION

I.

Defendant contends that the trial court's failure to explain the difference in sentencing alternatives between the old code (Ill. Rev. Stat. 1977, ch. 38, pars. 1005-8-1 and 1005-8-2) and the new code (Ill. Rev. Stat. 1978 Supp., ch. 38, pars. 1005-8-1 and 1005-8-2) deprived him of his right to make an intelligent election between the two. The record reveals that the following transpired at the sentencing hearing:

"The Court: Ready for aggravation and mitigation? What's the election?

[Defense counsel]: Under the new law."

Defendant asserts that the report of proceedings does not demonstrate that either the trial court or his counsel advised him of the differences in the sentencing acts and that there is nothing in the record to indicate ...


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