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People v. Victory

OPINION FILED MARCH 27, 1981.

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

v.

ROBERT EARL VICTORY, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Du Page County; the Hon. HELEN C. KINNEY, Judge, presiding.

MR. JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:

The defendant, Robert Earl Victory, was found guilty in the circuit court of Du Page County by the trial judge sitting without a jury of two counts of armed violence and two counts of armed robbery all arising out of the same transaction occurring on March 2, 1979. Subsequently, the trial court vacated the judgments for armed violence and one armed robbery, and sentenced the defendant to a term of six years in the Department of Corrections on the remaining armed robbery count. The only issue raised by the defendant on appeal is that his volunteered statement to the arresting officers was a plea-related statement inadmissible in evidence under Supreme Court Rule 402(f) (Ill. Rev. Stat. 1979, ch. 110A, par. 402(f)) and was improperly considered by the trial judge in adjudicating his guilt.

As this appeal is limited to one issue centering upon a conversation after defendant's arrest, the facts relevant to the substance of the crime for which he was arrested will only be briefly set forth.

Defendant and the victim, Raymond Stanley, who were previously unacquainted, met on March 2, 1979, at approximately 4 a.m. in a restaurant in Chicago. Both agreed to go to Cicero for a drink since that area had bars open after 4 a.m. Being unable to find any open bars, Stanley invited defendant for a drink over at his place which was an apartment connected to his antique shop in Clarendon Hills. After arriving there, Stanley testified he showed defendant the store, poured him a glass of wine, and undressed and proceeded to wash and shave in order to get ready for work, which was back in Chicago. While he was in the bathroom, Stanley stated the defendant entered, came at him with a bottle of wine and a knife and informed him that this was a robbery. Defendant then proceeded to tie Stanley up and took his coat, money and some items from the antique shop including rings, a hair dryer, a portable TV and a clock radio. Defendant then proceeded to take Stanley's car. After defendant left the premises, Stanley stated that he untied himself, procured a wooden chair leg for a weapon, and ran outside in his underwear and summoned a police officer who was nearby in his squad car.

Defendant testified that after he was invited into Stanley's residence he was given some wine. He then stated that Stanley undressed "and practically begged him to come to bed with him." Defendant said that he resisted such requests and that he wanted to be returned home. He further stated that Stanley came after him with a wooden chair leg and tried to hit him. Defendant then averred that he tied Stanley up because he was afraid of "the John Gacy thing," referring to the convicted mass murderer. Defendant then testified that he took Stanley's car, but that Stanley told him to wreck it so he could recover the insurance from it. He also admitted taking other items from the store.

After defendant ran outside to Stanley's car, he was pursued by the police and apprehended less than a mile from Stanley's residence along with a knife and items taken from Stanley. Defendant was transported to the Clarendon Hills police station where he was read his Miranda rights and signed a waiver form. He was then questioned by Officers Geiseman and Johnson and gave an exculpatory statement essentially similar to his trial testimony, though differing in some respects. At approximately 1:30 p.m., Officers Geiseman and DeVries transported defendant to the Du Page County jail. En route to the jail, defendant made the following unsolicited statement to the officers which forms the basis of this appeal. Officer Geiseman testified at trial as follows:

"Q. Did you ask the Defendant any questions, on the way to the County Jail?

A. No, sir.

Q. Did the Defendant make any statements on the way to the County Jail?

A. Yes, sir.

Q. Would you relate to us, please what those statements were.

A. The Defendant advised us, myself and Seargeant [sic] DeVries, that he realized that this is a Class X felony, and under Class X he could get a maximum of 30 years. That he would — that he can't afford to take an armed robbery charge, and that he would accept 10 years, and would the State's Attorney be willing to plea bargain.

Q. What was your response to that statement?

A. My response to that statement was, I don't know. You have to check with ...


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