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People v. Tucker

OPINION FILED AUGUST 20, 1981.

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

v.

DAVID TUCKER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Lake County; the Hon. ROBERT K. McQUEEN, Judge, presiding.

MR. JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:

David Tucker was found guilty by a jury in Lake County of one count of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2(a)), and two counts of attempt murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4(a)). The court sentenced him to 25 years imprisonment for armed robbery and two concurrent terms of 30 years imprisonment for the attempt murder convictions, to be served consecutively and resulting in a term of confinement of 55 years.

The State Appellate Defender raises two issues on appeal and the defendant raises additional issues in his pro se briefs. The first question raised is whether the trial court erred in denying defendant's motion to appoint counsel other than the public defender for the defendant. The second argument posed is whether the trial court erred in imposing consecutive sentences. Defendant's brief urges that he was deprived of effective assistance of counsel, that the testimony of his expert witness was improper, that the jury selection process was discriminatory in that it eliminated blacks from the jury and finally that he was prejudiced by the closing argument of the prosecutor.

At trial, the first witness for the State was an employee of an Eagle Food Store. He testified as follows. On the evening of January 25, 1979, the manager had let him out of the locked side door of the store and as he was walking to his car he was confronted by a man wearing a black leather jacket and ski mask that covered his face. The man was crouched between some parked cars and was armed with a .357 Magnum and a sawed-off shotgun. The man began to stand up and said, "Don't move or I will blow you away." The man handed the employee a brown paper bag and told him that he was going to fill the bag with money. The man asked if there was any security in the store and when he was told that the door was locked the man said, "You're going to get me in the store any way possible." He also noticed a Cadillac parked in the lot and inquired as to who owned it; he was told that it belonged to the manager of the store.

As the man and the employee reached the door of the store, another employee came out and the man stated that they were all going to go back inside the store. The manager came to the door and let all three of them inside. All 10 employees who were in the store at that time were told to lie down on the floor by the office, except the manager who was told to open the safe. The manager, John Price, testified that he was wearing a name tag that identified him as the store manager. He further testified that he opened the safe and removed all the cash including a bag of approximately $1,000 worth of coins that weighed about 35 pounds. While he was taking the money out of the safe, the defendant hit him below his neck with the shotgun and told him to hurry. When the manager pulled the bag of coins out he heard the pistol go off and the manager dropped to the floor. Defendant told him to get up and that he was not shot and then asked the manager for the keys to his car, "his Caddy." The manager remained lying down and gave the defendant the keys to his 1976 Cadillac which was parked outside of the store. Defendant left the store, and an employee sounded an alarm that alerted the police of an armed robbery, and the police arrived soon thereafter.

Officers Caliendo and Mead found a number of fresh footprints and scattered $20 bills upon their arrival at the scene. Mead testified that Caliendo climbed a snowbank to get a better view of the area and that he then heard Officer Caliendo say, "Freeze, police officer" and "Come out of the hole." He testified that he saw two orange flashes come from an indentation in the snowbank and at that moment heard the sounds of gunfire. He stated that the first shot went into Officer Caliendo's chest and the second went past him. Officer Mead called for help on his radio and watched the snowbank. Upon seeing a subject come out of the hole, he fired and the subject fell or jumped back into the hole.

Officer Ford then arrived on the scene and started up the hill despite Mead's warning that the subject was in a hole near the snowbank. Mead stated that he then saw two orange flashes and saw Officer Ford discharge his weapon several times before falling back against the wall. Ford received one wound in each leg.

Three officers then rushed the hole, disarmed and handcuffed the suspect. The defendant's ski mask was removed. It was determined that he received a superficial injury to the muscles of his face. A bag of money was recovered, and a total of $27,201 was recovered from the scene.

Dr. Ronald Baron, a psychiatrist, testified for the defense. He testified that the defendant suffered from an acute brain syndrome; that he had examined the defendant five times but had difficulty in talking with him. The doctor could only establish that the defendant may have had such a mental disorder so that he could not conform his conduct to the law. He testified that the defendant's brain syndrome was due to cocaine intoxication that had caused an altered mood. The defendant had told the doctor that on the day of the robbery he had taken seven doses of cocaine, totaling one gram. The doctor testified that he did not think that the defendant had a clear-cut confusional state but that he was unsure because the defendant would not co-operate with him. On cross-examination, Dr. Baron testified there was a 60-percent chance that the defendant could conform his conduct to the law and a 40-percent likelihood that he could not.

Dr. Tuteur testified for the State and stated that there was no mental disease at the time of the crime that would have substantially incapacitated the defendant from knowing that he was committing a crime. Twenty-eight other witnesses, employees of the grocery store and police officers, testified about the circumstances surrounding the crime for the State.

The jury returned a verdict of guilty for two counts of attempt murder, two counts of armed violence, two counts of aggravated battery and one count of armed robbery.

At the sentencing hearing, the verdicts of armed violence and two counts of aggravated battery were vacated as lesser included offenses. The court, in considering the sentencing alternatives, noted that the armed robbery was planned, that the defendant emphasized speed during the robbery and that his escape was hampered only by the quick response of the police. In mitigation the trial court noted that the defendant had no serious previous record of conviction and had a substantial period of steady employment. He stated that the sentence was to be 25 years for the armed robbery; less than the maximum because of the mitigation factors, but necessary to deter others from committing the same crime and to protect the public.

The court noted that section 1005-8-4(a) of the Unified Code of Corrections (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4(a)) provides that "[t]he court shall not impose consecutive sentences for offenses which were committed as part of a single course of conduct * * *." The court found that there were two courses of conduct in this case, first in the planning and execution of the robbery and second, in the shootings which occurred thereafter during the escape. The court also noted that consecutive sentences could not be imposed unless it was of the opinion that such terms were required to protect the public from further criminal conduct. The court stated that the requirements of consecutive sentences were not only met but demanded in this case. In addition to the 25-year sentence, the defendant was to serve 30 years for the attempt murder of Officer Caliendo and a concurrent 30-year term for the attempt murder of Officer Ford, resulting in a total of 55 years.

The defendant's first argument on appeal is that the trial court erred in denying his request for a new attorney outside of the public defender's office. He urges that this constituted a denial of his right to counsel. The morning after the robbery, when defendant was served with the complaint, he was told that he was entitled to have ...


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