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People v. Ferguson

OPINION FILED AUGUST 27, 1981.

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

v.

RONALD E. FERGUSON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Will County; the Hon. ROBERT A. BUCHAR, Judge, presiding.

MR. JUSTICE HEIPLE DELIVERED THE OPINION OF THE COURT:

• 1 The defendant, Ronald E. Ferguson, appeals from his conviction for burglary following a bench trial in the Circuit Court of Will County. He subsequently received a 5-year term of imprisonment. Several issues are presented for review. The Appellate Defender's Office, who originally represented the defendant on this appeal but which withdrew its representation after filing a brief on behalf of the defendant, raises three issues: (1) whether all post-trial orders must be vacated and this cause remanded because the defendant's appointed attorney labored under a conflict of interest; (2) whether the circuit court erred in sentencing the defendant to consecutive sentences; and (3) whether the court's alleged prejudice deprived the defendant of his right to a sentencing hearing before a neutral and impartial judge. The defendant also presents several issues raised within a cornucopia of pro se briefs, letters, and motions which are the subject of two pending motions to strike. Although the defendant appears to have violated Supreme Court Rule 343 by failing to file his pro se briefs within the prescribed order and times, given the vagaries of prison life and the State's adequate response to most of the issues presented, we deny the State's motions to strike and thus consider the issues raised in the defendant's pro se brief: whether the State proved corporate existence of the owner of the burglarized premises; whether the State offered perjured testimony against the defendant; and whether the State improperly suppressed allegedly exculpatory evidence seized from the defendant at the time of his arrest. We affirm both the conviction and sentence.

The first evidence presented by the State in its case in chief consisted of the stipulated testimony of Officer Robert Briney. On February 12, 1980, at approximately 9 p.m., Briney received a call alerting him to a reported burglary at the Joliet Motel 6. While responding, he heard radio bulletins describing the suspect as a black male in his early 20's wearing a beige or green jacket. The bulletin also announced that the suspect was fleeing the scene on 4th Avenue. Arriving at 4th Avenue, the officer saw a person fitting the broadcast description running down the street. Briney stopped the suspect, handcuffed him, and placed him in the patrol car. The suspect, the defendant, was then brought three blocks to the Motel 6, where he was identified by Mark Warnick, the motel security guard, as the person he saw carrying a television set from one of the motel rooms. During the booking process, and without questioning by the officer, the defendant voluntarily said he would plead guilty to burglary if police found his fingerprints in the motel.

A second officer, David Gerdes, also testified regarding statements made by the defendant while in custody. After receiving his Miranda warnings, the defendant initially denied any participation in the burglary, but later admitted to entering the motel with a friend named Melvin. The two had been drinking heavily. Melvin suggested that they go to the motel and steal some television sets. The defendant reluctantly agreed. After Melvin ripped one of the sets from its wall mounting, they heard a noise, Melvin dropped the set, and the two fled the motel by jumping a fence surrounding the motel.

A third officer, a crime-scene technician, testified concerning his unsuccessful attempt to match the defendant's fingerprints to those lifted from the motel and his failure to discover any threads found on the fence surrounding the motel to match to the threads of the defendant's torn pants. The officer had previously removed the defendant's pants for evidence, but when no threads were discovered on the fence, no match was attempted and the pants were not introduced into evidence.

Finally, the motel security guard, Mark Warnick, testified. Although he was unsure, he assumed that, because Motel 6 hired security services, Motel 6 was the owner of the motel.

At about 9:15 p.m., Warnick was in an apartment on the lower floor when he heard noises upstairs. He immediately notified the police and then searched the motel. On the second floor, Warnick noticed a man in the hallway carrying a television. The man dropped the television and ran to Room 3 when Warnick yelled at him. Warnick saw the man for a few seconds and noticed that he was black, about 5'9" tall, with a mustache and a large nose and that he was wearing a stocking cap and a beige coat. The guard then returned downstairs and waited for the police. Officers later brought in one man for Warnick to identify. Warnick said that this man was not the one he had seen. The police later brought in a second man, the defendant. Warnick identified the defendant as the man he had seen in the hallway — both in the show-up and at trial.

The defendant's mother, Louella Ferguson, was the first defense witness. Ferguson testified that she was at her home at 415 Grover on February 12, 1980, at about 9 p.m. The defendant had left the house earlier that day but came back for a sandwich between 9 and 9:30 p.m.

The defendant then assumed the stand in his own defense. He had been drinking heavily with a friend on February 12, 1980, and had returned home at 9 p.m. His house was located two blocks from Motel 6. After eating a sandwich at home, the defendant left at approximately 9:25 p.m. to visit his cousin. While running down 4th Avenue, officers arrested and took him to Motel 6 for identification. According to the defendant, despite the motel guard's failure to recognize the defendant, the officers took him to the police station for processing. The defendant denied making any statements during either fingerprinting or interrogation by Gerdes.

At the conclusion of the defendant's testimony, defense counsel informed the court that he wished to call the defendant's brother, John Ferguson, to testify as an alibi witness. The State objected to such testimony because the witness had been present in the courtroom despite a motion to exclude witnesses. The court sustained the objection, and the defense rested.

Following closing arguments by counsel and a statement by the defendant, the court found the defendant guilty of burglary.

Both defense counsel and the defendant filed post-trial motions. The defendant's pro se motion contained, in addition to general allegations that his appointed counsel "sold out," the specific allegation that because of defense counsel's incompetent handling of John Ferguson, the defendant had been denied his sixth and fourteenth amendment right to effective assistance of counsel. At the hearing on the post-trial motions, defense counsel first denied the defendant's claim of incompetence and then moved to withdraw as counsel. The motion was denied, and counsel proceeded to argue the merits of the other allegations contained in the post-trial motions. The court denied both motions.

At the sentencing hearing, the circuit judge first took issue with an allegation contained in the presentence report. The defendant reported that while he was being escorted to a courtroom for sentencing for an unrelated offense, he confronted the judge in the instant case in a court hallway and renewed his complaints concerning a shoulder injury. The judge allegedly responded, "That's fine. You can get surgery in the penitentiary when I sentence you there." At this time the court had already found the defendant guilty of burglary in the instant case, and he was awaiting sentencing. The judge denied making this statement and prevented the defendant from calling the judge's bailiff to corroborate the defendant's allegation. After considering the presentence report and the evidence adduced in mitigation, the court sentenced the defendant to a 5-year term of imprisonment to run consecutively to a 2-year term the defendant was then serving.

• 2 The defendant first contends that a per se conflict of interest arose when the defendant accused his court-appointed counsel of incompetence in a pro se post-trial motion. He specifically argues that whenever a client charges his counsel with incompetent representation a per se conflict of interest arises because counsel is then faced with a "Charybdis and Scylla"-like dilemma: on the one hand, counsel has the duty to protect his client's interests by arguing his own ineffectiveness, while on the other hand, counsel will naturally seek to protect his professional reputation by defending his actions to the possible detriment of his client's best interests. Although we recognize that some allegations of incompetence may present a conflict of interest (see People v. Smith (1967), 37 Ill.2d 622, 230 N.E.2d 169; People v. Norris (1977), 46 Ill. App.3d 536, 361 N.E.2d 105), the allegations must not merely constitute spurious claims evolving from petty disputes between counsel and client. (See also ...


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