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People v. Buckhana

OPINION FILED AUGUST 31, 1981.

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

v.

WILLIE BUCKHANA ET AL., DEFENDANTS-APPELLANTS.



APPEAL from the Circuit Court of Cook County; the Hon. KENNETH L. GILLIS, Judge, presiding. MR. JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

After a jury trial, Willie Buckhana and Tony McGhee (defendants) were convicted of burglary and armed robbery. Buckhana was sentenced to 7 years and 18 years respectively and McGhee was sentenced to 7 to 14 years, all concurrent. They appeal.

Defendants raise no issue on the strength of the evidence to prove their guilt beyond a reasonable doubt. A short factual summary is therefore sufficient.

The Moton family conducted a demolition business on the south side of Chicago. The family consisted of Sam, his wife Lenora, their daughter Rosie, then 17 years old, and a grandson 4 years old. On September 4, 1978, about 9 p.m. they were seated in a family lounge at the business. The front door was locked. An employee named Tobler knocked on a front window. The grandson unlocked the door. Tobler entered and at his request Sam called off their dog. Tobler opened the door and six armed men ran in.

Sam, Lenora and Rosie all identified defendants in court and at a lineup. The gunmen were seeking a large sum of money which was secreted in a barrel of peanuts. Defendant Buckhana beat Sam over the head with his pistol and took $160 from him. Buckhana later entered the office, took the family rifle and pistol and beat Sam over the head with the rifle. Defendant McGhee held his gun close to Lenora's face. Defendant Buckhana threatened Rosie if she refused to say where the money was. Defendant Buckhana then took Rosie into the office alone. Sam called out that the money was outside in his automobile under the spare tire. The six men left and drove the car away.

Fingerprint evidence showed fingerprints and a thumbprint of the defendant McGhee on the outside of the front door. Police subsequently located the automobile. A person named Brown found in the car by the police testified he entered the car with defendants and then fell asleep after they left.

Defendants both testified that on September 4, 1978, they went on a long bus trip to Buckhana's mother and remained there overnight. There was no other corroboration of this alibi. McGhee testified that about 5 p.m. on September 3, 1978, he went to the wrecking yard. McGhee testified he spoke to Tobler at that time about the possibility of employment. He may have leaned on the front door and he recalled touching the door. Rebuttal evidence by an expert established that fingerprints such as those on the front door would disappear within a few hours after being made. The strength and efficacy of fingerprint evidence has been commented upon by the supreme court. See People v. Rhodes (1981), 85 Ill.2d 241, 251, 422 N.E.2d 605.

Our study of the record convinces us that the evidence of guilt of these defendants is overwhelming beyond any reasonable doubt.

Defendants contend prejudicial final argument by the State and improper contact between the jury and a deputy sheriff require reversal of the judgments.

I

Defendants assert error in three respects: statement by the prosecutor that defense counsel were "attempting to explain away" certain matters corroborating the identification; the prosecutor stated that either the Moton family was lying or the defendants were guilty and also the prosecutor said if the jury believed that the charges of the State were a "frame-up" they should sign a not-guilty verdict. We find no reversible error in the final arguments.

Examining the entire argument, we find the defense made six objections to the initial prosecution argument on closing of which three were overruled and three were sustained. The only point raised by the defense is directed to the fact that the trial judge overruled the objection about the defense allegedly attempting to explain away corroborating evidence. In the closing rebuttal argument by the State, seven objections were made by the defendants. Six of these objections were sustained. The only one overruled is not mentioned as error in defendants' brief.

We therefore conclude there was a failure by the defendants to object in two of the three instances discussed in their brief. Error, if any, resulting from these arguments, "is, therefore, deemed waived." People v. King (1977), 66 Ill.2d 551, 559, 363 N.E.2d 838, cert. denied (1977), 434 U.S. 894, 54 L.Ed.2d 181, 98 S.Ct. 273.

• 1 In addition, none of the contentions now made by defendants concerning the final arguments, without exception, was ever raised in the written motions for new trial filed by defendants. It follows that all of these contentions are therefore waived. (People v. Jackson (1981), 84 Ill.2d 350, 358-59, 418 N.E.2d 739; People v. Adkisson (1980), 83 Ill.2d 1, 7, 413 N.E.2d 1238 and cases there cited.) Adkisson comments on "[t]he salutary purpose of a firm waiver rule, as reiterated in the opinions of this court and of our appellate courts> * * *." (83 Ill.2d 1, 7.) Upon a slightly different aspect of the point, the fact that at least two of these defense contentions were never raised in the trial court in any manner is another ground for waiver. People v. Lykins (1979), 77 Ill.2d 35, 38, 394 N.E.2d 1182, cert. denied (1980), 445 U.S. 952, 63 L.Ed.2d 787, 100 S.Ct. 1602.

Additionally, the plain-error exception (Supreme Court Rule 615(a), 73 Ill.2d R. 615(a)) should not be applied here. (Jackson, 84 Ill.2d 350, 359-60.) The evidence of guilt is overwhelming. Under no circumstances can we say that the verdict in this case would have been otherwise if ...


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