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People v. Mathes

OPINION FILED OCTOBER 15, 1981.

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

v.

DANNY MATHES, DEFENDANT-APPELLANT. — THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

RANDY JORDAN ET AL., DEFENDANTS-APPELLANTS.



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

MR. PRESIDING JUSTICE SCOTT DELIVERED THE OPINION OF THE COURT:

In case No. 79-391, the defendant, Danny Mathes, was convicted of armed robbery by a Will County circuit court jury and sentenced to six years in prison. The armed robbery occurred on December 4, 1978, at approximately 8:15 p.m. at a service station in Joliet, Illinois.

In case No. 79-392, the defendants, Danny Mathes and Randy Jordan, were each convicted of armed robbery and aiding and abetting following a jury trial in Will County circuit court, and each defendant was sentenced to concurrent nine year terms of imprisonment. This armed robbery also occurred on December 4, 1978, at approximately 9:50 p.m. at another gas station in Joliet.

On the night of the commission of both armed robberies, both defendants were on parole, Mathes for a narcotics offense, and Jordan for another robbery and bail jumping. The six-year sentence for Mathes was to be "consecutive to any sentences that the defendant may have had imposed upon him either on this date or prior to this date that he is presently serving in the Department of Corrections." The nine-year concurrent sentences for Mathes and Jordan were to be served "consecutive to any sentences that [they] may now be serving or be on parole from the Department of Corrections."

The cases were consolidated for oral argument and are consolidated for purposes of an opinion.

In case No. 79-391, defendant Mathes presents three issues for review: (1) whether his armed robbery conviction must be reversed because of an alleged improper comment by the prosecutor in closing argument; (2) whether the case must be remanded for resentencing because the trial court made no explicit statement in the record that a consecutive sentence was necessary to protect the public (Ill. Rev. Stat. 1979, ch. 38, par. 1005-8-4(b)); (3) whether the trial court's statement regarding the imposition of a consecutive sentence was so vague and uncertain as to require a new sentencing hearing.

With respect to defendant's first assignment of error, it appears that during the conclusion of the prosecutor's closing argument in rebuttal he asked the jury to return a verdict of guilty and thereby end defendant's "career" as an armed robber.

• 1 Such remarks have on occasion been held to constitute reversible error. (People v. Oden (1960), 20 Ill.2d 470, 170 N.E.2d 582; People v. Fort (1958), 14 Ill.2d 491, 153 N.E.2d 26; People v. Jackson (1980), 84 Ill. App.3d 172, 405 N.E.2d 448; People v. Natoli (1979), 70 Ill. App.3d 131, 387 N.E.2d 1096; People v. McCray (1978), 60 Ill. App.3d 487, 377 N.E.2d 46.) However, we believe that under the totality of the facts and circumstances of the instant case, the overwhelming evidence of the defendant's guilt, such a remark, although improper, did not constitute reversible error. It is noted that the defendant Mathes made a prompt objection to the prosecutor's remark which was sustained by the trial court and the jury was instructed to disregard the same. Even though improper it is difficult to conclude that in the light of all the evidence the prosecutor's remark influenced the verdict of the jury. See People v. Green (1963), 27 Ill.2d 39, 187 N.E.2d 708.

With respect to defendant's claim of error regarding the imposition of a consecutive sentence, our subsequent holding in the companion case involving both defendants shall apply equally to this portion of the opinion.

In case No. 79-392, the defendants, Mathes and Jordan, were each convicted of armed robbery and aiding and abetting and sentenced to concurrent terms of nine years imprisonment. The concurrent sentences were ordered to be served "consecutive to any sentences that [they] may now be serving or be on parole from the Department of Corrections."

On appeal defendant Mathes initially contended: (1) he was denied a fair trial where one of the complaining witnesses referred to having viewed "mug books" in violation of the court's prior order prohibiting such references; (2) the case must be remanded for resentencing because the trial court made no explicit statement in the record that a consecutive sentence was necessary to protect the public (Ill. Rev. Stat. 1977, ch. 38, par. 1005-8-4(b)); (3) the trial court's statement regarding the imposition of a consecutive sentence was so vague and uncertain as to require a new sentencing hearing.

Defendant Jordan raises the same issues on appeal as well as a claim of error concerning the admission into evidence of certain clothing and an alleged improper remark by the prosecutor in closing argument which referred to him as a "dangerous man."

Mathes subsequently moved to adopt Jordan's issue with regard to the admissibility of certain clothing and the motion was allowed.

With respect to the joint claim of error by the defendants that they were denied a fair trial due to the fact that one of the prosecution witnesses referred to having viewed "mug books" in violation of the court's prior order prohibiting such references, some recitation of the factual context from which the remark evolved is necessary for an understanding of the issue now presented for review.

On the night of the armed robbery, Howard and Steven Swartz, being brothers, were present at a Clark service station in Joliet, Illinois. Both men were employees of the station. Howard was on duty, while Steven just happened to be present in order to pick up his paycheck.

Two men, whom the brothers identified in court as defendants Mathes and Jordan, entered the station. Jordan produced a pistol and ordered Howard to give him the money. Mathes pulled a knife and held it to Steven's throat. Money was obtained from both brothers and then the defendants fled the scene.

After the robbery, the police were notified and the Swartz brothers viewed several books of "mug shots" at the police station. These books contained approximately 2,200 photographs, one of which was an earlier photograph of defendant Mathes. Neither ...


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