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People v. Worthen

OPINION FILED MARCH 30, 1982.

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

v.

THOMAS WORTHEN, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. THOMAS CAWLEY, Judge, presiding.

JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:

Defendant, Thomas Worthen, was indicted on two counts of armed robbery, two counts of attempt murder, four counts of aggravated battery and two counts of armed violence. (Ill. Rev. Stat. 1977, ch. 38, pars. 18-2, 8-4, 12-4, 33A-2.) In a bench trial defendant was found guilty of one count of armed robbery, one count of attempt murder and one count of aggravated battery. Defendant was sentenced to serve concurrent terms of imprisonment of 20 years for armed robbery, 15 years for attempt murder and 5 years for aggravated battery. Defendant appeals contending that (1) the trial court improperly denied defendant's motion for a new trial; (2) the State improperly referred to an out-of-court identification of defendant by a complainant who did not testify at trial; (3) defendant was not proved guilty beyond a reasonable doubt; (4) the trial court abused its discretion in imposing a 20-year sentence for armed robbery after imposing a lesser sentence of 15 years for attempt murder; and (5) defendant's case should be remanded for resentencing where defendant was improperly convicted and sentenced for aggravated battery, a lesser-included offense of attempt murder. For the reasons which follow, we affirm defendant's convictions and sentences for armed robbery and attempt murder and vacate his conviction and sentence for aggravated battery.

A recitation of the evidence relevant and material to the issues presented in the appeal will appear in our discussion of those issues. *fn1

I

Defendant argues that the trial judge improperly rejected Loretta Tyler's testimony, given after trial, that defendant was not the man who had robbed and stabbed her.

Approximately one month after trial, defendant moved for a new trial on the ground that the victim, Loretta Tyler, realized that defendant was not the man who attacked her on December 25, 1978. Tyler testified that she saw the actual offender sitting in a grocery store one week after defendant's trial. The State presented evidence impeaching her account and indicating a possible bias because of a friendship between defendant's sister and Tyler's aunt. Because of the importance defendant places on the trial judge's reasons for rejecting Tyler's recantation, we have excerpted his remarks in their entirety:

"I did not believe Miss Tyler today. Miss Tyler is unfortunately nothing but one of the witnesses in a criminal justice system that has to come forward. I suppose her testimony here today helped her, maybe saved her life. I don't know what pressure's been put on that witness since she's last appeared in this court.

Her story of March 10th, I do not accept and do not believe. Mr. Worthen was proven guilty beyond all doubt in this courtroom and after 15 months the witness now sees a man at a store at a bus stop and that's the man. I can't accept that, I don't believe it, and I feel sorry for Miss Tyler to have to come into this court and do what she had to do today. The pressures must be inexplicable as to what she has to deal with in terms of the Defendant's sister and her sister or aunt rather, and the other individuals where Miss Tyler evidently is continuing to live.

But after 15 months Miss Tyler was very clear. And then we have this, in my mind, unbelievable incident, unbelievable actions on her part, and I'm not going to accept it and I'm not going to allow the courts> in this county to be intimidated, if Miss Tyler I'm sure was intimidated, but we're not going to conduct the courts>, the criminal justice systems, although we'll have to be aware of that problem. But we're going to proceed in trying cases. And got [God?] help the victims because they're afraid to come to court and they're afraid to sometimes live in their own buildings.

Motion for a new trial is denied."

• 1, 2 Defendant argues that the trial judge's remarks that Tyler was pressured into changing her testimony were "unsupported conclusions, based on no more than the court's private notions or investigations, * * *." We cannot agree that the judge's comments indicated that he had conducted a private investigation into the facts of the case. (See People v. Wallenberg (1962), 24 Ill.2d 350, 181 N.E.2d 143.) The judge clearly rejected Tyler's testimony on proper grounds, finding it unacceptable and unbelievable. Recantation of trial testimony is generally unreliable, and a new trial should be denied where the trial judge is not satisfied that such testimony is true. (People v. Evans (1977), 54 Ill. App.3d 883, 886, 370 N.E.2d 284.) Based on our examination of the record, we cannot say that the trial judge's rejection of Tyler's testimony was improper.

II

Defendant contends that his right to confrontation was denied by evidence of an out-of-court identification of defendant by Jackie Bryant, a complainant who did not testify at trial.

Officer Capesius testified on direct examination that on December 30, 1978, he showed a group of photographs including one of defendant to both Loretta Tyler and Jackie Bryant. Capesius did not testify that Bryant identified defendant but he did state that after showing the photographs "to both of these victims" he then ...


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