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People v. Pruden

OPINION FILED NOVEMBER 10, 1982.

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

v.

RICKY E. PRUDEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Macoupin County; the Hon. John W. Russell, Judge, presiding.

JUSTICE WEBBER DELIVERED THE OPINION OF THE COURT:

Defendant was convicted by a jury in the circuit court of Macoupin County of the offenses of home invasion and armed robbery in violation of sections 12-11 and 18-2(a) of the Criminal Code of 1961. (Ill. Rev. Stat. 1979, ch. 38, pars. 12-11, 18-2(a).) He received concurrent sentences of 30 years and 20 years of imprisonment respectively and he appeals.

Although no questions of reasonable doubt are raised, a brief sketch of the facts is helpful in understanding the issues. At trial (there had been a prior hearing on a motion to suppress identification) the first witness was a deputy sheriff who stated that in the morning hours of January 18, 1981, he received a call concerning an alleged armed robbery at the residence of Brian and Monica Brown. He obtained a description of the perpetrator and his car from the Browns and this was broadcast through the police radio. He next received information about a car which appeared to be similar to the description and he thereupon drove to the defendant's brother's home and there obtained a photograph of defendant; he also determined that defendant owned an automobile similar to that used in the offenses. The officer stated that he had had a prior acquaintance with defendant.

He then repaired with the photograph to the Browns' home and exhibited it to them. They identified the individual portrayed as the offender. Further information was then received by radio that a car matching the description previously broadcast was seen at a tavern about five miles from the Brown residence. Officers then converged on the tavern and defendant, whose clothing matched the description given, was arrested as he entered a car, whose description matched that which had been broadcast.

Monica Brown was the next witness. A narrative of her testimony is as follows: she and her husband returned to their home from visiting relatives at about 12:50 a.m. on January 18, 1981; they parked their car in the driveway near their house and while they were still out-of-doors, another car pulled into the driveway and an individual got out and came up to converse with them; the area was lighted with a "dawn-to-dusk" pole light; she was carrying her five-week-old infant and left to go into the house; shortly after she entered the house and turned on the kitchen light where she and the infant were located, Mr. Brown and the man who had approached them outside entered, the man being directly behind Mr. Brown.

Mr. Brown instructed her to give the man all of their money and stated that he was holding a knife to his back; at this time she was unable to see the man and Mr. Brown switched off the light as he entered the kitchen; she obtained her purse and removed $103 from it and placed the money on the dishwasher; the man next moved into the living room where he turned on a small lamp, but Mrs. Brown was unable to see his face; he then returned to the kitchen and made some improper advances to Mrs. Brown while holding a knife to her back. During this time the infant was crying and the assailant directed her to do something to quiet the baby; she replied that the baby was hungry and she would need some light by which to feed him; the man then opened the refrigerator door and she was able to see him by the refrigerator light; he stood against a counter in the kitchen while the bottle was being warmed.

The entire episode lasted about 15 minutes; during that time the man repeatedly said that he wanted more money, inquired about any firearms which the Browns might have, stated that he did not intend to harm them or the child, but told them to sit in the living room and not move or else he would return with a pistol which he had in his car. He then left and the Browns heard a car leave the driveway at a high rate of speed, without lights, and sending gravel flying. Mrs. Brown then called the police. She gave them a description of the man, his clothing, and his car; the police returned with a photograph and she identified the person in it as the assailant. She then made an in-court identification of defendant.

These two were the principal witnesses for the State. Other officers were called and their testimony corroborated that of the deputy. Mr. Brown testified and his evidence corroborated that of Mrs. Brown. In particular, he stated that he had seen the assailant holding a knife against Mrs. Brown; he estimated that its blade was about three inches long but he was unable to observe its handle. He examined a knife which had been seized from the defendant when he was arrested and stated that its blade resembled the one he had seen on the night of the offenses.

Defense testimony centered about establishing impeachment of the Browns, particularly with reference to the knife and their ability to observe the assailant.

Other factual matters will be developed as necessary in discussion of the issues. The issues raised on appeal are: (1) error by the trial court in denying a motion in arrest of judgment for failure of the information to state the offense of home invasion; (2) error by the trial court in allowing the deputy to testify before the victims had done so; (3) error in the use of a single photograph in identification; and (4) error in denying a continuance when private counsel replaced the public defender.

The first issue requires an examination of the charging documents. An information was filed in two counts. With the omission of the formal portions, the home invasion count recited:

"that said defendant, not a peace officer acting in the line of duty, without authority knowingly entered a dwelling of Brian and Monica Brown, located at R.R.2, Gillespie, Macoupin County, Illinois, knowing Brian and Monica Brown to be present within said dwelling, and threatened the imminent use of force upon Brian and Monica Brown."

The count of armed robbery recited:

"that said defendant, while armed with a dangerous weapon, a knife, took property, being $103 in United States currency from the person of Monica Brown, by ...


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