Appeal from the Circuit Court of Cook County; the Hon. Thomas
Fitzgerald, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 31, 1983.
Defendant, Darryl Mims, appeals his conviction by the circuit court, sitting without a jury, of murder and two counts of armed robbery stemming from the murder of Sherman Hall, a customer in a tavern, shortly after midnight on September 15, 1980. He presents as issues whether: (1) the circuit court erroneously denied his motion for a continuance moments before the trial was to begin; (2) the State's failure to inform him that one of the arresting officers would repudiate a portion of his police report at trial was prejudicial to his case; (3) assistant State's Attorneys assigned to the felony review division must make written summaries of the initial statements given them by occurrence witnesses; and (4) the extended-term sentences he received for armed robbery were improper.
Mims and Joseph Mahogany were charged with murder, attempted murder, attempted aggravated kidnaping, armed robbery, aggravated battery and armed violence in connection with their alleged involvement in a robbery and murder which occurred in the tavern located near the intersection of Marquette, May and 67th Street in Chicago. *fn1
The State's witnesses testified that Mims and Mahogany entered the tavern shortly before midnight and sat a distance away from the small group of "regular" customers. The two ordered some beer. Mims made a telephone call and then the two ordered another two beers. Later, when Kattie Simmons, the barmaid, had her back to the bar and was ringing up the cash register she heard Mims and Mahogany both call out in a loud voice: "This is a stick-up. Put your hands on the bar." As she turned around, she heard a gunshot and saw Hall, the victim, fall to the ground. She dropped to the floor behind the bar. Mahogany walked around the bar, grabbed her, and demanded to know where the owner's gun was. She heard Mims demanding to know what the other customers had in their pockets. John Patterson, a customer, testified that one defendant held a gun to the back of his neck while he was lying on the floor and took money out of his pockets. Lewis Williams, another customer, testified that the man later identified as Mims took his (Williams') wallet out of his pocket. One of the defendants asked Simmons how to open the cash register. She told him and heard the register ring open.
As Mims and Mahogany were preparing to leave, one of them realized that the police had arrived and called out to his partner to grab Simmons and use her as a hostage, which he did. Simmons did not open her eyes until she was outside. When she did, she saw a squad car in front of the tavern and then heard bullets whizzing past her. Three bullets struck her.
Police Officer Virgil Jones testified that Mims came out of the tavern, crouched, and shot at him. Jones fired back, and he saw a gun fall "from him." The parties later stipulated that, according to a firearms expert, this gun had never been fired. On cross-examination, Jones testified that he had transposed defendants' names in his report. Police Officer Gregory Stevenson, Jones' partner, testified that he saw the tavern door open, two male Negroes in the doorway, one crouching, and saw the door close. The door reopened and he saw a lady being forced outside with a gun being held to her head, heard two shots and saw a muzzle flash coming from the man, later identified as Mahogany, who had been holding the gun to the woman's head.
Sergeant James Ivory testified that he arrived at the scene after the two other officers. He entered the tavern wielding a shotgun, and called for anyone in the rear storeroom to come out. The two defendants emerged, Mims supporting Mahogany. Mahogany reached leftwise across his body toward his waistband and Ivory fired the shotgun. Both defendants fell.
Mims testified in his own behalf. As he was waiting for a bus at 69th and Racine between 11:30 and 12 o'clock on the evening in question, he saw Mahogany, started talking and walking with him to 64th and Racine. As they were walking past the subject tavern, Mahogany suggested that they stop in and have a drink. Mahogany ordered a beer; Mims nothing. Mahogany walked to the back of the tavern and started shooting craps on the pool table with others, while Mims telephoned his mother. When finished talking, Mims saw Hall walk into the tavern, approach Mahogany, and argue with him. Hall broke off the argument, threw his hands up in the air "like he didn't want to be bothered" and started walking away from Mahogany toward the bar. Mahogany walked up behind, told Hall to "freeze," and shot him in the back.
Moments later, a woman at the bar called out that the police were outside. Williams then tried to calm down Mahogany, who was about to panic, and told Simmons to go over to the door and call in the police. As she started to the door, Mahogany ran up behind her, grabbed her, and pushed her out. Mims heard the sound of guns firing outside and saw Mahogany come back inside and run to the back. He heard the police announce that they had the place surrounded. Mims pleaded with Mahogany to give up. The police burst into the tavern a few minutes later. When they came in, Mims had his arm around Mahogany, who was bleeding. As the police approached them, Mahogany suddenly bent down and turned to his right at which point the police shot them both.
The court found Mims guilty of murdering Hall and guilty of two counts of armed robbery.
Mims contends that the circuit court did not permit him to fully articulate why he wanted to retain private counsel to represent him and argues, without citing authority, that he has a right to make such a motion as late as the time when his trial was about to commence. He notes that several State and Federal courts> have recognized that criminal defendants have the right to explain to the court why they desire new counsel to represent them, citing Monroe v. United States (D.C. App. 1978), 389 A.2d 811, and Brown v. Craven (9th Cir. 1970), 424 F.2d 1166. Mims' argument is not persuasive for several reasons: The circuit court appointed Nicholas Iavarone, an experienced criminal lawyer, to represent Mims in light of the severity of the charges that had been brought ...