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People v. Soloman





Appeal from the Circuit Court of Jackson County; the Hon. Richard E. Richman, Judge, presiding. JUSTICE KARNS DELIVERED THE OPINION OF THE COURT:

Roger Soloman was convicted of burglary, theft and criminal damage to property after a jury trial in the circuit court of Jackson County. He was sentenced to terms of five years' imprisonment for burglary, three years for theft and 364 days for criminal damage to property, to be served concurrently. On the same date he was sentenced to consecutive terms for four other offenses to which he had previously entered pleas of guilty.

Defendant raises numerous issues on appeal. The principal issues concern the claim that the court improperly restricted his impeachment of the principal State witness, an accomplice, who was allowed to plead guilty to a reduced charge; the State's closing argument; and the imposition of consecutive sentences on the other charges to which he had pleaded guilty.

The instant proceeding grew out of the burglary of the Corner Tavern in Murphysboro. Two cases of Glen Fork whiskey, seven to nine cases of beer and a hand cart were taken from a storage shed behind the tavern. Officer Goforth of the Murphysboro Police first responded to a call about a disturbance in which a case of whiskey had been dropped in a residential yard, breaking some of the bottles. The officer then directed other police officers to the Corner Tavern where the burglary was discovered.

Before the burglary investigation could be completed, a call was received directing the officers to a trailer residence to render assistance because of a drug overdose. An ambulance was at the trailer; so were defendant and Robert Smith and a case of Glen Flork whiskey and six cases of Busch beer and the hand cart. These items were later determined to be the proceeds of the burglary of the Corner Tavern, after a search warrant was obtained and a search of the premises conducted.

The trailer was rented by Debbie Stowers, a friend of defendant and Smith and the victim of the drug overdose. Tommy Stowers, Debbie's brother, called the ambulance. He testified that just before it arrived, defendant and Smith brought the whiskey and beer into the trailer.

Smith was jointly charged with Soloman, pleaded guilty to a reduced charge and testified for the prosecution. He testified in detail concerning the burglary and that it was committed by both of them acting in concert. He related how a case of whiskey was accidentally dropped off the hand cart at the residence and how they tried to hide the items at the trailer. The defense presented no evidence.

• 1 Defendant first contends he was denied statutory and constitutional rights when no arrest warrant was issued by the trial court upon the filing of the information on July 2, as required, he argues, under section 111-2(d) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1979, ch. 38, par. 111-2(d)). He argues that this resulted in the denial of a prompt preliminary hearing to determine probable cause. We again reject this contention as we did in People v. Mitchell (1983), 116 Ill. App.3d 44.

Section 111-2(d) states that upon the filing of an information, the court shall immediately issue a warrant for the arrest of the person named in the information. Here, defendant was already under arrest and in custody, having been arrested on probable cause, which he has never contested. We do not believe that section 111-2(d) requires the issuance of a warrant where a defendant has been properly arrested and taken into custody. In any event, the failure to issue a warrant would not require the dismissal of charges as it would have no relationship to Soloman's actual complaint, that he was denied a prompt preliminary hearing.

Section 109-1 of the Code (Ill. Rev. Stat. 1979, ch. 38, par. 109-1) requires that a person arrested without a warrant shall be taken before a judge and a charge shall be filed; this was done here. The judge shall inform the defendant of the charge against him and provide him with a copy of the charge; this was also done. The judge also informed the defendant of his right to counsel, appointed the public defender to represent him and fixed bond, all as required under the statute.

• 2 Defendant's complaint is that a preliminary hearing was not held until seven weeks later; however, we see no relationship between the failure to issue an arrest warrant and the failure to hold a prompt preliminary hearing. Soloman has never claimed any prejudice resulting from the delay. See People v. Dees (1981), 85 Ill.2d 233, 422 N.E.2d 616.

Defendant was arrested on July 2, and an information charging him with burglary and theft was filed the same day. His preliminary hearing was set three weeks later and was continued at the request of counsel for his co-defendant, Smith, without objection on his part. See People v. Hickman (1973), 56 Ill.2d 175, 179-80, 306 N.E.2d 32, 34-35.

The failure to hold a preliminary hearing for three or seven weeks, assuming this not to be "prompt," gives no rise to any remedy for failure to do so, as the courts> of the State have repeatedly held. (See, e.g., People v. Howell (1975), 60 Ill.2d 117, 324 N.E.2d 403; People v. Meredith (1980), 86 Ill. App.3d 1136, 409 N.E.2d 70.) We need not again repeat the basis for so holding. Furthermore, in Gerstein v. Pugh (1975), 420 U.S. 103, 43 L.Ed.2d 54, 95 S.Ct. 854, while the supreme court held that the fourth amendment required a judicial determination of probable cause before a person arrested might be subjected to extended restraint, it further held that dismissal of charges or reversal of conviction was not the proper remedy for violation of the right. The person arrested may contest his continued detention in custody by the traditional writ of habeas corpus. We would note further that the first examination procedure followed here may well satisfy the fourth amendment requirement of Gerstein; although, it would not be the adversarial type of preliminary hearing contemplated under section 109 of the Illinois Code of Criminal Procedure of 1963.

• 3 Defendant's second assignment of error involves the alleged denial of defendant's offer of evidence to impeach the State's principal witness, Smith, by showing bias. The claimed bias was that Smith may have been motivated to testify falsely against Soloman in return for the State's dismissal of an additional offense for which he had been arrested, but not charged.

A recent arrest would not be admissible if the purpose were to impeach the witness' credibility by proof of the commission of a crime; only proof of conviction of a crime would be admissible for this purpose. (People v. Mason (1963), 28 Ill.2d 396, 192 N.E.2d 835.) If, however, the purpose was to impeach by showing bias, or motive to testify falsely, a recent arrest might be admissible (People v. Kellas (1979), 72 Ill. App.3d 445, 389 N.E.2d 1382), and the widest latitude is ...

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