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People v. Cowan

OPINION FILED MARCH 14, 1984.

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

v.

EARL COWAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Anthony J. Bosco, Judge, presiding.

JUSTICE MCNAMARA DELIVERED THE OPINION OF THE COURT:

Defendant Earl Cowan was charged with two counts of armed robbery, two counts of armed violence, and one count each of home invasion, burglary, unlawful restraint, aggravated kidnaping and attempt burglary. A jury found defendant guilty of unlawful restraint and attempt burglary and acquitted him of all the other charges. The trial court sentenced him to extended terms of 10 years for attempt burglary and six years for unlawful restraint. The sentences were to run consecutively with 15 months credit for pretrial incarceration only on the attempt burglary sentence. On appeal defendant contends that he was not proved guilty beyond a reasonable doubt; that the prosecutor's closing argument was inflammatory and prejudicial; that the trial court erred in giving a Prim instruction to the jury; and that the trial court abused its discretion by imposing multiple extended terms to be served consecutively.

James Wolf, a homosexual, testified for the State that on the evening of April 24, 1981, defendant broke in the back door of Michael Dermody's apartment where Wolf was staying. Wolf was residing there to help Dermody, 88 years old, in and out of bed and with meals. Wolf testified that he was sleeping on the floor when defendant entered. Defendant said that he needed help because four white men were chasing him. Defendant placed a telephone call ostensibly to the police but Wolf did not hear the conversation. When Wolf suggested calling the police again, defendant told Wolf to do so, but Wolf hesitated because he was not sure of the emergency number. Defendant placed another telephone call and looked out the window. He then drew a knife and robbed Wolf and Dermody. Defendant directed Wolf to carry the stereo downstairs to Wolf's automobile and subsequently defendant took a television set. As they walked, defendant asked who lived across the hall. Wolf told him that Wallie Mitomme, an elderly lady, lived there, and defendant threw his shoulder against the Mitomme door. The door did not give, and the men proceeded to Wolf's automobile. Defendant told Wolf to keep his head down and drove to an apartment building in Oak Park where they brought the stereo and television. After a few minutes, defendant told Wolf he would bring him back. Defendant drove awhile, stopped and told Wolf to keep his head down. Defendant departed and after a few minutes Wolf drove to the Oak Park Police Station to report the incident.

Wallie Mitomme testified that she was sleeping when she heard a loud noise in her living room. She went back to sleep and the next day she saw that her door was splintered.

Michael Dermody testified that he was awakened by voices. He saw Wolf standing there with a black man.

After conducting an investigation, the Oak Park police obtained a search warrant for the apartment of defendant's brother. There, they seized the stereo, television set and two knives.

Defendant testified that as he urinated in an alley, he saw a man in an apartment window motioning him to come upstairs. Wolf invited him in for a drink and then made homosexual advances to which defendant acquiesced. Defendant refused Wolf's request to stay all night, but accepted Wolf's offer to drive him to defendant's brother's apartment. Defendant earlier had offered to try to repair Wolf's stereo and television, and the men brought the sets with them. Defendant was arrested at his brother's apartment on the following day.

• 1 Defendant initially contends that he was not proved guilty of the attempt burglary of the Mitomme apartment and of the unlawful restraint of James Wolf beyond a reasonable doubt. It is fundamental that the credibility of witnesses and the weight to be given their testimony is for the jury, and the reviewing court will not substitute its judgment for that of the jury merely because the evidence is conflicting, unless guilt has not been established beyond a reasonable doubt. (People v. Anderson (1964), 30 Ill.2d 413, 197 N.E.2d 24.) Here, the triers of fact rejected some of Wolf's testimony, as was their prerogative, but they did not find him incredible. Moreover, Wolf's testimony was corroborated by that of Wallie Mitomme who found her door splintered the next morning. There was sufficient evidence to establish defendant's guilt of both crimes.

• 2 We next consider defendant's contention that the trial court erred in giving a Prim instruction to the jury.

When the trial was concluded, the jury received the instructions and retired to deliberate at noon. During the course of their deliberations on that day, the jury sent three notes to the judge. The first note requested a copy of the trial transcript to review Wolf's testimony. The trial court denied the request. The next two notes stated as follows:

"4:14

Your honor —

We are totally deadlocked. There is no way that we will be able to unanimously agree one way or another. ...


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