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People v. Almo

OPINION FILED APRIL 5, 1984.

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

v.

HUBERT ALMO A/K/A HERBIE ALMO, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. John J. Crowley, Judge, presiding.

JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

On appeal of his convictions for murder and armed violence defendant Hubert Almo contends: (1) the trial court erred in granting the prosecution two extensions beyond the 120-day period in which they would have otherwise been required to bring defendant to trial; (2) defendant's guilt of murder was not established beyond a reasonable doubt; (3) defendant's armed violence conviction should be vacated because it was based on the same physical act on which his murder conviction was based; (4) the trial court erred in not permitting defense counsel to impeach a prosecution witness concerning her prior omission of a material fact from a statement made to the police; (5) when the jury initially returned verdicts of guilty of murder and voluntary manslaughter the trial court erred in submitting new verdict forms to the jury rather than entering judgment on the voluntary manslaughter verdict; (6) defendant's concurrent sentences of 30 years for murder and 20 years for armed violence were excessive; (7) assuming this court reduces defendant's murder conviction to one for voluntary manslaughter, the prosecution also failed to prove defendant's guilt on this charge; (8) a reduction of defendant's murder conviction to one for voluntary manslaughter would require vacating his armed violence conviction because both convictions arose from the same physical act and because the armed violence statute should be construed as precluding voluntary manslaughter as a proper predicate felony for armed violence.

We affirm defendant's conviction and sentence for murder but vacate his conviction for armed violence and the sentence imposed for that offense.

At trial Sandy Russell testified that on March 9, 1979, she was visiting her boyfriend in the second-floor lounge of the YMCA then located at 826 South Wabash in Chicago. A man subsequently identified by other witnesses as the defendant came in and stood at a table where people were playing cards. Five to ten minutes later she heard a gunshot and took cover on the floor. When she got up she saw the defendant put a gun in his holster and walk casually out the lobby as though nothing had happened. She heard no loud noises before the shooting. Russell's boyfriend testified to essentially the same facts except that he was not questioned about hearing any noises before the shooting.

Janie Boyd testified that at the time of the shooting she was in a library adjoining the second floor lounge. The victim, Rick Bynum, was sitting at a table in the lounge. Boyd heard a commotion in the lounge area and saw Bynum standing up and trying to pull the table up with him. She then heard a gunshot. Bynum ran into the library and fell to his knees. The defendant ran in behind him. With a gun in his hand the defendant stood behind Bynum and said "Get up you coward m____ f____, get up because I ain't done anything to you yet." Bynum remained on his knees and defendant walked away. Boyd testified that she could not hear any conversation from Bynum's table before the shooting. She denied hearing defendant say anything else after the remarks she had testified about, but then admitted telling investigators that after the shooting she heard defendant yell that he had just shot someone. Boyd identified the victim as a security guard and testified that in her experience the security guards at the YMCA wore guns most of the time.

Chicago police officer Anthony Biamonte testified that he arrested the defendant as defendant walked toward the exit of the YMCA. Biamonte observed the handle of a gun sticking out of a holster clipped to defendant's belt. The gun contained five live bullets and one spent one. Another police officer who searched the victim's body in the YMCA library testified that no weapon was found on the victim.

Dr. Lee F. Beamer, a pathologist with the Medical Examiner's office, examined the victim and testified that he died of a gunshot wound to the chest which lacerated his lungs and heart. The bullet had been fired from the victim's side. According to Beamer the victim was between 25 and 30 years of age, six feet four inches tall, and weighed 213 pounds.

The defendant testified that he had lived at the YMCA since 1972 and worked there as a part-time security guard. He had previously been employed as an Andy Frain security guard in 1978 and was currently licensed to carry a gun. He was required to carry a gun while on duty as were all security guards at the YMCA.

In early 1979 Rick Bynum became a security guard at the YMCA. On March 7, 1979, Bynum approached the defendant in the YMCA cafeteria and told him to leave the premises after finishing his coffee. They argued and Bynum called the police and had defendant arrested for disorderly conduct. Defendant was released the next day and returned to the YMCA. Bynum told him he was being evicted and that although he could enter the first floor cafeteria, if Bynum caught him above the first floor he would blow his head off. Defendant testified that he was 49 years old, five feet nine inches tall, and weighed 160 pounds. Bynum was 28 years old, weighed 230 pounds, and was about six feet three inches tall.

The following evening defendant went up to the second floor where he customarily played cards. Bynum, who was sitting at a table, said, "Here, this nigger is here." Defendant told him to leave him alone and Bynum replied, "What did I tell you." Bynum told a woman sitting in front of him to move, pushed her out of her chair to the floor, and jumped up. Defendant testified that he shot once in an effort to defend himself. He then walked downstairs to the switchboard and called the police to report that he had shot someone. Defendant denied following Bynum or saying anything to him after the shooting.

Defendant testified that although he was not working as a security guard that day he was carrying a gun because he always carried one at the YMCA, having obtained permission to do so from the YMCA's chief of security. Although Bynum was not working as a security guard that day defendant testified that all the previous times he had seen Bynum, Bynum was wearing a gun. When Bynum jumped up from the table the defendant could not see his right hand. Bynum had a reputation for violence and defendant had once seen him beat a blind man suspected of breaking into a hotel room.

I

We first consider defendant's contention that the trial court erred in granting the prosecution two extensions of time beyond the 120-day period in which they would have otherwise been required to bring defendant to trial. On September 10, 1980, several days before the 120-day term was due to elapse, the prosecution filed a petition for an extension of time in order to obtain the testimony of Janie Boyd, who they alleged was a material and necessary witness. At the hearing on the motion the prosecution presented the testimony of David Ohlson, an investigator with the Cook County State's Attorney's Office. Ohlson testified to the efforts he had made to locate Boyd since April. He had contacted the post office, the Chicago Housing Authority, the Department of Public Aid, the telephone company, and county and Federal correctional officials, all without success. A record check with the police department was unsuccessful because he did not have enough information about the witness. He also left a subpoena for Boyd's mother. Ohlson explained that the difficulty he had in locating Boyd and other witnesses was that they had all left the Wabash YMCA. In June he learned from the YMCA's central office that the former manager of the Wabash YMCA was in Des Plaines. He contacted that manager but received no additional information. He also spoke to Boyd's mother, who told him she had not seen her daughter in a long time.

Later in June, Ohlson obtained the names of three people who might have information but when he located them he did not learn anything new. In September Ohlson was told by the State's Attorney's office to drop every other case and concentrate on this one. He went back to Boyd's mother, who admitted that Boyd had been living with her. She gave him Boyd's telephone number and promised her cooperation. However Ohlson's subsequent repeated efforts to telephone the mother were unsuccessful until the day of the hearing. She then told him she had seen Boyd the day before. Ohlson testified that he was continuing to observe the mother's house.

On the basis of this information the trial court granted the prosecution a 30-day extension. At the end of that period the prosecution sought another extension in order to locate another witness, Charleston Curry. The prosecutor informed the court at the hearing on this motion that Curry had told police he had witnessed the shooting. According to the prosecutor Curry had moved out of the Wabash YMCA and had changed jobs several times. His former employers had been contacted and a check had been made at Curry's father's residence, all to no avail. However the prosecutor had been informed that Curry was training with the Marine Corps in Glenview. A sergeant there had refused to divulge Curry's address and phone number, but the prosecutor informed the court that the sergeant would be subpoenaed. The prosecution was granted another extension on the basis of these representations.

Under the provisions of the speedy trial act an extension beyond the period in which a defendant must otherwise be brought to trial may be obtained if the court determines that the prosecution has acted diligently to obtain material evidence which there are reasonable grounds to believe may be obtained at a later date. (Ill. Rev. Stat. 1979, ch. 38, par. 103-5(c); People v. Antrim (1979), 67 Ill. App.3d 1, 385 N.E.2d 5.) The determination of whether to grant such an extension is a matter for the trial court's discretion ...


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