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People v. Gibson

OPINION FILED OCTOBER 3, 1985.

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

v.

SAMMY GIBSON ET AL., DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County; the Hon. Romie J. Palmer, Judge, presiding.

JUSTICE LINN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendants Sammy Gibson, James Burdine and Norman Bonds were convicted of armed robbery and home invasion. In addition, defendants Gibson and Bonds were convicted of rape and deviate sexual assault. Burdine was sentenced to 15 years in the Illinois Department of Corrections for armed robbery and 15 years for home invasion. Gibson and Bonds were each sentenced to 30 years for armed robbery, 30 years for home invasion, 30 years for deviate sexual assault and 30 years for rape. All sentences were to run concurrently.

On appeal, defendants contend (1) that the trial court committed reversible error by denying their motions for severance; (2) that the State failed to prove them guilty beyond a reasonable doubt of armed robbery; (3) that the trial court erred by failing to instruct the jury on the lesser included offense of theft; (4) that the prosecutor's closing argument deprived them of a fair trial; and, (5) that the trial court erred by failing to take remedial action to cure a prejudicial comment and gesture made by a juror during voir dire.

We affirm.

BACKGROUND

Testimony at trial disclosed that on July 8, 1981, at about 5 a.m., defendants, armed with guns, entered an apartment located at 2145 South Kedzie in Chicago, where the victim, Elizabeth, and her three children were sleeping. Elizabeth testified that at that time she heard her door click and observed three individuals enter her apartment. Elizabeth asked the men what they wanted as she reached into a kitchen drawer. One of the intruders, whom she later identified as defendant Gibson, ordered her to take her hand out of the drawer, and struck her near the temple with the gun he was holding. The man she later identified as defendant Bonds also struck her in the head with the gun he was holding.

According to Elizabeth, she then told Bonds that she needed to use the bathroom. Her further testimony indicates that Gibson instructed Bonds to take her to the bathroom, and that Bonds took her there. After Elizabeth was finished using the bathroom, Bonds refused to let her exit, ordering her to the floor. Bonds then asked her where she kept her money, and she replied that she had none. Bonds thereupon grabbed one of her breasts and commanded her to stand up and lean over the sink. When she did as he told her, Bonds pulled up her gown and pulled her panties down, allowing them to drop to the floor. Elizabeth testified at this point in time she began to cry. Bonds then unzipped his pants and inserted his penis into her vagina, all the time holding his gun in her back. After a few minutes, Bonds withdrew his penis from Elizabeth's vagina and inserted it into her rectum.

Defendant Gibson, whom Elizabeth said was wearing an "M & M's" t-shirt, next entered the bathroom and told Bonds to move out of the way. Gibson inserted his penis in Elizabeth's vagina and, after a time, into her rectum. Afterwards, Gibson urinated on Elizabeth's back. During this time, Bonds had forced his penis into Elizabeth's mouth, threatening to "blow her brains out" if she bit him. Bonds then ordered Elizabeth onto her knees, again forcing his penis into her mouth until he ejaculated. Elizabeth was then told to lie on the floor while her hands and feet were bound with a belt. As she laid on the floor, Bonds again inserted his penis into her rectum, warning her that she would be killed if she ever told anyone what had just occurred.

After the defendants fled, Elizabeth untied herself and discovered that the door to the room where the children were sleeping was tied up with a telephone cord. She untied the cord, found that her children were unharmed, and she then called police. Later, she discovered that $120.00 worth of food stamps, $57.00 in cash, and a clock radio were missing from her apartment.

James, Elizabeth's son, 11 years of age, testified that while his mother was in the bathroom with Bonds, he saw Gibson enter the bedroom and take jewelry and money from the dresser drawers. James observed that Gibson was wearing an "M & M's" t-shirt at the time of defendants' entry into the apartment. James also stated that Burdine, whom he knew as "Meatball," was peeping through the bedroom door while holding a gun.

Defendants Gibson, Burdine and Bonds fled from the apartment. They were arrested later the same day. The clock radio which had been reported as stolen, and the "M & M's" t-shirt which Elizabeth and James said Gibson was wearing, were both recovered at Gibson's residence. Both Elizabeth and James identified Bonds and Gibson in a lineup. James also identified Burdine in a lineup.

Each defendant made inculpatory statements which were introduced into evidence. In their respective statements, Burdine and Gibson each stated that it was the other of the two who accompanied Bonds into the bathroom where Elizabeth was sexually assaulted. Bonds said that it was he and Gibson who were in the bathroom with Elizabeth.

Defendants were tried jointly before a jury. Defendant Burdine was tried for armed robbery, burglary, and two counts of home invasion. Bonds was tried for armed robbery, home invasion, rape, two counts of burglary and three counts of deviate sexual assault. Gibson was tried for armed robbery, deviate sexual assault, home invasion and rape. None of the defendants testified at trial.

At the conclusion of the trial, defendants were found guilty of all charges. After a hearing in aggravation and mitigation, defendants were sentenced to concurrent terms by the trial court for offenses and periods noted herein.

Defendants now appeal from their convictions and their sentences.

OPINION

I

Defendants initially contend that the trial court erred by failing to grant them separate trials. The State, in turn, contends that defendant Gibson waived his right to review of this issue because he failed to seek severance and failed to raise this issue in his post-trial motion.

WAIVER

• 1 "Issues, including constitutional issues, not raised in the trial court are generally considered waived on appeal and cannot be urged as grounds for reversal on review." (People v. McGrew (1984), 128 Ill. App.3d 464, 469, 470 N.E.2d 1157, 1161.) The Criminal Code of 1961 requires that a party seeking review must first present a written motion for new trial to the trial court specifying the grounds therefore. (Ill. Rev. Stat. 1981, ch. 38, par. 116-1.) Failure to raise with specificity the issue posed on appeal denies the trial court the opportunity to correct the alleged error and to give the appellate court the benefit of the trial court's judgment. People v. Irwin (1965), 32 Ill.2d 441, 443-44, 207 N.E.2d 76, 78.

In this case, defendant Gibson's motion for new trial consists only of conclusory allegations which do not specify the issues raised on appeal. Because Gibson has failed to address the severance issue in his post-trial motion, he has waived it on review. (People v. Visnack (1985), 135 Ill. App.3d 113, 118.) Therefore, we will consider the severance issue in this case only as it applies to defendants Burdine and Bonds since they did raise the issue properly and timely. We ...


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