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05/02/88 the People of the State of v. Robert Westefer

May 2, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

ROBERT WESTEFER, DEFENDANT-APPELLANT

DEFENDANT, ROBERT WESTEFER, WAS FOUND GUILTY BY A JURY IN THE CIRCUIT COURT OF DU PAGE COUNTY OF THE OFFENSE OF ARMED ROBBERY (ILL. RE

v.

STAT. 1985, CH. 38, PAR. 18-2(A)) AND WAS SENTENCED PURSUANT TO THE HABITUAL CRIMINAL STATUTE (ILL. REV. STAT. 1985, CH. 38, PAR. 33B-1) TO LIFE IMPRISONMENT.



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

522 N.E.2d 1381, 169 Ill. App. 3d 59, 119 Ill. Dec. 522 1988.IL.651

Appeal from the Circuit Court of Du Page County; the Hon. John J. Bowman, Judge, presiding.

APPELLATE Judges:

JUSTICE REINHARD delivered the opinion of the court. NASH and UNVERZAGT, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE REINHARD

The following issues are raised on appeal: (1) whether the trial court improperly classified a utility knife as a dangerous weapon as a matter of law, thereby erring in refusing defendant's tendered instruction on the lesser-included offense of robbery; (2) whether it was plain error for the State to introduce evidence of the giving of the Miranda warnings where no statement of defendant was introduced into evidence; (3) whether the trial court erred in precluding certain testimony which was not introduced for the truth of the matter asserted; (4) whether certain State evidence was improperly admitted; and (5) whether the habitual criminal statute is unconstitutional.

The following facts were adduced at trial. On August 2, 1985, at about 10:25 p.m., a man walked up to the counter of the White Hen Pantry, pointed a six-inch gray metallic utility knife with a razor-like blade at the clerk, and ordered her to give him all of the money. Another employee of the store helped the clerk place the money in a brown paper bag. During the robbery, a gray plastic bag with two holes in it fell from the robber's face at which time the clerk observed the robber's face. At trial, the clerk identified defendant as the robber.

After obtaining the money, the robber ran from the store, the plastic bag falling from his face. The robber entered a dark, green-colored, older model passenger car and drove away. A store customer wrote down the license plate number of the vehicle, which was later found to be registered to defendant's mother.

At approximately 2:15 a.m., on August 3, 1985, defendant was stopped by police while driving the above-described vehicle with the same license plate as reported. After arresting defendant, a police officer discovered a gray metallic utility knife, a pair of pants, and several bags in the passenger compartment of the vehicle. The vehicle was subsequently towed to a locked, fenced area and later searched pursuant to defendant's consent. The subsequent search revealed a gray utility knife on the front seat, a gray plastic bag with two holes in it, a pair of blue pants, a brown paper bag, and a $5 bill. The State introduced these various items as well as several photographs depicting the items in defendant's vehicle.

Although defendant presented no evidence on his behalf, he did request a robbery instruction which was denied. Following the jury's guilty verdict, the State moved that defendant be declared a habitual criminal and offered four prior armed robbery convictions in support of its motion. The trial court, after denying defendant's motion to declare the habitual criminal statute unconstitutional, sentenced defendant to a natural life term.

Defendant first contends that the utility knife used in the armed robbery cannot be termed a dangerous weapon as a matter of law, as was done here by the trial court, and, therefore, the court erred in refusing his tendered instructions on the lesser-included offense of robbery. The State responds that the utility knife in this case is an inherently dangerous weapon as a matter of law and was not a question for the jury to decide.

The question of whether a particular object qualifies as a dangerous weapon depends upon the character of that object. (People v. Skelton (1980), 83 Ill. 2d 58, 66, 414 N.E.2d 455; People v. Dwyer (1927), 324 Ill. 363, 365, 155 N.E. 316.) In the great majority of cases, it becomes a question for the fact finder whether the particular object was sufficiently susceptible to use in a manner likely to cause serious injury to qualify as a dangerous weapon; where, however, the character of the weapon is such as to admit of only one Conclusion, the question becomes one of law for the court. Skelton, 83 Ill. 2d at 66, 414 N.E.2d at 458.

The utility knife here falls into the latter category. It has a six-inch metal grip with a one-inch, heavy-duty, single-edged sharp blade. Testimony established that the blade was in a fully exposed position when used in the armed robbery. Typically, such a knife is used to cut resistant surfaces such as rugs, cardboard boxes, linoleum flooring, and the like. We believe that the utility knife is deadly per se and can cause serious injury however it is used. We find no error in the trial court's ruling in this regard.

Defendant next contends that it was reversible error for a police officer to testify that defendant was advised of the Miranda warnings and to read the rights from a card where no evidence was subsequently introduced concerning any statement made by defendant following these warnings. Defendant argues that the jury was left to speculate ...


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