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09/22/88 the People of the State of v. Clyde Cornell Pegram

September 22, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLANT

v.

CLYDE CORNELL PEGRAM, APPELLEE



SUPREME COURT OF ILLINOIS

529 N.E.2d 506, 124 Ill. 2d 166, 124 Ill. Dec. 525 1988.IL.1419

Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Paul O'Malley, Judge, presiding.

APPELLATE Judges:

JUSTICE WARD delivered the opinion of the court. JUSTICE STAMOS took no part in the consideration and decision of this case.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WARD

The defendant, Clyde Cornell Pegram, was convicted of armed robbery following a jury trial in the circuit court of Cook County and was sentenced to 12 years' imprisonment. On appeal, the appellate court reversed the conviction and remanded for a new trial. The appellate court held that the defendant did not receive a fair trial because the jury was instructed neither on the defense of compulsion nor on the State's burden of proof when a defense of compulsion was raised. (152 Ill. App. 3d 656, 661.) The appellate court also held that the defendant had received ineffective assistance of counsel. The State filed a petition for leave to appeal to this court, which we allowed. 107 Ill. 2d R. 315.

Pegram was charged with the January 9, 1982, armed robbery of John Mackin, the owner of Erin's Glen Pub, a restaurant and bar on West Montrose Avenue in Chicago. Mackin testified that he arrived at the Pub shortly after 5 a.m. and parked his car near the tavern's front door. He went to the basement office to count the previous night's receipts and shortly thereafter he heard a knock on the front door. Mackin recognized the defendant, who had previously come to the Pub about 20 times to help Mackin's porter, Bob Tatum, with his chores. Prior to this, Pegram had never come to the Pub without Tatum. When Mackin asked Pegram why he had come so early (Tatum and the defendant usually arrived between 6 and 7 a.m.), the defendant explained that Tatum would arrive later as his car had broken down, but he had sent Pegram to the Pub to begin work. Mackin let the defendant into the Pub and returned to his basement office, while the defendant began cleaning chores by taking the trash to the rear of the building.

The defendant testified that when he unlocked the back gate, two men holding guns and wearing masks over their faces entered through the gate. One of the men told Pegram to back up, pointed a gun at his head, and said he would blow out his brains if he did not do what he said. The men asked who else was in the Pub, and Pegram told them his boss was there. Pegram testified they then put a gun to his head and told him to lead them to his boss. He led them to Mackin's office.

At the office, one of the masked men entered and put a gun to Mackin's head, ordering him to lie on the floor and empty his pockets. The defendant stood at the entrance to the small office and the robbers entered it. Mackin testified that after he emptied his pockets of between $900 and $1,000, the defendant opened the door to the freezer across from his office door and all three men pushed Mackin into the freezer and locked the door. The defendant, however, testified that one robber pointed to the freezer and asked what it was. The defendant told him it was the freezer, and the robber ordered him to open the door. The robbers, Pegram testified, then ordered Mackin into the freezer. Pegram testified that Mackin was not pushed into the freezer but that once Mackin was inside, the robbers ordered Pegram to close the door. The defendant said nothing during the time the other men were in the office nor did Mackin hear the others say anything to the defendant.

Once Mackin was inside the freezer, Pegram said the robbers ordered him to lie, face down, on the floor, while one robber stood over him with a gun and the other one ransacked the office. The robbers then asked the defendant if Mackin had a car and, when told he had, ordered Pegram to take them to it. While walking to the car, the defendant testified that the robbers had a gun pointed at him. He was told to get into the back of Mackin's station wagon and lie on the floor, which he did. They drove off and the robbers let him out of the car on an expressway about 40 minutes later, but Pegram did not recall which expressway. The robbers told him that they knew who he was and they would be able to kill him.

Mackin waited about 15 minutes and then smashed open the freezer door with an empty beer barrel. He said he got a gun and ran upstairs, but no one was in the building. The money on his desk and his car were gone. He did not see which man took the money from the floor or the desk, as it was taken while he was locked inside the freezer. The defendant did not return to the Pub nor did he telephone or contact Mackin. Mackin notified the police of the robbery and later identified Pegram from a police photograph.

Pegram testified that he knew neither of the men and he was not able to see the men's faces because they wore masks. The defendant testified he did not notify the police because, he said, he had had a bad experience with the police on a 1974 felony conviction and was afraid that, as he was black and the two robbers were black, the police might believe he was involved in the crime. He testified, "And I was frightened that I was going to be convicted for something or prosecuted for something I had nothing to do with. . . . Not only for that, but the two men threatened my life. They were talking about they knew about me. I didn't know how much they knew about me." He denied arranging the robbery or receiving any of the proceeds from it. He said he was not a willing participant in the crime and said yes on direct examination when asked, "at all times during the robbery were you acting under duress and in fear of your life?"

A detective who investigated the robbery testified that he learned through Tatum where Pegram lived in Chicago. Mackin's car was recovered by the police a short distance from Pegram's home. The investigator obtained a photograph of Pegram from the Chicago police department, which Mackin identified as a photo of Pegram. After unsuccessfully trying to locate the defendant in Chicago, a warrant was issued for his arrest and placed with the National Crime Information Center so that if Pegram were to be held by the police anywhere in the United States, they would know of the outstanding warrant. After the robbery in January 1982, Pegram testified, he remained in Chicago, living with friends until December 1983, when he went to Youngstown, Ohio, to visit his family. He and his brother went to Buffalo, New York, to visit relatives for New Year's Eve and later set out for Detroit by way of Canada to visit other relatives. His identification card was checked at the Canadian border, and he was arrested on the outstanding warrant for armed robbery on April 10, 1984, at the Canadian border. Chicago police returned him to Chicago.

The State contends that the appellate court erred in reversing the conviction. As stated earlier, the appellate court concluded that the failure to instruct the jury on the defense of compulsion and on the State's burden of proof with respect to this defense (Illinois Pattern Jury Instructions, Criminal, Nos. 24 -- 25.21, 24 -- 25.21A (2d ed. 1981) (IPI Criminal 2d)) constituted error under Supreme Court Rule 451(c) (107 Ill. 2d R. 451(c)). The State says that the defendant failed to preserve the issue for review, as he did not object to the instructions that ...


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