APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
533 N.E.2d 472, 178 Ill. App. 3d 329, 127 Ill. Dec. 600 1988.IL.1932
Appeal from the Circuit Court of Cook County; the Hon. Roger Kiley, Judge, presiding.
PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. QUINLAN and MANNING, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CAMPBELL
Following a severed bench trial, defendant, Jimmie Buford, and codefendants Xavier Young and Alfred Dismukes *fn1 were found guilty of murder and armed robbery. (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1(a)(1), 18-2, respectively.) Defendant was sentenced to consecutive prison terms of 80 years for murder and 10 years for armed robbery. On appeal, defendant contends that: (1) his counsel failed to act as his advocate, thereby denying him his right to effective assistance of counsel; (2) his counsel's past friendship with the victim's son denied defendant his right to effective assistance of counsel; (3) the trial court improperly imposed consecutive sentences for murder and armed robbery; and (4) the extended-term sentence imposed by the trial court was excessive. For the following reasons, the judgment of the trial court is affirmed.
The record sets forth the following. David Burns, occurrence witness for the State, testified that on Saturday, October 27, 1984, he worked the 9 a.m. to 7 p.m. shift at Winfield Groceries, located at the corner of Cullerton and Keeler in Chicago. Winfield Johnson, store owner, and William Wright were also working at the store that day. In describing the store layout, Burns stated that a deep freezer and checkout counter were located on the left side of the front door, an ice cream freezer and two pop coolers were on the right side and the meat counter was at the back of the store. Several aisles of stocked shelves were in the middle.
Burns further testified that at approximately 7 p.m. that night, Young entered the store and told Burns that he wanted to purchase some meat. At that time, Johnson was at the checkout counter. Burns directed Young to the meat counter in the rear of the store where Wright waited on him. Burns returned to stocking the coolers and the ice cream freezer in the front of the store. A few minutes later, defendant and Dismukes entered the store. Defendant walked to the middle aisle and Dismukes stook in line behind a customer at the checkout counter. When the customer left, defendant ran to the front door and locked it. Dismukes then pulled out his gun and announced a stick-up. Defendant, armed with a small black pistol, ran around the checkout counter to where Johnson was standing and ordered him to open the cash register. Johnson refused to do so.
Meanwhile, Dismukes told Burns to lie facedown on the floor. From this position, Burns could see defendant and Johnson at the checkout. Defendant then pushed Johnson to the middle aisle and down onto his stomach. Burns then heard Johnson say, "Oh, no," followed by a shot. After the shot, Dismukes ordered Burns to open the cash register. As Burns walked toward the checkout counter, he saw Johnson lying on the floor and defendant going through his belongings.
Once Burns opened the cash register, Dismukes took the food stamps and cash. As defendant and Dismukes were getting ready to leave, defendant called out, "Hey, come on," and Young came running from the rear of the store. After defendant, Dismukes and Young left the store together, Burns watched them run east on Cullerton and then cross the street. Approximately five weeks later, Burns identified defendant in a lineup.
Detective James Antonacci of the Chicago police department testified that he arrested defendant on December 3, 1984, after Burns had tentatively identified him from a photo array. At the time of his arrest, defendant stated that he had no knowledge of the incident and denied his participation. However, after the lineup in which Burns identified him, defendant changed his position and gave the following statement: the robbery had been the idea of an employee at Winfield Groceries nicknamed "Kewanee," who had discussed the idea with defendant and Young, explaining that Johnson was an old man who usually carried about $300 in cash on him, plus had money in the cash register and under the register drawer. Kewanee advised defendant and Young that the best time to rob the store would be on a Saturday, approximately 7 p.m.
Defendant further stated that on Saturday, October 27, 1984, he left his house, armed with a .22 caliber gun and a .38 caliber gun, and went to a nearby park where he met Young and Curtis Williams. Dismukes joined them and asked to participate in the robbery. Defendant gave Dismukes the .22 caliber gun to use. Curtis Williams, Dismukes, Young and defendant then drove to Winfield Groceries in Williams' car. Dismukes, Young and defendant got out of the car and entered the store. Dismukes went to the back of the store, while defendant and Young remained in the front, pretending to shop. When the last customer left, defendant closed the door and ran over to Johnson, grabbed him with one hand, and took him to the middle aisle where he pushed him to the floor. When Johnson started to struggle, defendant shot him.
Defendant stated that Young and Dismukes were at the cash register while he was struggling with Johnson. The three then left, got into Williams' car and drove away. Defendant signed and initialed his post-arrest statement, and Detective Antonacci witnessed the signature.
The defense then rested its case without calling any witnesses. During closing arguments, defense counsel argued that defendant had not shot Johnson in cold blood as the State suggested. Rather, Johnson had been accidently shot while he and defendant were struggling for the gun. Defense counsel further stated that defendant never intended to hurt anyone. He had intended only to rob Johnson. Following the court's finding that defendant was guilty of murder and armed robbery, the State requested a statutory hearing regarding imposition of the death penalty.
When the proceedings resumed, defense counsel moved for leave to withdraw as counsel on the grounds that he recently learned that he had known the victim's son. Defense counsel explained that on the last status court date, when the court had read a letter in aggravation from James Winford Johnson, the victim's son, defense counsel realized that he had known the son many years ago. Because of the possible conflict, defense counsel immediately notified defendant and asked him if he would like different ...