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05/04/89 the People of the State of v. William M. Milton

May 4, 1989





538 N.E.2d 1227, 182 Ill. App. 3d 1082, 131 Ill. Dec. 671 1989.IL.665

Appeal from the Circuit Court of Lake County; the Hon. Jack Hoogasian, Judge, presiding.


JUSTICE WOODWARD delivered the opinion of the court. NASH and INGLIS, JJ., concur.


Following a jury trial, the defendant, William Milton, was found guilty of armed robbery, robbery, and theft. The defendant then entered a plea of guilty to a charge of robbery in an unrelated case. At a combined sentencing hearing, defendant was sentenced to 30 years' imprisonment on the charge of armed robbery and received a concurrent sentence of seven years' imprisonment on the robbery charge. Defendant appeals.

On appeal, the defendant raises the following issues: (1) whether defendant's motion for continuance should have been granted; (2) whether the jury should have been instructed on the defense of compulsion; and (3) whether the defendant's sentence was improper and/or excessive.

On April 6, 1987, defendant's case came up on the trial call. The assistant State's Attorney advised the court that he, in turn, had been advised by the assistant public defender representing defendant that defendant was going to accept a negotiated plea. However, it then appeared that private counsel had been obtained for the defendant. Defendant's new attorney, Burnell Dixon, introduced himself to the trial court and requested leave to file his appearance on behalf of the defendant. Dixon represented to the trial court that he had been contacted by the defendant's grandmother and told that defendant was dissatisfied with the public defender and that defendant wished to plead not guilty. The trial court stated that it would not talk to attorney Dixon because he was not attorney of record. After stating further that he would not continue the case, the trial court denied Dixon leave to file his appearance.

Later that day upon learning that attorney Dixon had filed his appearance on behalf of the defendant in the clerk's office, the trial court accused Dixon of flouting the court's previous order. However, the trial court ultimately accepted Dixon's appearance on behalf of defendant and granted the public defender leave to withdraw. The trial court then informed all parties that the trial in the case would commence on April 20, 1987.

On April 20, 1987, the State answered ready for trial. Defendant, however, presented a motion for continuance for 45 to 60 days on the basis that his attorney had not been able to interview Bernard Cobb, the co-defendant in the case, who had recently been transferred to Joliet. The trial court inquired of the State if it intended to have Cobb testify against the defendant to which the State responded it did not know. The trial court then denied defendant's motion for continuance and informed all parties that the defendant's trial would commence in one hour.

When the case was called for trial, the defense counsel renewed his motion for continuance and stated that he had not received all of the necessary discovery from the State. Defense counsel also informed the trial court that he wished to make oral motions to exclude statements made by the defendant and a black female witness. The trial court denied the oral motions, but stated that defense counsel could renew them prior to the witnesses being called during trial. The case was then continued to 1:30 p.m.

When the case was called at 1:30 p.m. for trial, the State informed the trial court that it had been advised by the defense counsel that the defendant intended to raise the affirmative defense of compulsion. The trial court asked if defense counsel had given the State notice of the raising of the defense of compulsion, to which counsel replied that he had given notice of it that day. There then ensued a colloquy between the trial court and defense counsel in which the trial court indicated that it was disturbed by the way defense counsel was proceeding in the case. The trial court indicated that while defendant here would receive due process of law and equal protection, the case would not be delayed. Defense counsel then indicated he would file a written motion raising the defense of compulsion, and the trial court granted him leave to do so.

After jury selection, defendant's trial commenced.

The testimony at defendant's trial revealed that the complaining witness, Dale Posedel, who had twice been convicted of burglary, was forced at gunpoint to enter the backseat of a car by a man he identified as the defendant. According to Posedel, defendant sat in the driver's seat; next to the defendant was a black female passenger; a black male passenger was in the backseat with Posedel. The male passenger emptied Posedel's pockets, placing the items in his own pockets. Eventually, Posedel was released and notified the police of the incident. He later identified defendant's picture from a group of photographs and identified him through a two-way mirror as the man who pointed the gun at him. Posedel also identified the gun found in the vehicle defendant was driving as the gun defendant possessed during the incident.

Acting on the description of a vehicle involved in a robbery which she had received in a dispatch, Waukegan police officer Margaret Ann Bartlett stopped the vehicle driven by the defendant. Both the defendant and his male passenger were frisked. When Officer Bartlett discovered an empty holster in the pocket of the male passenger, he fled the area. A gun was found in the front seat of defendant's vehicle, closer to the passenger side.

Officer John Moran of the Waukegan police department testified that on February 9, 1987, he was working on an armed robbery investigation, and at approximately 11:20 p.m., he interviewed the defendant. Defense counsel made an oral motion to suppress any statements made by the defendant. Following a hearing outside the presence of the jury, the trial court denied the motion.

Due to the issues raised in this appeal, it is necessary to set out the testimony regarding defendant's statement to police, as well as the testimony of the defendant and his witness in some detail.

After being advised of his Miranda rights and agreeing to speak to Waukegan police officer Paul A. Hendley, defendant related to Hendley that earlier in the evening of February 9, 1987, he had been at the home of Juan Mendesz. There he met a man by the name of Bernard. According to defendant, Bernard was the individual who ran from the scene after they were stopped by Officer Bartlett and was the individual who had the gun. Defendant and Bernard began driving around together and picked up a black female whose name defendant did not know. The female sat in front while Bernard sat in the backseat. Defendant told Hendley that they had become lost when they spotted an individual on a bicycle. The defendant specifically denied that he asked this individual for directions or that he pointed a gun at him. Defendant knew Bernard had a gun in his possession, for he saw it when he turned on the interior light in the automobile. Defendant further told Sergeant Hendley that this activity had not been preplanned but was spur of the moment.

After the State rested, Rolanda Hicks testified for the defense as follows. On February 9, 1987, she and the defendant drove to a friend's house. Bernard Cobb also arrived. She recalled that Cobb was drunk and was playing around in the house when he pulled a gun which he pointed at the room and at the defendant. She told the defendant that she wanted to leave, so defendant made the excuse that they had to return the automobile to the witness' mother. As they were backing out of the driveway, Bernard Cobb ran out of the house and sat in the backseat of the automobile on the passenger side, asking to be taken to his girlfriend's house. When defendant stated that they did not have much gasoline, Cobb told him he would get some gas. According to the witness, she was afraid of Cobb when he got into the automobile. As they proceeded, Cobb gave directions. Suddenly Cobb told the defendant to stop the automobile. Cobb then called to Posedel and told him to approach the automobile. Cobb also told the defendant to get out of the automobile. Defendant did as he was ordered and told Posedel to come to the automobile. According to the witness, the next thing she heard was the back door of the automobile opening and Cobb telling Posedel to get inside. Cobb ordered the defendant to drive, and after a short period of time, ...

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