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08/09/89 the People of the State of v. Walter Schultz

August 9, 1989





542 N.E.2d 1272, 186 Ill. App. 3d 976, 134 Ill. Dec. 765 1989.IL.1227

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


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


On June 17, 1987, defendant was charged by indictment with two counts of unlawful use of weapons by a felon. Count II of the indictment was nol-prossed by the State, and the cause proceeded to a jury trial on the remaining charge.

At trial, Cathy Frederick, a cashier at a Dominick's food store located in Carol Stream, Illinois, testified that on June 2, 1987, at 1:30 a.m., she was working at one of the front registers when she saw defendant enter the store. Defendant went to the housewares aisle and then walked towards the checkout lanes. As defendant approached Frederick, she saw him take a knife out of its package and walk past her. Frederick directed defendant to her register. Defendant initially jerked away from Frederick but then followed her. Frederick stated that she tried to take the knife's package from defendant so she could scan it on her register but defendant refused. Defendant then threw a $5 bill at Frederick and said he was "gonna fucking kill him." Frederick stated that defendant sounded very excited or angry and walked out of the store very fast. Frederick followed defendant outside and heard him yelling and screaming in the parking lot. Frederick testified that she did not smell the odor of alcohol on defendant and that defendant had no difficulty either talking or walking. Frederick further testified that defendant did not brandish the knife at her and did not mention specific names when he talked about killing somebody.

Steven Foley, a security guard at the Dominick's store, testified that while he was outside the store smoking a cigarette, he heard some noise by a Sears store located in the mall. About five minutes later, Foley saw defendant walk past a Walgreen's store, kick over two shopping carts, and proceed into Dominick's. Defendant went to the housewares aisle, picked up a knife, and headed towards the registers. Foley stated that defendant took the knife out of its package and put a $5 bill on the register. Foley heard defendant say, "I am going to kill some mother fucker," and defendant then ran at an easy pace out of the store. After calling the police, Foley, who was accompanied by the assistant manager, the night porter, and Frederick, went outside after defendant. Foley stated that defendant stood in front of a Baskin-Robbins ice cream shop and yelled to Foley and those accompanying him, "[w]ho are you looking at; you want to fight" Foley testified that he did not know if defendant was intoxicated.

Louis Zapata, who worked at both a Burger King restaurant and the Baskin-Robbins located in the mall, testified that after he left work at the Burger King, he heard the noise of bottles breaking. When Zapata arrived at the Baskin-Robbins on bicycle, he observed defendant throwing bottles at the store. After he identified himself as the assistant manager of the Baskin-Robbins, Zapata told defendant to stop throwing the bottles. Defendant then yelled at some people outside Dominick's, called them "niggers," and pulled out a knife. Defendant lifted the knife over his head, headed towards Zapata, and said, "Hey Amigo, I'm not going to hurt you. Come here." Zapata told defendant not to come any closer, but defendant walked to within several feet from Zapata. Zapata testified that defendant lowered the knife to waist height and pointed it at him. Zapata then got on his bicycle and rode away. When Zapata saw a police car near the Sears store, he told Carol Stream Officer Frank Moore about defendant. Moore confronted defendant and ordered him to put the knife down. Defendant complied with Moore's request and ran to a nearby Wendy's restaurant. According to Zapata, defendant appeared to have trouble running and was drunk.

A stipulation was read to the jury that defendant had a previous conviction of a felony, and the defense rested without presenting any evidence. After a brief deliberation, the jury found defendant guilty of unlawful use of weapons by a felon.

In a letter dated September 4, 1987, defendant informed the trial court that he was dismissing his trial attorneys due to their incompetence. On September 24, 1987, the trial court granted the public defenders' motion to withdraw as counsel; however, one of the public defenders, Wayne Brucar, was directed to remain as stand-by counsel while defendant proceeded through his post-trial motions pro se. On September 28, 1987, defendant filed a motion for a new trial. Concerning the allegation that his trial counsel was incompetent, defendant's motion stated:

"In NICHOLSON v RUSHEN, C.A. 9 (Cal.), 1985, 767 F 2d. 1526, alleged ineffective assistance by counsel could not be the basis for reversal or for a new trial, however, the following points, culmenated [ sic ] with POINTS and AUTHORITIES I -- III are the basis for the defendant's motion for a new trial.

(a) Defective performance of defense counsel (Attorney's Wayne Brucar and Daniel Cummings) caused the defendant deprivation of his constitutional rights by depriving the defendant of ...

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