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03/02/94 PEOPLE STATE ILLINOIS v. CLARENCE SISTRUNK

March 2, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CLARENCE SISTRUNK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Stephen Schiller, Judge Presiding.

Rehearing Denied March 28, 1994. As Corrected July 27, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Greiman, Rizzi, Cerda

The opinion of the court was delivered by: Greiman

JUSTICE GREIMAN delivered the opinion of the court:

Following a bench trial, defendant Clarence Sistrunk was convicted of murder and attempted armed robbery. The trial court imposed a 36-year sentence of imprisonment for the murder conviction and a 7-year prison term for the attempted armed robbery conviction, the sentences to run concurrently.

On appeal defendant raises six issues: (1) whether the juvenile court erred in granting the State's motion to prosecute defendant as an adult when defendant was 14 years old at the time the offenses were committed; (2) whether defendant was denied effective assistance of counsel at trial on the ground that last minute disclosures of the State's evidence prevented his defense counsel from performing as an effective adversary; (3) whether the trial court failed to adequately protect, and thereby denied, defendant's right to effective assistance of counsel; (4) whether the 36-year sentence of imprisonment constitutes an abuse of the trial court's discretion; (5) whether defendant is entitled to 538 days credit to his sentence for the time spent in custody from the date of his arrest to the time of his sentencing; and (6) whether the delay of defendant's appeal violates his due process rights to a criminal appeal and to effective assistance of counsel.

For the reasons which follow we affirm defendant's convictions and modify his sentence to reflect 538 days credit to his sentence.

On October 7, 1981, a cab driver, Hugh Smith, was fatally shot during an attempted armed robbery. Two days later defendant was arrested for Smith's murder. Subsequently three codefendants (defendant, Frank Whiteside and Ricky Hughes) were indicted for offenses relating to Smith's death.

JUVENILE COURT HEARING

On December 23, 1981, the juvenile court held a hearing to determine whether defendant should be tried as an adult. Defendant was born on October 21, 1966, and thus was only two weeks short of attaining his 15th birthday when the crimes were committed.

At the juvenile court hearing, Detective Geraldine Perry testified that she was present when two young men, Frank Whiteside and Calvin Delaney, gave statements implicating defendant in the Smith murder. Referring to the crimes, Delaney said he knew defendant and saw defendant, Frank Whiteside and Andre Stroy approach the cab. Delaney further stated that defendant went to the driver's side of the cab, pointed a gun at the cab driver and fired a shot. The cab then pulled away.

Whiteside, in his statement, said he was present during the time a robbery was planned and that he observed defendant go to the driver's side of Smith's cab and fire a gun shot after the demand for money.

Detective Perry also testified that she investigated an armed robbery of another cab driver, Reuben Rigs, that occurred on October 3, 1981. Rigs stated that he had been stopped by four young men and identified defendant in a line-up conducted on October 9, 1981, as the person who approached his cab, pointed a gun at his head and said "I'll kill you if you move."

Thomas Morgan, a probation officer, also testified at the juvenile court hearing. In anticipation of the transfer hearing, Morgan prepared a social investigation report about defendant after talking to defendant and his mother. Morgan testified that defendant had three prior findings of delinquency, i.e., two burglaries and a theft. Morgan admitted that he made a "big mistake" by indicating in his report that defendant was not the shooter. Morgan described defendant as street-wise but not manipulative and sometimes withdrawn and uncommunicative. "He characterized defendant's actions as aggressive but not premeditated. Defendant resided with his mother in the Robert Taylor Homes. Morgan opined that defendant was not a problem inside the home and defendant and his mother had very loving and concerned attitudes toward each other. Defendant had not attended school in the previous year "due to people bothering him." In September 1981, defendant attempted to enroll in Tilden High School but was not accepted due to overcrowded conditions. According to defendant's mother, defendant could not attend DuSable school because defendant would not be able to cross gang lines. Morgan opined that defendant should not be tried as an adult.

Following the hearing the juvenile court granted the State's motion to try defendant as an adult.

PRETRIAL PROCEEDINGS

On December 30, 1981, defendant and two codefendants, Frank Whiteside and Ricky Hughes were indicted for the murder and attempted armed robbery of Smith.

Sometime before November 15, 1982, Whiteside's trial had been severed from the joint trial of defendant and Hughes. At the hearing on November 15, 1982, the trial court denied the renewed motion for severance by Hughes.

Also at the November 1982 hearing, the State informed the court that it wanted to present evidence at trial that defendant was involved in a similar armed robbery of a cab driver at the same location just a half hour before the Smith murder and attempted armed robbery. The State argued that evidence of the prior armed robbery would establish identity, common scheme and design. The court eventually allowed the State to file an amended answer to discovery as to defendant to permit the additional introduction of possibly two witnesses regarding proof of the prior crime. The court ordered the State to facilitate the location of the additional witnesses for the defense counsel so that he could have a reasonable opportunity to contact these witnesses and investigate their background and testimony. The court ruled that the three codefendants would be tried simultaneously but separately by two juries (for Hughes and defendant) and the bench (for Whiteside). The trials were then scheduled to begin on December 15, 1982.

On January 6, 1983, the State filed a motion for continuance because it had been unable to locate certain material witnesses including Fred Taylor. Taylor was the cab driver who was the victim of armed robbery a half hour before the Smith murder.

On January 10, 1983, the State filed an amended answer to discovery which stated that it may call as witnesses Frank Whiteside and Fred Taylor. The address of Fred Taylor was also given.

On January 17, 1983, the parties appeared in court to commence jury selection. The State immediately informed the court that it was not going to proceed against Ricky Hughes on the murder charge and sought to amend its answer to discovery to include, as a witness for the State, Ricky Hughes who had decided to enter into a plea agreement with the State. After this disclosure, the trial court recessed to give defense counsel an opportunity to discuss the matter with defendant and defendant's aunt who was in the courtroom. Following the recess, defense counsel answered ready and waived the jury. The trial court questioned defendant concerning his waiver of jury and heard testimony from defendant and his aunt concerning the jury waiver.

TRIAL

On January 18, 1983, the trial court first addressed defendant's motion to bar the testimony of Fred Taylor. On the preceding day, Taylor had identified defendant from a display of photographs. Defense counsel attended the identification procedure but argued that there was no opportunity to file any motion to suppress Taylor's identification as suggestive because the process only occurred the day before. Allowing Taylor to testify, the court expressed its concern regarding suggestive identification and advised defense counsel that it had no preDisposition to accept identification testimony and that the issue could again be raised during the trial.

Taylor, the first witness at trial, then testified that on October 7, 1981, at 11 p.m. he was driving a cab when he was flagged down at 5400 South State Street by Andre Stroy. Defendant then opened the driver's side door, pointed a gun at Taylor and ordered him not to move. After defendant and Stroy relieved Taylor of his money, Taylor was allowed to drive away, a gunshot being fired at his cab door. Taylor reported this incident to the police on October 21, 1981, identified Stroy in a police lineup on the next day, and identified defendant from a photographic display on January 17, 1983, the day before trial commenced.

Henry McCree testified that at 11:30 p.m. on October 7, 1981, he observed the attempted robbery and shooting ...


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