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June 24, 1994


Appeal from the Circuit Court of Cook County. The Honorable John A. Wasilewski, Judge Presiding.

As Corrected August 29, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Giannis, Egan, Rakowski

The opinion of the court was delivered by: Giannis

JUSTICE GIANNIS delivered the opinion of the court:

Following a jury trial, defendant was convicted of attempted first degree murder and of armed robbery. After a hearing in aggravation and in mitigation, defendant was sentenced to consecutive terms of 28 years for the armed robbery conviction and 20 years for the attempted murder conviction. Defendant challenges his convictions and sentences, claiming (1) he was deprived of the right to a fair trial by improper closing argument by the prosecutor, (2) the trial court abused its discretion in imposing consecutive sentences for the attempted murder and armed robbery convictions, and (3) he was deprived of his right to a public trial by the trial court's order that a deputy sheriff seize a spectator's notes during the hearing on defendant's motion to quash his arrest.

The record reflects that defendant, Germaine Jones, was indicted along with codefendant, Karl E. Simmons, for attempt first degree murder, armed robbery, armed violence, and aggravated battery. Codefendant Simmons filed a motion for severance which was granted by the trial court. Thereafter, Simmons pled guilty to the charges against him and received concurrent sentences of 22 years.

Prior to defendant's trial, the court conducted a conference pursuant to Supreme Court Rule 402 (134 Ill. 2d R. 402), and the court and counsel agreed that if defendant were to plead guilty to armed robbery and attempt murder, he would be sentenced to a term of 22 years and would receive a consecutive term of three years for an unrelated "escape" charge. Defendant declined to accept the offer which resulted from this Rule 402 conference and elected to be tried by a jury.

Before the jury trial commenced, defendant brought a motion to quash arrest and to suppress evidence. At the hearing on this motion, the Judge confiscated the notepad and pen of an individual who had been taking notes during the proceedings. The record reflects the following exchange:

"[THE COURT]: Yes. Just a minute. I have the impression that somebody is sitting out there, taking notes.

[UNIDENTIFIED VOICE]: I am, for myself.

[THE COURT]: That is not apropos. Deputy, please pick up the notepad.

: When you say the police went to Apartment 20, while you were sitting in the car, did you know --

[THE COURT]: And the pen. Thank you."

No objection was raised by defense counsel. The court subsequently denied defendant's pre-trial motions.

At trial, Joseph Kennedy testified that he lived in a condominium in Calumet City with his wife and two children. Kennedy described the security system installed in the condominium complex which allowed residents with a key card access through a gate. Non-residents had to be admitted by a guard after a resident has indicated that the visitor should be admitted. In January 1989, Kennedy owned a 1986 Mercedes Benz.

On January 26, 1989, Kennedy pulled into the underground parking garage of his condominium building when he came home from work at approximately 4:30 p.m. Kennedy stated that he went to a church meeting at 6 p.m. and returned home at approximately 8:20 p.m. Kennedy then went down to the parking garage to check the oil and clean the car because his wife was going to drive to Rockford the following day. Kennedy testified that he was in the garage for about 45 minutes when the door connecting his building to the building next door opened and two black males walked into the parking garage. These two young men were approximately 50 feet away from Kennedy, and he observed them for about 15 to 20 seconds. Kennedy stated that he had a clear view of these two individuals because the garage was illuminated by fluorescent lights and because nothing obstructed his line of vision. According to Kennedy, these two young men were unkempt and did not appear to be residents of the building. Kennedy stated further that he had never seen these individuals before that night.

Kennedy testified that he continued to observe the two individuals as they walked toward him and got within a distance of 15 to 20 feet. As the two individuals passed by him, Kennedy was able to get a good look at them and noticed that one of the individuals was noticeably taller than the other one. Kennedy then went up to his apartment, which was on the fifth floor, got his wallet, and then returned to the parking garage. Kennedy stated that he had gone to get his wallet because he was going to fill the car up with gas. As Kennedy came back downstairs, he started walking through the lobby until he reached the door which led to the garage. Kennedy testified that when he looked through the glass pane in this door, he saw one of the two young men that he had seen earlier in the garage. As Kennedy proceeded to walk through the door, he acknowledged the shorter individual who was standing next to the door. The young man did not say anything, but grabbed the door and closed it behind Kennedy. Kennedy testified that as he approached his car, he was then confronted by the taller individual, who had put a mask on his face and was carrying a gun.

Kennedy testified that the taller individual pointed the gun at him, told him to raise his hands, and demanded all of Kennedy's money, his wallet, and his jewelry. When Kennedy said that his wallet was inside his coat pocket, the man with the gun told him to take it out, but to "be careful." Kennedy stated that after he took his wallet from his pocket and threw it on the floor, the young man picked it up. After he looked inside, the young man said, "there is no money in here. Give me all your money, man, or, * * * I'm going to shoot you." Kennedy testified that, although he said that he did not have any money and turned his pants pockets inside-out to illustrate, the taller individual cocked the gun back and told Kennedy, "I'm going to kill you, man, shoot you, if you don't give me all your money." Kennedy stated that he then told the young man with the gun that he could take Kennedy's car, and he tossed the keys to the floor. According to Kennedy, the shorter individual picked up the car keys, walked over to Kennedy's car, asked Kennedy if he had an alarm system, and then entered the car.

While the taller young man held the gun pointed at Kennedy, the shorter individual went through Kennedy's car and opened the trunk. The shorter of the two young men then told Kennedy to strip his clothes off and get into the trunk of the car. Kennedy testified that when he refused, the shorter young man said, "well, we're going to have to kill you, man, . . . because you saw our faces." Kennedy responded by saying, "no reason for you guys to do this, * * * I haven't done nothing to you, I don't even know you, * * * I don't even know you. * * * Why are you going to shoot me? I have a wife and kids." The shorter of the two young men again told Kennedy that they were going to kill him because he had seen their faces. The shorter individual then told his companion to "shoot him . . . Shoot [him], man." Kennedy testified that he again asked the young men why they wanted to shoot him. Kennedy said, "man, wait a minute, I haven't done anything. Why do you want to shoot me for." Nevertheless, the shorter young man again told his companion to shoot Kennedy. The taller individual then fired approximately three shots at Kennedy.

Kennedy testified that after the taller young man shot him, he turned and ran toward the door which led back to the building from the parking garage. Kennedy opened the door with his key and proceeded into the hallway of the building. He then lost consciousness for a time, but was lying on the hallway floor when he regained consciousness. Kennedy testified that he then managed to get up and struggle over to the elevator, get inside, and push the button for the fifth floor. Kennedy stated that when he reached the fifth floor, he collapsed on the hallway floor and began calling for his wife, but no one responded. Kennedy then saw his keys on the floor, so he grabbed them, crawled over to his unit, opened the door, and dragged himself inside, closing the door behind him. According to Kennedy, he next crawled into the bedroom and laid across his bed because he was in such pain. Kennedy then picked up the telephone, dialed 911, and told the operator he had been shot. He also gave the operator his address and condominium number. Shortly thereafter, the paramedics arrived and took him to St. Margaret's Hospital, where Kennedy remained for approximately two weeks. Kennedy testified that he was shot once in the right leg, once in the back of his left thigh, and once in the abdomen.

Kennedy stated that on January 30, 1989, he was visited at the hospital by two Calumet City policemen who showed him six photographs of different individuals. From these photographs, Kennedy identified defendant Jones and codefendant Simmons as the two individuals who robbed and shot him four days earlier. Kennedy identified defendant Jones as the young man who shot him in the parking garage.

The prosecution called Brittie Anderson who testified that he was at home on January 26, 1989, and that defendant Jones and codefendant Simmons came to his house. Defendant Jones asked Anderson whether he knew how to use credit cards and a cash station card. As he was asking these questions, Jones was looking through a wallet which had some credit cards in it. Anderson stated that he saw the credit cards which Jones was holding and that he was able to read the name "Joe Kennedy" on one of the cards. According to Anderson, Jones stated that he had just gotten the wallet by holding someone up at River Oaks. Jones said that he and Simmons had walked up on a man while he was washing a Mercedes Benz and demanded the man's wallet. Jones told Anderson that he was carrying the gun at the time they robbed Kennedy, and Jones admitted shooting Kennedy after Simmons told him to shoot. Jones said that he had asked Kennedy if he had any money, but when Kennedy replied that he only had credit cards with him, Jones shot him in the leg and then shot him again as Simmons told him to do so.

Anderson testified that when Jones and Simmons arrived at his house on January 26, 1989, Jones was carrying a .38-caliber revolver and two empty shells on his person. Anderson stated that Jones took the shells out of the gun and put them in a plastic grocery bag along with Kennedy's wallet and the credit cards. Anderson testified that Jones and Simmons then began to act out the shooting. Jones pretended to shoot Simmons in the leg and in the stomach, and Simmons limped and acted as if he had just been shot. After this, Jones and Simmons started laughing. Anderson stated that the three then talked about going to Milwaukee the following day, but Anderson decided not to go. The next day Anderson was arrested for the theft of an automobile.

Anderson acknowledged that he had a robbery charge pending against him before another Judge. Anderson stated that the prosecutor in that case told him he would recommend probation if Anderson testified in the prosecution of Jones and Simmons for the robbery and shooting of Kennedy.

Sergeant Zorzi testified that he investigated the robbery and shooting of Joseph Kennedy on January 26, 1989. Zorzi described his actions during the course of the investigation, including the apprehension of defendant Jones. Many of the details of Zorzi's investigation, including his description of Kennedy's condition, the crime scene, and Kennedy's condominium unit corroborated the testimony given by Kennedy. Zorzi testified that Jones ultimately gave two statements in which he admitted his involvement in the robbery and shooting of Joseph Kennedy. In his first statement, Jones claimed that Simmons had carried the gun and shot Kennedy. In his second statement, however, Jones admitted that he had held the ...

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