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12/28/95 PEOPLE STATE ILLINOIS v. RONALD NEMECEK

December 28, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
RONALD NEMECEK, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable James V. Murphy, Judge Presiding.

The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and S.m. O'brien, J., concur.

The opinion of the court was delivered by: Cahill

The Honorable Justice CAHILL delivered the opinion of the court:

A jury found defendant guilty of armed violence and possession of a controlled substance. He was sentenced to fifteen years for armed violence and two years concurrently for possession of a controlled substance. We affirm.

Kevin Manion testified at trial that he was drinking at Fagan's tavern in Berwyn, Illinois, at 10 a.m. on October 28, 1991. He said that there were about eight people in the tavern, including defendant, Ronald Nemecek. He said Nemecek argued with a man named Kavanaugh about money missing from the surface of the bar. Nemecek left the tavern, but soon returned with a gun he waved at Kavanaugh. A patron phoned the police. Nemecek left the tavern and entered a car driven by Phyllis Domas (Phyllis Domas married Ronald Nemecek before trial and testified as Phyllis Nemecek).

Berwyn police officer Gregory Catena testified that he responded to an emergency call on the morning of October 28 with his partner Officer Bojovic. The emergency call described a man with a gun who had just left Fagan's tavern in a car. The call described the car and gave its license number. Meanwhile, Berwyn police officer Gennett and his partner, in a separate squad car, saw the car and stopped it. Catena and Bojovic arrived and approached the car. Phyllis and Nemecek exited the car. Bojovic searched the vehicle and found a gun under the passenger seat where Nemecek had been sitting. Catena arrested Nemecek.

Before Officer Catena searched Nemecek he asked him if he had anything in his pockets. Nemecek said he had a "rig" in his left pants pocket. "Rig" is a street term for a hypodermic needle and syringe. Catena recovered two needles, a syringe, and a spoon coated with residue. Nemecek was charged with and indicted for armed violence, unlawful use of a weapon, and possession of a controlled substance.

In addition to the testimony of Manion and the police officers, the State offered evidence at trial that the residue on the spoon recovered from Nemecek tested positive for cocaine and heroin.

Phyllis Nemecek testified for the defense. She said that she found the gun in a desk drawer while cleaning her home. She did not know what to do with the gun so she placed it under the passenger seat of her car. She identified the gun at trial as the one found under the seat of her car, but said Nemecek did not know the gun was there. The State on cross-examination asked Phyllis if she told the police the gun was hers when Nemecek was arrested. She said she did not.

Jennifer Johnson, Phyllis' daughter, testified that she was cleaning the family basement of her mother's home when Phyllis found the gun in a desk drawer. She said that after her mother found the gun she never saw the gun again until she saw it in court the day she testified. On cross-examination Johnson said that she remembered the day her mother found the gun and was certain that the gun in court was the gun her mother found.

John Sakala, a friend of Nemecek, testified that he was at Fagan's tavern on the morning of the arrest. Sakala said that he was drinking with Nemecek and that he never saw him argue or wave a gun. Sakala said that he left the bar shortly after Nemecek.

Terrence Broussard testified he was at Fagan's on the morning of the arrest. He saw Nemecek at the bar, but never saw him argue or wave a gun. He said that Phyllis entered the tavern and Nemecek left with her. Broussard admitted during cross-examination that he remembered hearing about a gun.

Defendant raises numerous issues in his brief, posing alternative theories as he goes along, and raising arguments for the inefficiency of counsel throughout. The arguments are difficult to follow.

We have chosen to track the issues as presented in the State's brief, where an effort has been made to word the issues clearly and without argument. Defendant argues: (1) the indictment was improperly amended shortly before trial; (2) he was prejudiced by the denial of a continuance; (3) the evidence was insufficient to prove defendant guilty of armed violence and possession of a controlled substance; (4) the sentence was an abuse of discretion; (5) the jury was improperly instructed; (6) the prosecution made improper remarks in closing argument; (7) the prosecution conducted improper cross examination; (8) a ruling that the State could use defendant's prior ...


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