People v. Ammons, No. 81-2871

• Court: United States Appellate Court of Illinois
• Writing for the Court: DOWNING
• Citation: 458 N.E.2d 1031,76 Ill.Dec. 377,120 Ill.App.3d 855
• Docket Number: No. 81-2871
• Decision Date: 27 December 1983
• Parties: , 76 Ill.Dec. 377 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles AMMONS and Audrey Malone, Defendants-Appellants.

Page 1031

458 N.E.2d 1031 120 Ill.App.3d 855, 76 Ill.Dec. 377 PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Charles AMMONS and Audrey Malone, Defendants-Appellants. No. 81-2871. Appellate Court of Illinois,
First District, Second Division. Dec. 27, 1983.
Rehearing Denied Jan. 24, 1984.

[120 Ill.App.3d 856]

Page 1033

[76 Ill.Dec. 379] Richard M. Daley, State's Atty. of Cook County, Chicago, Michael E. Shabat, Kevin Sweeney and Peter M. Delongis, Asst. State's Attys., Chicago, for plaintiff-appellee.

Steven Clark, Deputy State Appellate Defender, Bruce Mosbacher, Asst. State Appellate Defender, Chicago, for defendants-appellants.

DOWNING, Presiding Justice:

After a joint jury trial, defendants, Charles Ammons and Audrey Malone, were each found guilty of one count of armed robbery (Ill.Rev.Stat.1979, ch. 38, par. 18-2), two counts of aggravated battery (Ill.Rev.Stat.1979, ch. 38, pars. 12-4(a), (b)(1)), two counts of home invasion (Ill.Rev.Stat.1979, ch. 38, par. 12-11(a)(2)), and one count of [120 Ill.App.3d 857] attempt (murder) (Ill.Rev.Stat.1979, ch. 38, par. 8-4). Defendants appeal raising the following issues: I. whether the trial court erred in allowing the State's motion in limine; II. whether defendants were denied a fair trial because of improper prosecutorial comments; III. whether defendants' sentences for certain offenses should be vacated and a new sentencing hearing ordered because the improper convictions influenced the sentencing on the remaining convictions; and IV. whether defendants' mittimuses should be corrected to properly reflect their sentences.

The charges against defendants stem from an incident which occurred on August 2, 1980 at the home of Gwendolyn Vaughn. According to the State's evidence, defendants entered Vaughn's apartment at approximately 7 p.m. and each drew a sawed-off shotgun. Present in the apartment were Vaughn, her four children and a teen-aged girl, Michele Dixon. Malone snatched Vaughn's baby from her arms and held the gun to the baby's head, saying she would blow his brains out. Ammons asked for money and when Vaughn replied that it was upstairs, he held the shotgun at Vaughn's head and forced her, the children and Dixon up the stairs.

Once in her bedroom, Ammons hit Vaughn in the head with the gun. Vaughn gave Ammons $15 in currency and $140 in food stamps which she kept under her mattress. Ammons kept asking for more money

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[76 Ill.Dec. 380] and beating Vaughn in her head, chest and arms with the gun. Malone repeatedly came in and out of the room, telling Ammons to kill the victims. After Vaughn told Ammons that she didn't have any more money, he shot her in her upper right thigh.

Ten days after the shooting, while in the hospital, two police officers showed Vaughn a group of photos from which she identified both defendants. At trial, Vaughn also made an in-court identification of both.

Michele Dixon testified that Ammons struck her in the head with the sawed-off shotgun he was holding while they were in the living room. A gun was pointed at her back while she was forced upstairs and then pushed to the floor by Ammons. Ammons was wearing a red sun visor, clear-lens glasses, a long white butcher jacket and had a moustache, beard and nappy black hair which came below his ears and looked like a wig. Malone was wearing a red scarf.

On August 12, Dixon was shown photos at her house by the police and, although she was shown a photo of Ammons, she was unable to identify him. At two lineups held the next day, she identified both defendants, as she also did in court.

The mother of Michele Dixon, Effie McCollum, who lived in [120 Ill.App.3d 858] Vaughn's building, saw defendants on the day in question standing under her neighbor's porch. After they started up the stairs to Vaughn's apartment, McCollum spoke to them and they proceeded to walk down the street. Later, on the evening of August 2, 1980, she looked through police photos but was unable to identify any of the persons. She never viewed any lineups, but did identify both defendants at trial.

Among the defense witnesses was another of Vaughn's neighbors, Karen Brazille, whom the State had attempted to call as its witness. At an in-court lineup which the trial court held in order to test her ability to identify Malone, Brazille mistakenly took Malone's sister for Malone.

The jury returned a guilty verdict for both defendants on all of the following counts:

Count 1--armed robbery of Vaughn

Count 6--aggravated battery of Dixon

Count 11--aggravated battery of Vaughn

Count 13--home invasion, intentionally injuring Vaughn

Count 14--home invasion, intentionally injuring Dixon

Count 15--attempt murder of Vaughn

Because of certain discrepancies, the particulars of the oral sentencing orders and the subsequent mittimuses which were issued will be discussed below.

I.

Defendants' first trial for these offenses resulted in a hung jury. At the first trial, defendants' main theory of defense was that someone else, either Benny Browder or Larry Campbell, ¹ committed the offenses. In essence, defendants argued that Campbell, who was once Vaughn's common-law husband, had Browder commit the offense as revenge against Vaughn for having another man's child while he was in the penitentiary. Campbell and Browder became acquainted while incarcerated together.

Before the second trial, the State presented a motion in limine requesting that defense counsel be prohibited from mentioning the convictions and incarceration of Larry Campbell, that the case had been tried before, or anything regarding the shotguns recovered by the police at Browder's apartment when they were questioning him about the crimes. The trial court granted the motion, subject to reconsideration if counsel had testimony to adduce at trial.

[120 Ill.App.3d 859] Defendants claim that the granting of this motion in limine, as well as instances where the trial court sustained

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[76 Ill.Dec. 381] the State's objections to the defense's efforts to present important evidence, denied them the right to present their case. A motion in limine may not be used to deny a defendant the fundamental right to defend himself. (People v. Brumfield (5th Dist.1979), 72 Ill.App.3d 107, 113, 28 Ill.Dec. 422, 390 N.E.2d 589.) It is within the discretion of the trial court to determine whether the rules of evidence require exclusion of evidence, and the court's decision will not be reversed unless there was an abuse of discretion. People v. Williams (4th Dist.1978), 60 Ill.App.3d 529, 532-33, 18 Ill.Dec. 214, 377 N.E.2d 367, appeal denied, 71 Ill.2d 614.

We have examined the pertinent sections of the record cited by defendant and conclude that the trial court did not abuse its discretion. The trial court did not rule, contrary to defendants' contention, that they were prohibited from pursuing the relationship between Campbell and Browder; it ruled only that defense counsel was barred from...