People v. Arsberry, 1-90-3616

Citation242 Ill.App.3d 1034,611 N.E.2d 1285
Decision Date04 March 1993
Docket NumberNo. 1-90-3616,1-90-3616
Parties, 183 Ill.Dec. 637 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lonnie ARSBERRY, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Rita A. Fry, Cook County Public Defender, Chicago (John T. Kennedy, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, Cook County State's Atty., Chicago (Renee Goldfarb, Barbara Jones, and Joseph Alesia, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice JOHNSON delivered the opinion of the court:

After a trial by jury in the circuit court of Cook County, defendant, Lonnie Arsberry, was convicted of armed robbery (Ill.Rev.Stat.1985, ch. 38, par. 18-2), and two counts of aggravated battery (Ill.Rev.Stat.1985, ch. 38, par. 12-4). He was sentenced to 60 years' imprisonment for the armed robbery conviction and to concurrent 5-year terms for each aggravated battery conviction, to be served consecutively to the armed robbery term.

On appeal, defendant contends that (1) he was not tried within 120 days of his arrest; (2) he was erroneously convicted of aggravated battery because the requisite statutory mental element was not proved; (3) the prosecutor made prejudicial and improper remarks during closing argument; and (4) the trial court abused its discretion in dismissing defendant's petition for discharge without making specific findings of fact.

We affirm.

The following facts were adduced at trial. Deborah Garr, former manager of the Payless Shoe Store at 1935 Mannheim Road in Melrose Park, testified that she was working at the store on October 10, 1989, at 2 p.m. She stated that she went to greet a customer at the front of the store when he ordered her and a co-worker, Caroline Bartlett, to go to the back of the store. The women did not move and the man pulled out a gun. He repeated his demand and they complied.

Garr heard another voice at the front of the store instructing someone to "get the manager." She immediately headed toward the front of the store while the other man continued to point the gun at her. She walked until she stood directly in front of the man who demanded the manager. She identified this man as defendant.

Defendant handed the gunman a "brownish looking" bank bag and told him to get the money. Defendant then went to the back of the store and told Caroline Bartlett to "get on the floor." The gunman directed Garr to the cash register and ordered her to open it. She opened the register and he reached in and took all the cash except the one dollar bills. The gunman then told her to open the safe behind the front counter. He emptied the safe while holding the gun to Garr's head.

The gunman then walked Garr to the back of the store, nudging her with the gun. At the back of the store she saw Bartlett and the two were ordered to lay on their stomachs. Defendant and the gunman fled the scene and Garr immediately called the Melrose Park police department. She told police that the men were driving a new, blue Chevrolet Corsica and were traveling south on Mannheim.

Later that afternoon, Garr and Bartlett went to the Melrose Park police department to view a lineup. Garr identified both defendant and the gunman. She also identified the bank bag containing the stolen cash and other items. Bartlett corroborated Garr's testimony.

Officer Frank Esposito, a patrolman with the Stone Park police department, testified that, on October 10, 1989, he received a dispatch from the Melrose Park police department. He was informed of an armed robbery at the Payless Shoe Store in Melrose Crossing. The dispatch provided a description of the offenders, a description of the vehicle in which they were traveling, and the direction in which they were going.

After receiving the dispatch, Officer Esposito exited the police station and observed a late model, blue Chevrolet Corsica traveling southbound in front of the station. He got into his squad car, followed the Corsica and stopped directly behind it at the intersection of Lake and Mannheim Roads. He observed that the car had Ohio plates and radioed the information to the station. He then turned on his headlights and trailed the vehicle. He pointed to the curb, indicating that the driver should pull over. The vehicle appeared to be pulling over and then accelerated quickly, proceeding eastbound on St. Charles Road.

Officer Esposito continued to pursue the car, activating his siren and his mars lights. At this point, he saw another occupant in the car. He said the car was traveling in excess of 60 miles per hour and he followed it for approximately 10 to 15 blocks.

The car veered onto the curb at 19th Avenue and St. Charles Road, hitting the base of a stoplight. It continued eastbound on the sidewalk about 100 feet, heading into a crowd of people. While driving past the southeast corner of that intersection, he saw one person on the ground and a woman on the hood of the car which sped away at about 60 miles per hour. He stated that the car traveled about 14 blocks at speeds of between 60 and 70 miles per hour, with the woman on the hood. It eventually hit a railroad sign and some cement pillars on 4th Avenue.

The officer observed the woman fall off the car and saw defendant and the gunman exit the car. Officer Piemonti, also of the Melrose Park police department, proceeded to chase defendant, ordering him to stop. Defendant failed to obey this direction. Maywood police officer Chris Brown finally stopped defendant and Officer Piemonti handcuffed him and brought him back to 4th Avenue. There he observed a brown bag in defendant's car. Officer Brown testified that he pursued the car, and chased and arrested the gunman.

Patrice Williams testified that on the afternoon of October 10, 1989, she and her boyfriend, Ryan Gwin, were on the southeast corner of 19th Avenue and St. Charles Road. She stated that a car struck Gwin on the left side while they were standing on the sidewalk. As she observed Gwin, she was hit and flew onto the hood of the car. Williams then saw the driver and another man leaning down in the back seat.

After she landed on the car, it accelerated and proceeded down St. Charles Road. She remained on the hood of the car with her face pressed against the windshield. She was crying and begging the driver to stop the car. She testified that defendant never said anything, continued to drive the car, and looked around her body so he could see the road.

Williams was thrown off the car at 4th Avenue and St. Charles Road. She sustained a broken left wrist, a broken left ankle, a two-inch scar on her head, and numerous abrasions.

Ryan Gwin testified to similar facts. He stated that before driving off with Williams on the hood, the car struck his leg, pinning it between the car and a building. He fell onto his back and the car sped down the street. His resulting injuries include a fractured ankle, stitches in his left elbow, and mass abrasions on his back. Presently, he walks with a limp.

After both sides completed closing arguments, the jury convicted defendant of armed robbery and two counts of aggravated battery. He was sentenced to 60 years' imprisonment for the armed robbery conviction and to concurrent 5-year terms for each aggravated battery conviction, to be served consecutively to the armed robbery term. Defendant now appeals his conviction.

Defendant initially argues that he was not brought to trial within 120 days of his arrest in violation of the Code of Criminal Procedure (Ill.Rev.Stat.1987, ch. 38, par. 103-5(a)). The statutory provision is as follows:

§ 103-5. Speedy trial. (a) Every person in custody in this State for an alleged offense shall be tried by the court having jurisdiction within 120 days from the date he was taken into custody unless delay is occasioned by the defendant, * * *."

Defendant was arrested on October 10, 1989, and his trial began on October 16, 1990. The case was originally set for trial on July 9, 1990, and defendant does not contest any days between that date and the actual trial date. Consequently, we confine our examination to the period between October 10, 1989, and July 9, 1990, in determining the delays for which defendant is held accountable.

Defendant appeared in court on October 11, 1989, the day immediately following his arrest. The case was continued until October 16, 1989. On this day, defendant expressly consented to a continuance until October 23, 1989, as his lawyer was not present. On the 23rd, defendant still did not have a lawyer and requested "8 or 9 days" to ensure the presence of counsel and the court granted him 1 week. "A delay is considered 'occasioned by the defendant' if his acts have caused or contributed to actual delay (People v. Donalson (1976), 64 Ill.2d 536 [1 Ill.Dec. 494, 356 N.E.2d 776] ), or where he has expressly agreed to a continuance on the record." (People v. Brown (1988), 170 Ill.App.3d 273, 284, 120 Ill.Dec. 712, 524 N.E.2d 742.) The record clearly illustrates that these initial two delays described above are unequivocally attributable to defendant.

On October 30, 1989, the record shows a "by agreement" continuance until November 13, 1989. On the 23rd, defendant was granted a continuance in order to secure a lawyer and by the 30th he still had no representation. The continuance until the 13th of November resulted from defendant's continued lack of counsel. Defendant's statement that he was ready to proceed with the public defender is of no import. Previously, he had given the impression that he was in the process of securing private counsel and that on October 30, 1989, counsel would be present to represent him. The proceedings on the 30th reflect the continued absence of counsel which necessitated the delay until November 13, 1989. This delay is occasioned by defendant. On the 13th, the State had a motion to supersede with indictment and requested a 3-week date...

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13 cases
  • People v. Kliner, 81314
    • United States
    • Supreme Court of Illinois
    • December 3, 1998
    ...... See People v. Arsberry, 242 Ill.App.3d 1034, 1039, 183 Ill.Dec. 637, 611 N.E.2d 1285 (1993). A defendant is bound by the acts or omissions of his counsel. See Bowman, 138 ......
  • The People Of The State Of Ill. v. Schmidt, No. 1-06-2563.
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    • United States Appellate Court of Illinois
    • June 17, 2009
    ...... . T.A.B., 181 Ill.App.3d at 585, 130 Ill.Dec. 352, 537 N.E.2d 419.         The State, on the other hand, relies on . People v. Arsberry, 242 Ill.App.3d 1034, 183 Ill.Dec. 637, 611 N.E.2d 1285 (1993). In . Arsberry, the defendant robbed a store and . then fled from the police. ......
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    • United States Appellate Court of Illinois
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    • United States Appellate Court of Illinois
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    ...... (People v. Arsberry (1993), 242 Ill.App.3d 1034, 1040, 183 Ill.Dec. 637, 641, 611 N.E.2d 1285, 1289.) An express agreement to a continuance by the parties is an ......
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