People v. Buehler
| Decision Date | 30 March 1994 |
| Docket Number | No. 1-91-2551,1-91-2551 |
| Citation | 201 Ill.Dec. 337,261 Ill.App.3d 539,636 N.E.2d 769 |
| Parties | , 201 Ill.Dec. 337 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert BUEHLER, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Public Defender of Cook County Rita A. Fry, Asst. Public Defender Janet Stewart, Chicago, of counsel, for appellant.
State's Atty. Jack O'Malley, Asst. State's Attys. Renee Goldfarb, Linda Woloshin, Michael R. Slovis, Chicago, of counsel, for appellee.
After a jury trial, defendant Robert F. Buehler was convicted of armed robbery in violation of section 18-2 of the Criminal Code of 1961 () and sentenced to serve a term of 15 years' imprisonment. It is from the judgment of conviction that defendant now appeals to this court pursuant to Supreme Court Rule 603 (134 Ill.2d R. 603).
On appeal, defendant argues that: (1) he was denied a fair trial by the admission of evidence of the religious backgrounds of two State witnesses; (2) the prosecutor improperly inquired as to whether visits were paid to defendant in jail; (3) he was denied a fair trial when the prosecutor presented rebuttal testimony concerning defendant's alleged sexual relationship with a woman; (4) the trial court erred in granting the State's motion in limine to preclude the presentation of evidence as to whether or not defendant had ever been convicted of a crime; (5) the prosecutor made improper remarks during closing argument; and (6) the trial court abused its discretion in sentencing him.
For the reasons which follow, we affirm.
On January 24, 1991, at approximately 12:30 a.m., Michael Thompson and Suresh Kumar were returning from a prayer meeting to their apartment located at the intersection of Spaulding Avenue and Bryn Mawr Avenue in Chicago. After Thompson parked his car on nearby Catalpa Avenue, the two men walked to the corner of Spaulding Avenue and Catalpa Avenue and then proceeded north on Spaulding Avenue towards their apartment.
About 50 feet ahead of Thompson and Kumar, on the same side of the street, two men exited a gangway and began walking north. One of the men, was described as an Oriental with an olive complexion and black hair, 18- to 20-years-old and about 5'6"' in height, weighing approximately 160 pounds and dressed in a black jacket, black shorts and black gym shoes. The other man, defendant, was described as an 18- to 20-year-old Caucasian with a fair complexion and light brown hair, approximately 5'9"', weighing about 160 pounds and wearing a navy blue sweatshirt with a hood and high-top gym shoes.
Defendant and the man in shorts stopped at the intersection of Spaulding Avenue and an alley just before where Spaulding Avenue and Bryn Mawr Avenue cross. The temperature that night was below freezing. As Thompson and Kumar approached where the two other men had stopped, Thompson asked, "Hey, why are you wearing shorts?" Before Thompson finished his query, both of the darkly-clad individuals turned around and defendant put a gun to Thompson's head.
Defendant pushed Thompson down onto the ground into some snow beneath a tree and demanded, "Give me your money or I will shoot you." Simultaneously, the man in shorts yelled at Kumar, "Get lost from here or else I will kill you." Kumar then walked about 40 to 50 feet away and subsequently attempted to return. The man in shorts continued to holler "Get lost from here."
Although defendant was wearing a hood, Thompson obtained a good view of defendant's face as it was not covered by the hood and the area was lit. Once he had Thompson on the ground, defendant, while straddling him, began to search Thompson's pockets. While having no money in his wallet, Thompson did have a school book bag and a pocket full of quarters that he had earned as tips. Throughout the exchange defendant had his gun pointed at Thompson's head and repeatedly yelled from about 3 to 4 inches away from Thompson's face, Defendant's breath reeked of alcohol. Defendant took everything that Thompson had in his pockets but left him with his school bag.
Defendant then got up and walked away from Thompson for several feet and then walked back. At this point, defendant ripped Thompson's book bag from his shoulder and headed east down the alley. The man in shorts fled north on Spaulding Avenue. Thompson and Kumar then called the Chicago police.
Officer Christie Roberts responded to the call. Roberts took a description of the assailants and investigated the crime scene. Whereupon, she found Thompson's bag in the alley and returned it.
On January 24, 1991, at approximately 3 p.m., Thompson was walking on Bryn Mawr Avenue after leaving Northeastern Illinois University. On the way to his apartment, Thompson noticed about one-half block away a man who resembled defendant walking with a young woman. Subsequently, Thompson watched, from his apartment window, this couple exit from a liquor store that was located across from his apartment. Thompson got into his car and unsuccessfully searched for the hooded man in high-top gym shoes.
On January 26, 1991, at around 10 p.m., while Thompson was in his apartment he began to hear loud screaming and yelling coming from the street below. Thompson then went downstairs to investigate. Once downstairs, Thompson could see defendant on the other side of the street yelling and tossing a garbage can over a fence. Among the spectators to this event was the young woman with whom defendant had entered the liquor store on January 24th. Subsequently, the Chicago police arrived and placed defendant and some other individuals against a garage. Thompson told the police officers that defendant was the man who had robbed him. Defendant was arrested.
On January 27, 1991, at 12:20 a.m., the Chicago police asked Kumar to come view at line-up at the police station. At the line-up, Kumar positively identified defendant.
At trial, George Sandoval (George) and Bardo Sandoval (Bardo), as defense witnesses, testified that they were with defendant at the Sugar Bowl Lounge the evening of January 23, 1991. George recounted that he and Bardo arrived at the bar at around 6:20 p.m. After drinking a six pack of beer, George left the bar at 9 p.m. to give his mother a ride and then returned at about 9:30 p.m. or 9:40 p.m. Subsequent to his return, George stayed outside until the bar closed at around 1:45 a.m. George further stated that he saw defendant inside the bar having a beer and leave the bar around closing time.
Bardo testified he and his brother arrived at the bar at around 6 or 6:30 p.m. Bardo recounted that defendant arrived at the bar at approximately 8 p.m. and played pool there until about 2 a.m. Neither George or Bardo made any attempt to notify anyone of defendant's alibi once informed of defendant's arrest.
Defendant testified that he was never near the crime scene January 23, 1991. Defendant stated that he spent the night at the Sugar Bowl Lounge, leaving once for 15 minutes to get food. Defendant recounted that on January 26, 1991, he went to a birthday party for his uncle's friend and that was the first time that he was in the area. Defendant stated on direct examination that just prior to his arrest that he was outside breaking up a fight between a woman and his girlfriend. However, Officer Richard Brueck, the arresting officer, testified that on the day of the arrest defendant stated that he had been drinking and had a fight with his girlfriend.
After hearing the trial evidence, the jury found defendant guilty of armed robbery. This appeal followed.
Defendant's first contention is that he was denied a fair trial by the admission of evidence regarding the religious background of Thompson and Kumar. The State initially maintains that defendant has waived this issue on appeal. We agree. Absent plain error, "[p]reservation of an issue on appeal mandates both the objection at trial and the inclusion of the issue in the post trial motion." (People v. Arsberry (1993), 242 Ill.App.3d 1034, 1041, 183 Ill.Dec. 637, 611 N.E.2d 1285 citing People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 522 N.E.2d 1124; see also People v. Medeiros (1993), 249 Ill.App.3d 139, 188 Ill.Dec. 495, 618 N.E.2d 1065.) As we perceive no plain error and defendant failed to make objections at trial or to include the matter in his post-trial motion, argument with respect to this issue is deemed waived.
We turn now to defendant's contention that he was denied a fair trial because the prosecutor improperly inquired as to whether visits were paid to defendant in jail. We find that this contention is also not cognizable on appeal. While defendant objected at trial to the State's asking if a defense witness had visited defendant in jail prior to trial, he failed to include such objection in his post-trial motion. Consequently, the issue is deemed waived. Enoch, 122 Ill.2d at 186, 119 Ill.Dec. 265, 522 N.E.2d 1124.
Next, defendant submits that he was denied a fair trial when the prosecutor presented rebuttal testimony concerning defendant's alleged sexual relationship with Jean Breidell, the woman in whose company defendant was seen by Thompson. The State maintains that this information was adduced by the prosecutor in...
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...admit rebuttal testimony will not be reversed absent an abuse of discretion by the trial court. (People v. Buehler (1994), 261 Ill.App.3d 539, 543, 201 Ill.Dec. 337, 340, 636 N.E.2d 769, 772.) An abuse of discretion occurs where the rebuttal testimony contradicts testimony on a collateral i......