People v. Conley, 82-1465

• Decision Date: 23 September 1983
• Docket Number: No. 82-1465,82-1465
• Citation: People v. Conley, 118 Ill.App.3d 122, 454 N.E.2d 1107, 73 Ill.Dec. 858 (Ill. App. 1983)
• Parties: , 73 Ill.Dec. 858 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jackie CONLEY, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1107

454 N.E.2d 1107

118 Ill.App.3d 122, 73 Ill.Dec. 858

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jackie CONLEY, Defendant-Appellant.

No. 82-1465.

Appellate Court of Illinois First District, Fifth Division.

Sept. 23, 1983.

Barry Stewart Silver, Chicago, for defendant-appellant; L. Wolfe Finkle, Chicago, of counsel.

Richard M. Daley, Chicago, for plaintiff-appellee; Michael E. Shabat, I. Marie Quinlivan and Edward Barron, Chicago, of counsel.

SULLIVAN, Justice:

After a bench trial, defendant was convicted and sentenced to 8 years for armed robbery and 5 years for aggravated battery. ¹ He contends on appeal that (1) he was denied effective assistance of counsel; (2) the identification testimony of the complaining witness should have been suppressed; (3) his oral and written statements were involuntarily made and should have been suppressed; (4) he was not proved guilty beyond a reasonable doubt; and (5) the trial court abused its discretion in imposing a sentence of 8 years for armed robbery.

At trial, Arlene Hrubecky testified that she was walking near Brompton and Halsted at approximately 1:30 p.m. on July 31, 1981, when a man standing near the sidewalk spoke to her. She could not distinguish what he said, and as she began to turn toward him a second man approached her from the front, took out a gun, and pointed it at her head. She heard the gun click, then the man grabbed her purse and struck her twice about the head and face with the gun. The two men ran toward a car parked on Brompton, and as they approached it the motor was started and both doors were opened. They entered the car, and as it sped away she noted that it was yellow and bore license plate number IY 7744. Immediately after the incident, she telephoned the police and gave a description of the car. She further testified that she viewed a lineup later that afternoon and identified codefendant Andrew Kahill as the man with the gun. Defendant was in the lineup, but she could not positively identify him as the second man involved because she had seen his face for only a few seconds, although she told officers that he looked like the man who spoke to her. Subsequently, Detective Graffeo took her to a room where defendant was sitting alone, and when she entered defendant approached her and apologized for what happened, stating that he was sorry he said "This is a stickup." She admitted that she was not positive defendant was the man who spoke to her at the scene until he made this statement.

Officer Granias testified that he was on patrol at 1:30 p.m. on July 31, 1981, when an unidentified person reported hearing a woman screaming in the vicinity of the 700 block of Brompton. As he proceeded to that location, he saw a cream or yellow car with four black male occupants, and noted the license number, IY 7744. At the scene, he spoke to an unidentified woman who described the car involved in the occurrence, including the license plate number. He put out a radio call on the incident and learned that the radio dispatcher had already received the license number from the victim's phone call, and that it was registered to Bobby Spicer. Twenty to thirty minutes later, he saw the car in question proceeding southbound on Lake Shore Drive, began pursuit, and forced it to the curb. As defendant, Kahill, and Spicer emerged from the vehicle, Kahill said "Don't shoot, the gun is in the trunk." Subsequently, a gun was recovered from the trunk. After being read his rights, Kahill further stated, "I walked up to her. I had the gun."

Detective Graffeo testified that after initially denying their involvement in the incident, Kahill and defendant agreed to give statements. After being read his rights, Kahill stated orally that he, defendant, Spicer, and Gregory Connerly were driving around when they saw a woman walking down the street. He (Kahill) got out of the car, approached her with a gun, took her purse, and returned to the car. Later, they stopped again, placed the gun in the trunk, and changed drivers. They went through the purse, removed some of its contents, then discarded the purse and the remaining contents as they drove. Graffeo further testified that defendant agreed to give a written statement. He had been advised of his rights and was not physically abused or threatened in any way. After the statement was typed, defendant read it, made a correction which he initialed, and signed each page.

Defendant's 2-page written statement was admitted into evidence. He acknowledged therein that he understood his rights and waived them, then stated in pertinent part:

"CONLEY: I got out of the car and seen this lady walking down the street, as I was walking past her, I said 'This is a Stick-Up.' She just smiled and kept walking. And I kept walking. Then I seen the lady struggling with another person over her bag. I heard her scream, she screamed again, I heard the car pullin' off and I ran towards the car and I got in the car.

* * *

* * *

GRAFFEO: Why did you say, --- 'stick-up'?

CONLEY: 'Cause I guess that's what I was fixin' to do, but I didn't do it.

GRAFFEO: Did you know the person with whom the lady was struggling over her bag?

CONLEY: Yeah.

* * *

* * *

GRAFFEO: Has anyone made any threats, promises or used force on you to give this statement?

CONLEY: No."

Gregory Connerly testified for the defense that he met his friends Kahill, Spicer, and defendant at 49th and State on July 31, 1981, at approximately 11:30 a.m. They drove to Chicago Fest, but it was crowded there, so they went to the beach at Belmont for awhile, then started driving back to Chicago Fest. When they stopped for a red light, a police car pulled in front of them and the officers got out with guns drawn and ordered them out of their car. They were told they were stopped in connection with a robbery of a clothing store, and it was not until they reached the police station that officers informed them of the robbery in question. Connerly did not recall hearing anyone say "Don't shoot, the gun is in the trunk," nor did he remember telling officers that Kahill and defendant got out of the car and robbed a woman; that Spicer was driving at that time, and he (Connerly) was sitting in the back seat; and that someone went through the victim's purse, then discarded the contents as they drove. At the police station, he was placed in an interrogation room next to the defendant and could hear conversation and activity in the adjoining room. He heard defendant say several times, "I haven't done anything," and also heard loud noises like a chair falling to the ground.

In his testimony, Kahill essentially corroborated Connerly's description of their activities on the date in question, although he could not describe the beach where the four men purportedly spent two hours, explaining that he never left the parking lot. He denied making any of the oral statements ascribed to him, maintaining that he was not involved in the crimes charged.

Defendant testified that he was at the beach with Kahill, Spicer, and Connerly at the time the crimes occurred. After his arrest he denied involvement, but officers repeatedly beat him, poked him with a black bar, pulled his chair out from under him, told him Kahill had confessed, and promised that he could go home if he signed some papers. He acknowledged that the signature on the second page of the statement was his, as well as the initials written next to a correction, but maintained that he did not read the statement and was not told what it said, but signed it because of the physical abuse and promises. He denied signing the first page of the statement containing an acknowledgment that he understood his Miranda rights and voluntarily waived them. Despite allegedly being poked, slapped, and kicked by officers, he had no bruises, did not seek medical treatment, and filed no complaints concerning his treatment. He admitted making the oral statement described by the victim, but asserted that he did so only after the police threatened to continue the beatings used to obtain his confession if he did not apologize.

It was stipulated that, if called, Officer Frank would testify that he spoke to the victim at the scene and was told that four black males were involved, driving a yellow car with license plate number IW 7744, registered to Bobby Spicer, and that the victim did not further describe her assailants. It was further stipulated that Officer Granias and Detective Graffeo would testify that when interviewed shortly after the incident and after being informed of his rights, Connerly stated that he was in the car with Kahill, defendant, and Spicer on the date in question; that Spicer was driving at that time, and he (Connerly) was in the back seat; that Kahill and defendant got out of the car and robbed a woman, then ran back to the car; and that, as they drove along Lake Shore Drive, someone went through the purse, then discarded it.

OPINION

Defendant first contends that he was denied effective assistance of counsel. He supports his position by alleging that his trial counsel (a) waived both opening and closing statements and failed to present oral argument on his post-trial motions; (b) failed to move for a severance; (c) jointly represented defendant and Kahill despite the existence of antagonistic defenses; and (d) failed to make pretrial motions to suppress the victim's identification testimony and defendant's inculpatory statements.

An accused has the right to effective assistance of counsel in State criminal proceedings pursuant to the sixth and fourteenth amendments of the United States Constitution (U.S. Const., amends. VI, XIV; People v. Knippenberg (1977), 66 Ill.2d 276, 6 Ill.Dec. 46, 362 N.E.2d 681); however, these provisions have been interpreted to mean competent, not perfect, representation (People v. Berland (1978), 74 Ill.2d 286, 24 Ill.Dec. 508, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 100 S.Ct. 63, 62...