People v. Elder, 77-1820

CourtUnited States Appellate Court of Illinois
Writing for the CourtROMITI; JIGANTI, P. J., and LINN
Citation391 N.E.2d 403,29 Ill.Dec. 140,73 Ill.App.3d 192
Parties, 29 Ill.Dec. 140 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Moses ELDER, Defendant-Appellant.
Docket NumberNo. 77-1820,77-1820
Decision Date31 May 1979

Page 403

391 N.E.2d 403
73 Ill.App.3d 192, 29 Ill.Dec. 140
The PEOPLE of the State of Illinois, Plaintiff-Appellee,
Moses ELDER, Defendant-Appellant.
No. 77-1820.
Appellate Court of Illinois, First District, Fourth Division.
May 31, 1979.

[73 Ill.App.3d 194]

Page 405

[29 Ill.Dec. 142] Lamont Cranston Strong, Chicago (P. Scott Neville, Jr., Chicago, of counsel), for defendant-appellant.

Bernard Carey, State's Atty. of Cook County (Lee T. Hettinger, J. Jonathan Regunberg, Ira H. Raphaelson, Asst. State's Attys., of counsel), for plaintiff-appellee.

ROMITI, Justice:

The defendant, Moses Elder, was convicted after a jury trial, of armed robbery and sentenced to a minimum of four years and a maximum of six years' imprisonment. He has appealed contending that (1) the court erred in denying his motion for a continuance and (2) he was denied a fair trial due to the incompetency of counsel.

We find no error and affirm.

At trial the only occurrence witness was the complaining witness Walter Clark. He testified that he had known Elder for about a year and a half prior to the robbery, although he did not, at that time, know his last name. At about 6:00 p. m. on July 31, 1976 he was at Cicero and Adams talking to some friends. Elder came by in his car and suggested Clark join him. Elder said he was looking for a friend who owed him some money. They drove to 5803 West Madison, parked and went into a tavern. His friend was not there. They were in the tavern less than five minutes and did not have a drink. When they returned to the car, it would not start so they took a bus back to Clark's car. They then drove in Clark's car to 1133 LeClaire because Elder wanted to get some money from his sister-in-law for a starter. Elder got out of the car and went upstairs for about thirty or forty minutes. Clark sat there, waiting for him and blew the horn a couple of times. He did not fall asleep. Elder came out and told Clark his sister had a $20 bill. Elder asked Clark to give him enough money to give her so he could get the bill. Clark gave him four or five dollars. Elder went back upstairs and was gone for about fifteen to twenty minutes. He returned with another person; [73 Ill.App.3d 195] Clark never looked at that person and would not recognize him if he saw him. That person stood next to the driver's side of the car. Elder walked along the front of the car to the passenger side, leaned in the passenger side, pressed a short handled butcher knife to Clark's side and told Clark to empty his pockets. He also told Clark the other man had a gun. Clark gave Elder his (Clark's) wallet which had about $35 or $40 in it. Both men ran and Clark left.

Page 406

[29 Ill.Dec. 143] Clark did not report the occurrence that night but waited until the next day when he obtained Elder's last name from Elder's roommate. The robbery was finally reported at 2:00 p. m. August 1.

Several police officers also testified as to the details of Clark's complaint, the investigation and the arrest. The testimony revealed several discrepancies between Clark's testimony at trial and statements he made to the police, including the time of the robbery, the amount of money taken, why they went to the LeClaire address, and whether he told the police the other man had a gun. (Clark said he had, the officer in question denied it.) Furthermore, it appears that although he sat in front of the LeClaire address for an hour he was vague as to the building. Also, while Clark denied he had been drinking on either July 31 or August 1, the police officer who took the report testified Clark had been drinking and his eyes were bloodshot.

There was one other witness for the prosecution, a Joseph DeRose, who simply testified that Clark obtained a replacement union card on August 3.

The defense called only one witness: Marc Miller, an assistant public defender. He had been present at an interview with Clark in the State's Attorney's office. Clark's statement in that interview varied in several respects from that at trial, including the length of time he had known the defendant, whether they were drinking buddies, and the reason they went to 1133 North LeClaire.

In his final argument the defense counsel emphasized these discrepancies plus the implausibility of Clark's story. Nevertheless, the jury found Elder guilty.


The defendant's first contention is that the court abused its discretion when it denied the defendant's motion for a continuance on the day of trial.

On August 10, 1977 the case was called for trial. Before the jury selection commenced the defendant asked for a continuance on three grounds:

1. he had come to court from work and had he known a jury was going to be selected he would have dressed up;

[73 Ill.App.3d 196] 2. he might want to call Dorothy Harris Elder as a witness, although she probably would not testify;

3. he is employed.

The judge, noting that this was the seventh time the case had been set for trial, denied the motion.

As we stated in People v. Williams (1976), 39 Ill.App.3d 449, 350 N.E.2d 135, Cert. denied, Williams v. Illinois, 429 U.S. 1107, 97 S.Ct. 1141, 51 L.Ed.2d 560 and People v. Jefferson (1976), 35 Ill.App.3d 424, 342 N.E.2d 185, the granting of a continuance to allow preparation of a case is largely within the sound judicial discretion of the trial judge and his ruling will not be disturbed without showing an abuse of discretion. And where a motion for the continuance assigns no proper ground, the denial of the motion is not error. (People v. Wilson (1963), 29 Ill.2d 82, 193 N.E.2d 449, Cert. denied, 377 U.S. 955, 84 S.Ct. 1634, 12 L.Ed.2d 499, Rehearing denied, 379 U.S. 873, 85 S.Ct. 22, 13 L.Ed.2d 81.) None of the three reasons set forth in the record are proper grounds for a continuance. The first reason was that the defendant needed to change his clothes. The defendant, however, was aware that the case was set for trial on the day in question and could have worn other clothes if he so desired. He chose, instead, to appear in work clothes. Moreover, we cannot agree that his wearing work clothes was somehow prejudicial to his defense. To the contrary, it would more likely be to his benefit in that the clothing might well convey the image of a hard working citizen of the community. The second reason was that he might want to call Dorothy Elder as a witness. But there was no suggestion that she was unavailable as a witness or that a continuance was needed so that she could be obtained. Nor was there any suggestion that counsel had diligently tried to secure her presence. (See People v. Edwards (1973), 55 Ill.2d 25, 302 N.E.2d 306, Cert. denied, 415 U.S. 928,

Page 407

[29 Ill.Dec. 144] 94 S.Ct. 1438, 39 L.Ed.2d 486.) Dorothy's name was added to the list of witnesses so that she could have been called to testify if counsel had so chosen. The third reason given, that the defendant was employed, is patently without merit.

The defendant, however, contends that what counsel meant to give as the third reason was that since defendant was now employed he no longer wanted the attorney appointed by the court but wanted to retain counsel of his own choosing. The trouble with this contention is that it is not in the record and on a direct appeal we are limited to what appears in the record. People v. Greenlee (1976), 44 Ill.App.3d 536, 3 Ill.Dec. 251, 358 N.E.2d 649.

But even if we assume that the defendant did move for a continuance in order to employ a different attorney, one chosen by him, we find no error. It is true that the right to counsel is a fundamental constitutional right, but like all constitutional rights it is not without limits. (People [73 Ill.App.3d 197] v. Johnson (1978), 66 Ill.App.3d 84, 22 Ill.Dec. 840, 383 N.E.2d 648; People v. Koss (1977), 52 Ill.App.3d 605, 10 Ill.Dec. 431, 367 N.E.2d 1040; People v. Williams (1976), 39 Ill.App.3d 449, 350 N.E.2d 135, Cert. denied, Williams v. Illinois, 429 U.S. 1107, 97 S.Ct. 1141, 51 L.Ed.2d 560.) This right may not be employed to thwart the administration of justice or to delay prosecution indefinitely. (People v. Solomon (1962), 24 Ill.2d 586, 182 N.E.2d 736, Cert. denied, 371 U.S. 853, 83 S.Ct. 94, 9 L.Ed.2d 87.) It must be balanced against other concerns such as the fair and prompt administration of justice. As the Third Circuit Court of Appeals stated in United States ex rel. Carey v. Rundle (3d Cir. 1969), 409 F.2d 1210, 1214-15, Cert. denied, 397 U.S. 946, 90 S.Ct. 964, 25 L.Ed.2d 127, quoted in People v. Spurlark (1978), 67 Ill.App.3d 186, 197, 198, 23 Ill.Dec. 860, 868, 384 N.E.2d 767, 775:

"Desirable as it is that a defendant obtain private counsel of his own choice, that goal must be weighed and balanced against an equally desirable public need for the efficient and effective administration of criminal justice. The calender (sic) control of modern criminal court dockets, especially in metropolitan communities, is a sophisticated operation constantly buffeted by conflicting forces. * * * That delays and postponements only increase the reluctance of witnesses to appear in court, especially in criminal matters, is a phenomenon which scarcely needs elucidation.

Moreover, it is not only the prosecution which may suffer from unscheduled changes in the calendar. To permit a continuance to accommodate one defendant may in itself prejudice the rights of another defendant whose trial is delayed because of the continuance. * * *

This is not to say that there should be an arbitrary and inelastic calendaring of cases without due regard, for example, to the existence of conflicting demands for the service of a particular counsel by different courts or by the schedules within a multi-judge court. In judicial administration, too, there should be no absolutes. It is the trial judge who must balance the conflicting demands of court administration with the rights of the accused, conscious, however, that when he considers the rights of those accused of crime, he must...

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