People v. Freeman

• Decision Date: 09 March 1982
• Docket Number: No. 80-1598,80-1598
• Citation: 433 N.E.2d 974,104 Ill.App.3d 980,60 Ill.Dec. 736
• Court: United States Appellate Court of Illinois
• Parties: , 60 Ill.Dec. 736 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald FREEMAN a/k/a Jerry Freeman, Defendant-Appellant.

Page 974

433 N.E.2d 974

104 Ill.App.3d 980, 60 Ill.Dec. 736

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Gerald FREEMAN a/k/a Jerry Freeman, Defendant-Appellant.

No. 80-1598.

Appellate Court of Illinois, First District, Second Division.

March 9, 1982.

Rehearing Denied April 13, 1982.

James J. Doherty, Public Defender of Cook County, Chicago (Mary T. Woodward, Asst. Public Defender, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat and Michele A. Grimaldi, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

Defendant, Gerald Freeman, was charged in a six-count information with armed robbery, burglary and four counts of aggravated battery. (Ill.Rev.Stat.1977, ch. 38, pars. 18-2, 19-1, 12-4.) Following a jury trial, defendant was found guilty of all charges and was sentenced to serve concurrent extended terms of 40 years for armed robbery, 14 years for burglary and 10 years for aggravated battery. Defendant appeals, contending that he was denied a fair trial when the trial court permitted the State to ask the complainant to identify defendant's co-defendant, Ronald Ross, who had pleaded guilty after the jury had been impaneled but before trial commenced. For the reasons which follow, we affirm defendant's convictions and the sentence imposed for armed robbery, vacate the sentences for burglary and aggravated battery and remand for resentencing in accordance with People v. Evans (1981), 87 Ill.2d 77, 57 Ill.Dec. 622, 429 N.E.2d 520.

After the jury was selected but before trial began, defendant's co-defendant, Ronald Ross, withdrew his plea of not guilty and entered a plea of guilty. This occurred outside the presence of the jury. The plea was accepted and the matter was continued for sentencing. Prior to opening statements the trial court admonished the jury:

"You will not, as I previously talked about, concern yourselves with the guilt or innocence of Mr. Ronald Ross. You will only concern yourselves with the guilt or innocence, by the standards which you heretofore have, as to Gerald Freeman, and Mr. Gerald Freeman alone." ¹

The morning after opening statements were given, defense counsel moved to dismiss the jury on the grounds of prejudice. Counsel argued that since the jury had been selected with the understanding that two defendants were to be tried they would assume, upon seeing only one in court, that the other had pleaded guilty. After argument, the court denied this motion noting that the jury had no knowledge that Ross had pleaded guilty.

The complainant, Jerry Crider, a 64 year old shoe repairman, testified that on February 14, 1979, at approximately 4 p. m., he was attacked by Ronald Ross, whom he had known for 20 to 25 years, and defendant whom he thought he had seen before but did not know personally. Crider identified defendant. Over defense objection the State was allowed to bring Ross into open court where, in the presence of the jury, Crider identified him as the second offender.

Crider testified that Ross pushed him from behind as Crider was returning to his store after buying some groceries. Crider was forced to the back of his store where he had his living quarters. Defendant threw Crider down on the kitchen floor, rifled through his pockets and took the $10 to $15 he had. Defendant then took his lit cigarette and burned Crider on his forehead, his hands, his stomach and his left foot near his ankle. Defendant kept demanding that Crider tell him where he hid the rest of his money. Each time Crider denied having any more money, defendant would burn him again with his cigarette.

Defendant removed Crider's shoes, balled up some newspaper, lit it and applied the flaming newspaper to Crider's left foot where he had already burned him with the cigarette. After the newspaper burned out, defendant relit it and held it two to three inches from Crider's right foot, continually asking him where the money was hidden. Defendant threatened to kill Crider and "burn this place down." Crider was in so much pain he told defendant, "Go ahead and kill me." Crider tried to pull his foot back but was too afraid to resist.

Ten to twelve minutes after Crider first entered the store with his assailants he passed out from the pain of being burned. When he regained consciousness, he was alone. Because of his injuries Crider, who did not have a telephone, was unable to obtain any help for five days during which time he had nothing to eat or drink except a can of fruit cocktail. All the groceries he bought on February 14 had been taken from the apartment.

Ultimately, on Monday, February 19, Crider forced himself up on his damaged feet, struggled to the door of his store and attracted a neighbor's attention. The neighbor called the police who interviewed Crider at the store and then transported him to the hospital. The officer who responded observed burns on Crider's forehead, stomach and both hands and feet. Crider told the officer that "Leftee (Ross) and the Freeman boy" "who hangs in front of the 418 (a liquor store)" had robbed him.

While he was in the hospital Crider viewed three different photographic arrays and identified both Ross and defendant. Defendant was arrested on March 23, 1979, after he unsuccessfully attempted to flee from the police on a traffic offense.

Crider was hospitalized for four weeks. He suffered first and second degree burns to his forehead, forearms and abdomen, and third degree burns to his feet. Surgical debridement (the removal of dead tissue and contaminated material) and skin grafts were necessary to treat Crider's feet which, like his abdomen, were left permanently scarred. Following his discharge from the hospital, Crider was required to spend an additional two weeks recovering in a convalescent home. Crider was left permanently disabled. At trial he testified that his right foot was still sore and that he could not walk even one block without stopping to rest his feet. The defendant did not testify and offered no witnesses.

Defendant contends that he was denied a fair trial when the trial court allowed the State to ask the complainant to identify defendant's co-defendant, Ronald Ross, who had pleaded guilty after the jury had been selected but before trial began. The People respond that the complainant's in-court identification of Ross as the second offender was neither inadmissible nor prejudicial.

In support of his contention, defendant relies principally upon People v. Rezek (1954), 4 Ill.2d 164, 122 N.E.2d 272. In Rezek defendant was indicted with three others for armed robbery but was tried separately. Three witnesses to the robbery were able to identify the others but did not recognize Rezek. The prosecutor had the others "paraded" before the jury for the witnesses to identify. A fourth witness who was able to identify Rezek, also identified the other three co-defendants. The supreme court found this identification testimony irrelevant and prejudicial:

"We can think of no relevancy of this testimony on the question of the guilt of this defendant. The identifying of the three codefendants as participants in the robbery certainly had no weight in determining whether the defendant had likewise participated therein. It was well calculated to prejudice the defendant in the eyes of the jury." Rezek at 168-169, 122 N.E.2d 272.

Contrary to defendant's representations Rezek did not decide that all in-court identifications of co-defendants not on trial are irrelevant (see People v. Keagle (1955), 7 Ill.2d 408, 415, 131 N.E.2d 74), nor did Rezek hold that such identification testimony is invariably prejudicial.

In People v. McNeil (1972), 52 Ill.2d 409, 288 N.E.2d 464, the State was allowed to bring a co-defendant, who had pleaded guilty prior to defendant's trial, into the courtroom and caused him to be identified as one of the robbers by one of the victims to the...