People v. Garmon

• Decision Date: 18 April 1974
• Docket Number: No. 58760,58760
• Citation: 19 Ill.App.3d 192,311 N.E.2d 299
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter GARMON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 299

311 N.E.2d 299

19 Ill.App.3d 192

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter GARMON, Defendant-Appellant.

No. 58760.

Appellate Court of Illinois, First District, Third Division.

April 18, 1974.

Rehearing Denied May 2, 1974.

Paul Bradley and Edwin R. McCullough, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Kenneth L. Gillis and Linda West Conley, Chicago, for plaintiff-appellee.

DEMPSEY, Justice.

The defendant Walter Garmon was charged with the offense of aggravated assault with a deadly weapon. Ill.Rev.Stat., 1971, ch. 38, para. 12--2(a)(1). After waiving indictment he was tried by the court, found guilty and sentenced to one year of probation with the first 30 days to be served in the House of Correction.

Garmon presents three issues for review on appeal: the complaint upon which he was tried was fatally deficient, he was not proved guilty beyond a reasonable doubt and his sentence was improper under the 1973 Unified Code of Corrections.

The complaint stated:

'Joseph Brzana complainant . . . states that Walter Garmon has, on or about 19 Feb. 1972 at 14 S. Hoyne Ave., Chicago Illinois committed the offense of Aggravated Assault in that he knowingly and unlawfully without legal justification and while used a deadly weapon a 38 Caliber S&W revolver 2 barrel, B/S6 Shot Serial #--J50016, thereby placing the Victim in fear of receiving a battery, pointed weapon at Victim and threatened him with bodily harm. . . .

/s/ Joe Brzana'

Joseph Brzana, a Chicago policeman, testified that on February 19, 1972, as he and his partner passed Hoyne Street while traveling east on Madison in an unmarked squad car, he believed he heard a shot. They made a U-turn and drove to the corner of Madison and Hoyne, where they were flagged down by Mary Louis, who told them there was a man in her apartment with a gun. He noticed not one else on the street. She directed them to an apartment in a building at 14 South Hoyne. The hallway they entered was unlighted; the only available light came from the interior of the apartment. When the two policemen knocked, Garmon opened the door and pointed a .38 caliber revolver at them from a distance of two or three feet. Brzana announced that they were Chicago policemen, but Garmon continued to point the gun in their direction, cursing them and stating that he would not surrender the gun to anyone. Fearing for his safety, Brzana ducked around a corner, as did his fellow patrolman. Eventually they managed to subdue and disarm Garmon. The gun taken from his smelled like it had been recently fired, although the barrel was not warm.

Mary Louis, the common-law wife of Walter Garmon for 16 years, testified that on February 19th about 12:25 P.M., she was returning to her home when she noticed a group of boys in front of her building. The boys ran when they saw her; however, she feared something had happened, so she stopped the police officers, told them there was a disturbance at her dwelling and that she wished to get into her apartment. She denied hearing any gunshot and also denied telling the officers that there was a man in her apartment with a gun. She stated that as they reached the apartment, which was locked, Brzana's partner said, 'Open up.' When there was no response, he kicked the door open without saying another word. Garmon was standing in the center of the room holding a gun, but she said, it was pointed to the floor. She added that after the policemen entered Garmon realized they were law officers and surrendered the gun without a struggle. She remembered that she did not have her key with her at the time, but said she told the officer who broke into the apartment, 'You don't have to kick the lock off the door.'

Garmon testified that a gang frequently met in front of the building at 14 South Hoyne where they would fire guns and throw bricks and rocks at the window and door of his basement apartment. This, he said, was going on during the early afternoon of February 19, 1972. Subsequently, he heard the words 'Open up.' He said before he had time to open the door, it was kicked in, 'and there were two cops.' They took his gun and handcuffed him, although he did not struggle and had not pointed the gun at either officer.

The defendant first charges error because the complaint failed to identify the victim of the assault. He contends that the only reference to that person is the word 'Victim,' which is not sufficiently specific to meet due process requirements of notice nor to establish a double jeopardy defense if at some future date he should face a second prosecution for the same offense. We do not perceive such dangers flowing from the from of this complaint. While a complaint must be sufficently specific to inform the offender of the accusation against him so that he will be able to prepare his defense and avoid being placed in double jeopardy (People v. DeGroot (1969), 108 Ill.App.2d 1, 247 N.E.2d 177), its specificity must be evaluated by a reading of the whole document, and there must be a showing of prejudice to the defendant from the claimed defect. See People v. Williams (1967), 37 Ill.2d 521, 229 N.E.2d 495. The first line of the complaint identified the complainant and his signature appeared twice below the text of the document. When read as a whole, the document leaves no doubt that the complainant, Joseph Brzana, was also the alleged victim. If the defendant was genuinely confused, it was open to him to employ any of the whole panoply of discovery devices now available to criminal defendants. People v. Jones (1973), 53 Ill.2d 460, 292 N.E.2d 361. But the record shows that no...