People v. Gauwitz

• Decision Date: 22 January 1980
• Docket Number: No. 15587,15587
• Citation: 400 N.E.2d 92,80 Ill.App.3d 362,35 Ill.Dec. 955
• Parties: , 35 Ill.Dec. 955 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel J. GAUWITZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 92

400 N.E.2d 92

80 Ill.App.3d 362, 35 Ill.Dec. 955

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Daniel J. GAUWITZ, Defendant-Appellant.

No. 15587.

Appellate Court of Illinois, Fourth District.

Jan. 22, 1980.

Vonachen, Cation, Lawless, Trager & Slevin, John A. Slevin, John R. Pusey, Gregg N. Grimsley, Peoria, for defendant-appellant.

Richard M. Baner, State's Atty., Eureka, Marc D. Towler, Deputy Director, State's Attys. Appellate Service Commission, Karen L. Boyaris, Staff Atty., Springfield, for plaintiff-appellee.

WEBBER, Justice:

Following a jury trial in the circuit court of Woodford County, defendant was convicted of the offense of robbery in violation of section 18-1 of the Criminal Code of 1961 (Ill.Rev.Stat.1977, ch. 38, par. 18-1). He was sentenced to nine years' imprisonment. This appeal ensued.

Three principal issues are raised on appeal: (1) reasonable doubt; (2) improper instructions to the jury; and (3) lack of confrontation between the victim and the defendant. We affirm.

The record reveals another dismal episode in mankind's eternal quest for the perfect crime, a product of fiction, whose chief characteristics are the belief of the perpetrator that he will never be apprehended and the further belief in the inability of the authorities to convict the perpetrator, if apprehended. Generations of human experience have shown both characteristics to be a gossamer illusion, but this appears to have no discouraging effect upon those who insist upon ignoring history.

In broad outline, the scheme concocted hereby by the defendant was to obtain money from a gasoline station in Metamora by telephoning threats to that station. In pursuit of that scheme, defendant recruited one Andrew Sharp, who was also indicted for the offense, but received leniency in return for his testimony. Defendant's scheme required three persons so one Larry Schertz, who was also indicted, was recruited as the third man. Schertz did not testify in this case.

Testimony at trial disclosed the following: the female station attendant received a telephone call in the station at about 11:15 p. m. on July 2, 1978. A male voice told her that a man across the street was holding a gun with a scope on it aimed at her and that unless she followed directions, she would be shot. The directions were to take the station's money, place it in a bag and put the bag at the back of the station at the door to the men's room; then to wait before calling anyone. During the telephone call, a customer came into the station and the attendant whispered to him that she was being robbed and to call the police. The customer left and drove directly to the Metamora police station where he found a deputy sheriff and told him what had happened.

Two other witnesses were passing by in a car and saw the attendant go to the outside of the station; then a shirtless young man with dark hair ran from the general area across the street directly in front of their car.

The deputy testified that he saw a man, whom he later learned to be the defendant, in a phone booth near the police station when the customer came up to inform him of the robbery.

One Jeffery Allen testified that in October 1978, he talked to the defendant at a tavern. At that time the defendant told him that the robbery of the station was the best crime ever committed and that he would never be caught. Allen had been charged with the burglary of the defendant's father's house; it was brought out that in exchange for his testimony Allen had been promised leniency, i. e., the State's Attorney would drop some pending charges and would recommend probation on the burglary charge.

The critical testimony was supplied by Andrew Sharp, an admitted accomplice to the scheme. He testified that the defendant called him by telephone at about 9 a. m. on the morning of July 2 and asked if he wanted to make some money. Sharp told defendant that he would call him back and did so about 30 to 45 minutes later. Defendant stated that he had a scheme but that a third person would be needed. Sharp suggested Schertz. Defendant said that he would call Schertz and that all three would meet in Metamora at about 9 p. m. that night. Defendant would then explain his plan in detail.

Sharp's further testimony revealed the details: that defendant would call the station and tell the attendant that there was a gun trained on her; that she was to place the station's money in a bag at the rear by the men's room; that Sharp was to pick up the money; and that Schertz was to stand across the street from the station.

Sharp continued: the three met as planned and were riding in Sharp's truck. They went to the station about 9 p. m. and purchased some gasoline. While there, Sharp obtained the telephone number of the station and gave it to defendant. They then drove around until about 11 p. m. at which time Sharp dropped defendant off at the Metamora square and Schertz off across the street from the station. He then parked the truck nearby, removed his shirt and waited at the rear of the station. After he heard the telephone ring, someone left the station in a car at a high rate of speed. Then the attendant left a bag at the rear of the station. He obtained the bag and in running across the street was almost struck by a passing car.

Sharp continued: he returned to the truck with the money and took it out into the country where he secreted it under a bridge. He then returned to Metamora and after some difficulty collected his confederates, defendant and Schertz. They then obtained the money from the bridge and divided it among themselves. The total was about $600.

The matter of leniency for Sharp in return for his testimony was fully explored, both on direct examination by the state and on cross-examination by the defense.

The record does not reveal when defendant was arrested. However, some of the discovery material, specifically statements of others and Allen, implicates the defendant as well as Sharp and Schertz in the robbery. Sharp testified that he "turned himself in" on November 9, 1978, and was indicted for the robbery. In return for his testimony the State's Attorney agreed to reduce the charge to theft of property over $150 in value and to recommend probation. The direct and cross-examinations of Sharp disclose that he fully understood the nature of the robbery and the possible penalty therefor.

Defense testimony consisted principally of family members testifying that defendant, Sharp and Schertz spent the night of July 1 at the Gauwitz residence and remained there on the morning of July 2. The defense also offered the testimony of a telephone company employee that the only call from the Sharp residence to the Gauwitz residence on July 2, 1978, was at 1:12 p. m. and lasted less than two minutes.

Based on the foregoing, the jury found defendant guilty of robbery from the presence of the station attendant. The jury had been supplied with four forms of verdict which may be summarized as follows: (1) guilty of robbery from the person; (2) not guilty of robbery from the person; (3) guilty of robbery from the presence; and (4) not guilty of robbery from the presence all of these naming the station attendant. As indicated above, the jury returned a guilty verdict on number (3); the other verdict forms were not signed. Subsequent motions for new trial and for modification of sentence were denied and this appeal followed.

Defendant's first contention is that he was not proved guilty beyond a reasonable doubt since the critical testimony was furnished by an accomplice who had been promised leniency. Both parties cite the recent case of People v. Wilson (1977), 66 Ill.2d 346, 5 Ill.Dec. 820, 362 N.E.2d 291. In that case the Supreme Court said that uncorroborated testimony of an accomplice is a sufficient ground upon which to base a conviction, but such testimony should be subjected to careful scrutiny and should have the absolute conviction of truth. In Wilson the court held that the testimony fell short of these standards because there was not an absolute conviction of truth in the testimony, the accomplice had been promised immunity and there was no corroboration of his testimony. In People v. Hermens (1955), 5 Ill.2d 277, 125 N.E.2d 500, also cited by both parties, the court held that both material corroboration or direct contradiction in accomplice testimony are entitled to considerable weight. It found direct contradiction in the testimony of the two accomplices and reversed. In People v. Williams (1976), 65 Ill.2d 258, 2 Ill.Dec. 358, 357 N.E.2d 525, there were two witnesses and a lack of corroboration. The court held that the overwhelming impeachment of the witnesses, coupled with the lack of corroboration, rendered the evidence so unsatisfactory as to require reversal. In People v. Wicks (1973), 15 Ill.App.3d 318, 304 N.E.2d 134, this court held that corroboration was entitled to great weight.

In the case at bar, we find that the accomplice's (i. e., Sharp's) testimony is credible and is corroborated in many respects. It was therefore for the jury to decide.

Without going into every detail of the corroboration, we note the following as significant: (1) the testimony of the station attendant which bore out the particulars of the plan; (2) the testimony of the passers-by who saw a...