People v. Gomez

• Citation: 35 Ill.Dec. 840,80 Ill.App.3d 708,399 N.E.2d 1368
• Decision Date: 14 January 1980
• Docket Number: No. 78-2109,78-2109
• Parties: , 35 Ill.Dec. 840 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John R. GOMEZ, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1368

399 N.E.2d 1368

80 Ill.App.3d 708, 35 Ill.Dec. 840

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. John R. GOMEZ, Defendant-Appellant.

No. 78-2109.

Appellate Court of Illinois, First District, First Division.

Jan. 14, 1980.

Julius Lucius Echeles and Frederick F. Cohn, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr, Iris E. Sholder and Michael M. Lorge, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

GOLDBERG, Presiding Justice:

After a jury trial, John R. Gomez (defendant) was found guilty of armed robbery (Ill.Rev.Stat.1977, ch. 38, par. 18-2) and sentenced to 8 years. Defendant appeals.

Joseph Bradtke and Steven Treskow testified that on March 17, 1977, they were employed at Meier's Standard Gas Station. At approximately 11:30 p. m., defendant entered the station and asked where the washroom was located. Defendant left the lobby of the station and returned minutes later. Defendant asked Mr. Treskow for some change. Mr. Treskow told defendant to speak with Mr. Bradtke who was in the bay area of the station.

Defendant approached Mr. Bradtke and requested change for a five dollar bill. Defendant received the change, turned away from Mr. Bradtke and then turned toward him holding a gun. Defendant ordered Mr. Bradtke into the back room and pushed him against some lockers.

Mr. Treskow entered the back room and was ordered to stand over near Mr. Bradtke. Defendant then demanded money from the complainants. Complainants gave defendant the money they carried in their pockets, approximately $400. Defendant then ran out of the station.

Mr. Bradtke picked up a broom and started chasing defendant. Mr. Bradtke caught up with defendant as defendant ran down a side street and attempted to hide in a blue and white Mustang automobile. Mr. Bradtke threw a bottle at the car but defendant drove away. The incident was reported to the police.

Both complaining witnesses testified all areas of the gas station were brightly lighted with fluorescent tubing and they viewed defendant's face for several seconds.

On April 5, 1977, both complainants identified defendant from a lineup photograph shown to them by Police Officer Moreth. On April 6, 1977, Mr. Bradtke viewed a lineup and positively identified defendant as the armed robber. Both complainants made positive in-court identifications of the defendant.

On direct examination Mr. Bradtke testified defendant called him the night before trial and told complainant not to testify. Defendant said that it (the robbery) was a small crime and he could be sent to jail for 5 to 6 years. Defendant offered to give the complainants a ride to court the next day. When Mr. Bradtke refused to accept the invitation, defendant asked the complainant to meet him in the cafeteria before trial. Mr. Bradtke did not respond and defendant told him to "think it over and we'll talk about it tomorrow in court." Mr. Bradtke testified that when he and Mr. Treskow arrived at the State's Attorney's office next morning, Mr. Bradtke told the prosecutors about this phone conversation with the defendant. Mr. Bradtke further testified that the State's Attorney told the complainants to stand in the hall before trial began and see if defendant approached them. They did so.

Defendant approached the complainants and asked what they had decided to do. He told complainants about "another station he had robbed and he got caught in the act." Complainants told defendant they intended to testify against him.

Police Officer Konior testified that on March 22, 1977, he stopped the defendant while driving a white and blue Mustang automobile and arrested him.

Joseph Leone, Jr., testified he and defendant had attended a Jethro Tull concert on March 17, 1979. He testified that after the concert was over, he and defendant went to two bars and he dropped defendant off at his house at about 2 a. m. He stated defendant was never out of his sight during the evening. Another friend of the defendant, Robert Sipusich, testified he saw defendant and Mr. Leone at the concert at approximately 11 p. m.

Defendant testified to substantially these same facts. He denied any connection with the armed robbery. He further testified he owned a blue and white Mustang automobile. He denied having a conversation with Mr. Bradtke the night before the trial. He admitted speaking to the complainants in the hall, but did not testify to the content of that conversation.

In this court, defendant contends the jury was improperly advised he had previously been charged with armed robbery; he was prejudiced by the inadvertent reading of a withdrawn instruction by the court to the jury; he was denied his constitutional right to counsel as a result of the admission into evidence of the alleged conversation between defendant and the complainant; he was prejudiced by an improper prosecutorial closing argument and his identification was the result of suggestive identification procedure.

I.

At trial, over a defense objection, a certified statement of defendant's prior conviction for robbery was read to the jury for purposes of impeachment. The statement referred to the original charge of armed robbery. Defendant contends reversible error occurred because the jury was advised he was charged with an offense for which he was not convicted.

The instant action is analogous to People v. Orr (1977), 45 Ill.App.3d 660, 4 Ill.Dec. 285, 359 N.E.2d 1237. In Orr, certified official transcripts of defendant's prior convictions were admitted into evidence. One transcript contained information that defendant was initially charged with both theft and burglary although he was not tried or convicted on the burglary charge. This court held there was "no reasonable probability that the evidence complained of contributed to the defendant's conviction." Orr, 45 Ill.App.3d 660, 666, 4 Ill.Dec. 285, 289, 359 N.E.2d 1237, 1241.

In the instant action, it was error to present evidence of an offense of which defendant was not convicted. However, here, as in Orr, there is "no reasonable probability that the evidence complained of contributed to the defendant's conviction." (Orr, 45 Ill.App.3d 660, 666, 4 Ill.Dec. 285, 289, 359 N.E.2d 1237, 1241.) This is particularly true in the instant case where the evidence against defendant "was so strongly convincing of his guilt beyond reasonable doubt". People v. Lucas (1978), 58 Ill.App.3d 541, 546, 16 Ill.Dec. 109, 113, 374 N.E.2d 884, 888.

In instances such as this which involve "only an alleged error in the admission of evidence, and no constitutional error is involved" * * * "we are not concerned with the 'harmless error beyond a reasonable doubt' test of Chapman v. California (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. We are instead concerned with whether the competent evidence is sufficient to prove the defendant's guilt beyond a reasonable doubt." People v. Bailey (1975), 60 Ill.2d 37, 46-47, 322 N.E.2d 804, 809-10 (RYAN, J., dissenting).

The cases relied upon by defendant in this area are distinguishable from the instant case. In People v. Patterson (1976), 44 Ill.App.3d 894, 899, 3 Ill.Dec. 479, 358 N.E.2d 1164, the prosecutor repeatedly made references to defendant's conviction for armed robbery when defendant had only been convicted of robbery. These "prejudicial insinuations" were objected to by defense counsel. The objections were sustained by the trial judge. This court characterized the record in Patterson as reflecting "multiple violations of the fundamental principle that statements of fact not based upon the evidence may not properly be argued before a jury." (Patterson, 44 Ill.App.3d 894, 896, 3 Ill.Dec. 479, 481, 358 N.E.2d 1164, 1166.) The record in the instant action does not indicate the type of flagrant and repetitive abuses evidenced in Patterson.

In People v. Brown (1971), 131 Ill.App.2d 5, 268 N.E.2d 202, an incorrect certificate which indicated a conviction for armed robbery was presented to the trial court. The defendant had actually been convicted of robbery. This court reversed defendant's conviction and remanded for a new trial. We concluded that defendant's credibility had been prejudiced both by the evidence of the more serious offense and by the apparent contradiction between his testimony and the certified transcript of defendant's prior conviction. In the case before us, there is no testimony which could have been contradicted by the certificate presented at trial.

People v. Gregory (1961), 22 Ill.2d 601, 177 N.E.2d 120, involved the prejudicial effect of the admission into evidence of the confession of one defendant which implicated a codefendant and is not applicable to the instant action.

II.

At trial, the court inadvertently read an instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.14 (2d ed. 1971) (hereinafter cited as IPI Criminal)) to the jury which had been tendered by the defendant but had been subsequently withdrawn. Defendant did not object to the instruction until the jury had begun its deliberation. The trial court then immediately recalled the jury and fully admonished them that the instruction was given to them in error and should be disregarded. The incorrect written instruction was never given to the jury.

Thus, the trial judge responded quickly to the situation and clearly advised the jury that the instruction should be disregarded. This prompt action coupled with the fact that only correct, written instructions had been submitted to the jury renders this error harmless. People v. Lewis (1979), 75 Ill.App.3d 259, 286, 30 Ill.Dec. 751, 393 N.E.2d 1098.

III.

Defendant contends his right to counsel was denied by admission into evidence of alleged conversations between defendant and a victim of the crime. Defendant argues that the instant action is analogous to Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246. In Massiah, defendant...