People v. Nelson

• Decision Date: 16 January 1974
• Docket Number: No. 57947,57947
• Citation: 17 Ill.App.3d 224,308 N.E.2d 122
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence L. NELSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 122

308 N.E.2d 122

17 Ill.App.3d 224

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence L. NELSON, Defendant-Appellant.

No. 57947.

Appellate Court of Illinois, First District, Fourth Division.

Jan. 16, 1974.

Paul Bradley, Deputy Director, Ill. Defender Project, Robert E. Davison, Asst. Dist. Defender, Chicago, for defendant-appellant.

Bernard Carey, State's Atty., Cook County, for plaintiff-appellee (James S. Veldman, Roger L. Horwitz, Sharon Hope Grossman, Asst. State's Attys., of counsel).

BURMAN, Justice.

After a jury trial, the defendant, Clarence Nelson, was found guilty of burglary and armed robbery and sentenced to a term of not less than ten nor more than thirty years in the penitentiary for each offense, the sentences to run concurrently. In prosecuting this appeal he contends that he was prejudiced by the admission of testimony concerning a subsequent similar offense, that he was not properly convicted of both armed robbery and burglary because both offenses arose out of the same conduct and that his sentence is excessive.

The complaining witness, Mrs. Frances Dice, testified that at about two o'clock on the morning of January 15, 1970, she drove into the garage at her home and was accosted by three men. One of the men, later identified as the defendant, held a gun to her head and forced her to open the door. The men removed various items from the house, including clothes, a portable television, portable radio, and jewelry. They also took her wallet, which contained her driver's license and some credit cards. The defendant then forced her to undress. The men tied her up and left, taking her car with them. She managed to free herself and notified the police.

Another witness, Mrs. Sheila Elcock, testified that on January 19, 1970, at about nine o'clock in the evening she was returning alone to her home located at 307 South Kilpatrick. After she entered the vestibule of the building she was accosted by a short man who pointed a gun at her and demanded her money. She gave him her purse, and he took fifteen dollars from her. Then a taller man (the defendant) entered and took he coat and hat. He carried these out to a car and returned with a gun, which he held to her head and demanded the keys to her apartment. At this moment the police arrived and arrested both men.

Police Officers Curtis Baker and Cornell Brooks testified that on the evening of January 19, 1970, they responded to a 'rape in progress' call and went to 305 South Kilpatrick. There they observed a man, whom they later identified as the defendant, holding a woman around the throat with a gun held to her head and a second man kneeling down rummaging through a purse. As he entered the vestibule, Officer Baker saw the defendant place a revolver in his pocket. He arrested the defendant, searched him and recovered the revolver. Both Mrs. Dice and Mrs. Elcock testified that the revolver recovered by Officer Baker was similar to the one which the defendant had held on them.

Officers Baker and Brooks took the defendant to the Fifteenth District Police Station, where Officer Baker searched him again. As a result of this search, Officer Baker found the credit cards and driver's license taken from Mrs. Dice on January 15.

Another Police Officer, Claudell Ervin, testified that he and his partner, Carl Gilio, arrived at 305 South Kilpatrick shortly after nine o'clock on January 19. They observed an unoccupied automobile standing in the alley with the motor running. In the auto were a woman's coat and hat, later identified by Mrs. Elcock as those taken from her by the defendant. Officer Ervin checked the registration of the automobile and found that it had been reported stolen on January 15, and that the owner was Robert Dice, the husband of Mrs. Frances Dice.

We consider first whether the defendant, who was being tried for the crimes allegedly arising out of his conduct toward Mrs. Dice on January 15, was prejudiced by testimony concerning his subsequent offense against Mrs. Elcock. The defendant concedes that the State properly elicited testimony concerning the circumstances of his arrest since the resulting search of his person by the police officers led to the discovery of Mrs. Dice's driver's license and credit cards and of a pistol similar to the one use against her. He also concedes that it was proper for the State to link him with the automobile stolen from Mrs. Dice by presenting the testimony of Mrs. Elcock that he took her coat and hat and the testimony of the officers that the same coat and hat were found later in Mrs. Dice's car. All of the testimony beyond that necessary to establish this link, he argues, was inadmissible. Specifically, he objects to the testimony concerning the alleged armed robbery of Mrs. Elcock and the testimony of the police officers that they responded to a rape in progress call and that they arrested him for 'molesting or raping' Mrs. Elcock.

While we might agree with the defendant in principle, our examination of the record in the present case indicates that the evidence presented by the State did not exceed that necessary to establish the matters which the defendant admits were material and proper. The defendant concedes that it was proper for the State to introduce the...