People v. Precup

• Decision Date: 05 July 1977
• Docket Number: No. 13154,13154
• Citation: 365 N.E.2d 1007,50 Ill.App.3d 23,8 Ill.Dec. 621
• Parties: , 8 Ill.Dec. 621 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David PRECUP, Terry Lee Brummell and Steven Harness, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 1007

365 N.E.2d 1007

50 Ill.App.3d 23, 8 Ill.Dec. 621

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David PRECUP, Terry Lee Brummell and Steven Harness Defendants-Appellants.

No. 13154.

Appellate Court of Illinois, Fourth District.

July 5, 1977.

Richard J. Wilson, Deputy State Appellate Defender, Thomas Nelson, Asst. State Appellate Defender, Springfield, for Brummell.

James L. Palmer, Scholz, Staff & Brickman, Quincy, for Harness.

F. Donald Heck, Jr., Quincy, for Precup.

Robert J. Bier, State's Atty., Quincy, G. Michael Prall, Principal Atty., Ill. State's Attys. Assn., Statewide Appellate Assistance Service, Springfield, for plaintiff-appellee; Robert C. Perry, Staff Atty., Springfield, of counsel.

TRAPP, Justice:

Defendants were jointly tried before a jury and appeal their respective convictions of armed robbery. No issue is raised upon the sentences imposed and no issue of the sufficiency of the evidence to convict argued.

The Nut Shell Tavern, its operator, Mrs. Nutt, and a patron, were robbed by three men with stocking masks and a shotgun at about 12:30 a. m. on August 4, 1974. Two officers observed the three flee the tavern and attempted to pursue on foot. The shotgun was dropped by the running men. Two of the men were observed to enter an automobile described in evidence. These officers returned to their car but were not immediately able to locate the automobile which they described. Following some investigation, however, they discovered the location of such an automobile and following a surveillance of their activities, Harness and Brummell were arrested several hours following the robbery. The car belonged to defendant, Brummell. Defendant, Precup, was arrested the evening of the following day.

Precup was positively identified by Mrs. Nutt and the patron, both during trial and at a line-up. Neither Harness nor Brummell were directly identified by the victims. Mrs. Nutt testified that a pair of boots belonging to Harness and introduced into evidence appeared to be the boots which she observed on one of the robbers as she lay on the floor during the robbery. She noticed the boots because she was expecting to be kicked. A nylon stocking and a paper bag identified as similar to those used in the robbery were found in the Brummell car.

Defendant, Precup, argues that:

"It is reversible error to permit testimony in the State's case in chief from a police officer which brings out defendant's criminal record."

Officer Collins was, in fact, testifying concerning a post-arrest interview with the defendant, Brummell. The record shows the following:

"Q. Would you tell us what else you asked him, as you recall?

A. I asked him if he knew Dave Precup and he indicated, only slightly; that he'd known him to have been paroled from the penitentiary * * *.

MR. ADAMS: Objection, Your Honor.

THE COURT: Objection sustained. Let me suggest to you, Mr. Witness, that you refrain from voluntary answers and merely answer the question asked of you."

It is not argued that the State's Attorney sought to, or did elicit, the testimony as was the fact noted in The People v. Colston (1967), 81 Ill.App.2d 75, 225 N.E.2d 801; The People v. Pitts (1971), 1 Ill.App.3d 120, 273 N.E.2d 664; The People v. Smith (1973), 12 Ill.App.3d 295, 297 N.E.2d 625. The record shows colloquy concerning the court's offer to admonish the jury to disregard the statement and counsel's agreement that such admonition should not be made.

Here, the identification was positive. The unresponsive, unsolicited remark by the witness to which the court sustained objection does not require reversal. The People v. Dukett (1974), 56 Ill.2d 432, 308 N.E.2d 590; The People v. Christy (1976), 43 Ill.App.3d 1004, 3 Ill.Dec. 8, 358 N.E.2d 8.

By supplemental brief, Precup raises the additional issue that the identifications made at trial by the proprietor and patron were tainted and that it was error to deny a motion to suppress. The issue was raised at trial when Precup advised his attorney that the police had taken his photograph. Colloquy of record indicates that counsel anticipated that the photographs were displayed to the witnesses prior to a line-up. Upon cross-examination of the proprietor and an offer of proof by the prosecution, the record shows that neither witness had seen defendant's photograph prior to the line-up at which they identified Precup. Such line-up was held on the day following the robbery. The witnesses had seen the photographs several days before the trial. Each witness made a positive in-court identification based upon independent recollection and observation of Precup's build, hair color and style, mustache and manner of moving. We have examined the authorities cited by defendant which concern a display of photographs to witnesses prior to a line-up and at a time when defendant was in custody. The sequence of events in this record indicate that it can not be said that the display of photographs could have resulted in an "irreparable misidentification" which would render the in-court identification inadmissible. The People v. Williams (1975), 60 Ill.2d 1, 322 N.E.2d 819.

Defendants, Harness and Brummell, seek to raise certain issues which are stated to be "plain error" under Supreme Court Rule 615, and arise in the fact that the public defender was appointed and represented both Harness and Brummell at the joint trial. Precup, Harness and Brummell presented testimony that each was at a tavern, the Establishment, arriving at different times between 7 p. m. and 10:30 p. m. Several witnesses for the defense testified to the presence of each defendant and observing them at various times. Precup and Harness testified that the three were together at the tavern. Harness testified that he was there with Brummell and that they, Harness and Brummell, stayed until closing time at 1 a. m. Precup and one Pam Markert, a girl with whom he was living, testified that they left about 11 p. m. and that at about 1 a. m. Harness and Brummell came to the apartment and stayed for about an hour drinking beer. Harness testified that he left with Brummell to go to the Precup apartment where they stayed until about 2 a. m. when they left to go to Hannibal. Brummell did not testify.

During the prosecution's case in chief, police officers testified to oral Miranda warnings given each defendant and signed statements of such warnings by each were introduced into evidence. The officers then testified as to each statement given by the respective defendants. The testimony as to the statements of Precup and Harness were essentially consistent with the alibi testimony.

The testimony as to the out-of-court statement by Brummell was that he stated that he had not seen either Precup or his lady, Pam, during the evening, that he left the Establishment with Harness at closing, but that neither he nor Harness went to the Precup apartment and that they drove around in an area unidentified in the record until the time of the arrest.

Upon appeal Harness urges that the trial court should have sua sponte ordered a severance when it appeared that the testimony of Collins would show that differing statements by Harness and Brummell were made concerning their activities following the closing of the Establishment. Harness and Brummell, again seeking relief under Supreme Court Rule 615, each argue that their representation by one appointed attorney denied each the effective assistance of counsel and deprived each of a fair trial.

It is to be noted that in this case no defendant undertook to inculpate another, each denied participation in the robbery. Precup and Harness each denied his participation and denied participation by Brummell, both in their testimony and in the oral statements before trial. The oral statement of Brummell made after his arrest denies his participation and that of any defendant in the robbery. In the context of alibi defenses in relation to the time of the robbery, the defenses are consistent. In such context the defenses were compatible.

Upon the issue of severance by the sua sponte act of the court, Harness cites only The People v. Wheeler (1970), 121 Ill.App.2d 337, 257 N.E.2d 587. In Wheeler, the State's Attorney advised the court prior to trial that there would be testimony concerning admissions by one co-defendant which implicated the other in the crime through ownership of the gun. For reasons not apparent, defendant's counsel did not, however, request a severance. We have found no other case in which the duty of the trial court to sever was framed in terms of a sua sponte requirement. It is to be noted that in Wheeler, the fact of antagonistic positions in the context of one defendant implicating the other was made known to the court prior to the trial. In such context Wheeler is not authority directed to the question of a sua sponte severance by the court after the trial has begun and progresses substantially.

In The People v. McCasle (1966), 35 Ill.2d 552, 221 N.E.2d 227 and The People v. Merritt (1973), 16 Ill.App.3d 72, 305 N.E.2d 579, it was contended that there should have been a sua sponte severance of trials by the court. In McCasle, each defendant had a separate alibi. The court determined that there were no antagonistic interests or inconsistent defenses. Merritt held that prejudice from joinder in trial must be shown prior to trial.

Illinois Revised Statutes 1973, chapter 38, paragraph 114-8, provides that if it appears that a defendant is prejudiced by joinder of related prosecutions of defendants, the court may order separate trials or grant a severance of defendants.

It is consistently held that a motion for severance of jointly indicted defendants must be made before trial, and that an issue of prejudice from joinder can not be raised for the first time on appeal. (The People v. Rutledge (1973), 14 Ill.App.3d 290, 302 N.E.2d 425; The People v. Hoover (1976), 35 Ill.App.3d 799, 342 N.E.2d 795 (leave...