People v. Robbins

• Decision Date: 02 November 1967
• Docket Number: Gen. No. 51115
• Citation: 88 Ill.App.2d 447,232 N.E.2d 302
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cleon ROBBINS (Impleaded), Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 302

232 N.E.2d 302

88 Ill.App.2d 447

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cleon ROBBINS (Impleaded), Defendant-Appellant.

Gen. No. 51115.

Appellate Court of Illinois, First District, Third Division.

Nov. 2, 1967.

Gerald W. Getty, Public Defender of Cook County, Chicago, Frederick F. Cohn, James J. Doherty, Asst. Public Defenders, of counsel, for appellant.

John J. Stamos, State's Atty., Chicago, Elmer C. Kissane, David B. Selig, Asst. State's Attys., of counsel, for appellee.

SULLIVAN, Presiding Justice.

This is an appeal from a conviction of robbery for which defendant was sentenced to the penitentiary for fifteen to forty-five years.

Defendant contends on appeal that the identification of him was insufficient to sustain a conviction beyond a reasonable doubt; that defendant was denied effective assistance of counsel; that evidence of his prior conviction should not have been allowed; that the jury was improperly instructed as to that evidence; that the manner in which that evidence was introduced was prejudicial to defendant, and that evidence obtained in violation of defendant's constitutional rights was improperly admitted.

The evidence showed that on December 12, 1964, defendant entered the Chateau DuRoi Hotel in Chicago and asked the hotel guard, Mr. King, if he could purchase a soft drink. He then asked the cashier for change, purchased the soft drink and left the hotel. Seconds thereafter another man, Bass, entered the hotel and disarmed the guard. The cashier ducked down on the floor in the cashier's cage and telephoned the police. King testified that at that time defendant Robbins re-entered the hotel and said, 'Come on, man. She's calling the police.' According to King, defendant was twelve to fourteen feet from him when he re-entered the hotel. Bass took King's gun belt and fled the premises. The cashier said she did not see defendant enter the hotel a second time because she was down on the floor calling the police. Both witnesses testified that when they saw defendant he was wearing a short brown overcoat.

Police officers Wilkins and Lundin testified that they received a radio call concerning an armed robbery in progress. As they drove southbound in an alley about one and a half blocks from the scene of the crime they observed two men cross in front of the car. The men were walking eastbound 'shoulder to shoulder' at a rapid pace and looking back over their shoulders. The officers in a marked squad car, pulled alongside the men and told them to stop. Defendant stopped and the other man (Bass) ran away, but was later captured. Defendant was arrested and searched since the police radio message had indicated that it had been an armed robbery. They removed a loaded .38 caliber revolver with the hammer cocked from defendant's pocket. One officer testified that Robbins had on a short coat.

The defendant and Bass (after his capture) were taken to a police station where they were identified by the hotel guard and cashier.

The defendant testified that he went to the hotel, after having visited a friend nearby, to buy a soft drink but saw no one on his way out. He said that, as he was walking toward the place of his arrest, he was alone, but he noticed two men behind him walking very fast. One of them walked across the street and defendant was nervous because he had on a new full length black leather coat and a new hat and he did not know what 'they had on their mind.' He claimed that he had no gun and that the gun the police recovered was lying on the ground near him.

Co-defendant Bass testified that he met a friend named Eddie a few minutes after 6:00 P.M. on the evening in question. He, armed with a .38 caliber revolver, told Eddie that he had to go to the hotel for something. He proceeded into the hotel, disarmed the guard and told the cashier not to move, but she ducked down behind the counter. Eddie then appeared and said, 'Come on, Jack, she is calling the police.' The two, Bass and Eddie, left together. Just before the police officers told Bass to stop, Eddie crossed the street and disappeared. Bass did not know Eddie's last name nor how to reach him although they had grown up together. Bass said Robbins was not involved in the robbery nor was he walking with Bass when the police stopped them.

Defendant and Bass, according to their testimony, had known each other for about fifteen years but neither recognized the other as they walked down the street.

The State produced certified copies of prior convictions of defendants. Both defendants were convicted and Robbins appealed.

Defendant first contends that the identification of him was insufficient to sustain a conviction beyond a reasonable doubt. We do not agree. Mr. King talked with Robbins at close range about the purchase of a soft drink. It was only a matter of minutes later that he again saw defendant in the hotel, when he called to Bass. The witness was unshaken in his certainty of identification and it is well settled that the 'testimony of one witness as to identification, if positive and the witness credible, is sufficient to convict even though the testimony is contradicted by the accused.' People v. Crenshaw, 15 Ill.2d 458, 155 N.E.2d 599. Furthermore, the sufficiency of the identification was a question of fact for the jury and this court will not reverse unless the testimony is so unsatisfactory as to leave a reasonable doubt of the guilt of the accused. People v. Brengettsy, 25 Ill.2d 228, 184 N.E.2d 849. There is no such doubt here. The face-to-face encounters afforded King ample opportunity for a positive identification of defendant.

Defendant also claims that, because there was no lineup, the identification was inherently unreliable. People v. Gardner, 35 Ill.2d 564, 221 N.E.2d 232, holds that such could affect the weight to be given the testimony but does not make the identification useless. The United States Supreme Court decisions, upon which defendant relies are United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149; Gilbert v. State of California, 388 U.S. 263, 87 S.Ct. 1951, 18 L.Ed.2d 1178; and Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199. These cases say that, with prospective application only, during a lineup or other identification procedure, defendant is entitled to be represented by counsel. These cases are inapplicable to the case at bar.

Defendant next contends that he was denied effective assistance of counsel in that his trial counsel refused to make a motion to suppress evidence, failed to object to the prejudicial representation of evidence of defendant's prior conviction, failed to object to the sending of the court record of that conviction to the jury room, and initiated testimony by the defendant in a manner indicating he thought it was unwise for defendant to testify.

The criteria to be used in evaluating counsel's competency were set forth in United States ex rel. Weber v. Ragen, 176 F.2d 579, at page 586:

'As to the requirement under the Fourteenth Amendment, the services of counsel meet the requirements of the due process clause when he is a member in good standing at the bar, gives his client his complete loyalty, serves him in good faith to the best of his ability, and his service is of such a character as to preserve the essential integrity of the proceedings as a trial in a court of justice. He is not required to be infallible. We know that some good lawyer gets beat in every law suit. He made some mistakes. The printed opinions that line the walls of our offices bear mute testimony to that fact. His client is entitled to a fair trial, not a perfect one.'

In People v. Ashley, 34 Ill.2d 402, 411, 216 N.E.2d 126, 131, the court said:

'* * * it is well settled that in order to establish incompetency of counsel, actual incompetent representation and substantial prejudice to the defendant as a result thereof must be established. (Citing cases) Nor can charges of incompetency be based solely upon assertions.'

It is with the above principles in mind that we examine the specific instances decried by defendant. He claims that counsel should have made a motion to suppress evidence obtained from defendant at the time of his arrest. The record shows that counsel had considered making the motion and determined that 'no legal benefit would accrue to the defendant' in presenting the motion. Counsel acted in a rational manner and had defendant's best interest in mind when he decided not to make the motion. We shall discuss this point later, but, here, it will suffice to say that it was not proof of incompetency of counsel.

Defendant further alleges that his counsel failed to object to the presentation of evidence of defendant's prior conviction and the taking of the court record thereof into the jury room. It is the law in Illinois that evidence of prior convictions may be introduced by presenting certified copies of the clerk of the court of the prior convictions. People v. Novak, 343 Ill. 355, 175 N.E. 551; People v. Crump, 12 Ill.2d 402, 147 N.E.2d 76. Defendant asserts that it was highly prejudicial to allow the part of the record of conviction which stated that defendant had first pleaded not guilty and then later changed his plea to guilty and the statement that he was convicted of armed robbery involving a lead pipe. However, the Novak case, supra, held that the indictment and arraignment are parts of the record indispensible to the judgment of conviction. See also People v. Smith, 63 Ill.App.2d 369, 211 N.E.2d 456. The showing in the record that defendant first pleaded not guilty and then changed his plea to guilty and that he was convicted of armed robbery involving a lead pipe did not, in our opinion, affect the admissibility of the evidence. As to the taking of the document to the jury room, defendant's reliance on People...