People v. Roberts

• Decision Date: 02 May 1985
• Docket Number: No. 5-83-0538,5-83-0538
• Citation: 133 Ill.App.3d 731,88 Ill.Dec. 773,479 N.E.2d 386
• Parties: , 88 Ill.Dec. 773 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George ROBERTS and Charles Cannon, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 386

479 N.E.2d 386

133 Ill.App.3d 731, 88 Ill.Dec. 773

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. George ROBERTS and Charles Cannon, Defendants-Appellants.

No. 5-83-0538.

Appellate Court of Illinois Fifth District.

May 2, 1985.

Randy E. Blue, Deputy Defender, Kim G. Noffke, Asst. Defender, Mount Vernon, for defendants-appellants.

Robert W. Matoush, State's Atty., Salem, Robert J. Biderman, Deputy Director, Rebecca L. White, Staff Atty., State's Attys. Appellate Service Com'n, Springfield, for plaintiff-appellee.

KASSERMAN, Justice:

Defendants, George Roberts and Charles Cannon, were convicted by a jury in the circuit court of Marion County of armed robbery. Roberts was sentenced to imprisonment for a term of 12 years and Cannon was sentenced to imprisonment for a term of six years.

On appeal, both defendants contend that: (1) the circuit court erred in refusing to grant them a continuance to obtain the presence of an alibi witness; and (2) that the identification testimony upon which their convictions are based is insufficient to support their convictions. Further, defendant Roberts contends that he was denied his right to a speedy trial and Cannon maintains that he was prejudiced when the trial court permitted the State to question Cannon's character witnesses about their knowledge of a prior arrest.

On April 29, 1983, and again on May 16, 1983, Roberts filed a petition for discharge pursuant to section 103-5 of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1983, ch. 38, par. 103-5), claiming that he was denied the right to a speedy trial. Both petitions were denied by the circuit court.

On May 17, 1983, an affidavit in support of a motion for continuance was filed by both defendants. The affidavit recited the unavailability of an alibi witness, Charles Fischer, who allegedly was with defendants at Shorty's Disco from 5 p.m. to 8 p.m. the evening of the armed robbery for which defendants were charged. The affidavit recounted the issuance of both a subpoena for the testimony of Fischer and a warrant for his arrest for his failure to appear at a scheduled court appearance. The affidavit further indicated that Fischer's attorney was contacted and his aid enlisted in an effort to locate Fischer. According to the affidavit, Fischer's last known addresses in East St. Louis and Centralia, Illinois, were contacted but Fischer could not be located. The trial court denied the motion for continuance, and the defendants' trial was conducted on May 18, 19, and 20, 1983.

The complainant, Warren Telford, testified that on December 23, 1982, at approximately 6:15 p.m. he was at a car wash in Centralia, Illinois, washing his jeep when two black men walked in and asked him if he wanted to contribute toward the purchase of a six-pack of beer. Telford declined and, after a short discussion, the two men departed on foot. Telford related that approximately 15 minutes later the two men returned and again requested money. Telford stated that he reached into his jeep for a tire tool and a struggle ensued and that both men then pulled guns on him and eventually took his wallet. Telford estimated that the alleged robbery lasted between 10 and 15 minutes and that he had viewed his attackers for a total of about 30 minutes.

Telford reported the robbery to Centralia police and gave a description of his assailants. Telford said both men who attacked him were black and about 6 feet 2 inches tall. He said one of them was about 25 years old, light complexioned, had an Afro hair style and wore a purple sweatsuit jacket. The other robber was described by Telford as being about 28 years old, with a moustache and wearing a plaid waist length coat. While at the police station, Telford looked at photographs of suspects but was unable to identify anyone.

On December 27, 1982, Telford was asked by the Centralia police to view more photographs and at this viewing he identified photographs of the defendants. Telford stated that when he first identified pictures of the defendants, he was certain that Roberts was one of the men who robbed him and was about 80% sure that Cannon was the other. Telford identified both Roberts and Cannon at trial and indicated that he was certain that they were the individuals who had robbed him.

Defendants presented a number of witnesses whose testimony suggested that on the evening of the robbery the defendants were at Shorty's Disco. Alberta Goodwin testified that defendants and Charles Fischer left her home in Centralia between 5 and 6 p.m. on December 23, 1982, and indicated that they were going to Shorty's Disco. Kathy O'Neil Favors testified that she saw defendants at Shorty's Disco between 5 and 6 p.m. and again about 10:30 p.m. the night of the robbery. Jack O'Neal, a bartender at Shorty's Disco, said he served defendants drinks between 5:30 and 7:00 p.m. on December 23, 1982, and did not observe them leave Shorty's Disco. Luana Meyers testified that she spoke briefly with defendants at Shorty's Disco at about 6:30 p.m. on December 23, 1982.

Cannon took the stand in his own defense. He said he was at Shorty's Disco the evening the robbery occurred from about 5 p.m. until it closed at 2 a.m. Cannon denied any involvement in the armed robbery of Telford.

Several character witnesses testified for Cannon. Willie Cox, a Centerville police officer, testified that he had known Cannon all his life and that Cannon had a good reputation for truth and veracity. On cross-examination, Officer Cox was asked whether he had heard that Cannon possessed or carried a gun and had been arrested for unlawful possession of a firearm and for burglary. Officer Cox responded negatively to all these questions except the one which asked whether he had heard that Cannon had been arrested for burglary.

Ralph Smith, Cannon's minister, indicated that Cannon had a reputation for being a peaceful, law-abiding citizen and said that Cannon had always been honest with him. On cross-examination, Smith stated that he had heard that Cannon had been arrested for burglary.

Fred Cannon, the defendant's father, testified that his son had a reputation for being peaceful and law-abiding. He too stated on cross-examination that he had heard that his son had been arrested for burglary.

On appeal, both defendants assert that the circuit court erred by denying their request for a continuance because of the unavailability of Charles Fischer, a potential alibi witness. We disagree.

The granting or denying of a motion for continuance to procure a witness is within the discretion of the circuit court; and the denial of such a motion is not an abuse of discretion if there is no reasonable expectation that the witness will be available in the foreseeable future. (People v. Tyler (4th Dist.1975), 28 Ill.App.3d 538, 539-40, 328 N.E.2d 585, 587.) In the case at bar, the circuit court determined that there was no prospect for procuring the witness in the reasonably foreseeable future since, in all likelihood, the witness had purposefully absented himself from the jurisdiction to avoid prosecution in another case. We find no abuse of discretion in the instant case.

Defendants further maintain that they were not proved guilty beyond a reasonable doubt. Again, we do not agree.

A positive identification by a single witness will support a conviction if the witness' opportunity to observe was adequate. (People v. Manion (1977), 67 Ill.2d 564, 578, 10 Ill.Dec. 547, 554, 367 N.E.2d 1313, 1320; People v. Brown (1st Dist.1982), 110 Ill.App.3d 1125, 1127, 66 Ill.Dec. 739, 741, 443 N.E.2d 665, 667.) Defendants concede this point but suggest that Telford's identification was not positive. We have examined Telford's testimony and reach a contrary conclusion. Telford observed his assailants twice, once before the robbery and again during the robbery. Telford was in close proximity to his assailants and observed them for about 30 minutes. At trial, Telford indicated that he was certain that it was defendants who had robbed him. Although defendants point out certain minor discrepancies in Telford's identification testimony, we find that the discrepancies relied upon do not rise to the level of a reasonable doubt of defendants' guilt.

Roberts maintains that he was denied a speedy trial and that the circuit court erred by failing to grant his motions for discharge. In this regard, the record discloses that Roberts was taken into custody on December 25, 1982, on charges of aggravated battery. On December 28, 1982, Roberts was charged with armed robbery and a warrant for his arrest was served on him while he was in custody. On December 30, 1982, Roberts requested that the public defender be appointed to represent him and Harold Pennock was appointed to represent both Roberts and Cannon. Mr. Pennock subsequently moved for a continuance on January 3, 1983, and the cause was continued to January 10, 1983, the court requesting Mr. Pennock to inquire as to a possible conflict arising from his representation of both defendants. Thereafter, on January 10, 1983, Mr. Pennock moved to withdraw as counsel on the grounds that no conflict existed in the representation of both defendants by one attorney and that his contract with Marion County, Illinois, covered only conflict cases. This motion...