People v. Surges

• Decision Date: 09 November 1981
• Docket Number: No. 80-2020,80-2020
• Citation: 428 N.E.2d 1012,57 Ill.Dec. 332,101 Ill.App.3d 962
• Parties: , 57 Ill.Dec. 332 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ray L. SURGES, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1012

428 N.E.2d 1012

101 Ill.App.3d 962, 57 Ill.Dec. 332

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Ray L. SURGES, Defendant-Appellant.

No. 80-2020.

Appellate Court of Illinois, First District, First Division.

Nov. 9, 1981.

Robert H. Farley, Jr. and Robert J. Schmit, Blue Island, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County (Michael E. Shabat, Dean C. Morask and Paula Carstensen, Asst. State's Attys., of counsel), for plaintiff-appellee.

CAMPBELL, Presiding Justice:

Defendant was found guilty by a jury of armed robbery, burglary to commit armed robbery and unlawful restraint. (Ill.Rev.Stat.1973, ch. 38, pars. 18-2, 19-1, 10-3.) The trial court vacated the judgment on the burglary and sentenced defendant to concurrent terms of thirteen years and three years for armed robbery and unlawful restraint, respectively. Defendant appeals his conviction, contending that: (1) he was deprived of a fair trial because of statements made by the State during closing argument, because of the trial court's failure to answer questions posed by the jury and because of the court's dismissal of co-defendant at mid-trial without explanation; (2) the trial court erred in giving certain jury instructions; (3) the trial court erred in sentencing defendant for unlawful restraint because no judgment had been entered on that offense; (4) he was denied a proper sentencing hearing; (5) the trial court erred in sentencing defendant to thirteen years for armed robbery because his sentence was grossly disparate to the sentence received by his co-defendant; (6) he did not have effective assistance of counsel at trial; and (7) the evidence did not establish his guilt beyond a reasonable doubt.

For the reasons set forth herein, we affirm.

The evidence discloses that at approximately 1:00 a. m. on November 17, 1975, J. Starks was walking east on Chicago Avenue after purchasing an order of barbeque ribs to eat at home. While walking home, Starks noticed co-defendant Monroe Banks leaning against a car parked about thirty feet from the entrance to the barbeque restaurant. Shortly after he first saw Banks, he saw defendant Ray Surges leaning against a wall across from Banks and Philip Smith who was further down the block. As Starks passed Banks and defendant, Banks stuck a gun in Starks' side. Banks then placed a cap over Starks' eyes and Banks and defendant proceeded to walk down the street with Starks between them. Starks testified that while he was walking, someone went through his pockets and removed his wallet, money and keys. Someone then asked Starks if he had any more money and he said that he did not have any more. He was then told that the money which he had was not sufficient and that he would be killed. Starks said that he might have money at home. Subsequently, Starks was placed in the trunk of a car and driven to within a block of his home. At the time Starks was removed from the trunk, Banks, defendant and Smith were present. These three accompanied Starks to his front door. At this time, the hat was removed from Starks' eyes. Starks then rang the doorbell and knocked on the front door to his home.

Starks' fourteen year old daughter was awakened by the doorbell and went downstairs to open the door. She saw her father with three men and she opened the door after about a minute. She then ran upstairs because she had been sleeping in her undergarments and returned to bed. Starks was led to the couch where he was struck twice on the head with the gun by Banks. Starks still was wearing the hat when he was put on the couch; however, he testified that he could see from underneath the hat. Starks saw Banks go upstairs while defendant remained in the hallway watching Starks. While upstairs, Banks took the family's foodstamps from the wife. He also forced the daughter to perform a deviate sexual act and he raped the daughter. Banks and the daughter then went downstairs where she saw her father on the couch and Philip Smith in the hallway. The daughter testified that she did not see defendant at this time. Smith raped the daughter in the recreation room of the Starks' home while Banks was upstairs forcing the wife to perform a deviate sexual act. Banks also attempted to rape the wife. The daughter observed Banks and Smith leave the home, although neither she nor her father saw defendant leave.

The daughter telephoned the police after they left the house. At about 2:30 a. m., Officer Zten went to the Starks' residence where he spoke with Starks, his wife and daughter. Zten radioed a description of Banks and defendant which was heard by Officer Stack and his partner, Officer Spolar. Stack noticed Banks running in the vicinity of the Starks home and saw Banks throw an object into the adjacent bushes. Stack and Spolar stopped their squad car and, upon exiting the vehicle, stopped Banks. Spolar searched the area near Banks and found a revolver. Stack and Spolar then took Banks to the Starks home where the daughter identified him as the person who raped her. Upon searching Banks, the police recovered foodstamps, money and an electrical cord from a television set which belonged to Starks' son. Banks was subsequently transported to the 15th District police station where he was questioned. After Banks was interrogated, four police officers went to the home of defendant. The testimony is contradictory as to whether defendant was fully clothed at the time he came to the door. Defendant told the officers that he had been with Banks, McKinley Williams and Larry Starks earlier and that he and Larry Starks dropped off Banks on Fulton Street and then proceeded home. Defendant claimed that he arrived home at about 10:15-10:30 p. m. and that he fell asleep shortly thereafter; however, one of the officers who went to defendant's home testified that defendant told him that defendant had arrived home at 1:30 a. m. From the testimony, it appears that John Starks went to the home of defendant with the police officers. Defendant was subsequently transported to the police station where he was identified as being one of the persons who had been in his home earlier.

On November 19, Philip Smith was arrested at his home. Smith had been identified by the daughter who knew him from school. Smith directed police to another address where a stereo phonograph set was recovered. During the course of the investigation, a woman's coat and a television set also were recovered. Subsequently, the daughter was taken to the police station where she identified the property as that which had been taken from the Starks' home on the morning of November 17.

The cause proceeded to trial following the indictment of Banks and defendant. Banks waived his right to trial by jury, while defendant was tried by jury. During the trial, the court cautioned the jury on numerous occasions that they were to be concerned only with the guilt or innocence of defendant and not that of his co-defendant Monroe Banks. During the conference on jury instructions, counsel for defendant objected to the use of modified forms of Illinois Pattern Jury Instructions (I.P.I.). The I.P.I. Criminal instructions which deal with the elements of a crime were modified to include a phrase dealing with the accountability of defendant for another's conduct. The basis for the objections was that the instructions failed to provide the jury with adequate guidance on the issue of accountability. The court overruled defendant's objections because it felt that the instructions would be given to the jury as a package and should be considered as such. During the course of considering the evidence, the jury sought the advice of the court concerning matters which arose during deliberation. The court informed the State and counsel for defendant that the jury had requested advice from the court. The court read the questions presented to it to counsel for defendant over the telephone. Defendant's attorney stated that he had no objections to the court responding to the jury's questions with "You have heard the evidence and you will continue to deliberate." The court stated that it did not believe that it would be proper for it to answer the juror's questions because it would be substituting its judgment for that of the trier of fact. The jury then returned verdicts of guilty against defendant for the unlawful restraint and armed robbery of J. Starks and for burglary to commit armed robbery. The court stated that it would not enter judgment on the guilty finding for unlawful restraint because the crime merged into the offense of armed robbery.

At the sentencing hearing, counsel for defendant was asked whether he was ready to proceed with post-trial motions. Counsel responded that he would not raise any matters in post-trial motions because he was under the impression that the public defender would be handling the post-trial motions and the appeal of defendant's convictions. Prior to the sentencing hearing itself, the court tendered to the State and counsel for defendant the presentence investigation report. During the hearing, the court vacated nunc pro tunc the judgment entered on the burglary finding. The court then sentenced defendant to concurrent terms of thirteen years for armed robbery and three years for unlawful restraint. Defendant appeals.

Defendant first contends that he was denied his right to a fair trial because of the remarks made by the State during closing arguments, the trial court's unresponsive answers to the questions posed to the court by the jury and by the dismissal of codefendant at mid-trial without explanation to the jury. During closing argument, the State argued that defendant wants the jury to believe that "this is all a big conspiracy." Closing argument by the defense made mention of the fact that the jury did not hear testimony from Monroe Banks. In the State's closing argument, the State's Attorney stated that the case disturbed him because "w...