People v. Webb

• Decision Date: 19 April 1976
• Docket Number: No. 61693,61693
• Citation: People v. Webb, 347 N.E.2d 486, 38 Ill.App.3d 629 (Ill. App. 1976)
• Court: Appellate Court of Illinois
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clemon WEBB and Marvin Richmond, Defendants-Appellants.

Page 486

347 N.E.2d 486

38 Ill.App.3d 629

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clemon WEBB and Marvin Richmond, Defendants-Appellants.

No. 61693.

Appellate Court of Illinois, First District, First Division.

April 19, 1976.

James R. Streicker, Asst. State .app. Defender, and Ira A. Moltz, Chicago, for defendant-appellant Clemon Webb.

James J. Doherty, Public Defender of Cook County, Chicago (Andrew J. Kleczek and Marc Fogelberg, Chicago, of counsel), for defendant-appellant Marvin Richmond.

Bernard Carey, State's Atty. of Cook County, Chicago (Laurence J. Bolon, Eugene J. Rudnik, Jr. and Mary C. Martin, Chicago, of counsel), for plaintiff-appellee.

SIMON, Justice:

The defendants, Marvin Richmond and Clemon Webb, were tried without a jury for armed robbery, adjudged guilty, and each was sentenced to a term of 5 to 7 years.

Isaac Lewis, a 17-year-old college student, claimed he was robbed of $10 and his coat on a lighted rapid transit line platform in Chicago at about 11:30 p.m. on November 4, 1973, as he was on his way to work at the main post office. His testimony was that defendant Webb stuck a gun in his side and announced a stickup while defendant Richmond searched his pockets, and took his money and coat. Lewis returned home immediately and reported the robbery to the police.

The defendants testified that at the time Lewis claimed he was being robbed, they were attacked by Lewis and his friends on the street a few blocks from the rapid transit platform. Richmond ran away. Webb grabbed a bicycle handlebar he saw on the ground, and in swinging it at Lewis tore the back of his coat. Webb then also ran away with, as he testified, Lewis chasing him and shouting, 'You are going to pay for my coat.'

Lewis' account of how defendant Richmond was apprehended demonstrates self-help of a type which may not always be wise, but which in this instance was effective. Lewis, who had seen defendants in his neighborhood, went looking for them with some friends the afternoon following the robbery. When apprehended by Lewis, the defendants agreed Webb would leave and get the coat. Webb failed to return and the police were called and took Richmond into custody. Richmond testified that while he was being held by Lewis and his friends on November 5, 1973, he told them he did not have Lewis' coat. Webb testified he ran away when Lewis and his friends approached with Lewis again shouting after him that he was going to pay for Lewis' coat.

Lewis picked defendant Webb's picture out of photographs of six different persons submitted to him by the police, and he identified Webb at a police lineup of five persons as well as at trial.

The issues raised by the defendants on this appeal are: Did they understandingly waive their right to trial by jury; were they denied effective assistance of counsel; did the trial court in view of defendants' insistence upon immediate trial abuse its discretion in failing to grant their appointed counsel's request for a postponement to provide additional time to prepare the defense; did the trial court err in considering motions to suppress simultaneously with the trial, instead of hearing these motions prior to trial; were the defendants found guilty of robbery instead of armed robbery; and, was the sentence of the defendants for armed robbery proper?

Since the pretrial procedures in the circuit court are relevant to the resolution of these issues, it is helpful to summarize them at some length. Richmond was in custody from November 5, 1973 and Webb from December 5, 1973. The public defender was appointed to represent them on February 19, 1974 and informed the court the defendants were announcing ready for and demanding trial. Because the trial judge and the public defender were engaged in another matter, the case was continued on the motion of the State to February 26. On that date the public defender again advised the court that the defendants were demanding trial, but that she was not prepared to go to trial. The trial judge explained the situation to the defendants, and referring to People v. Carr (1972), 9 Ill.App.3d 382, 292 N.E.2d 492, informed them that the court had discretion to grant a continuance notwithstanding their desire for immediate trial so that they could not later claim they were deprived of effective assistance of counsel. Both defendants acknowledged they understood what the judge was telling them, but both indicated they wanted to go to trial without further delay, and that they still desired the public defender to represent them if she would. The following colloquy then occurred:

'MR. KLEIN (the prosecutor): Going to be a bench or a jury?

'THE COURT: I don't know.

'MRS. BURKE (the public defend er): I could not say at this point, Judge.

'THE COURT: Can the defendants tell me whether you want a jury or the Court to try it?

'DEFENDANT RICHMOND: Bench trial.

'THE COURT: You're asking for a bench trial, both of you?

'DEFENDANT WEBB: Yes, sir.

'MRS. BURKE: Judge, I would indicate to the Court that I have not even conferred with them and surely this should be a matter of discussion between the attorney and the defendant.'

The court after further discussion suggested that the case be passed so that their counsel could consult with the defendants and that perhaps she could convince them or they could convince her. After a recess, the public defender advised the court her clients still answered ready for trial, and the case was continued until March 1, 1974 when trial commenced. On that date, the court inquired whether the defendants still wished to go to trial without any delay, and again they both answered in the affirmative.

Immediately prior to the start of trial the public defender requested and was granted leave to file a motion to suppress oral statements made by defendant Richmond and identification testimony relating to defendant Webb, and asked that her motions be heard before trial commenced. The judge ruled that the motions would be heard during the trial.

Before the trial commenced, the public defender made the following statement:

'MRS. BURKE: Before the bench, Judge, is Marvin Richmond and Clemon Webb in Indictment Number 74--420. This case was passed earlier today. The Court will recall that the case has been set for trial over the objection of the attorney of record, myself. The gentlemen have demanded trial and are answering ready for trial.'

Trial proceeded on March 1, 1974 and the State rested its case on that day. After the State rested, defense counsel's request for a recess until the following Monday, March 4, was granted. Before any evidence was offered on behalf of the defendants, the statements defendant Richmond made to the police were suppressed because proper warnings had not been given, but the motion of defendant Webb to suppress the identification testimony relating to him was denied.

With respect to defendants' argument that they did not understandingly waive a jury as required by Ill.Rev.Stat.1973, ch. 38, § 103--6, compliance with the statute depends on the facts of each case. (People v. Akis (1975), 27 Ill.App.3d 74, 326 N.E.2d 532; People v. Boy (1974), 22 Ill.App.3d 740, 318 N.E.2d 39; People v. Kaprelian (1972), 6 Ill.App.3d 1066, 286 N.E.2d 613.) There is no prescribed procedure for a trial court to follow in determining whether a defendant wishes to waive trial by jury.

When the court asked the defendants on February 26 whether they wanted a jury or the court to try the case, defendant Richmond responded, 'Bench trial.' Defendant Richmond's use of this technical term demonstrated his understanding that a trial by the court is different than a trial by jury. Defendant Webb then indicated he also wanted to be tried without a jury. The defendants were both 24 years old and neither was a stranger to criminal proceedings. Previous experiences with such proceedings, although in the case of defendant Richmond involving misdemeanors rather than felonies, no doubt gave them an understanding of their right to trial by jury and the difference between a jury trial and a bench trial. (People v. Gay (1972), 4 Ill.App.3d 652, 281 N.E.2d 738.) Akis is distinguishable since it involved the first adult offense of the defendant who was only 11 years of age at the time of his previous experience with the law.

After first informing the court that they waived jury trial, defendants had two opportunities to change their minds, both after they consulted with counsel. The first was on February 26 when the case was passed so that their counsel could confer with them. If waiver of trial by jury was prejudicial to the defendants, their counsel would presumably have called that to their attention and discussed it with them during the recess. Yet, when the case was again called that morning, defense counsel did not inform the court of any change in defendants' thoughts about a jury. These circumstances do not differ in substance from the situation where counsel states for the record that his client waives jury trial. (People v. Murrell (1975), 60 Ill.2d 287, 326 N.E.2d 762.) In People v. Hayes (1975), 32 Ill.App.3d 953, 337 N.E.2d 280, the court noted that its belief that the trial court did not err in denying defense counsel a recess to discuss defendants' decision to waive a jury was strengthened because subsequently counsel and the defendant had several hours in which to discuss the matter before the trial actually began.

The defendants were given their second chance to change their minds about a jury trial 3 days later (on March 1) before trial commenced when the trial judge addressed the defendants as follows:

'Now again I say to both defendants, you have signed a jury waiver in which you have given up your right to a trial by jury, is that your intention? You do not want trial by jury, you want the Court to hear the matter?'

The court's remarks were a clear invitation to the defendants in the presence of their counsel, who...