People v. Whittaker, 1-88-2984

• Decision Date: 25 May 1990
• Docket Number: No. 1-88-2984,1-88-2984
• Citation: 557 N.E.2d 468,145 Ill.Dec. 698,199 Ill.App.3d 621
• Parties: , 145 Ill.Dec. 698 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry WHITTAKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 468

557 N.E.2d 468

199 Ill.App.3d 621, 145 Ill.Dec. 698

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry WHITTAKER, Defendant-Appellant.

No. 1-88-2984.

Appellate Court of Illinois First District, Fifth Division.

May 25, 1990.

[199 Ill.App.3d 622] Cecil A. Partee, State's Atty. of Cook County, Chicago (Inge Fryklund, Paula Carstensen, Catherine Bernard, Asst. State's Attys., of counsel), for plaintiff-appellee.

Charles I. Schwartz, Northbrook, appointed by the court, for defendant-appellant.

Justice GORDON delivered the opinion of the court:

After a bench trial, defendant, Larry Whittaker, was convicted of armed robbery (Ill.Rev.Stat.1987, ch. 38, par. 18-2), armed violence (Ill.Rev.Stat.1987, ch. 38, par. 33A-2), and aggravated battery (Ill.Rev.Stat.1987, ch. 38, par. 12-4) and sentenced to six years in prison. On appeal, he contends that he was denied effective assistance by his privately retained counsel. We affirm.

At trial, the State waived opening statement, the defense reserved its statement, and the State then called its first witness, Donald Koehler, the complainant. Koehler testified that at about 8:30 p.m. on February 9, 1987, he went to visit his friend, Wilbur Askew, who lived in a two story boarding house at 1120 Emerson in Evanston. When he arrived, he climbed the staircase leading to Askew's second floor room. When he got to the top of the stairs, defendant suddenly opened a door and tried to grab a bag, containing two quart bottles of beer, which Koehler was carrying. Koehler asked defendant what he was doing and then attempted to leave. When Koehler got about three to four steps down the stairs, defendant grabbed him by the collar. At this point, Askew opened his door and defendant released Koehler. Koehler then followed Askew into his room and placed his bag of beer on a dresser. Without Koehler's knowledge, defendant had followed them into the room and, while Koehler's back was turned, pushed Koehler into a chair. Defendant then mumbled something to Askew about his friend and asked Koehler if he had anything on him. Defendant searched Koehler and took a pack of cigarettes from his pocket. He then grabbed Koehler's head and smashed it into the wall, four to five times, leaving a large circular hole in the wall.

Defendant thereafter pulled a knife, with a four inch blade, from his pocket and placed the blade against Koehler's throat, cutting his throat and repeatedly threatening to kill him. When Askew told defendant to take it easy and put his knife away, defendant again mumbled something and threatened to cut Koehler's nose off. He then thrust the knife into Koehler's left nostril, creating a sharp pain and causing bleeding as he withdrew it. Defendant also cut Koehler across the bridge of his nose. Askew got a rag to help stop the bleeding. Defendant then took Koehler's beer and cigarettes and left the room.

After defendant left, Koehler told Askew he had to leave before defendant came back and he then jumped out the window, which was 16 feet from the ground. Koehler landed on the seat of his pants and sustained an injury, later diagnosed as a fracture to his lower lumbar region. He then limped to a local restaurant and called the police. When the police arrived, they went back with Koehler to Askew's building and there they found defendant in another room, drinking Koehler's beer, and arrested him. After the arrest, Koehler went to the hospital.

On cross-examination, Koehler stated that he had never seen defendant before the incident. He acknowledged that he said nothing to Askew, his good friend, about defendant's grabbing him on the staircase and did not ask for Askew's help when defendant menaced him with the knife. He further stated that he never put his hands on defendant or made any motions toward him throughout the incident. He also said that he went to the hospital for treatment after the incident but received no bandages, stitches or packing for his nose, and he was able to walk the six or seven blocks from the hospital to the police station without the aid of a cane or crutches.

Wilbur Askew, testifying for the State, stated that at about 8:40 or 8:45 p.m. on February 9, he was lying in his room when he heard a commotion at the front door. He opened the door and saw Donald Koehler and defendant, whom he knew from a previous meeting, standing on the staircase which led to the second floor of his building. Koehler came forward into Askew's room, Askew followed him and defendant then came in uninvited. Askew's testimony essentially corroborated Koehler's testimony except he also testified that defendant admonished him that he should tell his guests how to conduct themselves. He further stated that there was no telephone in his room and that the only means of egress from his room were through a single door or the window.

On cross-examination, Askew stated that he had been on medical supervision for five years and was taking cogentin twice daily for a nervous condition and thorazine once a month as rehabilitation from alcohol and drug abuse. At the time of the incident involved in this case, he had taken his cogentin but not the thorazine. He also denied being in the kitchen area of the boarding house, located in an area separate from his room, with his neighbor, Robert Sanders, at any time during the evening of February 9.

Assistant State's Attorney Winninger testified for the State that she interviewed defendant at the Evanston Police Department during the early morning hours of February 10 and he told her that he had "whooped" the complainant "after he started fagoting at me." He further informed her that he did carry a knife, which he used at work and for personal protection, but denied pulling the knife or using it on Koehler. She also observed Koehler at the police station and noticed that he had cuts on the bridge of his nose, a laceration on the inside and bottom of his nose, an injury to the right side of his neck, a knot on the back side of his head and a limp in his walk.

After Winninger's testimony and the admission of a wooden handled, four inch knife which the police found on defendant when they arrested him, the State rested.

After the court denied defendant's motion for a directed finding, the defense called its first witness, Robert Sanders, without making an opening statement. Sanders testified that he was Askew's neighbor and had seen him in the kitchen area of the boarding house at about 8:15 p.m. on February 9. He knew it was that time because there was a clock right above his television which he was watching when he saw Askew in the kitchen. He said that Askew remained in the kitchen for 20 to 25 minutes.

On cross-examination, Sanders was asked how he knew that the time was 9:15 p.m., and Sanders repeated that it was because his clock is on top his television and he could see the kitchen while watching the television. He said that he knew that Askew was in the kitchen for 20 to 25 minutes but did not see him leave. He further said that it was not unusual for Askew to be in the kitchen. He recalled the police arriving later in the evening but did not recall the specific time of their arrival.

Defendant testified that he lived a short distance from Askew's boarding house and had been working for an automobile body repair shop in the area for the last eight years. He stated that he used the knife, which had been previously admitted into evidence, in connection with his job. On February 9, he went to the boarding house to visit Robert Sanders. Along the way, he met Koehler, whom he had previously seen in Askew's room at the boarding house, walking towards the same destination. Defendant observed that Koehler was carrying a bag and asked what was in it. Koehler answered that he had beer in the bag which he was going to drink. After they entered the boarding house together and walked into Askew's room, defendant asked Koehler for some beer and Koehler gave him some. After he consumed it, he asked Koehler for more and, after assuring Koehler that he would replace any beer he drank, Koehler told him he could help himself. Thereafter, Koehler placed his hand on defendant's hip and began "rubbing up" on his hip. Defendant initially pushed Koehler away but Koehler repeated this action. Defendant then shoved him against a dresser. Askew was not in the room while this was occurring.

According to the defendant, after he shoved Koehler into the dresser, Koehler began walking toward him with his hands in his pockets. Not knowing what Koehler was up to, defendant pulled his knife out of his pocket, grabbed Koehler by the collar and placed the knife up to his neck. When Koehler said that he had nothing in his pockets, defendant withdrew the knife and warned Koehler to keep his hands off him. When Askew returned, defendant told him that he should talk to his friend because he was "feeling" on him. Defendant then left the room and went to a neighbor's room where he later was arrested. He specifically denied taking Koehler's beer or cigarettes by force, stating that Koehler had voluntarily given him the beer and that he had his own cigarettes.

On cross-examination, defendant denied telling assistant State's Attorney Winninger that he never took the knife out of his pocket or that he had struck Koehler with his fist. He also denied pushing Koehler's head into the wall, shoving his knife in Koehler's nostril or cutting the bridge of his nose.

After closing arguments, the trial judge found defendant guilty of the armed robbery, armed violence and aggravated battery, stating specifically that he believed the testimony of the State's witnesses but disbelieved the testimony of both defense witnesses. He further stated that he found the evidence of guilt to be overwhelming.

Before sentencing, defendant filed a motion for a new trial largely predicated on a claim of ineffectiveness of his privately retained counsel. In his motion, de...