People v. Gwartney

NO. 4-96-0178

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT


THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Pike County
KENNY W. GWARTNEY, ) No. 95CF123
Defendant-Appellant. )
) Honorable
) M. Carol Pope,
) Judge Presiding.
_________________________________________________________________

JUSTICE GARMAN delivered the opinion of the court:
Following a jury trial in the circuit court of Pike
County, defendant Kenny W. Gwartney was found guilty of burglary
(720 ILCS 5/19-1(a) (West 1994)), armed robbery (720 ILCS 5/18-2(a)
(West 1994)), and armed violence (720 ILCS 5/33A-2 (West 1994)).
Subsequently, the trial court sentenced him to 18 years' imprison-
ment on the armed violence conviction and granted him 139 days of
credit for time spent in jail prior to sentencing. Defendant
appeals, arguing (1) the trial court erred in instructing the jury
on accountability and (2) he is entitled to 140 days of credit
against his sentence. We affirm.
On October 13, 1995, defendant and Robert Baughman were
each charged by information with one count of burglary, one count
of armed robbery, and one count of armed violence. A consolidated
jury trial was held on January 11 and 12, 1996.
Debra Lippincott testified that she is the manager at
Lindsay's Tavern in Pittsfield, Illinois. During the evening of
October 9, 1995, she was tending bar. At about 12:15 a.m. on
October 10, 1995, Lippincott had closed the tavern and was counting
her receipts. She heard a noise in the back room and investigated
it. When she opened the storeroom door, she was confronted by two
men. One of the men wore a baseball cap and the other wore some
other type of hat. Both men wore bandannas over their faces. One
of the men pointed a shotgun or rifle at her and ordered her to lie
down on the floor. The other man had a knife. They went behind
the counter, took a green money bag, and left. The bag contained
cash and checks from that evening's business. One of the men wore
a flannel shirt and the other wore a light-colored sweater or
jacket.
On cross-examination, Lippincott estimated that the
robbery took approximately five minutes. The back door was not
locked, but the screen door was latched. All of the other doors
were locked. Lippincott knew almost everyone in the tavern that
evening. It was not possible for someone to have gone into the
storeroom while the tavern was open and remain there until after
closing time; she had been in the storeroom throughout the evening
and there was no one back there.
Jackie Taylor testified that she was working as a
bartender at the Out of Bounds Tavern in Pittsfield on October 9,
1995. At approximately 11:38 p.m., when she was closing the
tavern, two men approached her at the door. One man wore a black
stocking cap and the other wore a baseball cap. Both men wore
flannel shirts and blue jeans. She identified defendant as one of
the men. He asked if he could come in, and Taylor told him the
tavern was closed. The men walked away. Taylor gathered her
belongings, locked up the tavern, and went out to her car. The men
were standing in the alley watching her. When she got into the car
and started it, the men had disappeared down the alley. She drove
through the alley and saw the men standing near a Dumpster. She
could not identify the other man.
Pike County sheriff's deputy John Pennock testified that
he was on patrol during the early morning hours of October 10,
1995. At about 1:10 a.m., he stopped a vehicle traveling eastbound
on Washington Street in Pittsfield for failing to dim its head-
lights. The stop was made seven blocks from Lindsay's Tavern.
There were two men in the car. Pennock identified defendant as the
driver and Baughman as the passenger. Defendant told Pennock he
was driving his friend home; they had been out "messing around"
that night. Defendant wore a baseball cap, a gray T-shirt, and
blue jeans. The traffic stop took no more than two minutes.
Approximately 15 minutes later, Pennock was summoned to
Mississippi Street by Deputy Paul Petty. A car was stopped in the
road and a man was kicking the front tires. When Pennock arrived,
he saw it was the same vehicle he had previously stopped. Both
defendant and Baughman were there. Defendant explained he was
checking his brakes. This stop occurred approximately four blocks
from the previous traffic stop. Defendant had a nice demeanor and
did not seem nervous during either traffic stop.
Neil Roberts testified that he was employed by Robert's
Automotive and Machine in Mt. Sterling, Illinois. He had done some
machinery work for Baughman during April 1995. Baughman did not
come back in to pay for the work until October 10, 1995. The total
bill was $148. Baughman paid in cash and received a receipt.
Deputy Chris Dolbeare testified that he participated in
the robbery investigation. In an alley near Lindsay's Tavern, he
recovered a 12-gauge sawed-off shotgun. The gun was loaded with
two 12-gauge shells. Dolbeare also participated in a search of
defendant's vehicle and recovered a knife, a 12-gauge shotgun
shell, a plaid shirt, and a purple sweatshirt.
Master Sergeant Kenneth Yelliott of the Illinois State
Police testified that on October 13, 1995, he and Trooper Bradley
Lacy conducted a search of Baughman's residence. He recovered a
coffee can containing water and pieces of charred paper. The
charred pieces of paper were identified as checks that had been
written to Lindsay's Tavern.
Trooper Lacy testified that he also participated in the
search of Baughman's residence. He recovered a green money bag
with the words "Lyndle Lindsay" written on it in large black print.
He found the bag under a stack of hand towels in the cabinet
beneath the bathroom sink. Lacy also recovered a shoe box that
contained a stack of 42 $1 bills and a receipt from Robert's
Automotive and Machine.
Pamela Baughman testified that she was married to
Baughman for five years. In the early morning hours of October 10,
1995, she was awakened when Baughman came into their bedroom. She
saw that he had money in his hand. She did not know how much money
he had, but it was a large sum. During the search of the resi-
dence, she directed Yelliott and Lacy to the coffee can that
contained the burned checks. The checks were not written from her
account or Baughman's account. She first noticed the green money
bag under the towels on the morning of the police search; she did
not know where it came from.
The jury found both defendant and Baughman guilty on all
three counts. At the sentencing hearing held on February 29, 1996,
the trial court sentenced defendant to 18 years' imprisonment on
the armed violence count. The court also ordered that defendant
receive 139 days of credit for time spent in jail prior to
sentencing. Defendant filed a post-trial motion, which the trial
court denied. This timely appeal followed.
Defendant first argues that the trial court erred in
giving the jury an instruction on accountability. He contends the
evidence showed that he was either guilty as a principal in the
robbery or he played no part in the crimes whatsoever. The
instruction, he claims, allowed the jury to find him guilty based
upon evidence that Baughman participated in the robbery. We
disagree.
It is well settled that an accountability instruction
that is inappropriately given does not constitute reversible error
where there is sufficient evidence from which the jury could have
found the defendant guilty as a principal. People v. Jefferson,
227 Ill. App. 3d 491, 496, 592 N.E.2d 134, 138 (1992); People v.
Andrews, 95 Ill. App. 3d 595, 598, 420 N.E.2d 509, 511 (1981). In
this case, the State presented evidence showing that defendant and
another man tried to enter the Out of Bounds Tavern at closing time
on October 9, 1995, but were not allowed in. The men lingered in
a nearby alley as the bartender left the tavern. Shortly thereaf-
ter, two men fitting a similar description robbed Lindsay's Tavern.
They were armed with a shotgun and a knife; they took a green money
bag filled with cash and checks. Approximately one hour later,
defendant's vehicle was stopped by Pennock. Defendant told Pennock
he and his passenger, Baughman, were out that night and he was
driving Baughman home. A 12-gauge shotgun was later found in an
alley near the crime scene. When defendant's vehicle was searched
two days later, police found a knife, a 12-gauge shotgun shell, and
a plaid shirt. When Baughman's residence was searched, police
found charred checks written to Lindsay's Tavern and a green money
bag imprinted with the words "Lyndle Lindsay." Clearly, there was
sufficient evidence from which the jury could have found defendant
guilty of the offenses as a principal. Thus, any error in giving
the instruction would have been harmless.
Nevertheless, on the merits, we find no error on the part
of the trial court. Both the State and the defendant are entitled
to the submission of appropriate jury instructions on the law that
applies to their theory of the case if there was evidence to
support the theory. People v. Gilliam, 172 Ill. 2d 484, 519, 670 N.E.2d 606, 622 (1996). Moreover, very slight evidence upon a
given theory of a case will justify the giving of an instruction.
People v. Jones, 175 Ill. 2d 126, 132, 676 N.E.2d 646, 649 (1997).
Under Illinois law, a person is legally accountable for
the conduct of another when:
"Either before or during the commission
of an offense, and with the intent to promote
or facilitate such commission, he solicits,
aids, abets, agrees or attempts to aid, such
other person in the planning or commission of
the offense." 720 ILCS 5/5-2(c) (West 1994).
Here, evidence showed that defendant and Baughman were
out driving together during the early morning of October 10, 1995.
Defendant told Pennock they had been out together that evening and
he was taking Baughman home. A knife, a 12-gauge shotgun shell,
and a plaid shirt were later found in defendant's vehicle. These
facts support an accountability theory. The jury could easily have
concluded that defendant worked with Baughman to commit the robbery
by driving to and from Lindsay's Tavern and by carrying the robbery
weapons in his vehicle. Therefore, we hold the trial court's
decision to instruct the jury on accountability was not error.
Defendant's remaining argument is that the trial court
erred in granting him 139 days of credit against his sentence. He
maintains, and the State concedes, that he is entitled to 140 days
of credit. Based upon our review of the record, we disagree and
reject the State's concession. In People v. Donnelly, 226 Ill.
App. 3d 771, 779, 589 N.E.2d 975, 980 (1992), this court addressed
the subject of computing a defendant's credit for time served at
the sentencing hearing and stated:
"Because of the statutory right to the
credit, we hold that the error in computing
the credit is not waived by failure of the
defendant *** to call the error to the trial
court's attention. *** [P]roper trial-court
practice at the time of sentencing would in-
clude taking a few additional minutes to
discuss credit-time computation with the
prosecutor, defense counsel, and defendant--
and then fix the number of days. From our
experience, that effort might well avoid the
loss of labor necessitated in the appellate
process and the remandment process."
Not long thereafter, this court decided People v. Curtis,
233 Ill. App. 3d 416, 420, 599 N.E.2d 101, 103 (1992), and, citing
Donnelly, stated:
"Both the State's Attorney and defense counsel
have an obligation to assist the court, and
both are obligated to make sure the defendant
receives neither more nor less than the time
credit to which he is entitled. We see little
justification or explanation for errors in
computing such credit." (Emphasis in origi-
nal.)
In People v. Steskal, 236 Ill. App. 3d 821, 824, 602 N.E.2d 977,
979 (1992), this court reaffirmed the views stated in Curtis, noted
that neither the State nor defense counsel in that case offered the
trial court any assistance in computing credit, and wrote the
following:
"The trial judge should seek confirmation from
defense counsel and the [State] as to the
accuracy of [the probation office's presen-
tence report] computation [of the total days
for which defendant is entitled to credit for
time served]."
The present case differs from Donnelly, Curtis, and
Steskal because the records in each of those cases were silent as
to the defendant's agreement with the trial court's determination
of the number of days for which the defendant was entitled to cred-
it for time served. Here, however, the record before us shows that
the trial court did precisely what this court urged in Donnelly,
Curtis, and Steskal; namely, (1) it consulted with the State and
defense counsel regarding the credit defendant was purportedly due
for time served, (2) it sought--and received (through defense
counsel)--defendant's input on and agreement with the total number
of days' credit, and (3) it corrected the number of days' credit
according to defense counsel's request. We conclude defendant
waived any claim for credit beyond that requested at the time of
the sentencing hearing.
In concluding that defendant in this case has waived his
argument on appeal that he is entitled to an additional day's
credit for time served, we are mindful of the recent decision of
the supreme court in People v. Woodard, 175 Ill. 2d 435, 677 N.E.2d 935 (1997). In that case, the supreme court overruled the decision
of this court in People v. Toolate, 274 Ill. App. 3d 408, 654 N.E.2d 605 (1995), and held that the $5-per-diem monetary credit
against the fine imposed for time spent in jail prior to sentenc-
ing, provided under section 110-14 of the Code of Criminal
Procedure of 1963 (Code) (725 ILCS 5/110-14 (West 1994)), may be
allowed even on appeal. Woodard, 175 Ill. 2d at 456-57, 677 N.E.2d 945-46. In our judgment, Woodard and Toolate are distinguishable,
since the records of the sentencing hearing in each were silent on
the subject of the defendant's credit under section 110-14 of the
Code against the fine the court imposed. See Woodard, 175 Ill. 2d
at 438, 677 N.E.2d at 937; Toolate, 274 Ill. App. 3d at 409, 654 N.E.2d at 606. Here, however, defendant was not silent at the
sentencing hearing. Instead, he got the sentence credit correction
that he sought. Thus, this case is more like those situations in
which the defendant not only fails to object, but affirmatively
concurs in the action of the trial court, thereby waiving any
objection to the action.
Although it appears defendant was entitled to 140 days of
credit, we fail to see how this mistake can be attributed to the
trial court. Rather, the error in calculating defendant's sentence
credit was the result of defense counsel's representations.
Accordingly, defendant cannot now complain. As stated by our
supreme court in People v. Heard, 396 Ill. 215, 219-20, 71 N.E.2d 321, 323 (1947):
"It is a well-settled principle of law that an
accused may not ask the court to proceed in a
given manner and then assign as error in a
court of review the ruling or action which he
procured." People v. Heard, 396 Ill. 215,
219-20, 71 N.E.2d 321, 323 (1947).
Accord People v. Lowe, 153 Ill. 2d 195, 199, 606 N.E.2d 1167, 1169
(1992).

For these reasons, we affirm defendant's convictions and
sentence.
Affirmed.
KNECHT, J., concurs.
McCULLOUGH, J., concurs in part and dissents in part. JUSTICE McCULLOUGH, concurring in part and dissenting in
part:
I agree that the trial court did not err in instructing
the jury on accountability but do not agree that the defendant is
foreclosed from receiving 140 days' credit for time served as
conceded by the State.
Here the defendant, the State, and this court agree that
"defendant was entitled to 140 days of credit." Slip op. at 10.
Woodard (175 Ill. 2d at 450, 677 N.E.2d at 942) concerned a $5
credit "'upon application of the defendant.'" Even though no
application was made, there was no waiver. I refer to my dissent
in People v. Moore, No. 4-96-0188 (June 30, 1997), ___ Ill. App. 3d
___, ___ N.E.2d ____.