People v. Tiffin

306 N.E.2d 325, 16 Ill. App. 3d 367, 1974 Ill. App. LEXIS 3136
CourtAppellate Court of Illinois
DecidedJanuary 16, 1974
Docket11990
StatusPublished
Cited by6 cases

This text of 306 N.E.2d 325 (People v. Tiffin) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Tiffin, 306 N.E.2d 325, 16 Ill. App. 3d 367, 1974 Ill. App. LEXIS 3136 (Ill. Ct. App. 1974).

Opinion

Mr. JUSTICE KASSERMAN

delivered the opinion of the court:

Defendants, having been indicted on one count of armed robbery and one count of burglary, were found guilty by jury verdict of both counts of the indictment Following a hearing in aggravation and mitigation, defendants were each sentenced to the Department of Corrections for an indeterminate term of 15 to 30 years for the offense of armed robbery. In their appeal to this court, they raise three issues: (I) Whether the court committed reversible error in admitting evidence tending to indicate that defendants had committed other crimes; (2) whether defendants were erroneously convicted of multiple offenses; and (3) whether the sentences imposed were excessive.

The evidence is not in dispute. On December 4, 1971, Gary Dunavan was visiting the home of his mother, Frances Dunavan, near Rossville, Illinois. He saw a rust colored 1969 Ford LTD drive by the home. Subsequently, he went outside the home to go to a nearby shed. Defendants met him as he left the shed, and Tiffin, who was wearing a red T-shirt, held a gun on him as both' defendants walked him back into the house. KindeU tore out a telephone and tied Gary Dunavan with the telephone wire. Gary Dunavan s billfold containing $2 cash was taken from him. Mrs. Dunavan was also tied back-to-back on the couch with her son after she requested she not be tied lying down but that Gary be moved from the floor so that they could both be tied up sitting on the couch. Defendants inquired about guns in the house, and although there was a rifle and two shotguns, defendants were not seen to have taken them from the house. Mrs. Dunavan gave a ten dollar bill to defendants when they asked her if she had any money. Defendants left; however, Tiffin returned shortly and tore out an upstairs extension telephone. All of these events occurred in approximately fifteen minutes, beginning about 10:30 A.M. Gary freed himself and his mother after defendants left, and it was then discovered that Gary’s car was gone and that a cookie jar, a plastic bucket, a small radio and two guns were missing from the house. The 1969 Ford that Gary had seen pass the house before was standing near the home.

The evidence further establishes that Gary Dunavan’s car was abandoned at the farm home of Orville Pletch. Mr. Pletch, who was acquainted with Tiffin, testified that both defendants came to his home the night of the armed robbery and that each had a gun in his possession. He testified that Tiffin had in his possession a pistol Gary Dunavan identified at the trial as resembling the gun Tiffin was holding at the time of the armed robbery and which Montgomery County, Indiana jailer testified had been removed from his jail desk prior to the armed robbery.

James Cave, the Montgomery County, Indiana jailer, testified that approximately an hour-and-a-half before the robbery, both defendants were in his custody and that they ‘left the jail” and “removed” a pistol from his jail desk.

Further, there is testimony that the Montgomery County, Indiana jail is located in Crawfordsville, Indiana, which is about 45 miles from Danville, Illinois.

Ollie Query saw defendants run from the jail to Perry Lewis’ car lot where they left in a red car which was driven by Tiffin. She further testified that Tiffin was wearing a red T-shirt and had a gun in his hand.

Eugene Trefz, a car salesman for Perry Lewis’ car dealership in Crawfordsville, Indiana, testified that on the morning of the armed robbery a 1969 Ford LTD was driven off the lot without any license plates and that the car “could be mistaken for rust color, or red”.

The evidence further shows that defendants were arrested while they were asleep on December 7, 1971, and that the pistol identified by Orville Pletch and James Cave was removed from Tiffin at the time of the arrest. This is the same revolver that Gary Dunavan identified as resembling the one used by Tiffin in the robbery. KindeH also had a gun on him at the time of the arrest, and Mrs. Dunavan’s radio was found in the apartment where defendants were arrested. A billfold removed from Tiffin at the time of the arrest was not identified as belonging to either Gary or Mrs. Dunavan; however, it contained photographs and identification cards taken from Gary in the armed robbery. The 1969 Ford abandoned at the Dunavan house was identified as being the same car that was removed from the car lot of Perry Lewis in Crawfordsville, Indiana by the defendants.

No objections were made to the testimony of James Cave, Ollie Query, or Eugene Trefz. There were no objections to the introduction of the State’s exhibits. Further, the defense offered no evidence.

Defendants filed a motion for a new trial based solely on error for failure to grant a change of venue and in denying a motion for a mistrial as to testimony relating to pretrial television publicity.

AppeHants raise three issues on this appeal, none of which were specified in them motion for a new trial. In order for this court to consider these grounds as a basis for appeal, it is necessary to invoke the provisions of Supreme Court Rule 615(a) (Ill. Rev. Stat. 1971, ch. 110A, par 615(a)), in view of the requirements of Illinois Revised Statutes, 1971, chapter 38, paragraph 116 — 1(c):

“The motion for a new trial shall specify the grounds therefor.”

The supreme court has held in People v. Pickett, 54 Ill.2d 280, 296 N.E. 2d 856, that a court of review, as a matter of grace, may in certain instances relax the requirements of this statutory requirement, stating:

“The general rule followed by this court is that the failure by the defendant to raise an issue in the written motion for a new trial constitutes a waiver of that issue and it cannot be urged as a ground for reversal on review.”

The court went on to specify that one of the prerequisites of appellate review, as a matter of grace, of errors not raised in the post-trial motion is that the evidence be closely balanced.

It cannot seriously be contended in the instant case that the evidence is closely balanced. The defendants offered no evidence. There is unrefuted evidence establishing the fact that they committed a home invasion aimed robbeiy. Failure of appeHants to raise the question of the trial court’s alleged admission of improper evidence, therefore, cannot be considered on appeal.

Notwithstanding appellants’ failure to raise the question in their post-trial motion, their contention that the trial court committed reversible error in admitting evidence tending to show that defendants committed other crimes would fail on its merits. There is testimony of three witnesses indicating that defendants were in jail in Crawfordsville, Indiana; that they left the jail with the jailers pistol and that they took a 1969 Ford in which they fled. Appellants argue that this evidence was introduced for the purpose of showing a propensity on the part of the defendants to commit the crimes charged. This argument is unfounded in the evidence. Defendants are described as having left the jail, as having taken the pistol when they left and as having driven the 1969 Ford off the parking lot.

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Related

People v. Kirkpatrick
387 N.E.2d 1284 (Appellate Court of Illinois, 1979)
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363 N.E.2d 838 (Illinois Supreme Court, 1977)
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354 N.E.2d 393 (Appellate Court of Illinois, 1976)
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319 N.E.2d 524 (Appellate Court of Illinois, 1974)

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Bluebook (online)
306 N.E.2d 325, 16 Ill. App. 3d 367, 1974 Ill. App. LEXIS 3136, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-tiffin-illappct-1974.