People v. Beard

• Decision Date: 09 January 1995
• Docket Number: No. 1-93-3323,1-93-3323
• Citation: 648 N.E.2d 111,271 Ill.App.3d 320
• Parties: , 207 Ill.Dec. 655 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnnie BEARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 111

648 N.E.2d 111

271 Ill.App.3d 320, 207 Ill.Dec. 655

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Johnnie BEARD, Defendant-Appellant.

No. 1-93-3323.

Appellate Court of Illinois First District, First Division.

Jan. 9, 1995.

Rehearing Denied April 11, 1995.

Rita Fry, Public Defender of Cook County (Emily Eisner, Asst. Public Defender, of counsel), for appellant.

Jack O'Malley, State's Atty., County of Cook (Renee Goldfarb, Michael P. Golden, and Christopher B. Kaczynski, Asst. State's Attys., of counsel), for appellee.

Presiding Justice CAMPBELL delivered the opinion of the court:

Following a jury trial, defendant, Johnnie Beard, was convicted of retail theft and sentenced to two years probation. On appeal, defendant contends that: (1) he was denied his statutory and constitutional rights to a speedy trial; (2) the trial court's refusal to dismiss the jury venire consisting of only one African-American prospective juror violated his constitutional right to a jury drawn from a fair cross-section of the community; and (3) the trial court erred in refusing to allow defense counsel to cross-examine a police officer on matters allegedly omitted from his police report, for the purpose of impeaching the testimony of another witness. For the following reasons, we affirm the judgment of the trial court.

PRE-TRIAL MATTERS

The record reveals the following relevant facts. Defendant was indicted for retail theft on October 7, 1991. Subsequently, defendant was indicted for violation of bail bond, and was arraigned for both indictments on November 6, 1991. At that time, defendant appeared in court and offered a medical excuse for his failure to appear in court on July 22, 1991. The trial court released defendant on bond and imposed a curfew upon him, and the case was continued by agreement.

On January 7, 1992, the parties appeared in court and the State indicated its election to proceed on the retail theft case. The case was set for a jury trial on February 13, 1992, by agreement. On February 13, 1992, the trial court granted a continuance until March 11, 1992, on defendant's motion. The case was subsequently continued to April 22, 1992, by agreement, because of the trial court's crowded docket. On that date, defendant filed a motion to substitute judges, and obtained a court date of June 22, 1992.

On June 22, 1992, the parties appeared in court and defendant answered ready for trial. The State then changed its election to the violation of bail bond case, stating that it was the easier of the two cases to try. The State acknowledged that it had been unsuccessful attempting to contact the victim of the retail theft. Defense counsel indicated that it was ready to proceed on the retail theft charge, but not on the violation of bail bond charge, and agreed to continue the case for this reason. The trial court set the case for status, rather than trial, on August 4, 1992, at defense counsel's request.

On August 4, 1992, the case was continued by agreement to August 14, 1992. On that date, the State changed its election to the retail theft case, and the defendant made an oral and written demand for trial. The case was continued to September, 21, 1992, on the State's motion.

On September 21, 1992, defendant answered ready for trial. The State moved for a continuance, and the case was set for November 12, 1992.

On November 12, 1992, the State changed its election back to the violation of bail bond charge, explaining that, "we happened to pick a store that's going out of business." Defendant waived his right to a jury trial and the trial judge tried the violation of bail bond charge. At the conclusion of the evidence, the trial court, Judge Sheila O'Brien presiding, found defendant not guilty. On the State's motion, the retail theft charge was continued to December 15, 1992.

The trial court set the retail theft case for January 4, 1993, at which time the case was continued on the State's motion to February 8, 1993. On February 8, 1993, defendant filed a motion to dismiss the retail theft indictment, contending that his constitutional right to a speedy trial had been violated. Defendant argued that 232 days had passed since his first demand for a trial on June 22, 1992. On February 11, 1993, the trial court denied defendant's motion, finding that the State had 160 days from the disposition of defendant's violation of bail bond charge to try the retail theft charge, and that 160 days had not expired. The court continued the case to March 31, 1993, on the State's motion, at which time a jury trial commenced.

TRIAL

Prior to selection of the jury, defense counsel observed that the jury venire included only one African-American. Defense counsel called a side-bar and requested that the venire be dismissed. The trial court gave defense counsel the opportunity to present authority to support her motion, but defense counsel offered no additional support. The trial court denied the motion, and the jury selection commenced.

At trial, Jeff McPherson testified on behalf of the State that he was the store manager at Dion Furs, 8504 West Golf Road, Niles. McPherson stated that the store had several sales desks equipped with silent alarm buttons which, when pushed, would contact the Niles Police Department. McPherson stated that two to three security sensor tags are attached to each fur coat in the store; two are visible and one is concealed underneath the lining of the coat. The sensor tags set off alarms contained in posts on either side of the front store entrance should a garment pass through that area. McPherson added that customers must be buzzed in and out of the front entrance.

On February 27, 1991, at approximately 5 p.m., defendant and Connie Walker entered the store. McPherson approached them and inquired whether they required assistance. He started to help them look for coats, and after approximately fifteen minutes, defendant and Walker split up to look at different merchandise. McPherson accompanied defendant to the mens' coat area and answered defendant's questions about sizes and prices of coats.

Subsequently, defendant and Walker began to leave the store without purchasing anything. They walked toward the front entrance together, as McPherson stood at the front desk. As defendant and Walker left, the alarms sounded. McPherson approached defendant and Walker. Defendant stood next to the door buzzer, and pressed the button to let Walker out. Defendant followed Walker out of the door, and McPherson followed them. McPherson grabbed Walker in the vestibule of the store and pulled her back into the store. Defendant walked over to a car at the far end of the parking lot, and McPherson saw defendant throw something under the car. McPherson stated that he pressed the silent police alarm prior to following defendant and Walker out of the store.

Once back inside the store, Walker ran into a corner, pulled a coat out from under her skirt and pitched it under a rack of coats. McPherson retrieved and identified the coat as a sapphire mink coat valued at $10,995. He noted that two security devices had been removed from the coat.

The police arrived within five minutes, and brought defendant back into the store. McPherson searched the pockets of the coats on the rack from where the stolen coat had been taken and retrieved a sensor tag from the pocket of another coat.

Fur salesman Ed Ross testified to the same essential facts as McPherson. Ross stated that he heard the inner door buzzer sound when defendant and Walker were leaving the store. Ross also saw Walker pull a fur coat out from underneath her skirt, and saw the coat drop to the floor.

Niles Police Officer Elenz testified on behalf of the State that on February 27, 1991, he responded to the hold-up alarm activated at Dion Furs, and received a description of suspects. Officer Elenz approached the scene and saw defendant in the parking lot. The Officer pulled his squad car up to defendant's car and asked defendant to exit his car. Officer Elenz saw a woman's purse on the passenger seat of defendant's car. After Officer Elenz received a radio message from Niles Police Officer Wilson, he arrested defendant, then entered defendant's car and removed the purse. Inside the purse, he found a pair of bolt cutters. Officer Elenz stated that he prepared a theft report based on interviews with witnesses McPherson and Ross.

Following this testimony, the State rested its case. The trial court denied defendant's motion for directed finding, and the defense also rested. The jury returned a verdict finding defendant guilty of retail theft. After a hearing, the trial court sentenced defendant to two years probation. Defendant's timely appeal followed.

Initially, defendant contends that the State failed to prosecute him on the charge of retail theft within the requisite statutory 160 days of his demand for trial, under section 103-5(e) of the Code of Criminal Procedure. (Ill.Rev.Stat.1991, ch. 38, par. 103-5(e) (now 725 ILCS 5/103-5(e) (West 1994)).) Defendant argues that 229 days elapsed between his June 22, 1992, demand for trial, and his trial for retail theft on March 31, 1993, and that the State abused its right to change its election in order to circumvent the statutory time limit.

Section 103-5(e) provides in pertinent part:

"(e) If a person is simultaneously in custody upon more than one charge pending against him * * * or simultaneously demands trial upon more than one charge pending against him in the same county, he shall be tried * * * upon at least one such charge before expiration relative to any of such pending charges of the period prescribed * * *. Such person shall be tried upon all of the remaining charges thus pending within 160 days from the date on which judgment relative to the first charge thus prosecuted is rendered * * *." Ill.Rev.Stat.1991, ch. 38, par. 103-5(e).

In reliance on People v. Goins (1988), 119 Ill.2d 259, 116...