People v. Campbell

• Decision Date: 13 August 1984
• Docket Number: Nos. 2-83-0397,2-83-0398,s. 2-83-0397
• Citation: 126 Ill.App.3d 1028,82 Ill.Dec. 39,467 N.E.2d 1112
• Parties: , 82 Ill.Dec. 39 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles CAMPBELL, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1112

467 N.E.2d 1112

126 Ill.App.3d 1028, 82 Ill.Dec. 39

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Charles CAMPBELL, Defendant-Appellant.

Nos. 2-83-0397, 2-83-0398.

Appellate Court of Illinois Second District.

Aug. 13, 1984.

Rehearing Denied Sept. 19, 1984.

Dennis M. Doherty, Chicago, for defendant-appellant.

Fred L. Foreman, State's Atty., Waukegan, Phyllis J. Perko, Sally A. Swiss, State's Attys. Appellate Service Commission, Elgin, for plaintiff-appellee.

UNVERZAGT, Justice:

The defendant, Charles Campbell, and two codefendants, Maverick and Sammie Tyler, were charged in Lake County by indictment for an incident which occurred on September 15, 1982, with two counts of armed robbery, and with one count each of attempted murder, aggravated battery (while armed with a dangerous weapon), and armed violence (caused great bodily harm while armed with a dangerous weapon). (Ill.Rev.Stat.1981, ch. 38, pars. 18-2, 8-4(a), 9-1(a)(1), 12-4(b)(1), 12-4(a) and 33A-2.) (No. 82 CF 1492.) The defendant was tried separately, and is the only one involved in these appeals. He was convicted by a jury of all counts except attempted murder. Concurrent sentences of 10 years for aggravated battery, 60 years for armed violence and 60 years for armed robbery were imposed. Upon defendant's stipulation to those convictions, the court revoked a four-year probation term entered February 23, 1982, after defendant pled guilty to an information for the September 15, 1981 robbery of Brian Brady, a sailor, in North Chicago. (No. 81 CF 1519.) The court imposed a seven-year sentence for that robbery, and ordered the concurrent sentences imposed in No. 82 CF 1492 be served consecutive thereto. Defendant's notices of appeal from his convictions and the probation revocation were timely filed and we have consolidated them.

The sufficiency of the proof against the defendant is not at issue, and a detailed recitation of the evidence at trial is not warranted. The five offenses charged against the defendant in the indictment occurred during the armed robbery of two sailors, Kenneth Kleinworth and Joseph Dindlebeck, who were stationed at Great Lakes Naval Center in North Chicago, Illinois. September 15, 1982, was pay day for the two men. They were returning to base about 10:30 p.m., walking southbound on Sheridan Road. As they approached the viaduct near 19th Street, they noticed three black men at the top of the viaduct by the Elgin, Joliet & Eastern Belt Line railroad tracks. One of the men was holding what Kleinworth and Dindlebeck thought was a stick. They soon realized the stick was a sawed-off shotgun when the three men ran down the tracks toward them and announced a robbery. The defendant was identified at trial as the gunman by Dindlebeck and Kleinworth. Shortly after the incident they had each picked out his photo from police photo albums, and Dindlebeck was able to identify him in a line-up. Kleinworth was not able to pick defendant out of a line-up, and before he identified the defendant in court he asked to be allowed to approach the defendant for a "closer look" and asked to have him stand up. He then stated: "Yes, that's him."

Two of the robbers jumped Dindlebeck, and the defendant repeatedly jabbed at Kleinworth with the gun, prodding him toward the bushes, and saying he was "going to blow [him] away, if [he] didn't move." After what seemed like four minutes to Kleinworth, and only a matter of seconds to Dindlebeck, a shot was fired that hit Kleinworth in the upper inside of his left thigh. Kleinworth testified the defendant "rolled me up enough where he could get to my wallet", took it, and fled. Dindlebeck testified a second shot was fired as the robbers ran.

Kleinworth suffered extensive soft tissue injury to his left thigh. He underwent six-hour emergency surgery to restore blood flow to the lower part of his leg, and had an artificial blood vessel implanted in his leg. The surgeon testified Kleinworth had lost 50 to 70% of his functional strength and enervation of his lower leg. The functional disability rendered him unable to perform his duties required on board a ship (climbing ladders, etc.), and proceedings for his discharge from the Navy were instituted. Further surgery was required to relieve symptoms of a pain syndrome he later developed called causalgia.

The defense presented at trial was mistaken identity and alibi. Two witnesses, also sailors, testified for the defense that they were robbed earlier the same evening by a group of four or five black males in approximately the same vicinity as Kleinworth and Dindlebeck. One of the men in that robbery also carried a sawed-off shotgun. Both sailors testified they did not recognize the defendant as one of the men who robbed them.

Ethel, H.T., and Brenda Tyler testified concerning the defendant's whereabouts on the evening of September 15, 1982. The witnesses were, respectively, the mother, father and sister of the defendant's co-defendants. Additionally, Brenda was identified at trial as defendant's common-law wife and the mother of his three children. Mr. and Mrs. Tyler testified they saw the defendant at their daughter's residence at 1801 Victoria, but not at any time later than 6 p.m. on September 15. Brenda testified the defendant was at her residence all day on the fifteenth; she stated she and the defendant just "sat around" in the evening; she went to bed about 11 p.m., and the defendant went to bed "after twelve."

On cross-examination, the State sought to impeach her testimony with evidence of her prior inconsistent statement to North Chicago Detective Van Dien that the defendant and her brother, Sammie Tyler, were on the back porch all night on September 15, and that she went to bed between 10 and 11 p.m.

As noted, the jury found the defendant guilty of all of the offenses charged, except attempted murder.

The defendant raises several issues with numerous subissues. The primary issues raised are: (1) whether he was denied a fair trial by (a) commencement of the trial and composition of the jury; (b) prosecutorial overreaching; (c) court's evidentiary rulings; (d) police testimony; (2) whether the sentences imposed are excessive or improper; (3) whether reversal and/or remand of the 82 CF 1492 convictions would mandate vacation of the probation revocation.

1. Fair Trial.

(A) Commencement of the trial and composition of the jury. The defendant contends (1) it was error for the court to deny a mistrial requested after a week-long delay of trial due to the illness-related absence of the trial judge; (2) two jurors were improperly excused after jeopardy had attached; (3) his right to be present at every critical stage of the trial was violated by the court's excusal of the two jurors out of his presence; (4) his right to have the trial completed by a particular tribunal was violated by the court's excusing of the two jurors; (5) he was prejudiced by the court's refusal to withdraw a juror who admitted on the third day of trial that she could not be impartial; and, as a result of the foregoing, (6) reversal is mandated and reprosecution is barred by the double jeopardy clause, or, alternatively, he is entitled to a new trial.

Prior to adjournment on February 7, 1983, the jury here had been sworn, opening statements made, and one witness had testified concerning what he observed when he drove past the scene of the robbery on the evening in question. Due to the illness of the trial judge, Harry D. Strouse, Jr., trial did not resume until February 14, 1983. In the interim, two of the jurors were excused by another judge, Chief Judge Jack Hoogasian, and the two alternate jurors were seated, all without notice to or knowledge of the defendant. Defendant's motions for a mistrial and for the post-trial grant of an evidentiary hearing as to the circumstances surrounding the excusing of the two jurors were denied.

Defendant argues it was an abuse of the court's discretion to deny a mistrial under these circumstances, since it could reasonably be inferred that the other ten jurors may have resented having to remain on the jury and may have harbored animosity toward the defendant as a result. The defendant cites no Illinois cases in support of his advancement of the proposition that the illness of the judge has long been deemed a proper basis for the granting of a mistrial. He does cite four cases from other jurisdictions which, as explained below, show only that a mistrial may be declared due to illness.

The State responds the defendant's argument here is based on speculation which has no foundation in the record, and is belied by the fact no other jurors sought to be removed from the panel.

The decision to declare a mistrial rests within the discretion of the trial court and is not subject to review unless there has been an abuse of that discretion. (People v. Chaffin (1969), 115 Ill.App.2d 1, 254 N.E.2d 72, rev'd on other grounds (1971), 49 Ill.2d 356, 274 N.E.2d 68.) The party moving for a mistrial bears the burden of making a showing that he has been prejudiced (People v. Robinson (1979), 68 Ill.App.3d 747, 753, 25 Ill.Dec. 288, 386 N.E.2d 559; People v. Dolgin (1953), 415 Ill. 434, 445, 114 N.E.2d 389) which, in turn, makes the declaration of a mistrial manifestly necessary or consistent with the ends of justice. People v. Bracy (1973), 14 Ill.App.3d 495, 302 N.E.2d 747.

The cases cited by the defendant from other jurisdictions support his position on this issue only to the extent that the illness of the court has been recognized, inter alia, as an exception to the general rule that a person may not twice be put in jeopardy for the same offense. In such cases of illness of the judge, the trial may be suspended for a time or discontinued altogether due to the necessity of the situation. However, the defendant, even though he may not have consented to the suspension or termination, will not thereafter be protected from...