People v. Davis

• Decision Date: 26 October 1976
• Docket Number: No. 61738,61738
• Citation: 43 Ill.App.3d 603,2 Ill.Dec. 119,357 N.E.2d 96
• Parties: , 2 Ill.Dec. 119 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 96

357 N.E.2d 96

43 Ill.App.3d 603, 2 Ill.Dec. 119

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Albert DAVIS, Defendant-Appellant.

No. 61738.

Appellate Court of Illinois, First District, Second Division.

Oct. 26, 1976.

James J. Doherty, Public Defender, Chicago (James L. Rhodes, Suzanne M. Xinos, Asst. Public Defender, of counsel), for defendant-appellant.

Bernard Carey, State's Atty., Chicago (Laurence J. Bolon, Robert Handelsman, Asst. State's Atty., of counsel), for plaintiff-appellee.

DOWNING, Justice.

Albert Davis (hereinafter defendant) was indicted for the offenses of armed robbery and attempt murder. ¹ Following a jury trial in the circuit court of Cook County, he was found guilty of attempt murder (Ill.Rev.Stat.1971, ch. 38, par. 8--4) and sentenced to a term of ten to thirty years. Defendant contends on appeal: (1) he was denied a fair and impartial trial; (2) he was not proved guilty beyond a reasonable doubt; and (3) the sentence imposed was excessive.

At 4 a.m. on August 4, 1973, the complainant, Rafael Negron, had been drinking beer in a Chicago bar for approximately seven hours. As the bar closed at 4 a.m., he was approached by two men whom Negron identified as co-defendant John Huff and defendant. The men suggested having another drink, and the three went to an apartment where Negron's friends lived. Negron, Huff, defendant, and several of Negron's friends drank wine there for about four hours. At that point defendant said he had to pick up his paycheck from the factory where he worked. The three men walked to the factory and defendant went inside. After defendant returned with his check, he cashed it in a currency exchange and the three continued walking. Defendant then brought more wine and cigarettes which the trio shared.

The group then proceeded to Negron's apartment where Negron noticed the building manager, Darrell Sloan, when they entered. Upon entering the apartment, defendant went to the washroom, Huff and Negron into the living room. The next thing Negron remembered was Huff standing in front of him with a pint of wine and hitting him in the face with the bottle. Reeling from the blow, Negron leaned against a chair. He thought defendant was behind him and he felt something hard in his back like a knife. As Negron fell to the floor, Huff stood in front of him with a small knife in his hand. Huff then tied Negron's feet and stabbed him in the chest. Defendant tied Negron's hands and Huff asked where the money was. Learning that Negron had no money, Huff took his ring and watch. Defendant stood in front of Negron with a knife during this period and stated that he had to kill Negron so that he could not recognize anyone. When Negron's dog started barking, defendant said that he and Huff should leave the apartment.

After they left, Negron crawled over and pulled down the telephone, screaming for help. At this time the manager, Sloan, on duty at the front desk, noticed that the telephone terminal for Negron's apartment was lit up. Sloan heard the screams when he plugged into the terminal. Sloan then proceeded toward the elevator, where he observed the two men who had come in earlier with Negron. When the men existed the front door, Sloan immediately called the police.

Officer Allan Janito, responding to the call, found a man lying on the apartment floor bleeding and bound. Janito also found two knives near the elevators. Negron was taken to the hospital where Investigator John Eshoo unsuccessfully tried to converse with him in the emergency room.

When Negron was released from the hospital a week later, Eshoo and Officer McCracken successfully interviewed him at his apartment. Negron and the police officers then drove to the factory where defendant had picked up the check. As the officers entered the factory, Negron remained in the automobile. Later Negron entered the factory and viewed five males. He recognized none of them. When he returned to the automobile, Negron saw defendant on his way to work and informed Officer McCracken of that fact. Defendant was then taken into custody. Eshoo testified that upon being taken to the police station and informed of his rights, defendant stated he had tried to 'help' Negron and that he had 'held' Negron but had not stabbed him.

During his later investigation, Eshoo observed a man who fit the description of the second suspect. The man was Huff, who was stopped, informed of his rights, and then arrested. Huff also gave an oral statement to the police. Eshoo testified that Huff said that he had been in the apartment, had held Negron, but had not done any stabbing. Negron later identified Huff at a lineup.

Prior to the trial, defendant filed a motion for severance, alleging that Huff's statement might be introduced against him. In response to the motion, the state represented to the trial court that any statement by Huff which included defendant in any inculpatory manner would not be testified to and would be deleted from the testimony. The motion for severance was then denied and Huff and defendant were tried together in a joint trial.

Both defendants testified at the trial. Huff acknowledged that he, Davis, and Negron had been drinking; and that before traveling to the factory, the group had stopped at the residence of Huff's friends and also at Negron's apartment where Negron took a shower. Further, upon discovering that the currency exchange was not yet open, Negron, defendant, and Huff drank more wine outside the apartment of Huff's mother. Huff also testified that the group then returned to Negron's apartment where they drank more wine; that as Negron sat with his eyes closed in a chair propped against the wall, Huff and defendant departed; and that three men got off at Negron's floor when he and defendant entered the elevator. In response to police questioning upon his arrest, Huff stated that he did not think defendant had stabbed Negron because the complainant was fine when he and defendant left together. Lastly, Huff denied ever telling Eshoo or any other police officer that he had held Negron while defendant stabbed him.

Defendant testified that, upon the group's return to Negron's apartment, he went into the kitchen for a glass of water and then heard breaking glass and moaning sounds. When he got to the living room, Negron's face was bleeding and Huff had a knife. He saw Huff stab Negron twice and he then stepped forward and kicked the knife out of Huff's hand. Huff pulled out another knife but dropped it. Defendant then exited the building by the stairs rather than by the elevator. Defendant further testified that, when he (defendant) had been arrested, Negron had stated that defendant was with the man who had stabbed him; that Negron had then told defendant that, if defendant identified the other man, Negron would not blame defendant; that he told both officers that he had tried to 'help' Negron; and that he never said he had 'held' Negron.

I.

On appeal the state contends that many of the issues raised by defendant are not properly before us because the written motion for a new trial was not sufficiently specific to prevent a waiver. The controlling Illinois statute requires that a motion for a new trial be in writing and specify the grounds. (Ill.Rev.Stat.1973, ch. 38, par. 116--1(b), (c).) The general rule is that failure to raise issues in a written motion for a new trial constitutes a waiver thereof and precludes a defendant from raising the issues on appeal. (People v. Pickett (1973), 54 Ill.2d 280, 282, 296 N.E.2d 856; People v. Hairston (1970), 46 Ill.2d 348, 367, 263 N.E.2d 840, Cert. denied (1971), 402 U.S. 972, 91 S.Ct. 1658, 29 L.Ed.2d 136.) On the other hand we have the authority to notice 'plain errors or defects affecting substantial rights' even though 'they were not brought to the attention of the trial court.' Ill.Rev.Stat.1973, ch. 110A, par. 615.

In the instant case defendant's counsel clearly indicated that he was unable to secure the trial transcript and, therefore, set out certain conclusions in his motion. The errors pertaining to defendant's alleged denial of a fair and impartial trial were raised generically in paragraph 11:

'11. The trial court erred in failing to sever the two causes of action which were consolidated on motion of the State's Attorney which was objected to prior to trial.'

This allegation is specific enough to avoid the potential harshness of the strict application of waiver. Similarly, paragraphs 1 and 7 of the motion, wherein defendant states his claims that he was not proved guilty beyond a reasonable doubt and that he was denied a fair and impartial trial, are sufficiently specific. We agree that under certain circumstances waiver may apply; however, for the reasons stated, we think the instant motion for a new trial substantially covers the points here raised for our review.

II.

Defendant maintains that he was denied a fair and impartial trial for two reasons. First, he argues that Huff's defense was antagonistic to his own and, thus, refusal to sever the causes was error. Second, he argues that the state's use, during direct examination of Officer Eshoo, of Huff's statement inculpating defendant was further error. Although these contentions are related, we will respond to each separately.

A.

Separate trials are required when the defenses of the several defendants are so antagonistic that a fair trial can be assured only by a severance. (People v. Brooks (1972), 51 Ill.2d 156, 166, 281 N.E.2d 326; People v. Henderson (1st Dist. 1976), 39 Ill.App.3d 164, 168, 351 N.E.2d 225.) The decision as to whether separate trials should be granted is a matter for the trial court's discretion. (People v. Canaday (1971), 49 Ill.2d 416, 424, 275 N.E.2d 356; People v. Morrow (1st Dist. 1976), Ill.App., 353 N.E.2d 354.) In the case at bar defendant contends that failure to sever the two causes denied him a fair and impartial trial. A severance must be...