People v. Goines

• Decision Date: 17 July 1974
• Docket Number: No. 11851,11851
• Citation: People v. Goines, 314 N.E.2d 193, 20 Ill.App.3d 1055 (Ill. App. 1974)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard GOINES, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 193

314 N.E.2d 193

20 Ill.App.3d 1055

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Richard GOINES, Defendant-Appellant.

No. 11851.

Appellate Court of Illinois, Fourth District.

July 17, 1974.

Michael A. Pope and Richard A. Seltzer, Chicago, for defendant-appellant.

Lawrence E. Johnson, State's Atty., Urbana, for plaintiff-appellee; James R. Burgess, Asst. State's Atty., L. Keith Hayes, Jr., Senior Law Student, of counsel.

SMITH, Presiding Justice:

The defendant was found guilty of armed robbery in a jury trial and sentenced by the circuit court of Champaign County to a term of 5 to 15 years in the penitentiary. In this court, he contends (1) that he was denied a full and meaningful preliminary hearing, (2) that trial counsel was incompetent, (3) that the trial court erred in refusing to allow newly discovered evidence that a third person confessed to the crime, and (4) whether his guilt was established beyond a reasonable doubt.

At the time of the occurrences, the defendant was 17 years of age and this court required supplemental briefs as to whether the Illinois Juvenile Court Act in effect at that time, Ill.Rev.Stat.1971, ch. 37, par. 701--1, denied equal protection of the law because of age variance between the sexes and was thus unconstitutional. In People v. Ellis, 57 Ill.2d 127, 311 N.E.2d 98, our supreme Court laid this issue to rest and held that the Juvenile Court Act did not apply to males over 17 years of age.

The preliminary hearing in which the defendant was bound over to the Grand Jury was based solely on hearsay testimony of the investigating police officer. The officer read from the police report the statement of Bruce Jacobs, an eyewitness who picked out a photograph of the defendant from a high school yearbook and the statement of one of the young ladies at the Dairy Queen who gave the robber $28, but could not identify the defendant immediately after the robbery nor at the trial. Mr. Jacobs and the young lady both testified before the Grand Jury. Jacobs was the only witness at the trial who identified the defendant and the three other eyewitnesses admitted that they could not do so. Since Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, there can be no question but that the preliminary hearing may be a 'critical' stage of a criminal prosecution and under the sixth amendment to the Constitution of the United States, a defendant is entitled 'to have the Assistance of Counsel for his defence' and under section 1 of the fourteenth amendment to the Federal constitution, 'no state may deprive a defendant of life, liberty, or property without due process of law or the equal protection of the law.' The issue here is whether or not the use of hearsay testimony in a preliminary hearing may be properly used to establish (1) that a crime has been committed and (2) that there is probable cause to believe that the defendant participated in it. A preliminary hearing is not a full-blown trial. Its purpose is historically and specifically limited. The preliminary hearing is binding on no one. Article I, section VII, of the Illinois constitution, S.H.A., now gives the accused a right to a preliminary hearing when in conjunction with Smith-Hurd Illinois Annot.Stats. 1971, ch. 38, par. 109--1 the accused is arrested without a warrant. In this case, the preliminary hearing was held with the accused represented by counsel provided by his family. No objection was raised to the proceedings at the preliminary hearing and as a general proposition a constitutional defect, if not noted in the lower court, is deemed waived. (People v. Black, 52 Ill.2d 544, 288 N.E.2d 376.) It is clear that the preliminary hearing is binding on no one and the State's attorney could have appropriately and properly submitted this case to the Grand Jury even though the preliminary hearing officer had found no probable cause as to the defendant. Under these circumstances and under this record, we cannot classify this proceeding as 'plain error' nor does this record remotely establish any prejudicial error to the defendant.

The defendant asserts that the inadequacy of the attorney furnished by his family deprived him of a fair trial. Defendant supports this position by the following cases: (People v. Jackson, 96 Ill.App.2d 99, 238 N.E.2d 234; People v. McCoy, 80 Ill.App.2d 257, 225 N.E.2d 123, and People v. Odom, 71 Ill.App.2d 480, 218 N.E.2d 116). The cases here cited are not comparable to the record before this court, nor to the harpoons cast by the defendant at defense counsel. It is first asserted that the defendant did not seek out pre-trial discovery techniques available to him and because he could have sought them out, he should have. There is nothing in this record that suggests any of the matters complained about or the failure to use them would have disclosed anything of any particular benefit to this defendant. The defense throughout was primarily alibi and identification. This resulted in a well-conducted presentation of witnesses as to alibi and effective cross-examination of Mr. Jacobs, who was the sole eyewitness who identified the defendant. It is urged that when the defense counsel is his motion for a new trial asserted for the first time that the atmosphere of the community was such that the defendant could not have a fair trial because of adverse newspaper publicity and the frequency of armed robberies in that area, it should have been presented in an application for change of venue prior to the trial. It is urged that this further demonstrates the ineptness of counsel. Appellate counsel has not seen fit to bring these items before this court and we assume that this point is either without merit or is waived. Trial counsel employed assistance in his motion for a new trial. It can well be said that there were many actions that could have been taken by the defense counsel which were not taken. There is not a scintilla of evidence in this case that had they been taken they would have been productive of anything bearing on the innocence or guilt of this defendant or upon the fairness of his trial. We cannot say from this record that the representation that this defendant had amounted either to such low representation or that it was such as to reduce the trial to a farce or deny the defendant a fair trial. People v. Strader, 23 Ill.2d 13, 177 N.E.2d 126.

On the motion for new trial, the defendant testified to the following facts: That while in jail, Oliver Johnson admitted to him that he (Johnson) had committed this robbery, and that this statement was made in the defendant's presence and three other witnesses in jail on more than one occasion after defendant's trial. Before Johnson left, he said he would testify for the defendant if he had a new trial. The motion for new trial was continued and Oliver Johnson was returned to testify. When Johnson was returned to the trial court from the penitentiary, he claimed his constitutional privilege against self-incrimination. Defense counsel requested the State to give Johnson immunity from prosecution. The State refused. None of the other three people were summoned to testify, nor does this record show that they were...