People v. Graves
Decision Date | 18 July 1972 |
Docket Number | No. 11435,11435 |
Citation | 6 Ill.App.3d 612,285 N.E.2d 236 |
Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Howard GRAVES, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
John F. McNichols, District Defender, Illinois Defender Project, Springfield, J. Daniel Stewart, Staff Atty., Springfield, of counsel, for defendant-appellant.
Paul R. Welch, State's Atty., McLean County, Bloomington, Richard E. Scott and Michael O. Gibson, Asst. State's Attys., Circuit Attys. Project, Bloomington, of counsel, for plaintiff-appellee.
Defendant appeals from a judgment entered upon a jury verdict finding him guilty of theft of property over $150 on which he received a sentence of five to ten years. He questions the severity of the sentence and asks us to exercise our authority to reduce it--in the event the errors alleged here do not warrant a new trial.
The first error can be disposed of quickly. He asked for and was denied the assistance of counsel at the preliminary hearing held on January 16, 1970. On January 22, 1970, the United States Supreme Court announced its decision in Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387, holding that a preliminary hearing is a 'critical stage' and an indigent defendant, therefore, is entitled to appointed counsel. Our Supreme Court followed in People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, holding that a preliminary hearing in Illinois is also a 'critical stage' at which counsel must be appointed, but decided that Coleman was not retroactive and that the ruling in Adams (and Coleman) would not be applied to cases where the preliminary hearing was held prior to June 22, 1970. The United States Supreme Court granted Certiorari in Adams to decide this question of retroactivity and on March 6, 1972, held that retroactive effect need not be given to Coleman and consequently affirmed the conviction. 405 U.S. 278, 92 S.Ct. 916, 31 L.Ed.2d 202. Accordingly, the denial of the request for counsel on January 16, 1970, was not error per se since it antedated Coleman. Defendant argued here, however, that regardless of how Adams might be decided (it had not yet been), he was prejudiced at the trial by lack of counsel at the preliminary hearing because of the 'large number of witnesses' called who were not on the State's original witness list--and had he been given counsel, discovery of such witnesses might have been elicited. But the answer to this is simply that he is (and we would be) speculating as to whether or not these 'large number of witnesses' would have been called at the preliminary hearing or indeed were known of or could otherwise have been there ascertained. Would defendant have been any the wiser in this regard if he had had counsel at the preliminary hearing? Since an affirmative answer would be based on pure speculation, as we have said, and since Adams does not require retroactive effect, defendant's assertion of error on this point cannot be sustained.
The second asserted error has to do with these 'large number of witnesses' called at the trial over defendant's objection which were not on the list of witnesses furnished him. The original list contained the names of four witnesses. On the first day of trial the State added six more. The court permitted such addition, giving defendant's counsel the right to interview any he chose before they took the stand. Most of the added witnesses did in fact testify. Defendant states that he prepared his defense in reliance upon the original list of four, one of whom was an accomplice. His argument is that if he had known the accomplice might be corroborated, his trial stance might have been different, that is, absent the additional witnesses, and the accomplice having been impeached, the jury might Not have believed him. Again, this is speculation.
The additional witnesses were indeed corroborative of the case made by the accomplice and the other three witnesses on the original list, who made a prima facie case. The fact that in corroborating the State's case, they may have had varying versions not explicitly testified to by the original four, does not render their testimony noncumulative--an important characterization, as we shall see.
The rule seems to be that the trial judge has a large discretion in permitting the State to call witnesses not on the list as furnished to a defendant. Of course, this discretion can be abused and certain guidelines have developed through the years for determining what does and what does not constitute an abuse.
In People v. Gonzales, 107 Ill.App.2d 44, 245 N.E.2d 791 (1969), it was said:
'It is well established in this State that it is within the discretion of the trial court to allow a witness to testify even though his name is not on the list of witnesses furnished to the defendant and that the burden is on the defendant to show surprise or prejudice.'
And in People v. Williams, 86 Ill.App.2d 209, 229 N.E.2d 158 (1967), it was said:
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...been made to demonstrate that the failure to furnish addresses was motivated by a fear for the witnesses' safety. In People v. Graves, 6 Ill.App.3d 612, 285 N.E.2d 236, the Court stated that 'in the absence of bad 'It is for the court in the first instance to determine whether the delay was......
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People v. Adams
...313, 256 N.E.2d 475; and his ruling will not be disturbed unless there is a showing of abuse of that discretion. (People v. Graves, 6 Ill.App.3d 612, 285 N.E.2d 236.) If, in fact, defendant was surprised by the evidence which had been revealed to him in the F.B.I. reports and during his int......