People v. Harvey
Decision Date | 27 March 1972 |
Docket Number | No. 55394,55394 |
Citation | 5 Ill.App.3d 499,285 N.E.2d 179 |
Parties | PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lonnie T. HARVEY, Defendant-Appellant. |
Court | United States Appellate Court of Illinois |
Charlotte Adelman, Chicago, for defendant-appellant.
Edward V. Hanrahan, State's Atty., County of Cook, for plaintiff-appellee; Robert A. Novelle, Larry S. Boress, Asst. State's Attys., of counsel.
Following a bench trial, Lonnie T. Harvey was found guilty of the offenses of involuntary manslaughter, driving while license revoked, leaving the scene of an accident involving personal injuries, and failure to report such accident within 48 hours of its occurrence. The trial court entered judgment on each of the findings and sentenced the defendant as follows: three to six years in the Illinois State Penitentiary for the involuntary manslaughter, one year in Cook County Jail for driving while license revoked, a $500 fine, suspended, for leaving the scene of an accident, and one year in Cook County Jail for failure to report the accident within 48 hours. Defendant appeals.
Although neither defendant nor the State has briefed or argued the issue, we must first consider the threshold question of this court's jurisdiction to entertain the issues raised by defendant in his brief. Appeals to this court in both civil and criminal cases are governed by Supreme Court Rules which provide that an appeal is perfected by the filing of a notice of appeal in the trial court and that such notice of appeal shall specify the judgment from which the appeal is taken. This is the only jurisdictional step in the appellate process. See Supreme Court Rules 301, 303 and 606, Ill.Rev.Stat.1969, ch. 110A, pars. 301, 303 and 606. Similarly, the scope of review in this court is limited, inter alia, to the judgment appealed from. See Supreme Court Rules 366 and 615, Ill.Rev.Stat.1969, ch. 110A, par. 366 and 615.
The trial court found defendant guilty of four offenses, entered judgment on each finding and imposed a separate sentence for each offense. The totality of the issues raised by defendant ultimately reaches each of the judgments. The record on appeal, however, contains a notice of appeal from the judgment on the charge of involuntary manslaughter only. We conclude that this court's jurisdiction is limited to the issues raised with respect to that judgment only. People v. Ilg, 1965, 60 Ill.App.2d 295, 210 N.E.2d 20. These issues are:
1) That the evidence was not sufficient to establish defendant's guilt;
2) That he was without effective assistance of counsel; and
3) That the sentence imposed is excessive and should be reduced.
The charges against the defendant arose from an occurrence in which Mrs. Helen Hamill and her four year old daughter Cheryl were struck by a truck owned by Arthur Little, shortly after 9:00 P.M. on August 3, 1969, as they crossed Damen Avenue at its intersection with 35th Street in the City of Chicago. As a result of that occurrence Mrs. Hamill sustained multiple injuries and Cheryl Hamill was killed. The issue raised by defendant with respect to the sufficiency of the evidence relates only to his identification as the driver of the offending vehicle. We, therefore, consider it appropriate to limit our discussion of the evidence presented to the trial court to that which bears on the identification issue.
Arthur Little, owner of the vehicle involved, testified that defendant, his brother-in-law, used the truck on the morning of the date in question as his mode of conveyance to the witness' grocery store in which defendant worked on a part-time basis. Mr. Little later drove to the store in his automobile. Late in the afternoon both he and the defendant went to a gas station, each in the vehicle which he had used earlier in the day. Mr. Little left defendant and the truck at the gas station and returned to his home, arriving there before 6:00 P.M.
Mr. Little further testified that defendant came to his home after 9:00 P.M. and at that time returned the keys to the truck. Shortly after defendant departed, two police officers arrived at his home and informed him that his truck had been involved in an accident. The remainder of Mr. Little's testimony details the efforts made by him and the police to locate the defendant.
Oleary Clark, a sister-in-law of both Mr. Little and the defendant, lived in the same building as Mr. Little. She testified that she saw Little in his apartment at approximately 5:30 P.M. on the date in question and did not leave his company until about 8:00 P.M. When she left his apartment she went across the street and sat with a friend, one Petola Todd, on the latter's front porch. From that vantage point she observed the defendant as he arrived in Mr. Little's truck at approximately 9:30 P.M. He parked the truck on the north side of the street, opposite Mr. Little's apartment building and then entered that building. Her testimony does not indicate whether she saw defendant leave the building.
She later observed two men as they attempted to gain entrance to the building. She asked them who they were looking for and was informed that they were police officers looking for the owner of the truck. She took them to Mr. Little's apartment where they found him sleeping on the couch. The truck was not moved between the time it was parked by the defendant and the arrival of the police officers.
Defense witness John E. Williams testified that he saw defendant and Mr. Little at a gas station between 6:00 and 6:30 P.M. on the date in question. They were in the office area of the station and were drinking from a bottle. He joined them in a couple of drinks. Mr. Little departed about 10 minutes after the witness' arrival and defendant left to obtain more liquor. He last saw the defendant at approximately 8:00 P.M. When the witness left the station between 8:00 P.M. and 8:30 P.M. the defendant had departed but the truck belonging to Mr. Little was still parked at the station.
Lonnie T. Harvey testified on his own behalf and admitted to having driven the truck involved in the manslaughter on the date in question. However, he denied having driven it after parking it in the service station shortly after 3:30 P.M. He further testified that he took a cab from the station to his home and went directly to bed. The next thing that he could remember was being awakened by his father around midnight. His father advised him that the truck had been involved in an accident and that the police were looking for him. He stated that he was going to go to the police station to straighten the matter out, but his father indicated his belief that the police would harm defendant if they found him. Instilled with fear by reason of his father's statement, defendant spent the remainder of the night at his brother's house and then flew to California the following day. He returned to Chicago voluntarily when he learned that a child had been killed in the accident.
Defendant does not contend that the circumstantial evidence presented by the State on the issue of the identity of the driver was insufficient to establish a prima facie case. Rather he attacks the credibility of the prosecution witnesses, pointing specifically to the relationship between Mr Little and Mrs. Clark, and to the fact that the only external standard by which Mrs. Clark gauged her estimates of the times at which the events to which she testified occurred was by the waning of daylight, and to certain minor discrepancies in the testimony of the prosecution witnesses as to the time defendant arrived at the service station and later at Mr. Little's apartment. Each of these factors bears upon the credibility of the witnesses. They are not of such magnitude, however, either singly or cumulatively, to totally discredit their testimony. In the final analysis the question of defendant's innocence or guilt was determined by the trial court's assessment of the credibility of the witnesses presented by the State, whose testimony if believed circumstantially established that defendant was the driver of the offending vehicle, and of the witnesses for the defense, whose testimony if believed established an alibi defense. This court has long recognized that it is in no position to rationally dispute the trial court's assessment of the credibility of witnesses. The testimony of the prosecution witnesses was sufficient to establish defendant's guilt beyond a reasonable doubt.
Defendant next contends that he was without effective assistance of counsel. The record reveals that counsel employed by the defendant had apparently moved from the State prior to the date of trial and had arranged for substitute counsel only the day prior to trial. After noting that a substantial number of continuances had been previously granted and that the cause had been specifically set for trial by original defense counsel, the court denied new counsel's motion for a continuance. The cause was continued until that afternoon. During the interim the files...
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