People v. Harvey
| Decision Date | 22 October 1987 |
| Docket Number | No. 4-87-0050,4-87-0050 |
| Citation | 162 Ill.App.3d 468,515 N.E.2d 337 |
| Parties | , 113 Ill.Dec. 528 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Robert Earl HARVEY, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, Patricia G. Mysza, Asst. Defender, for defendant-appellant.
Thomas J. Difanis, State's Atty., Urbana, Kenneth R. Boyle, Director, State's Attys. Appellate Prosecutor, Springfield, Robert J. Biderman, Deputy Director, Linda Cullom, Staff Atty., for plaintiff-appellee.
After a trial by jury in the circuit court of Champaign County, defendant Robert Earl Harvey was convicted of burglary on December 10, 1986. The court subsequently sentenced him to 20 years' imprisonment. He appeals contending: (1) his guilt was not proved beyond a reasonable doubt; (2) reversible error occurred when the trial court filled a vacant seat upon the panel of jurors selected and sworn to try the case; (3) he was denied effective assistance of counsel; (4) new counsel should have been appointed to represent him in regard to his post-trial motion; and (5) the sentence was excessive. We conclude that any error which occurred was harmless and affirm.
We address first the question of the sufficiency and strength of the evidence. If it is not sufficient to justify a reasonable jury determination that defendant's guilt was proved beyond a reasonable doubt, we must reverse without remandment and need not consider defendant's other assertions. (People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267.) We consider the strength of the evidence, because that question bears upon our ruling on other issues. We conclude that the evidence supported the verdict, and the proof of guilt was sufficiently strong that no reversible error occurred.
Calvin Winston testified that on September 1, 1986, at approximately 1:30 a.m. he was across the street from an American Legion post in Champaign, when he heard glass breaking and saw a black man enter the building. Officer Ronald Seeley of the Champaign police testified that he arrived at that scene approximately four minutes later and shined a spotlight through the broken window. Seeley stated that for three or four seconds, he observed a man inside the building and then saw that man move to the north and run out of an exit to the building. According to Seeley, he was 30 feet from the door which the man passed through. He described the man as being 5'6"' in height and weighing 160 to 170 pounds. He stated that he then chased the man as he ran north between two houses in the 500 block of East Columbia Street.
Seeley further testified that as the man ran between the houses, he temporarily lost sight of him but heard what sounded like the clanging of a fence. Seeley said he then went to the back of one of the yards, climbed a fence and heard Officer Jim Spires yell that a man had been caught. Seeley identified defendant as the man he had seen leaving the building and had then chased. He stated that he never lost sight of that man for more than 10 seconds during the chase, and he saw no other foot traffic in the area at the time.
Champaign police officer Holly Nearing also testified she arrived at the American Legion post and drove to the 500 block on East Columbia. She said she then saw a shirtless black man running north toward her vehicle, whereupon she shined a spotlight on the man. Nearing stated that when the man was approximately 60 feet from her, the man jumped a fence and ran behind a house. At trial, Nearing identified defendant as the man on whom she had shone the light. She also stated that she traced the route she had seen defendant run and found a plastic box marked "25 cent phone calls." Nearing confirmed Seeley's statement that no people other than the police and defendant had appeared in the area at the time.
Officer Spires testified that he arrived on the scene and joined in the chase of a man at the corner of Sixth and Washington Streets. He described the man being chased as a black man with no shirt. Spires said that during the chase, he lost sight of the man for a few seconds. He said he then saw him standing between a garage and an automobile whereupon he arrested the man. The man was then panting and breathing very heavily, according to Spires. That witness identified defendant as the man he arrested but was unable to say whether defendant was the man he had originally seen running.
The evidence also showed that when defendant was placed under arrest, defendant was clutching a purple velvet bag of a kind normally used for bottles of liquor. Other testimony indicated that the American Legion post bar had been ransacked. Also, testimony showed that the plastic file box containing money found on the front hood of a car parked near where defendant was apprehended and in the path which the man being chased had taken had been near the telephone at the Legion post.
In contending that the proof of defendant's guilt was insufficient, defendant relies upon the statement in People v. Cullotta (1965), 32 Ill.2d 502, 207 N.E.2d 444, that a conviction cannot stand when the evidence of identification of the accused is doubtful and uncertain. Such was not the case here. While Seeley was the only one to positively identify defendant as the person leaving the building and being chased, his testimony was strong. He testified to having a good look at the man in the building and leaving it, and he lost sight of the man for only a few seconds during the course of the chase. He identified the man chased as the man arrested. Seeley testified to hearing the sounds of a fence being jumped near where he lost sight of the man he was chasing. Nearing testified that she saw a man jump a fence at about that time in that area, and Spires testified that he arrested defendant near the fence over which Seeley peered during the few seconds when Seeley lost sight of the man he had been chasing.
Other circumstantial evidence was also convincing. All those participating in the capture of defendant described the person being chased and captured as a black man who was not wearing a shirt. The testimony concerning defendant's condition at the time of arrest indicated that he had been running for some time. Defendant's possession of the purple bag corroborated testimony that he had been in the building burglarized and the evidence of the file box in the route followed by the man being chased indicated that the person being chased was likely to be the person who had been in the building. All of the foregoing testimony was uncontradicted. The chance that defendant was not the person who had been seen by Seeley in the building but a black man without a shirt who was also running in the same area at the same time was extremely remote and unlikely.
As we have stated, the evidence supported the jury's finding that defendant was guilty. (People v. Collins (1985), 106 Ill.2d 237, 87 Ill.Dec. 910, 478 N.E.2d 267.) Except for the minor uncertainty created because Seeley lost sight of the person he was chasing for a few seconds, and others did not identify defendant as the man being previously chased, the proof of guilt was overwhelming.
We now turn to the question of the propriety of the manner in which a vacant seat on the regular jury was filled. The question arose after 12 regular jurors had been selected and sworn to try the case, but before any alternate jurors had been called into the box and before the jury had heard any opening statements or evidence. The clerk of the court then informed the judge who was assigned to the case for purposes of jury selection that one of the sworn jurors was not going to be able to try the case. The parties agreed that juror could be excused, but that juror was not immediately excused. Two alternate jurors were then selected in the required manner. The judge then suggested that the proper way to replace the excused juror was for the clerk to select, at random, the name of another prospective juror. That judge maintained that the person whose name was selected should then undergo voir dire examination. The defense objected, asserting that the first named alternate should be directed to replace the excused juror on the regular panel. The objection was overruled, and the court excused the juror claiming to be unavailable. Then, that seat was filled by drawing from the cards containing names of available members of the venire. The judge assigned to try the case then took charge. The defendant then made a further objection to the procedure, which that judge overruled.
The dispute concerns section 115-4(g) of the Code of Criminal Procedure of 1963 (Ill.Rev.Stat.1985, ch. 38, par. 115-4(g)) and Illinois Supreme Court Rule 434(e) (107 Ill.2d R. 434(e)), which control the selecting and impaneling of alternate jurors. The language of the two provisions has no material difference. Section 115-4(g) states:
(Emphasis added.) (Ill.Rev.Stat.1985, ch. 38, par. 115-4(g).)
Both the legislation and the rule expressly state that the period of time when an alternate juror must be substituted for a deceased or discharged regular juror ends when the case is submitted to the jury. Neither provision expressly states when that period begins.
Nothing in either section 115-4(g) or Rule 434(e) implies that the period for making replacements by use of alternates begins at any time other than when the jury has been "selected and sworn." That is the time when jeopardy attaches. (Crist v. Bretz (1978), 437 U.S. 28, 98...
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