People v. Heard

• Decision Date: 20 October 1977
• Docket Number: Nos. 61436 and 62712,s. 61436 and 62712
• Citation: 369 N.E.2d 229,11 Ill.Dec. 775,53 Ill.App.3d 1042
• Parties: , 11 Ill.Dec. 775 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesse HEARD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 229

369 N.E.2d 229

53 Ill.App.3d 1042, 11 Ill.Dec. 775

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jesse HEARD, Defendant-Appellant.

Nos. 61436 and 62712.

Appellate Court of Illinois, First District, Fourth Division.

Oct. 20, 1977.

Nathaniel R. Howse, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. by Laurence J. Bolon, Mary Ellen Dienes and Michael J Madden, Asst. State's Attys., for plaintiff-appellee.

DIERINGER, Presiding Justice:

This is an appeal from a judgment of the circuit court of Cook County. The defendant, Jesse Heard, was tried before a jury, convicted in the circuit court of armed robbery and unlawful use of weapons, and sentenced to not less than five nor more than fifteen years in the state penitentiary for armed robbery and concurrently one to two years for unlawful use of weapons. The cases were consolidated on defendant's appeal.

The issues submitted for review are (1) whether the court erred in admitting the transcript of the preliminary hearing testimony of a deceased witness; (2) whether the defendant was proven guilty beyond a reasonable doubt; (3) whether the armed robbery and unlawful use of weapons charges were both crimes arising from the same conduct, thereby prohibiting conviction of the lesser charge; and (4) whether the sentence imposed was excessive.

On February 18, 1972, at about 9:00 p. m., Andy Pickett and Wesley Taylor were robbed at gunpoint by two men. The robbery took place near the intersection of Central Park Avenue and Roosevelt Road, in Chicago, Illinois. Within minutes after the robbery, the defendant and another man were arrested and charged with two counts of armed robbery and unlawful use of weapons.

At trial, the first witness for the People of the State of Illinois (hereinafter "the People") was Investigator John Laskey, of the Chicago Police Department. Officer Laskey testified that on February 18, 1972, at about 9:00 p. m., he was on duty and was patrolling the area near Central Park Avenue and Roosevelt Road. He was in a squad car, with his partner, Lonnie Seagroves. Laskey and his partner were driving northbound on Central Park Avenue when they saw four men standing in a formation of two men standing behind the other two. Laskey saw the two men at the rear shove the men standing at the front. He observed these events from a distance of about 80 or 90 feet. The area where the four men were standing was the site of an old abandoned gasoline station which had several cars parked in its lot. The figures suddenly disappeared from the police officer's view into the vacant lot. Officer Laskey drove the squad car forward (north) until the car reached the point where the four men had disappeared. The officer entered the lot and shone his flashlight in the area. He could tell the two men standing in the rear were armed. The man on the left had a shotgun and the man on the right had a pistol. At this time the officer was 25 feet from the four men. An older gentleman then ran toward the officer and told the officers he had just been robbed. Meanwhile, the two armed men began to walk away, toward the parked cars in the lot. The officers walked in the direction of the two men, and arrested both men, one of whom was the defendant, Jesse Heard. Several feet away from the point where Mr. Heard was arrested, a shotgun was found, hidden partially under a parked car. There were three persons sitting in a parked car in the area. These persons were searched by the police and released.

The next witness to testify for the prosecution was Wesley Taylor, one of the robbery victims. Mr. Taylor testified that on February 18, 1972, he and his friend, Andy Pickett, went to a store to buy alcoholic beverages at about 9:00 o'clock in the evening. The two men left home at 1137 South Central Park and walked south one block to purchase the liquor at a store. After leaving the store the two men walked north, back toward the house.

On the way back to the house a man with a shotgun told Mr. Taylor to "get on in there". Mr. Taylor looked over his shoulder for two seconds at the man, who then told Mr. Taylor if he looked back again he would blow Mr. Taylor's head off. Mr. Taylor did not look around any more, but saw someone with a pistol pointed at Andy Pickett. Mr. Taylor and Mr. Pickett were standing side by side and the men with the guns were right behind them. Mr. Taylor could feel someone going into his pockets. He saw lights, turned around and saw the police car. He told the police he had been robbed. By this time the two gunmen were walking away. The police arrested two people, including the defendant, Jesse Heard. Mr. Taylor identified Mr. Heard as the person with the shotgun.

The court then admitted into evidence, over objection by the defendant, the transcript of Andy Pickett's testimony which was given at the preliminary hearing held in this cause. Mr. Pickett, one of the robbery victims, died before the case came to trial.

At the preliminary hearing Andy Pickett testified that on February 18, 1972, at about 9:10 p. m., he was at 1155 South Central Park, walking with his friend Wesley Taylor. As he was walking, a man came and put a pistol to his head, while a second man put a shotgun to the head of Wesley Taylor. When asked if he saw the second man in court, Mr. Taylor identified Jesse Heard as the man. Mr. Pickett said he was told to "get up in there", as the man with the pistol went into his pockets. Pickett heard the man with the shotgun warn Mr. Taylor if he looked back again the gunman would blow the side of Mr. Taylor's jaw off. The witness then saw the second robber go into Mr. Taylor's pocket.

The next witness to testify for the People was Lonnie Seagroves, Officer Laskey's partner on the night the robbery took place. Officer Seagroves testified that on February 18, 1972, at 9:00 p. m., he was on duty as a Chicago policeman and was patrolling the area of Roosevelt Road and Central Park Avenue with his partner, John Laskey. They were in a squad car driving northbound on Central Park Avenue. As they stopped at a stoplight at the corner of Roosevelt Road at Central Park, he saw four men standing in a small alcove. He noticed one of the men was holding a shotgun at the head of another man. He called out for the man to hold it. The man with the shotgun turned to face the officer, then turned and started to walk away. He told the man to stop again and the man stopped. He then walked up to the man, told him to turn around, told him to lean over a car and put handcuffs on him. Jesse Heard was identified by the officer as the man he stopped. A Browning automatic shotgun was found six to eight feet south of the spot where Mr. Heard was stopped. The People rested at this time.

The first witness to testify for the defendant was Connie Vaughn. Miss Vaughn testified that on February 18, 1972, she was working as a cashier at the Big Bee Grocery store on the corner of Roosevelt Road and Central Park Avenue. She knew Jesse Heard because he was a frequent customer of the store. She remembered Jesse Heard coming into the store on February 18, 1972, at about 9:00 p. m. She remembered he purchased a light bulb and left the store after a few minutes. She could easily remember the date and the defendant being in the store on that night. Mr. Heard went into the store to buy a light bulb. The bulbs are packaged in pairs. She charged Mr. Heard for two light bulbs, and because he only wanted one bulb she had to make a refund. She noticed he did not come into the store for two weeks after this incident, which was unusual for Mr. Heard, since he shopped at the store almost daily. Two weeks later Heard came into the store and told Miss Vaughn he had been arrested earlier.

Jesse Heard then testified in his own behalf. Mr. Heard testified that on the date of the robbery he had returned home from school and remained at home until some time after 8:00 p. m. that evening. He then left his home and walked to the Big Bee Supermarket. He went to the store in order to purchase a light bulb. He remembered seeing Connie Vaughn, the cashier, at that time. As Mr. Heard was walking down Central Park Avenue back toward his home, he saw a police officer, who he later learned to be Officer John Laskey, searching three men in a car parked at the curb. The officer asked Mr. Heard if he would like to run down the alley so the officer could try out his new gun. Mr. Heard answered he would not run. The arresting officer then left the three suspects in the car and arrested Mr. Heard. The first time Mr. Heard ever saw the shotgun was at the police station.

The Reverend Edna Norwood testified next for the defendant. Reverend Norton is the pastor of the Holy Trinity Church of God and Christ, which is located at 5010 West End Avenue, Chicago, Illinois. She had known the defendant for over 12 years. Mr. Heard was an honorable boy. She knew Mr. Heard very well and he worked for the church. The defense then rested.

The defendant was found guilty of two counts of armed robbery, and unlawful use of weapons. He was sentenced to not less than five to not more than 15 years for the armed robbery conviction, and one to two years for the unlawful use of weapons conviction, the sentences to run concurrently.

Article I, section VIII of the 1970 Illinois Constitution provides, in pertinent part:

"In criminal prosecutions, the accused shall have the right to * * * meet the witnesses face to face * * *."

Amendment VI of the United States Constitution provides, in pertinent part:

"In all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him * * *."

The parties agree the leading case in Illinois on the issue of the admissibility of the preliminary hearing testimony of a deceased witness is People v. Tennant (1976), 65 Ill.2d 401, 3 Ill.Dec. 431, 358 N.E.2d 1116 (see also California v. Green (1970), 399 U.S. 149, 90 S.Ct. 1930,...