People v. Hoover

• Decision Date: 28 January 1976
• Docket Number: No. 60811,60811
• Citation: People v. Hoover, 342 N.E.2d 795, 35 Ill.App.3d 799 (Ill. App. 1976)
• Parties: PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Larry HOOVER, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 795

342 N.E.2d 795

35 Ill.App.3d 799

PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Larry HOOVER, Defendant-Appellant.

No. 60811.

Appellate Court of Illinois, First District, Fourth Division.

Jan. 28, 1976.

Walter LaVon Pride, Chicago for defendant-appellant.

Bernard Carey, State's Atty., Cook County, for plaintiff-appellee; Laurence J. Bolon, Kevin Sweeney, Asst. State's Attys., of counsel.

ADESKO, Justice.

Following a jury trial defendant was convicted along with co-defendantAndrew Howard of murdering one William 'Pooky' Young and was sentenced to a term of 150 to 200 years imprisonment.On appeal defendant contends that the trial court erred when it:

(1) Denied his motion for a severance based on admission of a post-arrest statement of the co-defendant;

(2) Admitted evidence concerning the death of one of the witnesses and that witness' testimony;

(3) Restricted cross-examination of a witness;

(4) Gave instructions regarding a conspiracy;

(5) Admitted evidence of other crimes;

(6) Allowed the State to make improper remarks during opening and closing arguments.

In addition, defendant asserts that he was not proven guilty beyond a reasonable doubt.

On February 26, 1973, at approximately 8:00 p.m., a witness heard a car stop in the alley behind his apartment.The car pulled away after three or four shots were fired.This witness then saw a body lying in the alley and called the police.The victim, William Young, had been shot six times in the head and once in the arm.

The State's witness, Larry Leverston, testified that the killing of William Young had been ordered by defendant who with Leverston, defendant Hoover, and co-defendantAndrew Howard had all been members of an organization known as 'the Family', which sold narcotics in the Englewood area of Chicago.Defendant, known as 'King Hoover', was the leader of 'the Family.'On or about February 21, 1973, the three were all present at a meeting of ten or eleven members of 'the Family.'During the meeting defendant ordered the execution of William Young, Joel Ford, Joshua Shaw, and Tony Tucker for sticking up one of his dope houses.At another meeting Leverston attended on February 26, 1973, defendant stated that 'he had gotten one of the guys that they was (sic) after and he wanted the other tow, Josh Shaw, Tony Tucker killed also before the week was out.'Defendant further stated 'they had gotten Pookey and threw him in the alley around 86th and Lowe and shot him in the head.'On cross-examination Leverston admitted that he was currently charged with murder.The trial court, however, sustained the State's objections to defense questions on whether Leverston had been indicted, whether he was incarcerated on other charges, and whether he was promised favorable treatment for testifying for the State.

Certain evidence was introduced at trial which applied particularly to co-defendant Howard.At Howard's preliminary hearing, before defendant had been arrested, Shaw's testimony placed Howard with Young on February 16, 1973.Howard had told a companion to shoot if Young tried to run.Further testimony revealed that Shaw had been shot to death on September 27, 1973.The transcript of Shaw's testimony at the preliminary hearing was thus read to the jury at the trial with certain references to defendant stricken.The court also instructed the jury not to consider Shaw's testimony against defendant.

Howard admitted after his arrest that at defendant's request he brought Young to the Roberts Motel on February 26, 1973, and then released him when Young said he did not want to see defendant.The court instructed the jury that 'an admission may not be cinsidered by you against any defendant other than the one who made it.'

After the jury had been impanelled, defense counsel moved for a severance based on certain police reports he claimed he had received just before trial.The court denied the motion as untimely.

During the opening argument, the State referred to defendant as the leader of a Chicago gang known as the 'supreme gangsters.'In his closing argument, he alluded to narcotic drug traffic, to defendant as the 'King' of 'the Family,' and to orders by the defendant that certain persons including the victim must die.

Defendant was arrested on September 21, 1973, for a traffic violation.He attempted to escape, but was apprehended a short time later.

Defendant urges, as grounds for reversal, that the trial court erroneously denied his motion to sever.He claims that the conflict between his statement and Howard's statement as to whether Howard ever called him to inform him of Young's whereabouts denied him a fair hearing.

While jointly indicted defendants are ordinarily tried together, the granting of a severance is left largely to the discretion of the trial court.(People v. Ross(1968), 41 Ill.2d 445, 244 N.E.2d 608.)A motion for a severance must be made before the jury is sworn.(People v. Fox(1925), 319 Ill. 606, 150 N.E. 347;People v. Ramey(1969), 115 Ill.App.2d 431, 253 N.E.2d 688.)The primary inquiry is whether or not the defenses of the several defendants were so antagonistic that being tried together denied one of them a fair trial.(People v. Connolly(1965), 33 Ill.2d 128, 210 N.E.2d 523;People v. Trigg(1968), 97 Ill.App.2d 261, 240 N.E.2d 130.)Defendant must show how he would have been prejudiced by a joint trial.

People v. Rhodes(1969), 41 Ill.2d 494, 244 N.E.2d 145;People v. Howard, Ill.App., 340 N.E.2d 53(No. 60844, decided November 14, 1975.)

The motion for severance in the instant case was based on the alleged contradiction between the post arrest statements of defendant and co-defendantAndrew Howard.The same counsel represented both defendant and Howard.Moreover, the supplemental police reports giving these statements were furnished to defendant before he answered ready for trial and a jury was chosen.Defendant, nonetheless, answered ready for trial and the court proceeded to impanel the jury.The following day, as the court prepared for opening statements, defendant orally moved for a severance based on police reports showing a contradiction between statements of defendant and Howard.We are of the opinion the trial court correctly denied defendant's motion for a severance as untimely.

Defendant urges that it was error to allow the oral statement of Andrew Howard made to the police after his arrest to be considered as evidence of defendant's guilt.Statements made to a police officer at the time of arrest do not fall within the exception to the hearsay rule which allows statements in furtherance of a conspiracy into evidence.(People v. Daniels(1968), 92 Ill.App.2d 207, 235 N.E.2d 305;People v. Tunstall(1959), 17 Ill.2d 160, 161 N.E.2d 300.)Where defendants are tried jointly, however, evidence competent against one or more of them is admissible when the trial judge limits the evidence to the particular party implicated by it.People v. Sessions(1968), 95 Ill.App.2d 17, 238 N.E.2d 94.

In the case before us, Howard told the police that on February 26, 1973, he called defendant who told him to bring in the victim, William Young.According to Howard, Young objected and Howard permitted him to leave.Defendant in his post-arrest statement denied having seen Young or having talked to Howard that day.While Howard's statement may have exculpated Howard, it also may have implicated defendant.The trial court, therefore, instructed the jury not to consider the statement against any defendant other than the one who made it.The State, moreover, did not need Howard's statement to bring defendant's intentions into evidence.Larry Leverston testified as to his presence at two meetings.At the first defendant announced his intent to execute William Young.At the second defendant announced they shot the victim and threw him in an alley.The jury could find sufficient evidence to find defendant guilty beyond a reasonable doubt without reference to Howard's statement.Howard's statement may or may not have implicated defendant.Leverston's testimony certainly implicated defendant.We find the trial court to have, at most, committed harmless error in admitting the statement of Andrew Howard into evidence.

Defendant next contends that the trial court erred when it admitted the testimony of Joshua Shaw and evidence regarding the death of Joshua Shaw.In People v. Haward, Ill.App., 340 N.E.2d 53(No. 60844, decided November 14, 1975), we held the transcript to have properly been admitted against co-defendant Howard.When a witness testifies under oath in a prior proceeding and is cross-examined, that testimony may later be introduced against two parties to the prior proceeding if the witness becomes unavailable.(People v. Jackson(1968), 41 Ill.2d 102, 242 N.E.2d 160.)Defendant in the case at bar had not yet been arrested at Howard's preliminary hearing.Both defendant and Howard, however, were represented by the same counsel who represented Howard at the preliminary hearing.Shaw's testimony placed Howard with the victim on February 16, 1973.Howard had told a companion to shoot if Young tried to run.Further testimony revealed that Shaw had been show to death on September 27, 1973.The transcript of Shaw's testimony at the preliminary hearing was thus read to the jury at trial with certain references to defendant stricken.The court also instructed the jury not to consider Shaw's testimony against defendant.Defendant, furthermore, had notice of the transcript of Joshua Shaw's testimony and yet made no motion for severance based on that transcript.In light of the jury instruction and the fact that defendant did not...