People v. Howard

• Decision Date: 14 February 1984
• Docket Number: No. 81-2158,81-2158
• Citation: People v. Howard, 460 N.E.2d 432, 121 Ill.App.3d 938, 77 Ill.Dec. 376 (Ill. App. 1984)
• Parties: , 77 Ill.Dec. 376 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Juarez HOWARD, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 432

460 N.E.2d 432

121 Ill.App.3d 938, 77 Ill.Dec. 376

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Juarez HOWARD, Defendant-Appellant.

No. 81-2158.

Appellate Court of Illinois First District, Second Division.

Feb. 14, 1984.

Rehearing Denied March 13, 1984.

Office of State Appellate Defender, Kenneth L. Jones, Asst. Appellate Defender, for defendant-appellant.

Office of the State's Atty., Michael E. Shabat and James J. Bigoness, Asst. State's Attys., for plaintiff-appellee.

STAMOS, Justice:

Juarez Howard, Andre Howard and Michael Sommerville were charged by indictment with murder, armed robbery, burglary, armed violence, home invasion, and conspiracy. Andre Howard entered into a plea bargain with the State and Juarez Howard and Michael Sommerville were tried together. All charges except those for murder and armed robbery were dismissed at various stages of the proceedings.

The first two trials resulted in mistrials. Prior to the third trial, a ruling was made to sever the trials of Sommerville and Juarez Howard. Following a third jury trial, Juarez was found guilty of murder and armed robbery and was sentenced to concurrent terms of thirty years for murder and fifteen years for armed robbery. Defendant Howard appeals.

Juarez Howard (hereinafter defendant), Andre Howard, Michael Sommerville, Randall Rhodes, and Thurston "Butch" Rogers planned to rob a drug dealer who Andre knew. Everyone except Andre participated in the robbery. The group was to meet back at Andre's apartment after the robbery.

On October 25, 1979, defendant, Michael, Randy and Butch went to the drug dealer's apartment. Randy was carrying a knife, the rest of the group had handguns. Defendant and Michael entered the apartment and initiated the robbery. When Michael let Randy and Butch into the apartment, the victim, Bert Lee, lunged toward defendant. Defendant, Michael and Butch fired at Lee striking him several times. Defendant then grabbed a bag of marijuana off the table and the group fled in different directions.

Soon thereafter, the group met back at Andre's apartment and went their separate ways.

Chicago Police Investigators O'Leary and Seery were assigned to investigate the shooting of Bert Lee on the morning of October 26. They questioned Andre Howard at his apartment. He directed the officers to an apartment where one of the assailants, Randall Rhodes, and two others, James Tate and Michael Hyler, were arrested and taken to the police station for questioning. Andre also gave the officers the telephone number of another of the assailants named "Speedy." Speedy is defendant's nickname.

The investigators determined that Speedy's phone number belonged to Daisy and Adair Sheats of 2409 East 78th Street, Chicago. The Sheats are defendant's aunt and uncle. The officers went to the Sheats' residence and conducted a search of a bedroom in the apartment where two handguns were found. One of the guns proved to have been used in the robbery/murder of Bert Lee.

At approximately 10 p.m. on October 26, O'Leary and Seery arrested defendant as he was walking down the street. He was taken to the police station for questioning. The State's evidence concerning defendant's interrogation revealed the following:

An hour after defendant's arrest, at about 11 p.m. on October 26, defendant gave an oral statement to Investigator O'Leary. The substance of that statement was virtually identical to the earlier summation of facts. At the conclusion of his statement, defendant told O'Leary about his asthmatic condition and O'Leary promised to get defendant's medicine from his family.

Assistant State's Attorney Roy talked with defendant at 2 a.m. on October 27 at which time he gave Roy an oral statement. At the conclusion of the statement, Roy asked defendant if he would give his statement to a court reporter and he said that he would.

A court reporter arrived at the station at 6:15 a.m. on October 27. Written statements were taken from Michael Sommerville, Randall Rhodes, and Andre Howard. At about 1:30 p.m., defendant's written statement was taken. Defendant later signed the statement.

Defendant's version of the interrogation differed from the State's in several respects. Defendant claims that the police withheld his asthma medicine until after he confessed. He also asserts that O'Leary put a paper bag over his head and played Russian roulette with him until he confessed.

At the outset of the trial which is the subject of this appeal, defendant filed motions to quash arrest, suppress statements and suppress evidence. The motion to suppress evidence concerned the guns discovered in a bedroom in the apartment leased by Daisy and Adair Sheats. The State's version of the search as revealed by the evidence is as follows:

Officers O'Leary and Seery went to the Sheats' apartment at 2409 East 78th Street where they were greeted by Mr. Sheats. The officers identified themselves and informed Mr. Sheats that they were investigating a homicide. The officers asked if Speedy was there and Mr. Sheats replied that he was not but that the officers were welcome to search his bedroom. Officer O'Leary then showed Mr. Sheats a consent-to-search form and asked him to sign it, which he did. Mrs. Sheats was present and signed the form as a witness. The form mistakenly referred to the Sheats' address as 2402, rather than 2409, East 78th Street. The officers entered the bedroom and found two guns under some clothes on the floor. One of the guns had been used in the shooting. The officers also found a jacket which resembled one worn by one of the assailants.

The Sheats testified at the hearing on the motion to suppress and denied that they had consented to the search. According to them, the officers simply asked where Speedy's room was and then proceeded to search it. They denied having signed a consent-to-search form. On cross-examination, however, Mrs. Sheats conceded that she could not remember whether or not she had signed the form. Mr. Sheats made this same concession. Mrs. Sheats also testified that the signatures on the form looked like hers and her husband's. The court denied defendant's motions to suppress and to quash arrest.

At the close of the first trial, the jury began deliberations just before 4 p.m. on Thanksgiving Eve. Just before 10 p.m., the trial judge stated that he was not going to allow the trial to extend through Thanksgiving Day if it was not necessary. The judge then expressed his intention to call the jury out and question them about the possibility of reaching a verdict. Both the State and defense counsel objected. The court stated that if any of the jurors said that a verdict was possible, it would sequester the jury for the night and resume deliberations the following day, Thanksgiving. The jury was called out and each juror was asked about the possibility of reaching a verdict if deliberations continued. Eleven jurors replied that a verdict was not possible and the foreman said he was unsure. The court then declared a mistrial.

Following the second trial, the jury began deliberating at 7:30 p.m. The jury was sequestered for the night at 10 p.m. and they resumed deliberations at 9:30 a.m. the next day. At 2 p.m., the foreman sent a note to the judge informing him that the jury could not agree on a verdict. The judge called the jury out, gave them the Prim instruction, and ordered them to continue to deliberate. At 9:30 p.m., the court called the jury out and asked them if it was possible that they could reach a verdict. Eight jurors responded "no," three said "yes," and one said "maybe." The court then declared a mistrial over the objections of the State and defense counsel.

Following a third trial, a jury found defendant Juarez Howard guilty of murder and armed robbery and he was sentenced to concurrent terms of thirty years for murder and fifteen years for armed robbery. Following a denial of his post-trial motions, defendant instituted this appeal.

Defendant first contends that mistrials were improperly declared in his first two trials and that therefore, the State was barred on double jeopardy grounds from reprosecuting defendant on the same charges involved in the earlier trials.

Section 3-4(a)(3) of the Criminal Code of 1961 provides that a subsequent prosecution is barred if a former prosecution "[w]as terminated improperly after the jury was impaneled and sworn." (Ill.Rev.Stat.1981, ch. 38, par. 3-4(a)(3).) With respect to the declaration of a mistrial, a proper termination occurs when, in the court's opinion, there is a manifest necessity for a mistrial to be declared or the ends of public justice would otherwise be defeated. (People v. Bean (1976), 64 Ill.2d 123, 128, 355 N.E.2d 17.) Defendant contends that there was no "manifest necessity" for the declaration of a mistrial in the earlier trials and that therefore, a third prosecution was barred.

When in the court's opinion a jury is hopelessly deadlocked, it is clearly proper to discharge the jury. (See People v. Mays (1962), 23 Ill.2d 520, 524, 179 N.E.2d 654.) There is no fixed minimum time that a jury must be allowed to deliberate before a mistrial is declared and the court must be accorded great latitude in exercising its informed discretion in this respect. (People v. Preston (1979), 76 Ill.2d 274, 283, 29 Ill.Dec. 96, 391 N.E.2d 359.) People v. Mays (1962), 23 Ill.2d 520, 524, 179 N.E.2d 654, and People v. DeFrates (1946), 395 Ill. 439, 70 N.E.2d 591, cert. denied 331 U.S. 811, 67 S.Ct. 1201, 91 L.Ed. 1831, illustrate the breadth of the court's discretion in deciding when a mistrial is warranted by a hung jury. In Mays, the court declared a mistrial based on a hung jury after only 4 hours of jury deliberation. In DeFrates, a mistrial was declared after only 45 minutes of deliberation. In both cases, the reviewing courts deferred to the decision of the trial courts because there was no showing that the trial courts had abused their...