People v. Pickett

• Decision Date: 19 November 1971
• Docket Number: Gen. No. 70--1
• Parties: The PEOPLE of the State of Illinois, Appellee, v. Henry PICKETT, Appellant.
• Court: United States Appellate Court of Illinois

Page 751

276 N.E.2d 751

2 Ill.App.3d 560

The PEOPLE of the State of Illinois, Appellee, v. Henry PICKETT, Appellant.

Gen. No. 70--1.

Appellate Court of Illinois, Fifth District.

Nov. 19, 1971.

Rehearing Denied Dec. 14, 1971.

Kenneth L. Gillis, Staff Atty., Illinois Defender Project, Chicago, for appellant.

Robert H. Rice, State's Atty., Belleville, for appellee.

JONES, Justice.

Defendant appeals his conviction after a jury trial of the crime of attempted armed robbery, for which he received a sentence to the penitentiary of not less than nine years nor more than fifteen years. A verdict of not guilty was returned on a companion charge of aggravated battery.

The defendant does not dispute the fact that an attempted armed robbery and shooting occurred. He contends he was not a participant. From testimony of witnesses called by both prosecution and defense it appears that on September 24, 1967 defendant was running a card game in Madison, Illinois during the late evening hours. At approximately 12:00 p.m. he left for a trip in an automobile with others involved in the card game, including his brother, during which his brother was to get some money from some girl's house. They stopped at the St. Clair cafe in East St. Louis to get some whiskey. Defendant went to the front door which was locked but after knocking he was admitted by the bartender, Mrs. Virginia Komeshak. He ordered some V O whiskey and when told that brand was not available he started to leave. Mrs. Komeshak asked him to leave by the side door and he started to comply. When the door was opened by Mrs. Komeshak two armed men broke through the storm door and entered and announced a holdup. One of the men, defendant's brother, was armed with an automatic rifle, the other with a pistol. The complaining witness, Mrs. Komeshak, identified the defendant as a participant in the holdup and stated he was armed with a pistol and the one of the three participants who held a pistol to the head of a customer. Shooting erupted when the complaining witness produced a gun from under the counter near the cash register and commenced firing at the assailants. The defendant was wounded and his brother was killed in the shooting. Mrs. Komeshak was shot in the stomach and arm and severely wounded. Defendant stated that he knew nothing of the plans for the robbery, that he had merely entered the tavern to purchase a half pint of V O whiskey and while he was inside his brother and another (who had been at the card game and a passenger in the automobile) entered and started shooting. He also testified that he had no gun.

Defendant in this appeal argues that (1) his guilt beyond a reasonable doubt was not shown; (2) the jury was given improper instructions; (3) he was deprived of his right to counsel when the jury verdicts were taken while his counsel was absent; (4) his trial counsel was incompetent; and (5) his sentence was excessive.

We have examined the abstract and transcript of the testimony and can conclude only that the guilty verdict returned by the jury upon their hearing and observing the witnesses is fully supported by the evidence. Defendant's association with other participants in the crime in a card game immediately preceding the trip to the tavern, his presence in the automobile during the trip, his presence in the tavern during the holdup, his failure to flee during the progress of the holdup, his receiving a wound in the melee that erupted, are all strongly suggestive that he was in league with the perpetrators from the inception of the plan to its abortive and tragic conclusion. Although the complaining witness is claimed to have exhibited some equivocation in her identification of defendant as a participant it is our impression that it is merely semantical, the result of her choice of words, rather than her uncertainty. She positively identified defendant and stated she was certain of it. Defendant's charge that the complaining witness failed to go to the police for two years after the incident is explained in large measure by the fact that she lay unconscious in a hospital for five weeks following the incident and was hospitalized a total of approximately thirteen weeks.

Defendant's objections to instructions merit scant comment. I.P.I., Criminal, number 1.01 was given. The objection is that it told the jury that they could consider the evidence 'in the light of (ones) observation and experience in life.' I.P.I., Criminal, number 26.01 was given which advised the jury that, 'your agreement upon a verdict must be unanimous.' Defendant's objections to these instructions are not well taken. They follow the pattern instructions and are not subject to the objections defendant raises. I.P.I., Criminal, number 6.07 was given to define the issues in attempted armed robbery and defendant argues it was incompetent and erroneous. The instruction was supplemented by I.P.I., Criminal, number 14.01 which defines the crime of armed robbery. Taken together the instructions were proper and adequate to inform the jury of the issues in armed robbery. We find no deficiencies or extraneous matters which could serve to mislead or misinform the jury.

Defendant argues that his trial counsel was incompetent because he allowed defendant to be given an excessive sentence, he permitted other participants in the robbery and the automobile trip, called as defense witnesses, to impeach defendant's testimony, he did not endeavor to produce the desired result which was an acquittal for defendant, and for other reasons which we need not detail. Defendant's argument is not well taken. It is apparent from the transcript and record that defendant's counsel was thorough and able in his defense and did everything he reasonably could do. He is not subject to criticism because he did not obtain the desired result of an acquittal. Simply stated the evidence of guilt was too strong to be overcome by defense tactics.

Of greater import is defendant's argument that the absence of his attorney when the court received the jury verdict deprived him of effective representation of counsel as guaranteed by the VI Amendment of the United States Constitution. It appears from the record that the jury was instructed and retired for deliberation in the afternoon and reached its verdict before being recessed for the day. Pursuant to adjournment court was convened at 9:30 a.m. on the following day with the judge, jury, state's attorney and defendant all present, but defendant's attorney was absent. At 9:50 a.m., after some unsuccessful attempts to locate defendant's attorney, the jury verdicts were received and filed. The verdicts were in regular form and signed by all jurors. The jury was not polled and the defendant was told nothing regarding polling of the jury. Defendant's attorney was privately retained and had represented him throughout the pretrial proceedings and at the trial and was present at the time of hearing on an application for probation and the imposition of sentence.

We are neither cited nor able to find any Illinois case which precisely presents the question here, i.e., what is the effect upon defendant's VI Amendment right to counsel when the jury verdict is received and filed in the absence of defendant's counsel?

The host of cases following Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799, permits us to forego as unnecessary any discussion of the right of the defendant to be represented by counsel at every stage of the trial. See People v. Allen, 37 Ill.2d 167, 226 N.E.2d 1; People v. Noble, 42 Ill.2d 425, 248 N.E.2d 96; People v. Taylor, 32 Ill.2d 165, 204 N.E.2d 734. The rendition of the verdict is a part of the trial, a critical phase where substantial rights of the defendant are affected. It must therefore go undisputed that the VI Amendment right to counsel extends to the rendition of the verdict of the jury. It is against this background, then, that defendant asserts the absence of his counsel at the rendition of the verdict deprived him of substantial rights, principally his right to poll the jury. It cannot be seriously questioned that in Illinois a defendant in a criminal case is entitled, as of right, upon request, to have the jury polled upon rendition of its verdict. Nomaque v. People, 1 Ill. (Breese) 145; People v. DeStefano, 64 Ill.App.2d 389, 212 N.E.2d 357; People v. Stevenson, 107 Ill.App.2d 441, 246 N.E.2d 309. But to say that a defendant has a constitutional right to be represented by counsel at the rendition of a jury's verdict is something less than saying that a defendant's counsel must be so present irrespective of any conditions or circumstances. The presence of counsel is not an...