People v. Rogers, s. 78-740
| Court | United States Appellate Court of Illinois |
| Writing for the Court | McNAMARA |
| Citation | 79 Ill.App.3d 745,398 N.E.2d 1058,35 Ill.Dec. 108 |
| Parties | , 35 Ill.Dec. 108 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Emmett ROGERS, Jr., and Henry Goshay, Defendants-Appellants. |
| Docket Number | Nos. 78-740,78-1686,s. 78-740 |
| Decision Date | 26 December 1979 |
Page 1058
v.
Emmett ROGERS, Jr., and Henry Goshay, Defendants-Appellants.
Luther Franklin Spence, Chicago, for Emmett Rogers, jr.
Page 1059
[35 Ill.Dec. 109] Ralph Ruebner, Deputy State Appellate Defender, Susan Bandes, Asst. State Appellate Defender, Chicago, for Henry Goshay.
Bernard Carey, State's Atty., Chicago (Marcia B. Orr, Joan S. Cherry, Kevin W. Horan, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.
McNAMARA, Justice:
A jury found defendants Henry Goshay and Emmett Rogers, Jr. [79 Ill.App.3d 746] guilty of armed robbery and burglary. The trial court vacated the burglary verdicts and sentenced defendants on the armed robbery count. Goshay was sentenced to 10 to 30 years; Rogers was sentenced to 5 to 10 years. A third defendant, Cynthia Jackson, was tried, convicted and sentenced In absentia to 12 to 30 years for the same crime. (She challenges her sentence, and on this same date we are disposing of her appeal by Rule 23 order.)
Defendants Goshay and Rogers contend on appeal that the trial court improperly excluded the preliminary hearing testimony of Jackson from evidence at trial, and that in the alternative the court erred in not severing their case from that of Jackson. Because of the nature of their arguments, the facts of the crime may be set forth briefly.
John Davis, the victim and Jackson's cousin, testified that on March 4, 1977, at about 1:00 p. m., Jackson telephoned and asked if she could come to his home. She arrived at about 1:30 p. m., and shortly thereafter, Goshay and Rogers entered with drawn revolvers. Davis was forced to disrobe, and was bound and gagged. The trio ransacked the home, threatened to kill Davis if he did not surrender his money, and beat him several times. During the robbery, a silent burglar alarm was set off.
Police officers answered the alarm, found the home in disarray, and Davis bound and gagged. Goshay and Jackson told the police they had just found Davis in the same condition and were trying to help him. The officers discovered Rogers hiding under a bed. They also recovered two revolvers.
Rogers testified that Goshay and he drove Jackson to the Davis home. When she did not come out in 30 minutes, they went to see if she was alright. Davis was in his underclothes, and Jackson's blouse was open. A fight ensued, and Davis struck Rogers. When Rogers heard the police at the door, he ran upstairs in fear and hid under the bed.
Goshay and Rogers initially contend that the trial court erred in excluding the preliminary hearing testimony of Jackson who voluntarily absented herself from trial. No one challenges the fact that her absence was voluntary. To understand the issue presented by defendants, the circumstances of Jackson's absence and of the hearing on her availability must be set forth.
On February 2, 1978, selection of a jury commenced. On February 6, while the jury was being selected, the trial court was advised that Jackson needed medical treatment. She waived her right to be present during the selection of the jury and was excused. Goshay also was excused to escort her to the doctor. Selection of the jury was completed, and the cause was continued to February 8.
On February 8, Jackson's counsel informed the court that Jackson required a three day hospitalization and requested a continuance. [79 Ill.App.3d 747] Counsel stated that Jackson was trying to enter County Hospital. After a recess, it was ascertained that she was not at the hospital. The trial court forfeited the bond, issued a warrant and continued the case to February 9. On February 9,...
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Lenard v. Argento, s. 80-2602
...1054 (1979). In dicta, however, the court did state that "[t]he evidence adduced was ample to sustain defendant's conviction." Id. 35 Ill.Dec. at 108, 398 N.E.2d at Lenard initiated this action in a five-count complaint pursuant to several sections of the Civil Rights Act of 1871, 42 U.S.C.......
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Com. v. Bohannon
...100 S.Ct. at 2543 (prosecution bears burden of establishing unavailability of witness despite good faith effort); People v. Rogers, 79 Ill.App.3d 745, 35 Ill.Dec. 108, 398 N.E.2d 1058 (1979). We conclude the second motion judge abused his discretion in relying on a finding of "unavailabilit......
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People v. Olbrot, s. 79-1879
...the trial court's refusal to grant a severance was proper and was within the sound exercise of its discretion. People v. Rogers (1979), 79 Ill.App.3d 745, 35 Ill.Dec. 108, 398 N.E.2d Defendants contend the trial court erred in permitting Officer Von Ahn of the Los Angeles Police Department ......
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People v. Smith, 1-93-1506
...cases that defendant cites to support his argument (see People v. Holman, (1924), 313 Ill. 33, 144 N.E. 313; People v. Rogers (1979), 79 Ill.App.3d 745, 35 Ill.Dec. 108, 398 N.E.2d 1058; Brown, 47 Ill.App.3d 616, 7 Ill.Dec. 730, 365 N.E.2d 15; and Payne, 30 Ill.App.3d 624, 332 N.E.2d 745) a......
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Lenard v. Argento, Nos. 80-2602
...1054 (1979). In dicta, however, the court did state that "[t]he evidence adduced was ample to sustain defendant's conviction." Id. 35 Ill.Dec. at 108, 398 N.E.2d at Lenard initiated this action in a five-count complaint pursuant to several sections of the Civil Rights Act of 1871, 42 U.S.C.......
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Com. v. Bohannon
...100 S.Ct. at 2543 (prosecution bears burden of establishing unavailability of witness despite good faith effort); People v. Rogers, 79 Ill.App.3d 745, 35 Ill.Dec. 108, 398 N.E.2d 1058 (1979). We conclude the second motion judge abused his discretion in relying on a finding of "unavailabilit......
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People v. Olbrot, Nos. 79-1879
...the trial court's refusal to grant a severance was proper and was within the sound exercise of its discretion. People v. Rogers (1979), 79 Ill.App.3d 745, 35 Ill.Dec. 108, 398 N.E.2d Defendants contend the trial court erred in permitting Officer Von Ahn of the Los Angeles Police Department ......
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Dukes v. Pneumo Abex Corp., No. 4-06-0235.
...steps taken "to secure the presence of the missing witness at trial were made in good faith and with due diligence" (People v. Rogers, 79 Ill.App.3d 745, 747-48, 35 Ill.Dec. 108, 398 N.E.2d 1058, 1060 (1979)), and a claim of unavailability must be supported by affidavit or testimony (Curt B......