People v. Turner

• Citation: 186 Ill.App.3d 849,542 N.E.2d 935
• Decision Date: 28 July 1989
• Docket Number: No. 1-86-3329,1-86-3329
• Parties: , 134 Ill.Dec. 589 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James TURNER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 935

542 N.E.2d 935

186 Ill.App.3d 849, 134 Ill.Dec. 589

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James TURNER, Defendant-Appellant.

No. 1-86-3329.

Appellate Court of Illinois,

First District, Sixth Division.

July 28, 1989.

Michael J. Pelletier, Deputy Public Defender, Chicago (Karen Daniel, Asst. Appellate Defender, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty., Chicago (Inge Fryklund, James E. Fitzgerald, and Patrick Brady, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice LaPORTA delivered the opinion of the court:

Defendant, James Turner, was indicted by a grand jury on one count of burglary under section 19-1(a) of the Criminal Code of 1961. (Ill.Rev.Stat.1985, ch. 38, par. 19-1(a).) A jury found him guilty of burglary, and defendant was sentenced to twelve years' incarceration. Defense filed a motion for new trial on the ground that defendant had not been found guilty beyond a reasonable doubt, which was denied, and the defendant appeals.

The essential facts of this case, as shown at trial, are that at approximately 6:45 p.m. on December 30, 1985, three agents of the Chicago Northwestern Transportation Company (CNW) were on surveillance, sitting in two cars at the CNW's Wood Street railyard. One agent saw several persons enter the yard, and one of the party broke into a sealed railcar, tossing boxes out to his companions. The agents gave chase and apprehended the defendant, who was identified in court as the person who had broken into the railcar.

Defendant claims that he was driving in the vicinity when boxes fell from a viaduct in front of his car; that he left his car to investigate; and that he ran when he saw the CNW agent chasing him and another, unidentified, person. Defendant was arrested and subsequently charged in a single count indictment with burglarizing a railroad car.

Defendant raises three issues on appeal: (1) whether he was subjected to double jeopardy by the court's dismissal and replacement of a juror during voir dire, (2) whether the trial court erred in admitting proof of the defendant's prior convictions on rebuttal to impeach his testimony, and (3) whether the defendant's extended term sentence was excessive.

The first inquiry must be whether the issues raised by the defendant upon appeal should be addressed, because they were not raised in the defendant's motion for a new trial. "The motion for a new trial shall specify the grounds therefor." (Ill.Rev.Stat.1987, ch. 38, par. 116-1(c).) Here the defense argued only "[t]hat the defendant was not found guilty beyond a reasonable doubt."

Failure to raise an issue in the motion for a new trial acts as waiver of that issue. (People v. Enoch (1988), 122 Ill.2d 176, 186, 119 Ill.Dec. 265, 270, 522 N.E.2d 1124, 1129, cert. denied, 488 U.S. 917, 109 S.Ct. 274, 102 L.Ed.2d 263; People v. Caballero (1984), 102 Ill.2d 23, 31, 79 Ill.Dec. 625, 629, 464 N.E.2d 223, 227, cert. denied, 469 U.S. 963, 105 S.Ct. 362, 83 L.Ed.2d 298; People v. Szabo (1986), 113 Ill.2d 83, 93, 100 Ill.Dec. 726, 730, 497 N.E.2d 995, 999, cert. denied, 479 U.S. 1101, 107 S.Ct. 1330, 94 L.Ed.2d 181, reh. den., 481 U.S. 1025, 107 S.Ct. 1915, 95 L.Ed.2d 520.) However, there are exceptions to this rule, and because each issue falls within a different exception they will be addressed as each issue is discussed.

Defendant first argues that he was placed in double jeopardy when a prospective juror who had been selected and sworn was later excused during voir dire. The record discloses that during voir dire, and after he had been selected and preliminarily sworn to serve on the jury, Edward White volunteered the information that he had been convicted of and incarcerated for a crime and that another member of his family had also been convicted of a crime. White stated that he could give both sides a fair trial and the court stated that it could not excuse him for cause. On the State's peremptory challenge, and over the defendant's objection, the court excused White from the jury. Another juror was selected to complete the panel of twelve. While the Illinois Code of Criminal Procedure provides that the court may authorize the selection of alternate jurors, it is not required to do so. (Ill.Rev.Stat.1987, ch. 38, par. 115-4(g).) Voir dire then continued until two alternates were selected. At the conclusion of the voir dire all twelve jurors and the two alternates were sworn.

Although this issue was not presented in defendant's post-trial motion, defendant contends that timely objection at trial preserves the issue for review even without inclusion in defendant's post-trial motion for a new trial. The Illinois Supreme Court in People v. Enoch (1988), 122 Ill.2d 176, 119 Ill.Dec. 265, 522 N.E.2d 1124, affirmed that "[b]oth a trial objection and a written post-trial motion raising the issue are required for alleged errors that could have been raised during trial." (Enoch, 122 Ill.2d at 186, 119 Ill.Dec. at 271, 522 N.E.2d at 1130 (emphasis in the original).) The court further stated that the fact that an objection was made at trial "does not justify ignoring the clear mandate of the statute that the question be set forth in writing in the motion for a new trial." Enoch, 122 Ill.2d at 187, 119 Ill.Dec. at 271, 522 N.E.2d at 1130; see also People v. White (1989), 181 Ill.App.3d 798, 803, 130 Ill.Dec. 846, 849, 537 N.E.2d 1315, 1318.

While holding that failure to preserve an issue by raising it at trial and in a post-trial motion constitutes a waiver of the issue for purposes of appeal, the court in Enoch acknowledged an exception to the waiver rule for a constitutional question. (Enoch, 122 Ill.2d at 190, 119 Ill.Dec. at 273, 522 N.E.2d at 1132.) The Illinois Constitution, Article I, Section 10, provides that "[n]o person shall * * * be twice put in jeopardy for the same offense." (Ill. Const. art I, § 10.) Clearly the issue of double jeopardy raised by the defendant here is a constitutional issue and it should be reviewed even though not raised in a post-trial motion.

The defendant argues that he was twice placed in jeopardy for the crime of burglary, and that his conviction should be vacated because one prospective juror was excused after he had been accepted, but before the alternates were chosen. The query that must be decided by this court is when does jeopardy attach?

The Illinois statutory provision regarding double jeopardy states in pertinent part:

"A prosecution is barred if the defendant was formerly prosecuted for the same offense, if such former prosecution: * * *

"(3) Was terminated improperly after the jury was impanelled and sworn or, in a trial before the court without a jury, after the first witness was sworn but before findings were rendered by the trier of facts, or after a plea of guilty was accepted by the court."

Ill.Rev.Stat.1987, ch. 38, par. 3-4(a).

It has long been held that the jury must be "empaneled and sworn" before jeopardy attaches. (Downum v. U.S. (1963), 372 U.S. 734, 737-38, 83 S.Ct. 1033, 1035, 10 L.Ed.2d 100, 102; Serfass v. U.S. (1975), 420 U.S. 377, 388, 95 S.Ct. 1055, 1062, 43 L.Ed.2d 265, 274.) The defendant here argues that this occurred when the jurors were sworn in their panels of six, even though they were later resworn as a full panel with the alternates just before the trial commenced. Because Edward White was sworn before he was excused the defendant argues that jeopardy had attached.

The United States Supreme Court has held that "that double jeopardy prohibition of the Fifth Amendment represents a fundamental ideal in our constitutional heritage, and it should apply to the States through the Fourteenth Amendment," (Benton v. Maryland (1969), 395 U.S. 784, 794, 89 S.Ct. 2056, 2062, 23 L.Ed.2d 707, 716), and that "[t]he federal rule that jeopardy attaches when the jury is impaneled and sworn" also applies to the states through the Fourteenth Amendment. (Crist v. Bretz (1978), 437 U.S. 28, 38, 98 S.Ct. 2156, 2162, 57 L.Ed.2d 24, 33.) However, while the rule of Crist is applicable here, the defendant's rote insistence upon its literal wording is misplaced. All the cases cited by the defendant involve mistrials or cases where the juror was dismissed during trial, and do not approach the issue of a juror having been dismissed during voir dire. In Crist, after the jury was empaneled and sworn and the trial had begun, but before the first witness was sworn, Bretz filed a motion noting an error in the information filed in that case which gave the date of the illegal conduct as one year after its occurrence--and several days after the statute upon which the information was based had been repealed. The prosecution moved to dismiss the information, and the motion was granted. Thereafter a new information was prepared and an entirely new jury sworn. In Illinois v. Somerville (1973), 410 U.S. 458, 93 S.Ct. 1066, 35 L.Ed.2d 425, a mistrial was declared because of an insufficient indictment, with the defendant later charged for the same crime under a valid indictment. The jury had been impaneled and sworn when the mistrial was declared. (Somerville, 410 U.S. at 459-60, 93 S.Ct. at 1068-69, 35 L.Ed.2d at 428.) In both cases the Court held that jeopardy had attached when the first jury was sworn, and thus the second trial placed the defendant in double jeopardy. Crist, 437 U.S. at 38, 98 S.Ct. at 2162, 57 L.Ed.2d at 33; Somerville, 410 U.S. at 471, 93 S.Ct. at 1068-69, 35 L.Ed.2d at 428.

In other cases cited by the defendant, a juror was dismissed during trial for reasons the reviewing court found insufficient. The defendant relies heavily upon People v. Payton (1971), 2 Ill.App.3d 693, 276 N.E.2d 775, but in that case the juror approached the court, after trial had begun and the complaining witness had testified, with information that the juror had not known at the time of voir dire but had since discovered. After examining the juror, the court held that...