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People v. Latimore

NOVEMBER 13, 1975.




APPEAL from the Circuit Court of Saline County; the Hon. JOHN H. CLAYTON, Judge, presiding.


Defendants Rico Latimore, Arthur V. Vesey, James Williams and Herman Yates III were indicted for the offense of rape. A jury found each of the defendants guilty. The circuit court of Saline County entered judgments of conviction against each of the defendants. Defendant Latimore was sentenced to a term of 9 to 20 years and defendants Vesey, Williams and Yates were each sentenced to a term of 7 to 20 years. All four defendants perfected separate appeals. The four appeals were consolidated for purposes of oral argument and opinion. Subsequently, we found it necessary to sever the appeals of Williams and Yates from those of Latimore and Vesey. In a previously filed opinion, People v. Ed Williams, 29 Ill. App.3d 434, 331 N.E.2d 570 (abstract opinion), we reversed the convictions of Williams and Yates because of the trial court's failure to comply with the Juvenile Court Act (Ill. Rev. Stat. 1971, ch. 37, par. 701-1 et seq.). Consequently, this opinion concerns only the appeals of Latimore and Vesey (hereinafter referred to as defendants).

• 1 The defendants each contend that they were denied their right to a prompt preliminary hearing pursuant to Article I, section 7 of the Illinois Constitution. In People v. Moore, 28 Ill. App.3d 1085, 1089, 329 N.E.2d 893, 896, this Court concluded that,

"* * * section 7 of article I of the 1970 Constitution (Ill. Const. art. I, § 7) was included for the sole purpose of guaranteeing that a defendant would not be held in custody or on bail without a prompt showing of probable cause. In the instant case the requisite probable cause was shown by prompt indictment."

Similarly, the indictments returned against the defendants in the instant case, 21 days after their arrest, satisfied the requirement of a prompt determination of probable cause as mandated by section 7 of Article I of the 1970 Constitution (Ill. Const., art. I, § 7).

Next, each of the defendants claim that they were denied fair and impartial hearings on their motions to suppress identification testimony. Defendant Vesey contends that he never received a hearing and defendant Latimore contends that his motion to suppress was denied before the trial court considered all of the evidence. Neither defendant here contends that the grounds urged in their motions to suppress required suppression.

• 2 A hearing on defendant Latimore's motion to suppress was commenced on May 22, 1972, before Judge Morris. The hearing was continued until June 5, 1972. Whereupon, Judge Morris granted Latimore's motion to substitute judges. Judge Porter was assigned to hear the motion. He ruled, without objection, that he would read the transcript of the previous testimony. After hearing additional testimony he denied Latimore's motion to suppress. On June 7, 1972, after expressly stating that he had read the previously transcribed testimony, Judge Porter again denied Latimore's motion to suppress. Since the record reveals that no objection was raised to the reading of the transcribed testimony and that the judge had read the transcript when he denied the motion on June 7, 1972, we find without merit defendant Latimore's contention that he was denied a fair hearing.

• 3 With respect to defendant Vesey we find that he waived his right to a hearing on his motion to suppress line-up identification. On September 1, 1972, at a hearing on motions to suppress identification the defense counsel stated, "* * * Yates has not had a hearing on his Motion to Suppress the line-up identification and Latimore and Vesey has as I understand it, Your Honor." The trial court then heard the motions to suppress of Yates and Williams. On the date of the trial the attorney for the defendants noted that no hearing had been held on Vesey's motion to suppress and moved, orally, for such a hearing. The trial court responded in the following manner,

"Oral motion made at this time for the hearing on Mr. Vesey, Motion for Suppression of Line-up Identification. The Court will review its records to see what the situation actually is, however, this motion will not be considered at this time. Should it be necessary in the course of events to have a hearing on that Motion, it will be conducted during the trial when it becomes appropriate."

The motion to suppress was not renewed by defense counsel and, except for the stricken inquiries propounded by the defense counsel, the line-up identification was not mentioned during the trial. Under such circumstances we hold that defendant Vesey cannot now predicate error on the trial court's failure to grant him a hearing he could have requested. See People v. Colon, 9 Ill. App.3d 989, 293 N.E.2d 468. See also People v. Kostos, 21 Ill.2d 496, 173 N.E.2d 466.

• 4, 5 The defendants also contend that the trial court erred in consolidating the defendants' cases for trial. We do not agree. Section 114-7 of the Code of Criminal Procedure provides,

"The court may order 2 or more charges to be tried together if the offenses and the defendants could have been joined in a single charge. The procedure shall be the same as if the prosecution were under a single charge." (Emphasis ours.) (Ill. Rev. Stat. 1971, ch. 38, par. 114-7.)

It is irrefutable that the circumstances which gave rise to the charges against each of the defendants arose out of the same comprehensive transaction. Thus, the defendants could have been joined in a single charge. See, Illinois Revised Statutes 1971, ch. 38, par. 111-4(b). While defendants should not be joined together for trial where one of several defendants has made admissions or confessions implicating the other defendants which are likely to be admitted into evidence at trial (Bruton v. United States, 391 U.S. 123, 20 L.Ed.2d 476; 88 S.Ct. 1620; People v. Clark, 17 Ill.2d 486, 162 N.E.2d 413), where, as in the instant case, the State's Attorney declares that none of the defendants' written statements would be introduced and, in fact, no testimony concerning such statements was admitted at trial, we cannot say that the trial court erred in ordering the defendants' cases consolidated for trial. See People v. Rosenborgh, 21 Ill. App.3d 676, 315 N.E.2d 545.

• 6 In a related contention the defendants' claim that it was error to appoint the same counsel to defend all of the defendants (including Williams and Yates). We addressed this specific issue in People v. Dickens, 19 Ill. App.3d 419, 311 N.E.2d 705. Briefly stated, we held that unless there is some showing that the defenses may be inconsistent and that the interests of joint defendants are in fact antagonistic, co-defendants do not have the right to separate counsel. (See also People v. Robinson, 42 Ill.2d 371, 247 N.E.2d 898, People v. Normant, 25 Ill. App.3d 536, 323 N.E.2d 553.) In the instant case Vesey pled not guilty and presented no evidence in his defense. On the other hand, Latimore pled not guilty and raised the defense of consent. Latimore testified that he had intercourse with the complaining witness, at her urging, after the other boys had left. This defense is not antagonistic to Vesey's denial of the charge. Rather, Latimore's defense is entirely consistent with Vesey's denial of guilt. Consequently, we do not find any error in the denial of the defendants' request for separate counsel.

The defendants' next allegation of error concerns the trial court's exclusion of spectators from the courtroom during the presentation of testimony by the complaining witness. The defendants contend that this action denied them their Constitutional right to a public trial. Immediately prior to the testimony of the complaining witness, the trial court made the following declaration,

"At this time, Mr. Bailiff, I am going to ask that, of course, the Jury and the Alternates remain in the Courtroom and that the four defendants, their attorney, the State's Attorney, the Clerk, the Reporter, the Bailiffs and the Sheriff. Mr. Sheriff I am instructing you to clear the courtroom of any and all spectators; anyone remaining behind that rail between us and the spectators, I want their names and their reason for staying; otherwise, they will all be removed from the courtroom. We will take a ten-minute recess so you may do that."

The following notation then appears in the record,

"Whereupon; a short recess was had; during which Reverend Myrtle Miller, Pastor of the A.M.E. Church on 7 East Gaskin Street, Harrisburg, Illinois, was given permission by the Court to remain in the courtroom during the testimony of the complaining witness, * * *."

During the examination of the complaining witness the court had occasion to further amplify its position. It did so in the following manner:

"Members of the Press are welcome. If we have a tv announcer here, he's welcome. Anyone that represents the newspaper or any news-media whatsoever is welcome. If a person has a specific interest in here, they would be welcome too, but a person who has come out of curiosity only or who is just concerned only with the progress of this case and desire to hear the testimony of this witness are excluded. I made that clear awhile ago. Mrs. Miller is here because of her position in the community, and because of whom she represents. Now, if anybody else represents a group similar to her's they, too, are welcome."

The trial court then allowed one of the defense counsel's assistants to join the others in the courtroom. The examination of the complaining witness then continued.

• 7 We do not find the limitations imposed by the trial court repugnant to the right to a public trial as guaranteed by the United States Constitution (amendment VI) and the 1970 Constitution of Illinois (article 1, section 8). An accused is guaranteed a public trial because of the inherent distrust for secret trials and as "a safeguard against any attempt to employ the courts as instruments of persecution." (In re Oliver, 333 U.S. 257, 68 ...

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