APPEAL from the Circuit Court of Effingham County; the Hon.
GEORGE W. KASSERMAN, JR., Judge, presiding.
MR. JUSTICE WINELAND DELIVERED THE OPINION OF THE COURT:
Mr. JUSTICE WINELAND delivered the opinion of the court:
The defendant, Aaron Hyche, appeals from his conviction of murder, attempt murder, and kidnapping. Defendant appeals alleging that certain errors committed at trial deprived him of a fair trial.
Factually it appears that on March 19, 1976, at approximately 1:30 p.m. State Trooper Layton Davis stopped an automobile for a speeding violation in Effingham County. The two occupants of the automobile, who were black men, became involved in an altercation with Trooper Davis. Herman Honn, a passing motorist, witnessed the altercation, stopped his Chevrolet Blazer, and went to render aid. Before Mr. Honn could render aid, Trooper Davis was thrice shot which resulted in his death. As Mr. Honn then hurriedly returned to his Blazer, a shot was fired at him. As he sped away on the interstate, a shot was fired through his windshield. Mr. Honn identified defendant at a lineup and identified defendant at trial as the man who shot Trooper Davis. Approximately 45 minutes after the death of Trooper Davis, Ms. Anna Mae Feldhake observed two black men near a motor vehicle, which was in a ditch, on a county road near the city of Effingham. She stopped in order to ask them if they would like a ride to a nearby farmhouse. The two black men forced Ms. Feldhake into the backseat of her automobile and headed east. The Feldhake automobile ran into a ditch near Olney, Illinois, after a high speed chase and after an attempt to avoid a road block. Ms. Feldhake identified defendant at trial as one of the men who abducted her. Defendant was apprehended by a State trooper as he tried to flee. Lilly Taylor, the mother of defendant's accomplice, testified that on the Sunday after the death of Trooper Davis, defendant telephoned her and stated that he had killed a State trooper and that her son was with him. Other evidence presented at trial established that an arrest warrant for defendant had been issued in Cook County after failure of defendant to appear for sentencing on convictions for attempt murder and attempt armed robbery. Trooper Davis had been informed by the State authorities when he received the driver's license information that an arrest warrant for defendant was outstanding. Defendant's driver's license was found on the seat of Trooper Davis' squadrol.
Defendant's initial contention is that the court erred in joining, upon the State's motion, the kidnapping information with the murder and attempt murder information for trial. Defendant concedes that the information alleging that defendant committed the murder of State Trooper Layton Davis and the attempt murder of Herman Honn were properly joined for trial, but contends that the information charging him with the kidnapping of Anna Mae Feldhake was improperly joined as not being of the same comprehensive transaction as the other crimes.
• 1, 2 Section 111-4(a) of the Code of Criminal Procedure of 1963 provides that two or more offenses may be charged in the same indictment, information or complaint in a separate count for each offense if the offenses charged, whether felonies, misdemeanors or both, are based on same act or on two or more acts which are part of the same comprehensive transaction. (Ill. Rev. Stat. 1975, ch. 38, par. 111-4(a).) Section 114-7 of the Code of Criminal Procedure of 1963 provides that the court may order two or more charges to be tried together if the offenses could have been joined in a single charge. The procedure shall be the same as if the prosecution were under a single charge. (Ill. Rev. Stat. 1975, ch. 38, par. 114-7). Joinder of criminal offenses are controlled by the foregoing sections of the Code of Criminal Procedure and is committed to the sound discretion of the court. (People v. Perry (2d Dist. 1975), 27 Ill. App.3d 565, 327 N.E. 259; Coleson v. Spomer (5th Dist. 1975), 31 Ill. App.3d 563, 334 N.E.2d 344.) However, joinder is not permitted where the charges are unrelated, where the crimes occur several days apart, or where there is no concerted plan of action or scheme that would link two felonious acts. (People v. Daniels (1st Dist. 1976), 35 Ill. App.3d 791, 342 N.E.2d 809.) In this case, the crimes joined occurred within one hour of each other. Although we do not say that the mere passage or nonpassage of a certain amount of time is determinative of whether charges are properly joined, we find that the information was sufficiently related in time to be properly joined. We are also of the opinion that the offenses were part of the same comprehensive transaction and, therefore, properly joined. The crimes occurred a few miles apart in a rural county. A narrow view of the "comprehensive transaction" is that the kidnapping was a criminal effort to avoid apprehension for the previous crime of murder and attempt murder. A larger view of the comprehensive transaction is that all three crimes were a criminal effort to avoid apprehension and return to Cook County to face sentencing on the attempt murder and attempt armed robbery convictions there.
In People v. Daniels (1st Dist. 1976), 35 Ill. App.3d 791, 342 N.E.2d 809, the court was faced with a similar situation. In Daniels, Morgan was the victim of an armed robbery at 7:30 p.m. in Chicago, Illinois. Mr. Morgan's daughter knew the armed robbers and accompanied the officers on a tour of the neighborhood. Upon seeing one of the suspects 50 minutes later, Officer Arrigo got out and chased the man down the alley. This man, Darcy, failed to halt when Officer Arrigo announced his office and fired two shots at Officer Arrigo. The charges of armed robbery and attempt murder were joined in the indictment. The trial court denied defendant's motion for severance. The appellate court affirmed the trial court and ruled that because the crimes occurred in close proximity to each other and the attempt murder was a criminal effort to avoid apprehension for the crime, the crimes were part of the same comprehensive transaction, and, thus, properly joined.
Defendant attempts to distinguish the Daniels case from the case at bar by arguing that in Daniels Officer Arrigo knew of defendant's prior crime while Ms. Feldhake was not aware that the criminal offenses had been committed. We find this argument unpersuasive. The joinder of the offenses should rest in the sound discretion of the trial court and not be based on the knowledge or mental state of the victims of the crimes that are joined.
Defendant relies on People v. Pullum (1974), 57 Ill.2d 15, 309 N.E.2d 565, People v. Fleming (1st Dist. 1970), 121 Ill. App.2d 97, 257 N.E.2d 271, and People v. Bricker (4th Dist., 1974), 23 Ill. App.3d 394, 319 N.E.2d 255, which are inapposite to the case at bar. In Pullum, defendant was indicted and tried on charges of armed robbery and possession of marijuana. The armed robbery occurred on September 4, 1970. Defendant was arrested 16 days later and when searched by arresting officers, the marijuana was found. Defendant's pretrial motion for severance was denied. There was no indication that the marijuana was taken during the armed robbery. In Fleming, defendant was indicted and tried on two counts of theft in excess of $150. One count involved the unauthorized control over of an automobile in August 1966. The second count alleged theft by deception in selling the same automobile and receiving cash and clothes in return during the spring of 1967. In Bricker, defendant was indicted and tried on two counts of armed robbery. One armed robbery occurred at 12:30 a.m. at a gas station south of Bloomington. The other armed robbery occurred at a hotel within the City of Bloomington at 3:30 a.m. In each case, the trial court denied defendant's motion for severance. In each case, the appellate court reversed the convictions and remanded the case for separate trials while ruling that the cases were not part of the same comprehensive transaction. In each of those cases, the objective to be attained by each crime made the crimes so dissimilar that they could not be considered part of the same comprehensive transaction while in the case at bar all crimes were committed within the objective of avoiding arrest and return to Cook County for sentencing.
No prejudice occurred to the defendant by joinder of the information as evidence of flight can be introduced to show guilty knowledge. (People v. Mikka (1955), 7 Ill.2d 454, 131 N.E.2d 79, cert. denied (1955), 350 U.S. 1009, 100 L.Ed. 871, 76 S.Ct. 656.) Defendant argues that the foregoing could be done without introducing evidence of the kidnapping. However, it was proper to introduce evidence of how, when, and where defendant came into possession of the Feldhake automobile. Also Ms. Feldhake heard an incriminating remark as a State police station was passed. That evidence could only be admitted through the testimony of Ms. Feldhake or through stipulation as to her testimony. In Fleming, the charging and evidence of two dissimilar crimes of theft could prejudice the defendant by creating the impression in the mind of the jury that one twice charged with theft must be a thief as the charging and evidence of two dissimilar armed robberies might create in the mind of the jury that defendant is an armed robber as in Bricker. In the case at bar, the victim, though injured in the automobile accident, was not injured at the hand of defendant or his accomplice. She was told that she would not be harmed. Therefore, we see nothing in the evidence presented on the kidnapping charge which would create in the mind of the jury that defendant was a murderer except that defendant had guilty knowledge of the other crimes which, as discussed previously, was proper evidence.
Secondly, the defendant contends, relying on People v. Massarella (1st Dist. 1977), 53 Ill. App.3d 774, 368 N.E.2d 507, appeal allowed (1978), ___ Ill.2d ___), that he was improperly prosecuted because the Attorney General improperly and in excess of his authority conducted the prosecution. We find Massarella distinguishable from the case at bar. In Massarella, the grand jury, at which evidence was presented by Assistant Attorney Generals, returned an indictment against the defendant. The Attorney General, by an assistant, conducted the trial unassisted by the State's Attorney or an assistant. The only time the State's Attorney, through his assistants, at all participated in the prosecution of defendant, was at the arraignment at which the assistant state's attorney stated, "This is the Attorney General's case." The Massarella court reversed defendant's convictions and ruled that the Attorney General was not authorized by section 112-6(a) of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 112-6(a)) to appear before the grand jury nor was he authorized by common law or statute (Ill. Rev. Stat. 1975, ch. 14, par. 4) to thereafter take exclusive charge of prosecuting the case. In the case at bar, defendant was prosecuted by information pursuant to section 111-2 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 111-2). The State's Attorney of Effingham County, and only he, signed the information and amended information on which defendant was prosecuted; therefore, there is no violation of a specific statute as occurred in Massarella. In this case, the State's Attorney was present at all stages of the prosecution. Although the assistant Attorney General was present at the sentencing hearing, the State's Attorney completely presented the State's case. Every pleading, save one, which was filed by the State, was signed by the State's Attorney. The facts, as cited above, leads us to the conclusion that the State's Attorney of Effingham County was in control of the prosecution of this case and his function was not usurped by the Attorney General.
Thirdly, defendant contends that he was deprived of due process of law because the jurors were picked, in part, from the same panel from which the jurors who sat on Taylor's case were chosen. Prior to defendant's trial, the trial court issued an order directing the circuit clerk to draw a special panel of 100 names from which to select the jury for defendant's trial. This special panel of 100 along with the persons on the original panel of 100, who had not served on Taylor's jury or who had not been excused for cause in the Taylor proceedings, constituted the pool from which defendant's jury was drawn.
• 3 Immediately prior to the commencement of voir dire, defendant made a challenge to the array which was overruled. A challenge to the array is directed toward the formal manner of selecting the venire and not to the competency of those so selected to be impartial jurors. (People v. Cunningham (1st Dist. 1970), 123 Ill. App.2d 190, 260 N.E.2d 10). On appeal, defendant relies on People v. Faulisi (1966), 34 Ill.2d 187, 215 N.E.2d 276 in which our supreme court ruled that the trial court erred in denying a motion for continuance where the jury was chosen from the same venire as that which tried and convicted his co-defendant. However, the proper procedure in the case at bar would have been the motion to continue. Defendant chose the method which he thought would insure him a fair trial. Having chosen to proceed with the venire that was impaneled after his challenge to the array was denied coupled with his failure to request a continuance in order to obtain an entirely new venire, defendant cannot now be heard to complain that he was deprived of a fair trial.
In People v. Faulisi (1966), 34 Ill.2d 187, 215 N.E.2d 276, our supreme court found that bias and prejudice were inherent in a situation in which a defendant must select his jury from a venire which contained venire-persons who had been jurors in defendant's accomplice's case. On the other hand, courts of other jurisdictions have required the defendant to show bias. In State v. Kennedy (1973), 8 Wn. App. 633, 508 P.2d 1386, prior to defendant's trial, his co-defendant, who did not testify at defendant's trial, pleaded guilty as prospective jurors entered the courtroom. The prospective jurors were excluded from the courtroom until the plea was completed. The court ruled that no prejudice occurred and none could be presumed. In State v. Geelan (1963), 80 S.D. 135, 120 N.W.2d 533, a juror, who served on defendant's accomplice's jury, served on defendant's jury. This juror was not challenged for cause nor did defendant exercise a preemptory challenge. Defendant's conviction was affirmed. In Lumpkin v. State (Okla. Crim. App. 1971), 482 P.2d 947, defendant's accomplice was tried prior to defendant, and during voir dire of defendant's trial the jury in the accomplice's case reached a verdict. The trial court directed the jurors in the box and the remaining jury panel to retire outside of the courtroom. The conviction was affirmed and the Oklahoma court ruled that the burden was on the defendant to show by clear and convincing evidence the misconduct of a juror had prejudiced defendant's right to a fair trial. In Miller v. United States (D.C. Cir. 1965), 347 F.2d 797, defendant's jury was drawn from the same venire from which his accomplice's jury was drawn five days earlier. The jurors, who sat in the accomplice's case, were among the venire from which defendant's panel was chosen. There was no suggestion that any members of defendant's panel had actually discussed or gained any impression concerning this case from jurors who had set in the co-defendant's trial. There was no motion that the trial court inquire of the jurors whether any of those drawn in the Miller trial had perceived from any source a connection with the accomplice's case. The court affirmed the conviction and ruled that no prejudice was demonstrated. In the case before us, the defendant complains that some members of the co-defendant's venire were members of the jury that convicted him; however, there is no showing that these few members of the co-defendant's venire were present at that co-defendant's trial, nor is there any showing that they had any more knowledge of the defendant's case than other residents of the county, since they were not chosen as jurors in the co-defendant's case. Also defense counsel stated to the court that he had advised the defendant that a motion for a change of place of trial should be made pursuant to section 114-6 of the Illinois Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1975, ch. 38, par. 114-6). Defendant, however, wanted to be tried in Cook County. If he could not be tried in Cook County, he did not want to make a motion for a change of place of trial. The State stated that it would not object if such a motion were made. The court stated that he thought a change of place of trial to Kankakee County might be granted if a motion were made, but he would not be placed in a position where defendant selects the place of his trial. No such motion was made. Therefore, in light of the foregoing recent cases, our supreme court might rule today, if faced with the issue, that prejudice must be established, rather than presume prejudice, when a jury is picked from the same venire from which an accomplice's jury has been chosen.
• 4 Defendant's fourth contention alleges that error was committed when the defendant waived trial before the venire while handcuffed. The record indicates that the trial court was aware that the defendant intended to waive his right to be present at trial. (See Ill. Rev. Stat. 1975, ch. 38, par. 115-3(a).) Defense counsel asked the court to allow the defendant to make his remarks in chambers. The court denied the motion, and defendant waived his right to be present at trial in open court. Defendant does not ...