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People v. Brisbon

OPINION FILED SEPTEMBER 26, 1980.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

HENRY BRISBON, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. JAMES M. BAILEY, Judge, presiding.

MR. JUSTICE MEJDA DELIVERED THE OPINION OF THE COURT:

Rehearing denied October 28, 1980.

Following a jury trial, defendant was convicted of the murders and armed robberies of Dorothy Cerney and James Schmidt (Ill. Rev. Stat. 1971, ch. 38, pars. 9-1 and 18-2) and of conspiracy to commit armed robbery (Ill. Rev. Stat. 1971, ch. 38, pars. 8-2 and 18-2). He was sentenced to a term of 6 to 20 years for the conspiracy and four concurrent terms of 1000 to 3000 years for the murders and armed robberies. On appeal, he contends that: (1) the trial court erroneously refused to examine the jury concerning possible improper influence from a juror who had been dismissed; (2) certain testimony of his jailhouse lawyer should not have been admitted; (3) his photographic identification should have been suppressed; (4) evidence of another crime deprived defendant of a fair trial; (5) he was not proved guilty beyond a reasonable doubt; and (6) he was improperly convicted of the inchoate offense of conspiracy to commit armed robbery and the principal offense of armed robbery.

After jury selection, defense counsel was informed that one of the jurors had been a friend and neighbor of Dorothy Cerney, one of the victims. After opening statements, the prosecutor advised the court that Mrs. Cerney, Dorothy's mother, had confirmed that fact and had said that the juror "should have known Dorothy Cerney and known her well." When the judge questioned the juror concerning her acquaintance with the victim the following transpired:

"THE COURT: How are you doing, Miss Poell? It's been brought to our attention —

[THE JUROR]: I want to bring it to your attention.

[THE COURT]: — you were a neighbor of Cerneys, is that right?

[THE JUROR]: Two doors.

THE COURT: Did you know it at the time? I mean, at the time we were selecting the jury? The question is why didn't you tell us about it at the time?

[THE JUROR]: Well, I was kind of scared because I didn't want to bring it to anyone's attention.

THE COURT: Have you told any of the other jurors this?

[THE JUROR]: No.

THE COURT: Okay. You kept it to yourself?

[THE JUROR]: Yes, it was to myself."

The judge informed the juror that she would be dismissed from the jury and the juror responded, "I could be objective. I'm not very close." Defense counsel twice asked the juror whether she had talked to anyone about her relationship and she responded negatively. Counsel also asked whether anyone had asked her about it and she answered, "No one." The judge told her not to tell anyone why she had been excused and excused the juror. An alternate was advised that he would serve on the jury.

After opening statements, defense counsel moved to have the court question the jury regarding whether the excused juror had spoken to the other members. The court denied the motion because questioning might highlight the matter.

After trial began, a hearing was held on defendant's motion to suppress evidence that John Durr, a witness to a part of defendant's flight, had identified defendant. The State contended that it was not known that Durr could identify defendant until two days before the defense was notified when he made a photographic identification. Defendant objected, contending that the identification should have been known earlier.

An assistant State's Attorney testified that he had interviewed Durr and had shown him a lineup photograph and a composite sketch and that Durr identified defendant. The identification took place on a Saturday after jury selection had commenced. The defense was notified at the next court proceeding. Durr also testified about the circumstances of the identification. Following argument, the court denied defendant's motion.

The testimony at trial established the following pertinent facts. On the night of June 3, 1973, three people were murdered and robbed along Interstate 57 by defendant, David Sanders, Stanley Charleston and Darrell Thompson. Charleston and Thompson testified concerning the events of that night in return for agreed sentences for their participation in the crimes of 12 to 20 years and 20 to 40 years, respectively. On that night the four drove from Chicago to Kankakee in Sanders' Subaru where they intended to party, get high, and rob a pizza parlor. They obtained a shotgun from a friend in Kankakee. They drove around for a while and decided not to rob a pizza parlor because of police activity. Instead, they decided to rob some white people near a country club but could not find any victims. They had started back to Chicago on Interstate 57 when defendant suggested "bumping" cars off the expressway and then robbing the occupants when they got out to assess damages. Thompson was to drive away in the victim's car. The others agreed to defendant's plan.

The first car that they bumped was a black Chrysler driven by Doris Bell on the exit ramp at Manteno. When she got out of the car, defendant and Sanders walked up to her. Defendant pointed the shotgun at her and told her to get into the car and "scoot over." She replied that God would protect her, walked to her car, and drove away. Sanders yelled at defendant for not killing her.

The four drove north for about 10 minutes before hitting a green Chevrolet driven by Betty Lou Harmon. After she pulled over, Sanders and defendant walked up and forced her into her back seat while defendant got into the front seat and Thompson got behind the wheel. Sanders followed in his car with Charleston. Defendant ordered the woman to disrobe and she did so while crying and pleading with him not to hurt her. After driving about a minute, defendant told Thompson to pull over and ordered Mrs. Harmon out of the car. She was naked and was still crying and pleading. She attempted to escape but was caught by Sanders. Defendant took Mrs. Harmon through a trench, across some grass, and over a barbed wire fence. Meanwhile Thompson searched the car for valuables.

About 10 minutes later there was a shot and defendant returned about 5 minutes afterwards to inform the group that he had "killed the bitch" and gotten a "little chump change." Sanders said that that was good and that he wanted to make more money. After a two-day search by her husband and a friend, Mrs. Harmon's body was found in a cornfield. Medical testimony established that a shotgun barrel had been placed within ...


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