Appeal from the Circuit Court of Lake County; the Hon. Harry
D. Strouse, Judge, presiding.
JUSTICE UNVERZAGT DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 19, 1984.
The defendant, Charles Campbell, and two co-defendants, Maverick and Sammie Tyler, were charged in Lake County by indictment for an incident which occurred on September 15, 1982, with two counts of armed robbery, and with one count each of attempted murder, aggravated battery (while armed with a dangerous weapon), and armed violence (caused great bodily harm while armed with a dangerous weapon). (Ill. Rev. Stat. 1981, ch. 38, pars. 18-2, 8-4(a), 9-1(a)(1), 12-4(b)(1), 12-4(a) and 33A-2.) (No. 82 CF 1492.) The defendant was tried separately, and is the only one involved in these appeals. He was convicted by a jury of all counts except attempted murder. Concurrent sentences of 10 years for aggravated battery, 60 years for armed violence and 60 years for armed robbery were imposed. Upon defendant's stipulation to those convictions, the court revoked a four-year probation term entered February 23, 1982, after defendant pleaded guilty to an information for the September 15, 1981, robbery of Brian Brady, a sailor, in North Chicago. (No. 81 CF 1519.) The court imposed a seven-year sentence for that robbery, and ordered the concurrent sentences imposed in No. 82 CF 1492 be served consecutive thereto. Defendant's notices of appeal from his convictions and the probation revocation were timely filed, and we have consolidated them.
The sufficiency of the proof against the defendant is not at issue, and a detailed recitation of the evidence at trial is not warranted. The five offenses charged against the defendant in the indictment occurred during the armed robbery of two sailors, Kenneth Kleinworth and Joseph Dindlebeck, who were stationed at Great Lakes Naval Center in North Chicago. September 15, 1982, was payday for the two men. They were returning to base about 10:30 p.m., walking southbound on Sheridan Road. As they approached the viaduct near 19th Street, they noticed three black men at the top of the viaduct by the Elgin, Joliet & Eastern Belt Line railroad tracks. One of the men was holding what Kleinworth and Dindlebeck thought was a stick. They soon realized the stick was a sawed-off shotgun when the three men ran down the tracks toward them and announced a robbery. The defendant was identified at trial as the gunman by Dindlebeck and Kleinworth. Shortly after the incident they had each picked out his photo from police photo albums, and Dindlebeck was able to identify him in a lineup. Kleinworth was not able to pick defendant out of a lineup, and before he identified the defendant in court he asked to be allowed to approach the defendant for a "closer look" and asked to have him stand up. He then stated: "Yes, that's him."
Two of the robbers jumped Dindlebeck, and the defendant repeatedly jabbed at Kleinworth with the gun, prodding him toward the bushes and saying he was "going to blow [him] away, if [he] didn't move." After what seemed like four minutes to Kleinworth, and only a matter of seconds to Dindlebeck, a shot was fired that hit Kleinworth in the upper inside of his left thigh. Kleinworth testified the defendant "rolled me up enough where he could get to my wallet," took it, and fled. Dindlebeck testified a second shot was fired as the robbers ran.
Kleinworth suffered extensive soft tissue injury to his left thigh. He underwent six-hour emergency surgery to restore blood flow to the lower part of his leg and had an artificial blood vessel implanted in his leg. The surgeon testified Kleinworth had lost 50 to 70% of his functional strength and enervation of his lower leg. The functional disability rendered him unable to perform his duties required on board a ship (climbing ladders, etc.), and proceedings for his discharge from the Navy were instituted. Further surgery was required to relieve symptoms of a pain syndrome he later developed called causalgia.
The defense presented at trial was mistaken identity and alibi. Two witnesses, also sailors, testified for the defense that they were robbed earlier the same evening by a group of four or five black males in approximately the same vicinity as Kleinworth and Dindlebeck. One of the men in that robbery also carried a sawed-off shotgun. Both sailors testified they did not recognize the defendant as one of the men who robbed them.
Ethel, H.T., and Brenda Tyler testified concerning the defendant's whereabouts on the evening of September 15, 1982. The witnesses were, respectively, the mother, father and sister of the defendant's co-defendants. Additionally, Brenda was identified at trial as defendant's common-law wife and the mother of his three children. Mr. and Mrs. Tyler testified they saw the defendant at their daughter's residence at 1801 Victoria, but not at any time later than 6 p.m. on September 15. Brenda testified the defendant was at her residence all day on the 15th; she stated she and the defendant just "sat around" in the evening; she went to bed about 11 p.m., and the defendant went to bed "after twelve."
On cross-examination, the State sought to impeach her testimony with evidence of her prior inconsistent statement to North Chicago Detective Van Dien that the defendant and her brother, Sammie Tyler, were on the back porch all night on September 15, and that she went to bed between 10 and 11 p.m.
As noted, the jury found the defendant guilty of all of the offenses charged, except attempted murder.
The defendant raises several issues with numerous subissues. The primary issues raised are: (1) whether he was denied a fair trial by (a) commencement of the trial and composition of the jury; (b) prosecutorial overreaching; (c) court's evidentiary rulings; (d) police testimony; (2) whether the sentences imposed are excessive or improper; (3) whether reversal and/or remand of the 82 CF 1492 convictions would mandate vacation of the probation revocation.
(A) Commencement of the trial and composition of the jury. The defendant contends (1) it was error for the court to deny a mistrial requested after a week-long delay of trial due to the illness-related absence of the trial judge; (2) two jurors were improperly excused after jeopardy had attached; (3) his right to be present at every critical stage of the trial was violated by the court's excusal of the two jurors out of his presence; (4) his right to have the trial completed by a particular tribunal was violated by the court's excusing of the two jurors; (5) he was prejudiced by the court's refusal to withdraw a juror who admitted on the third day of trial that she could not be impartial; and, as a result of the foregoing, (6) reversal is mandated and reprosecution is barred by the double jeopardy clause or, alternatively, he is entitled to a new trial.
Prior to adjournment on February 7, 1983, the jury here had been sworn, opening statements made, and one witness had testified concerning what he observed when he drove past the scene of the robbery on the evening in question. Due to the illness of the trial judge, Harry D. Strouse, Jr., trial did not resume until February 14, 1983. In the interim, two of the jurors were excused by another judge, Chief Judge Jack Hoogasian, and the two alternate jurors were seated, all without notice to or knowledge of the defendant. Defendant's motions for a mistrial and for the post-trial grant of an evidentiary hearing as to the circumstances surrounding the excusing of the two jurors were denied.
Defendant argues it was an abuse of the court's discretion to deny a mistrial under these circumstances, since it could reasonably be inferred that the other 10 jurors may have resented having to remain on the jury and may have harbored animosity toward the defendant as a result. The defendant cites no Illinois cases in support of his advancement of the proposition that the illness of the judge has long been deemed a proper basis for the granting of a mistrial. He does cite four cases from other jurisdictions which, as explained below, show only that a mistrial may be declared due to illness.
The State responds the defendant's argument here is based on speculation which has no foundation in the record, and is belied by the fact no other jurors sought to be removed from the panel.
• 1 The decision to declare a mistrial rests within the discretion of the trial court and is not subject to review unless there has been an abuse of that discretion. (People v. Chaffin (1969), 115 Ill. App.2d 1, rev'd on other grounds (1971), 49 Ill.2d 356.) The party moving for a mistrial bears the burden of making a showing that he has been prejudiced (People v. Robinson (1979), 68 Ill. App.3d 747, 753; People v. Dolgin (1953), 415 Ill. 434, 445) which, in turn, makes the declaration of a mistrial manifestly necessary or consistent with the ends of justice. People v. Bracy (1973), 14 Ill. App.3d 495.
The cases cited by the defendant from other jurisdictions support his position on this issue only to the extent that the illness of the court has been recognized, inter alia, as an exception to the general rule that a person may not twice be put in jeopardy for the same offense. In such cases of illness of the judge, the trial may be suspended for a time or discontinued altogether due to the necessity of the situation. However, the defendant, even though he may not have consented to the suspension or termination, will not thereafter be protected from another trial upon the same indictment. See Commonwealth v. McCormick (1881), 130 Mass. 61, citing Nugent v. State (Ala. 1833), 4 Stew. and Port. 72; accord, State v. Richardson (1896), 47 S.C. 166, 25 S.E. 220; State v. Slorah (1919), 118 Me. 203, 106 A. 768.
Defendant's claim that the court erred in not granting a mistrial must fail on the basis of the record alone. From the following colloquy, it appears defense counsel was presented with a choice of three options, yet he opted to keep the case before Judge Strouse:
"MR. DOHERTY [Defense counsel]: Judge, for the record, I want to make a motion for a mistrial. I want to make a motion for mistrial, Your Honor, based on the unfortunate illness of the Court. The jury has been sitting for a week. I was under the impression they offered me a mistrial last Thursday, with the proviso that the case would be transferred to Hoogasian. I understand the confusion apparently is mine.
THE COURT: I think the problem was, when I got sick, when I talked to Mr. Briscoe, I told them it would seem to me there were three options, one is to grant a mistrial and start over, one is to continue the case before Judge Hoogasian, and of course, the other is just to wait until I came back.
MR. BRISCOE [Assistant State's Attorney]: And I thought I had expressed all three of those.
THE COURT: He said he had talked with you and given the options, and the jury was here, and, it is now 10:20, and we have been ready to go since 9:30 on this case.
MR. DOHERTY: I don't see any serious prejudice.
• 2 Defendant has made no showing here that he was prejudiced by the trial judge's unfortunate absence due to illness. He has merely speculated that the jury must have resented the fact it had to continue to serve beyond the usual week-long term. The record reasonably suggests the decision to wait was defendant's, and he may not now complain of his own choice.
• 3 The State argues defendant's failure to timely object has waived consideration of his related contention of impropriety due to elicitation of an answer by the prosecutor that a witness was "staying at a hotel downtown, on the [defense attorney's] expense" during the week-long hiatus. In support, the State cites People v. Lucas (1981), 88 Ill.2d 245, and we agree that the defendant has waived this point for failure to object. Also, as the State notes, the question was not improper because the prosecution was entitled to probe the issue of the witness' bias or motive for testifying.
The next points raised by the defendant stem from the discharge of regular jurors and the substitution of two alternate jurors therefor. Defendant complains this was error since it was done by a judge other than the trial judge, that he was not present at the time of the discharge, that his right to have a particular tribunal decide his fate was violated, and that he was "clearly prejudiced" by the discharge of the two jurors.
• 4 Defendant appears to suggest error in the excusal of the two jurors by "some" judge other than the trial judge, thereby implying a lack of authority in the other judge. However, the statute which permits a regular juror to be replaced by an alternate does not specify this may only be done by the trial judge. (Ill. Rev. Stat. 1983, ch. 38, par. 115-4(g).) Further, it is well settled that a court, and not an individual judge, has jurisdiction over a case. (In re Marriage of Ayers (1980), 82 Ill. App.3d 164, 167.) Although once trial has begun, a party is entitled to the judgment of one judge until the jury retires to consider its verdict (People v. Moon (1982), 107 Ill. App.3d 568, 574; People v. Mays (1962), 23 Ill.2d 520), the substitution of two alternates for regular jurors was not a motion or matter that required any personal knowledge of the case on the part of the judge. Consequently, the mere fact a judge other than the trial judge excused the jurors is not error. Cf. Huwe v. Commonwealth Edison Co. (1975), 29 Ill. App.3d 1085 (judge substituted for trial judge after jury retired to consider its verdict had authority to exercise discretion as to how long the jury should be kept in deliberation).
Defendant further suggests the excusal of the two jurors was an abuse of discretion which prejudiced him because it removed from the jury one juror, a police officer, whom the defendant felt might have been "favorably disposed to his fate," citing Arizona v. Washington (1978), 434 U.S. 497, 503, 54 L.Ed.2d 717, 727, 98 S.Ct. 824, 829.
Although the State acknowledges the truth of defendant's assertion that a court may not arbitrarily substitute an alternate juror over defendant's objection (People v. Payton (1971), 2 Ill. App.3d 693), it points out the judge here cannot be held to have acted arbitrarily where it was the jurors themselves who asked to be excused. Cf. People v. Huston (1977), 46 Ill. App.3d 170 (when someone other than the court requests the dismissal of a juror, the court has authority to grant or deny the request).
• 5 We believe the judge did not act arbitrarily in excusing the two jurors. The record shows the jurors called the chief judge, Jack Hoogasian, said they were only told they would have to serve a week and, due to the trial judge's illness and consequent delay, they could not serve during the second week. The court observed that an evidentiary hearing likely would not have generated any more details which might have indicated a different decision should have been made and, in fact, the court observed that had that judge denied the jurors' request to be excused, such denial might have precipitated the opposite claim of prejudice: that the jurors were kept under duress which would cause them to be hostile to the defendant. The record also shows the defendant's motion for an evidentiary hearing was not filed until the day the post-trial hearing was held. Consequently, the defendant's request for an evidentiary hearing was not timely. Accordingly, no abuse of the court's discretion is evident.
Defendant asserts he was denied his absolute right to be present at every stage of his trial affecting substantial rights because the court excused the two regular jurors in his and his attorney's absence. Three cases cited by him in support of his position that he had the right to be present are inapposite. In both State v. Smith (1890), 44 Kan. 75, 24 P. 84, and Upchurch v. State (1896), 36 Tex.Crim. 624, 38 S.W. 206, the jury was discharged and defendant once again placed in jeopardy upon a new trial, and in Henderson v. Lane (7th Cir. 1980), 613 F.2d 175, cert. denied (1980), 446 U.S. 986, 64 L.Ed.2d 844, 100 S.Ct. 2971, an alternate juror who had been dismissed after the jury retired to deliberate was reinstated in defendant's absence and over his counsel's objection when one of the regular jurors suffered a heart attack after 2 1/2 hours of deliberation. Notably, the petitioner in Henderson did not dispute that the trial court generally may substitute an alternate for a regular juror should cause arise during trial, without first consulting the defendant or his counsel. Petitioner's concession in this regard was attributed to the fact that alternates are subject to the same selection procedure as the regular jurors. After citing two cases as basic source material, United States v. Garafolo (7th Cir. 1967), 385 F.2d 200, vacated on other grounds (1968), 390 U.S. 144, 19 L.Ed.2d 970, 88 S.Ct. 841, and United States v. Houlihan (2d Cir. 1964), 332 F.2d 8, cert. denied (1964), 379 U.S. 828, 13 L.Ed.2d 37, 85 S.Ct. 56, the court in a footnote expressed its opinion that it is more likely the right to have a trial completed by a particular tribunal is preserved, not endangered, by the use of an alternate juror no matter at which point the substitution occurs.
• 6 In People v. Huston (1977), 46 Ill. App.3d 170, the court's ex parte replacement with an alternate juror of a regular juror who asked to be excused for an important business meeting was upheld despite defendant's contention the substitution was arbitrary and in violation of his right to be present at all stages of the trial. Although the court expressed its belief that the "better procedure" would have been to call in both attorneys, it noted that the defendant failed to show any prejudice as a consequence of the substitution, and found the trial judge was within his discretion in acting as he did. (46 Ill. App.3d 170, 172.) Whether defendant was present or not, the replacement of a regular juror with an alternate juror was a matter solely within the discretion of the trial court. Defendant's presence or lack of it was not a factor likely to have an effect on the court's decision; therefore, although perhaps "better procedure" would have called for it, defendant's presence was unnecessary. (See People v. Harvey (1981), 95 Ill. App.3d 992, 998.) Defendant has not shown prejudice as the result of the absence which would require reversal. 95 Ill. App.3d 992.
• 7 Defendant's claim he was prejudiced because one of the regular jurors was a policeman whom he strategically wished to have included on the jury is not sufficient to warrant reversal. As the State argues, the defendant's right to a fair and impartial jury does not translate to a right to have a particular juror included on the panel (People v. Nicholson (1978), 61 Ill. App.3d 621), nor is his right to have his trial "completed by a particular tribunal" abridged by the replacement of two regular jurors with two alternate jurors. The defendant cannot deny that he participated in the voir dire of the alternates, nor that he accepted them even though his peremptory challenges had not been exhausted. In such instances, the presumption arises the defendant believes those selected are fair and impartial triers-of-fact. (People v. Cunningham (1970), 123 Ill. App.2d 190.) Arizona v. Washington (1978), 434 U.S. 497, 54 L.Ed.2d 717, 98 S.Ct. 824, and a case quoted therein, United States v. Jorn (1971), 400 U.S. 470, 27 L.Ed.2d 543, 91 S.Ct. 547, both cited by the defendant, lend him no support on this point because mistrials were declared in those cases and the entire jury was discharged. Consequently, at issue there was the constitutional protection afforded the defendant against double jeopardy, which protection the court considered also embraced his "`valued right to have his trial completed by a particular tribunal.'" (Arizona v. Washington (1978), 434 U.S. 497, 503, 54 L.Ed.2d 717, 727, 98 S.Ct. 824, 829.) In contrast, no mistrial was declared here, and the defendant participated fully in the choice of all the jurors, including the two alternates. He cannot now claim that the jurors who were acceptable as alternates are not now equally as acceptable to him as regular jurors. The jury which returned the verdicts against him was "the particular tribunal" which he chose.
• 8 Defendant's next specific contention is that the court erred by not declaring a mistrial when one of the jurors, Mrs. Orsini, reported in chambers that the husband of Essie Collins, defendant's mother, worked for Orsini's husband at Moorhead & Sons. Mrs. Collins had been called as a witness on behalf of the defendant. He points out the judge asked Orsini if the fact of that relationship would influence her in the case, and that she responded: "Oh, yes, yes, yes. I mean, that all, all of the relatives have worked for my husband at one point or another." Although the State claimed Mrs. Collins was a "surprise" witness to them, the record shows her name included on the amended list of defendant's witnesses. However, her name was not among those potential witnesses announced by the court during voir dire for the purpose of finding out if any of the witnesses were known to the prospective jurors. Neither did the court mention the name of the father of the co-defendants, H.T. Tyler, who was also shown on the amended list, and who was a witness for the defendant at trial. Defendant, although present at the time the court read the names of the potential witnesses, both in person and by counsel, did not bring these omissions to the court's attention. Consequently, Mrs. Orsini was "shocked" when Mrs. Collins took the stand. However, Mrs. Orsini said she did not mention the fact of her acquaintance to any other jurors.
Defendant contends a mistrial was the only remedy in this instance since the usual response to such a problem — replacement with an alternate juror — was foreclosed by the court's earlier substitution of the two alternates. Defendant argues that the impartiality required of a juror is not only freedom from bias against the accused and for the prosecution, but also freedom from bias for the accused and against the prosecution. (People v. Hamilton (1981), 100 Ill. App.3d 942.) The State argues the court's denial of a mistrial must be upheld because the defendant has failed to meet the burden of showing that an opinion had been formed in the juror's mind which raises a presumption of partiality. (People v. Cole ...