Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

People v. Bowel

OPINION FILED JANUARY 8, 1985.

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

v.

LAWRENCE G. BOWEL, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Donald C. Courson, Judge, presiding.

JUSTICE STOUDER DELIVERED THE OPINION OF THE COURT:

The defendant-appellant, Lawrence G. Bowel, was indicted for robbery and theft and was convicted of both offenses following a jury trial in Peoria County. The trial court entered judgment solely on the robbery conviction and sentenced the defendant to a five-year term of imprisonment. The defendant appeals.

The defendant contends that: (1) he was deprived of his right to trial by an impartial jury because the trial court refused to ask prospective jurors supplemental questions tendered by the defendant regarding his theory of mistaken identification; (2) the trial court denied him due process of law and a fair trial by refusing to admit testimony from a neighbor about a statement against penal interest by a person whom the defense accused of committing the offense; (3) the trial court erred by refusing to let him appear before the jury without handcuffs when the verdict was returned and the jurors were polled; and (4) his conviction for robbery should be reversed because the evidence does not establish that the snatching of the complainant's purse was accomplished by the use of force.

The facts pertinent to this appeal are as follows. The victim, Delorise Thomas, and her friend, May Ann Hall, drove to downtown Peoria on September 12, 1983. They arrived just after midnight and parked on Walnut Street. As the women began to cross the street, they noticed four black males at the corner of Adams and Walnut. When Thomas was at the middle of Walnut, one of the four men broke away from the group and approached her. When the man reached Thomas, he grabbed her left hand with his left hand and pulled the purse from her with his right hand. The man looked up and smiled at Thomas and then fled.

Thomas and Hall reported the incident to the police. Both women described the assailant as having a half-moon shaped scar on his left cheek under the eye, wearing jeans, a T-shirt, and tennis shoes, and carrying a radio with a rope for a shoulder strap. They differed slightly in their estimates of the assailant's weight and height. Thomas and Hall also described the other three men that had been with the assailant. A short time later two men were brought back to the station. Neither man was the assailant or had a scar, but Hall indicated that both men had been with the assailant.

On September 19, 1983, the defendant talked with Officer Millard at the Peoria police station. The defendant said that he had been with his brothers, Michael Bowel and John Griffin, and a friend, Glen Cooley, on the night of the incident. As they were walking near Adams and Walnut they saw two women getting out of a car. Cooley, who was carrying a tape player, walked toward the women and took a purse from one of them. On September 20, 1983, an in-person lineup was conducted. Hall selected the defendant as being the assailant because he had a moon-shaped scar under his left eye. However, Hall said she would not stake her life on her selection. Thomas viewed the lineup separately and also selected the defendant. Thomas was positive of her selection after the men in the lineup were instructed to smile.

The defendant's first contention is that the trial court deprived him of his right to trial by an impartial jury because it refused to ask prospective jurors two supplemental questions he had tendered regarding the defense theory of mistaken identification. The questions were: "Have you ever greeted a stranger as an acquaintance because you mistook the stranger?" and "Has a stranger ever greeted you because of mistaken identity? Please explain."

The purpose of a voir dire is to assure the selection of a fair and impartial jury. It is not to be used to pre-educate or indoctrinate a jury. (People v. Teague (1982), 108 Ill. App.3d 891, 894, 439 N.E.2d 1066, 1069, cert. denied (1983), 464 U.S. 867, 78 L.Ed.2d 179, 104 S.Ct. 206.) In Illinois, the voir dire examination of prospective jurors is conducted by the trial judge, although the court may permit the parties to submit additional questions to it for further inquiry if it thinks they are appropriate. (87 Ill.2d R. 234.) The scope and extent of the voir dire examination rests within the trial court's discretion. People v. Lobb (1959), 17 Ill.2d 287, 300, 161 N.E.2d 325, 332.

• 1 We find that the reasoning set forth in People v. Witted (1979), 79 Ill. App.3d 156, 398 N.E.2d 68, is dispositive. In Witted, the trial court refused to allow defense counsel to ask the prospective jurors the question, "Do you believe that a person can be mistaken about the identification of another?" In finding that the trial court had properly limited the voir dire examination, the appellate court stated that there was no basis for assuming that a person may harbor a bias or prejudice toward the defense of mistaken identity. Likewise, we are of the opinion that the supplemental questions tendered by the defendant in the case at bar would not have enabled the defendant to ascertain any bias or prejudice on the part of the prospective jurors. Rather, the questions would have served to pre-educate the jurors as to the defendant's theory of the case.

People v. Zehr (1984), 103 Ill.2d 472, cited by the defendant, does not dictate that we find otherwise. In Zehr, the Illinois Supreme Court held that the trial court had erred in failing to ask the jury three supplemental questions submitted by the defendant. The first related to the State's duty to prove the defendant guilty beyond a reasonable doubt. The second related to the drawing of inferences from the defendant's failure to testify. The third related to the presumption of innocence. In contrast to the questions proposed by defense counsel in Zehr, the two supplemental questions tendered by the defendant here did not go to "the heart of a particular bias or prejudice which would deprive defendant of his right to a fair and impartial jury." People v. Zehr (1982), 110 Ill. App.3d 458, 461, 442 N.E.2d 581, 584, aff'd (1984), 103 Ill.2d 472.

• 2 The defendant's second contention is that the trial court erred in refusing to admit testimony from a neighbor about a statement against penal interest by the person whom the defense accused of committing the offense.

In support of his theory of mistaken identification, the defendant intended to introduce testimony from three witnesses regarding statements by Glen Cooley that Cooley had taken Delorise Thomas' purse. Following an offer of proof, Herbert Hogan, who lived with the defendant's sister, was allowed to testify that Cooley came to his house on the afternoon of September 12, 1983, and stated that he had taken the purse. Following another offer of proof, John Bowel, the defendant's father, was allowed to testify regarding incriminating statements made by Cooley at a gathering near the Bowel residence on the evening of September 12, 1983.

Defense counsel also made an offer of proof in regard to the proposed testimony of Lee Otis Howard, who lived behind the Bowels. It was at his house that Cooley and several other people had gathered on the evening of September 12, 1983, and at which Cooley made the incriminatory statements to the defendant's father. The trial court determined that Howard's testimony was not trustworthy and refused to admit it.

A statement against penal interest will be admitted as substantive evidence provided it satisfies the following four-part test announced by the United States Supreme Court in Chambers v. Mississippi (1973), 410 U.S. 284, 35 L.Ed.2d 297, 93 S.Ct. 1038, and adopted by the Illinois Supreme Court in People v. Craven (1973), 54 Ill.2d 419, 299 N.E.2d 1. First, the statement must have been made spontaneously to a close acquaintance shortly after the crime occurred. Second, the statement must be corroborated by some other evidence in the case. Third, the statement must be self-incriminating and against the declarant's interest. Fourth, the declarant must be available for cross-examination. This exception to the hearsay rule is a limited one. (People v. Craven (1973), 54 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.