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09/28/87 the People of the State of v. Lavertis Stewart

September 28, 1987

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

LAVERTIS STEWART, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

514 N.E.2d 51, 161 Ill. App. 3d 99, 112 Ill. Dec. 655

Appeal from the Circuit Court of Winnebago County; the Hon. David F. Smith, Judge, presiding. 1987.IL.1448

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. HOPF and NASH, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

Defendant, Lavertis Stewart, was convicted by a jury of murder, attempted murder and armed robbery. He was sentenced to a 75-year term of imprisonment on the murder conviction and a concurrent 30-year term of imprisonment on the attempted murder conviction. No sentence was imposed on the armed robbery conviction. This case stems from an incident that occurred at the Rainbow Tap in Rockford in August 1983. Two other individuals were convicted as a result of this incident, and their appeals have already been decided by this court. (See People v. Flint (1986), 141 Ill. App. 3d 724, 490 N.E.2d 1025; People v. Richardson (1985), 139 Ill. App. 3d 598, 487 N.E.2d 716.) On appeal, defendant raises three issues for our review: (1) whether the shackling of defendant's ankles during trial and placing defendant in an isolation cell during the overnight recesses between trial days deprived him of a fair trial; (2) whether the State's application for use of an eavesdropping device was supported by reasonable cause; and (3) whether the jury was improperly instructed on attempted murder. As the defendant has not challenged the sufficiency of the evidence against him, we include only those facts necessary to resolve the issues raised. I

Defendant's initial argument attacks the restraints placed on him during the course of trial. Defendant first contends the shackling of his ankles was unnecessary, and the court failed to conduct the proper inquiry in determining whether shackles were necessary as provided in People v. Boose (1977), 66 Ill. 2d 261, 266-67, 362 N.E.2d 303. The State responds there was sufficient justification for the security measures, and the court considered many of the pertinent factors to be weighed in determining whether shackling was appropriate. The State further asserts since the jury was unaware of the shackles, the defendant has failed to demonstrate any prejudice, and any error that may have occurred was harmless.

Prior to trial, the Judge advised counsel he had received a letter from the sheriff's department recounting that defendant had stated he would not be taken out of the courtroom alive. Based on this information, the sheriff's department requested tighter security at trial and permission to place some form of physical restraints on the defendant during the trial. Defendant's primary objection concerned the impact the shackling would have on the jury. The court assured defendant that any restraints used would be shielded from the jury's view. During trial, defendant's ankles were shackled, and efforts were undertaken to prevent the jury from viewing the restraints. There is no indication in the record, and defendant does not claim, the jury was apprised of the ankle shackles used on defendant or the shackles precluded defendant from assisting counsel in his defense. We find these factors dispositive of defendant's claim.

Absent a showing of prejudice, defendant's argument is unpersuasive. The reluctance of courts to sanction the shackling of a defendant during court proceedings, except when there is a manifest necessity, arises because shackling has a tendency to prejudice the jury; it restricts the defendant's ability to assist counsel; and it is viewed as an affront to the dignity of the judicial process. (People v. Boose (1977), 66 Ill. 2d 261, 265, 362 N.E.2d 303.) In Boose and People v. Brown (1977), 45 Ill. App. 3d 24, 358 N.E.2d 1362, the cases relied on by defendant, the jury was made aware of the restraints placed on defendant. Prejudice was thereby shown, and the courts' inquiries revolved around the propriety of the shackling. The standard of review was set forth in Boose as follows: "whether the trial court abused its discretion in requiring the defendant to appear shackled before the jury." (People v. Boose (1977), 66 Ill. 2d 261, 267, 362 N.E.2d 303.) Here, we need not reach the question of the propriety of the shackling, because there is no indication in the record defendant appeared shackled before the jury or that the jury was aware defendant's ankles were shackled. In addition, there is no indication the ankle shackles prevented defendant from consulting with counsel. Finally, shielded ankle shackles are far less of an affront to the dignity of the judicial process than, for example, the binding and gagging of a defendant. In sum, we find no reversible error arising from the ankle shackling of defendant.

Defendant also contends his placement in an isolation cell during the overnight recesses of his trial deprived him of his sixth amendment right to counsel (U.S. Const., amend. VI) and affected his ability to concentrate and assist in his defense. Defendant was placed in isolation for observation purposes based on the sheriff department's fear that defendant was going to harm himself on account of his statement that he would not be taken from the courtroom alive. The solitary cell housing defendant contained an overhanging light that remained lit at all times and was located in an area that was noisy throughout the night. While in isolation, defendant did not have access to a telephone. On at least three occasions during trial, defendant requested to be transferred back to the jail's general population. Defendant complained of fatigue, the lack of a mattress cover and the fact he was not allowed to smoke cigarettes. There is no indication that defendant desired, attempted or was prevented from consulting with counsel while he was in isolation.

In support of his sixth amendment claim, defendant relies on Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, and People v. Noble (1969), 42 Ill. 2d 425, 248 N.E.2d 96. Both Geders and Noble held that a defendant's right to the assistance of counsel is violated by a trial court order precluding defendant from consulting with his attorney during an overnight recess between defendant's direct and cross-examination. Defendant's reliance on these cases is misplaced. Here, the trial court did not preclude defendant from consulting with counsel during the overnight recesses. Moreover, there is no suggestion in the record that defendant desired, attempted, or was prevented from contacting counsel by the authorities at the jail. Under these circumstances, defendant's sixth amendment claim must fail because there is no showing defendant was deprived of his right to the assistance of counsel. See People v. Brooks (1987), 115 Ill. 2d 510, 520-21, 505 N.E.2d 336.

Defendant also asserts the conditions of the isolation cell affected his ability to concentrate and assist in his defense. This contention is unsupported by any legal authority and is belied by the record. After the second and third days of trial, the trial Judge stated, in response to defendant's objections to the isolation cell, that defendant was attentive throughout the proceedings. The court noted defendant was conversing with his attorney and reading through transcripts and reports. In addition, after the fourth day of trial the director of operations at the jail notified the court in chambers that he had personally checked on defendant's condition that morning, and defendant had slept better the previous night, he had showered, and arrangements were being made for him to smoke and get dressed for trial. In view of the absence of any support in the record for defendant's claim, and the complete lack of authority in support thereof, defendant's argument on this matter must be rejected. II

Defendant next contends the court order authorizing use of an eavesdropping device was improperly granted because reasonable cause did not exist to believe defendant had committed a felony or that conversations concerning the felony would be obtained. On October 4, 1984, Rockford police officer Dominic Iasparro presented to Chief Judge Harris H. Agnew of the 17th Judicial Circuit an application for an order authorizing use of an eavesdropping device. The application recited Iasparro's belief that authorization to use an eavesdropping device should issue for purposes of overhearing conversations between the defendant and Bryan Troupe, based on the information contained in the attached affidavits of Iasparro and Troupe. In his affidavit, Iasparro recounted that on August 28, 1983, an armed robbery and shooting occurred at the Rainbow Tap in Rockford. A bartender was shot to death and an off-duty policeman was wounded. After a police investigation, Charles Richardson and Eugene Flint were arrested. Richardson had been tried and convicted of murder and armed robbery. At his trial he was identified as one of the gunmen by the wounded off-duty police officer. Flint had yet to stand trial. The affidavit further stated that Bryan Troupe had recently been charged with robbery. During an interview with Rockford detectives, Troupe stated he had information pertaining to the shooting at the Rainbow Tap. Troupe told the detectives that about two or three weeks after the shooting defendant had told Troupe in great detail that he was one of the gunmen in the tavern and how the shooting and robbery occurred. Iasparro's affidavit concluded that, based on the detail provided by Troupe, Iasparro believed Troupe was telling the truth about the statements made by defendant.

Bryan Troupe's affidavit included the following information. Troupe was a friend of the defendant. In September 1983, Troupe had a conversation with defendant inside a car in the driveway of his home in which defendant related he was one of the two gunmen who went into the Rainbow Tap. Defendant told Troupe he was wearing a mask and was the person who shot the bartender and the other person. Troupe's affidavit further stated that during the past year he and defendant had conversed on several occasions, including as recently as the previous weekend. On one other occasion, shortly after the conversation in the driveway, defendant raised the subject of the shooting; however, Troupe curtailed the conversation because another person was in a nearby room of the house. The affidavit lastly averred Troupe's belief that because he knew defendant so well, and because defendant had previously described in detail his involvement in the incident at the Rainbow Tap, defendant would again be willing to talk to Troupe about the incident if Troupe asked him.

Section 108A -- 4 of the Code of Criminal Procedure of 1963 provides in pertinent part:

"The Judge may authorize or approve the use of an eavesdropping device where it is found that:

(b) there is reasonable cause for believing that an individual is committing, has committed, or is about to commit a ...


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