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11/12/87 the People of the State of v. Herbert Harris

November 12, 1987





515 N.E.2d 1272, 162 Ill. App. 3d 618, 114 Ill. Dec. 1 1987.IL.1676

Appeal from the Circuit Court of McLean County; the Hon. Keith E. Campbell, Judge, presiding.


JUSTICE LUND delivered the opinion of the court. SPITZ, P.J., and GREEN, J., concur.


Defendant Herbert Harris was convicted by jury trial in the circuit court of McLean County of attempt (murder) and burglary pursuant to sections 8-4 and 19-1 of the Criminal Code of 1961 (Code) (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 19-1). On March 2, 1987, defendant was sentenced to eight years' imprisonment on the attempt (murder) and four years' imprisonment on the burglary.

Defendant appeals from the convictions, contending (1) the trial court erroneously failed to suppress a statement given after the arrest; (2) he was not proved guilty beyond a reasonable doubt; and (3) the trial court erroneously allowed a police officer to testify, in violation of the hearsay rules, that on the night of the incident he heard no other radio transmissions regarding shooting incidents other than the one being considered by the trial court.

On the night of July 9, 1986, Charles Fisher, an employee of a Kentucky Fried Chicken store in Bloomington, closed the store at about midnight, taking the receipts which were to be deposited, and entered his van. Upon entering the van, someone grabbed him and threatened to kill him. Fisher reached for the gun, shots were fired, and two unidentified people exited the van. Fisher was not injured, but blood covered the passenger seat and was located on the glass and interior passenger door. Three fired casings, as well as one bullet and one unfired round, were found in the van. Footprints were found in the van as well as in the mud near a trail of blood that was traced from the van.

Evidence indicated that the defendant had picked up David Howard in Bloomington sometime between 11 and 11:30 p.m. At approximately 12:17 a.m. on July 10, David Howard was found lying next to a phone booth in the 100 block of East Wood Street in Bloomington covered with blood and suffering from three or four gunshot wounds. There was no evidence of a struggle in the area of the phone booth.

There was testimony that defendant had been an employee of the Kentucky Fried Chicken store from April 1985 to May 30, 1986, and upon being fired by the manager, Russell Hayden, had told Hayden he would get what was coming to him.

Around 3:30 a.m. on July 10, the defendant was treated at St. Francis Hospital in Peoria, Illinois, for an injury to his left thumb. The defendant told the treating physician that the injury was caused by gunshot or from a firecracker. The physician was of the opinion the injury was caused by gunshot and could not have been caused by a firecracker. According to the physician, the injury would have bled immediately.

Defendant's automobile was found in Bloomington and searched within a couple of days of the crime, while the defendant was still in the Peoria hospital. It appeared that the seats, the dash, and the center console had recently been wiped off with something wet. Some blood samples were found. The blood type in the Fisher van was the same as defendant's, but was different from Howard's or Fisher's. The blood type on a towel found near the crime was the same as defendant's. The blood type in defendant's automobile was consistent with a mixture of defendant's and Howard's blood. Defendant's shoes, taken from the Peoria hospital, appeared to have blood on them.

Footprints found in the back of the van and on the trail away from the crime were consistent with Howard's shoes.

A multicount information was filed on July 11, 1986, with a warrant issuing the same date for defendant. The warrant was served the same day on the defendant at the Peoria hospital. Defendant was transferred to a Bloomington hospital, and upon release therefrom on July 15, 1986, he was transported to the McLean County jail. Later that day, before there was court appearance, Officer Jeff Sanders interviewed defendant. The interview was initiated by Sanders. He first advised defendant of his Miranda rights by reading a preprinted card. The admonishment included the fact that defendant had a right to talk to a lawyer and have him present during questioning. Defendant was ...

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