APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
547 N.E.2d 1264, 190 Ill. App. 3d 1004, 138 Ill. Dec. 643 1989.IL.1039
Appeal from the Circuit Court of Cook County; the Hon. Richard J. Fitzgerald and the Hon. Richard J. Petrarca, Judges, presiding.
PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and QUINLAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
This case involves two consolidated appeals. In the first appeal, the defendant, Jesse Hatch, challenges the trial court's dismissal of his petition for habeas corpus. In the second one, he appeals from a conviction for murder and armed robbery and a sentence of natural life imprisonment, alleging that: (1) he was not found guilty of armed robbery beyond a reasonable doubt; (2) he was not found guilty of murder beyond a reasonable doubt; (3) the trial court erroneously allowed statements made by the decedent into evidence as dying declarations and spontaneous utterances; (4) the statements were erroneously admitted against the defendant as evidence of both murder and armed robbery; (5) the trial court forced the defendant to waive a jury by requiring him to proceed with a tainted venire; and (6) the trial court abused its discretion by imposing a sentence of life imprisonment. We affirm defendant's convictions.
At the time of the incident the defendant was living with his wife, Marilyn Green, their two children and his father-in-law, Louis Westry, at 9600 Avalon in Chicago. In June 1980, the decedent, Robert Magoon, approached Westry and solicited him to obtain a stolen auto for him. Westry told Magoon that he was on probation and could not obtain a car for him but that the defendant could. On August 4, 1980, Westry told Magoon that the defendant had a car for him, and Magoon said that he would be right over. While Westry was in the bath he heard the sound of a car horn. When he came out he found that the defendant and the defendant's car were gone.
At 10:45 p.m. on August 4, 1980, Officer Morrison received a call that shots had been fired at 121 West 112th Place. He went to the garage and found Magoon locked in the trunk of a car, calling for help. He had been shot in the face, chest, back and neck. The officer found four empty .45 caliber casings and a bullet on the floor. Magoon was incoherent and was taken to the hospital by ambulance.
At the hospital, the victim, who later died, told the police that he knew that he was in serious condition and that he could feel the bullets passing through him. He said that he had gone to Mr. Westry's house to meet with a person named "Jeff" who would take him to see a stolen 1979 Thunderbird. When they arrived at 121 West 112th Place, the defendant went to the garage and asked Magoon to help him open the garage door. When Magoon went to assist him, the defendant pulled out a .45 caliber semiautomatic pistol, announced that it was a robbery and shot him repeatedly. While Magoon was lying on the floor, the defendant went through his pockets and took $300 cash. He forced the victim to get into the trunk of the car, placed the gun against his head and pulled the trigger. When the gun failed to discharge, he closed the trunk of the car and left.
On August 5, 1980, the defendant went to a currency exchange and attempted to cash a check drawn on National Acoustics. The victim owned National Acoustics and was in possession of the company checkbook on the night he was killed. The owner of the currency exchange was not familiar with the maker of the check so she called the drawer, National Acoustics, and was told that the check had been taken in a holdup. She tried to detain the defendant until the police arrived, but he left the currency exchange without the check.
About a minute after the defendant left, the police arrived and obtained a description of the defendant. They found him at 7530 South Cornell with Marilyn Green, stopped him, advised him of his rights and placed him in the squad car. They drove him to the currency exchange, where he was identified by the owner as the person who had tried to cash the stolen check. The officer searched the defendant and found a set of keys which had belonged to the victim.
After arriving at the police station, the police searched the backseat of the police car because they had noticed the defendant moving suspiciously in the backseat of the squad car. They found under the seat cushion a white General Motors key, a notice to appear complaint form with the defendant's name on it, and a live .45 caliber cartridge which was later found to have been chambered in and extracted from the same gun as the four casings recovered at the scene of the murder. The defendant was transported to Area 2 headquarters, where he was brought into an interview room and searched. The police found two blood-soaked $50 bills in the defendant's sock. A lab test revealed that the blood on the bills was the same type as that of the victim.
On August 6, 1980, Robert Magoon died of multiple gunshot wounds to the kidney, small and large intestines and mouth which had been fired at close range. Defendant was subsequently indicted on three counts of murder, one count of armed robbery and one count of armed violence. After a bench trial, he was found guilty of murder and armed robbery and was sentenced to natural life imprisonment.
While awaiting trial on the murder and armed robbery charges, defendant filed a habeas corpus petition, alleging that his right to due process had been violated because he had been denied a preliminary hearing and a speedy trial. The petition was dismissed and defendant appeals from that dismissal. "Every person imprisoned or otherwise restrained of his or her liberty . . . may apply for habeas corpus." (Ill. Rev. Stat. 1987, ch. 110, par. 10-102.) The defendant in the instant case was seeking to secure his liberty by filing a writ of habeas corpus. Upon sentencing, the defendant had a legal right to appeal the judgment of the trial court. However, an habeas corpus proceeding is not a substitute ...