APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SIXTH DIVISION
545 N.E.2d 289, 189 Ill. App. 3d 365, 136 Ill. Dec. 765 1989.IL.1472
Appeal from the Circuit Court of Cook County; the Hon. Christy S. Berkos, Judge, presiding.
JUSTICE LaPORTA delivered the opinion of the court. EGAN, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LAPORTA
Following a jury trial, defendant, Charles Thomas, was convicted of two counts of armed robbery and of one count of unlawful restraint. Defendant was sentenced to concurrent terms of 10 years for each armed robbery conviction and three years for unlawful restraint. On appeal, defendant contends that (1) the State presented insufficient evidence to prove him guilty of the armed robbery of Althea Johnson Hayes; (2) the trial court erred in admitting certain hearsay evidence against him; and (3) he was deprived of his right to a fair and impartial jury.
Defendant was charged by indictment with five counts of armed robbery and four counts of unlawful restraint. The court granted the State's motion to nol-pros three of the armed robbery counts and three of the unlawful restraint counts. On May 29, 1986, a jury trial was commenced on the remaining charges. The jury was, however, unable to reach a unanimous verdict, and on June 3, 1986, the court declared a mistrial.
A second trial was commenced on August 4, 1986. During voir dire by the court, venireman Christopher Thompson indicated that some of his friends were police officers and that he may have a tendency to believe policemen more than other witnesses. Thompson also stated that he could be fair and impartial and that he would have no problem signing a not-guilty verdict if the State failed to carry its burden of proving defendant guilty beyond a reasonable doubt. Defense counsel did not challenge Thompson for cause or exercise a peremptory challenge against him. Thompson was accepted by the State and was one of the 12 jurors who found defendant guilty. Defendant raised no objection to Thompson's service on the jury, and defense counsel specifically directed a portion of his opening statement and his closing argument to Thompson.
The evidence adduced at trial established that on September 21, 1985, Thomas Hayes, Jr., was the manager of the Kentucky Fried Chicken restaurant at 1211 West Roosevelt Road in Chicago, Illinois. His wife, Althea Johnson Hayes, drove him to work that afternoon and arranged to pick him up after he had closed the store and completed his paperwork. The Hayeses' five children were in the car with Mrs. Hayes when she went to pick up her husband about 2 a.m. Mrs. Hayes was in the driver's seat, her daughter, Tuesday, was seated in the front passenger seat, and her four sons were in the back seat. Tony sat directly behind Mrs. Hayes, Aron and Tavarus were asleep in the middle, and Victor sat in the rear passenger seat.
Mr. Hayes was alone in the restaurant when he saw his family in the parking lot. He then turned off the restaurant lights, set the alarm, and walked to the front door. As he was leaving, Hayes saw a man who was later identified as Lee Daniels standing outside the door. Daniels drew a gun and pushed Hayes back into the restaurant. Hayes saw another man standing next to his family's car in the parking lot and testified without objection that Daniels said that his partner was with Hayes' family and would hurt them if he activated an alarm. Daniels took some rolled coins and about $90 in paper currency from the restaurant safe as well as the money Hayes had in his pockets. Daniels then forced Hayes at gunpoint back to the front door. After Daniels had run from the building, Hayes activated the alarm and called the police. On redirect examination, Mr. Hayes again testified that Daniels said that his partner was in the car with Hayes' family and that something would happen to them if Hayes activated the alarm. Defense counsel objected, but the trial court overruled his objection and admitted the evidence of Daniels' statement.
When Mrs. Hayes saw Daniels point a gun at her husband, she started the car to go get help, but the defendant tapped on the window and told her to turn the car off. Mrs. Hayes did as the defendant said because she feared that her children would be harmed. The defendant then opened the car door and got into the driver's seat, directing Mrs. Hayes to move over and to put her head down. Mrs. Hayes complied and put her arms around Tuesday and her hand over Tuesday's mouth. Defendant then drove the car around the parking lot for several minutes. Victor Hayes, age 10, observed through the space for the front-seat arm rest that defendant held a gun in his right hand, pointed it at Mrs. Hayes, and drove the car with his left hand. Tony, age 13, did not see the defendant's right hand, but did observe that he used his left hand to steer the car.
When defendant stopped the car, he told Mrs. Hayes that she could find her keys in the adjacent vacant lot. He then threw the keys into that lot and went over to a car that was parked across the street. After a couple of minutes, Mrs. Hayes, Tony, and Tuesday got out of their car to look for the keys in the vacant lot. While they searched for the keys, the defendant ordered them to return to their car, and they complied. The defendant thereafter pulled his car in front of the restaurant. Daniels ran from the building, yelling that there was no money. Daniels got into defendant's car, and they drove off. Victor and Tony positively identified defendant as the offender in a lineup and in court, and Tuesday identified him in a lineup.
During October 1985, defendant spoke with Stanley Edwards and admitted that he and Daniels were responsible for robberies of several Kentucky Fried Chicken restaurants around the city. Defendant also stated that during the robbery of the restaurant at 1211 West Roosevelt Road, Daniels waited for the store manager to come out and then escorted him back into the building while defendant entered a car with a woman and children in it in order to keep them quiet. About a month later, Edwards told Detective John Summerville about defendant's involvement in this robbery.
Following closing arguments and instructions, the jury returned verdicts finding defendant guilty of two counts of armed robbery and one count of unlawful restraint. Defendant subsequently filed a motion for a new trial, asserting 28 points of error. Defendant's motion did not, however, allege that he had been denied the right to trial by a fair and ...