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12/28/89 the People of the State of v. Gregory Agnew

December 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GREGORY AGNEW, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, SECOND DISTRICT

548 N.E.2d 1139, 192 Ill. App. 3d 620, 139 Ill. Dec. 583 1989.IL.2045

Appeal from the Circuit Court of Lake County; the Hon. Alvin Ira Singer, Judge, presiding.

APPELLATE Judges:

JUSTICE DUNN delivered the opinion of the court. McLAREN and WOODWARD, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE DUNN

The trial of defendant commenced on the morning of June 13, 1988. After hearing motions in limine, the court had the deputy direct the prospective jurors into their seats in the courtroom, and the court conducted the voir dire. Before all the jurors were selected, the court recessed at noon and reconvened at 1:30 p.m. to complete the panel of jurors. After a brief recess, the trial commenced.

The State's first witness was Sandra Hill. She testified that in the early morning hours of February 24, 1988, she, her boyfriend, Tommy Miller, and Derrick Lovelace met at Haakeem Adu's house, where they drank beer and wine. Defendant and Tommy Miller began to argue and then went outside to fight. After the fight, Miller noticed he was missing $200 and his heroin, and Hill, defendant, Miller and Bay Walls searched for the items. After Walls left, defendant, Hill, Miller and Lovelace got in Lovelace's car and drove to various locations in Waukegan to search for Walls, who they suspected took the missing items, but did not find him. At one stop, Miller picked up a pronged garden hoe and dropped it in the backseat where defendant was sitting. At approximately 3:30 a.m., they stopped at a gas station to buy snacks. Hill testified that defendant stated that he saw a Mexican man coming out of the station handling what he thought was hundreds of dollars in cash. Defendant asked the party if anyone wanted "to be in on it." She stated that the other passengers stated that they did not want any trouble, and when defendant exited the car, they drove away. Hill heard a man holler, and she looked out the rear window and saw defendant hit the man with the hoe.

Carlos Duarte was the man whom defendant hit with the hoe. Duarte testified that he was on his way to work at 3:30 a.m. on February 24, 1989. He stopped at the gas station, paid for $5 worth of gasoline with a $50 bill and received $45 in change, which he put in his shirt pocket. He went outside to pump the gas and was then hit from behind. Having received a blow to his head with the hoe, he fell to the ground. A man he identified as defendant grabbed him by the collar, demanded money, searched his coat pocket, pants pockets and wallet, which were empty, and took a dollar bill from his left pants pockets. Duarte was taken to the hospital where he received eight stitches on his scalp and two shots for tetanus.

The State's next witness was Officer Herbert Browne of the North Chicago police department. He testified that at 4:30 a.m. he met defendant, who complained that Derrick Lovelace threatened defendant with a garden hoe, stole his jacket, and drove away. Browne further testified that defendant made an incidental inquiry, which Browne did not include in his official report, of whether a robbery had occurred in the vicinity of the gas station.

At this point in the trial, approximately 3:45 p.m., the court recessed for the day and the jury was sent home. The assistant State's Attorney then informed the court that he had just received a message that the bailiff who had been attending the jury, Deputy Fred House, had a material conversation with defendant at the time defendant was arrested and that Deputy House might be called as a rebuttal witness. Defendant moved for a mistrial, alleging that a relationship had been established between the bailiff and the jury which would attribute enhanced credibility to the bailiff by the jury. Defense counsel declined to question the bailiff about any conversations he might have had with the jurors because she did not see the problem to be any particular conversation, but rather the special relationship engendered by the bailiff's caring for the jury. The court denied the motion for mistrial because it failed to find prejudice when the bailiff's contact with the jury had been limited and there had only been two hours of testimony that day. However, a new bailiff was assigned to the courtroom for the rest of the trial.

The following day, the State rested. Defendant took the stand and testified that he was with Lovelace, Miller and Hill in the car. He had asked for a ride home, but the others went driving to various locations in Waukegan to look for drugs. They then decided to put gas in the car. Derrick went into the station to pay and asked defendant to pump the gas and to discard the hoe. Defendant attempted a basketball-style jump shot with the hoe, but missed the trash barrel, and the hoe landed on the concrete island between the pumps. At that time, Duarte walked up and tried to use the pump. They argued over who was to use the pump, exchanged racial epitaphs and then began to fight. After Duarte kicked defendant in the groin, defendant picked up the hoe and fought back but took no money. Meanwhile, Lovelace pulled the car away with defendant's coat in it. Defendant ran after it, but the car did not stop. Defendant then called the police to report the theft of his coat. Defendant did not mention the fight because the fighting was cause for expulsion from the alcohol rehabilitation program which he had voluntarily joined.

After the defense rested, the State called Deputy Fred House, the bailiff during the first day of the trial, as a rebuttal witness. He testified that on February 24, 1988, at 2:45 p.m., he met defendant in the receiving station of the Lake County jail during the changing of the shift. House asked defendant, "What the fuck are you doing here?" Defendant responded, "It's over a dollar. Fucked up. This is over one dollar. Somebody should beat my ass and let me go home." Deputy House testified that he did not write a report of the conversation and did not realize it would become important until he sat through the first day of the trial, at which time he informed his supervisor of his situation.

During closing arguments, the State summarized the evidence and challenged the defendant's version of the incident. The prosecutor recalled Deputy House's testimony, stating that defendant told House, "'I robbed him. It was over a buck. It was over a fucking dollar. You ought to whip my fucking ass and send me home for a dollar.'" The prosecutor also argued, "And you know he did it because he admitted it to Fred House."

The jury found defendant guilty, and defendant appeals. Defendant first contends the court should have declared a mistrial when the bailiff who attended to the jury was the sole witness to an alleged confession and was not revealed to the defense until the middle of the trial. Defendant contends that he was denied the right of a fair trial before an impartial jury because the jury put great confidence in Deputy House's testimony by virtue of his relationship to the court and by his association with the jurors. Defendant relies primarily on the case of Turner v. Louisiana (1965), 379 U.S. 466, 13 L. Ed. 2d 424, 85 S. Ct. 546. In Turner, the jury found the defendant guilty of the charge of murder, and he was sentenced to death. The principal witnesses for the prosecution were two deputy sheriffs who had been involved in the investigation of the crime and the arrest of the defendant. They testified to an oral admission and a written confession of the defendant, who did not himself take the stand. The jury was sequestered during the trial and placed in the charge of the two deputies as bailiffs. The witnesses later testified to the particulars of their contacts with the jury which showed, the Supreme Court found, that the witnesses had "freely mingled and ...


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