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02/17/94 PEOPLE STATE ILLINOIS v. LAWRENCE HARRIS

February 17, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LAWRENCE HARRIS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Howard T. Savage Judge Presiding.

Released for Publication April 19, 1994. Petition for Leave to Appeal Denied December 6, 1994.

Cahill, Johnson, Theis

The opinion of the court was delivered by: Cahill

PRESIDING JUSTICE CAHILL delivered the opinion of the court:

The defendant, Lawrence Harris, was convicted of residential burglary (Ill. Rev. Stat. 1989, ch. 38, par. 19-3(a)) following a jury trial. At his sentencing hearing the court found he was subject to a mandatory Class X sentence. The court sentenced him to 15 years in the Illinois Department of Corrections. On appeal Harris contends error occurred when (1) the court allowed in evidence a statement the State did not disclose before trial; (2) the court did not allow defense counsel to describe in opening statement the circumstances surrounding the prior conviction of a witness; (3) the State made improper remarks in opening statement and closing argument and elicited improper testimony during trial; (4) he was not proven guilty beyond a reasonable doubt; (5) the State failed to notify him in the charging instrument that it would seek an enhanced sentence upon conviction; (6) the court improperly sentenced him as a Class X offender because the State failed to establish that he was convicted of prior felonies offered in aggravation at sentencing; and (7) the sentence was excessive. We affirm.

Thelma McCaster Young, the defendant's sister, came home from work at 3:45 p.m. on March 15, 1991. She noticed her back door was open and damaged. Inside the house she discovered her stereo speakers were gone. Money she kept in a glass jar was also missing. Young then went next door to ask a neighbor if he had seen anyone enter the house.

Sylvester McDonald, Young's neighbor, told her that he saw Harris enter her house and leave with two speakers at 3:15 p.m. that day. He did not call the police because he knew Harris was Young's brother. McDonald had seen Harris at Young's house earlier when Harris lived with Young and her family for two weeks in February 1991.

Young telephoned the police and reported the burglary. When her husband and daughter came home, the three of them went to look for Harris. They found him at Mary Lane's house and called the police. Lane is the grandmother of Harris' daughter. Police Officer Baumann arrived and drove Harris to the station where he was arrested for burglary. At trial Officer Baumann testified that Harris said he would get Young's "stuff" back if she would drop the charges. Harris called one witness, Mary Lane, in his case in chief. Lane testified that Harris arrived at her house after 3 p.m. on March 15, 1991. She knew he arrived after her granddaughter came home from school at 3 p.m., but she could not state the exact time Harris arrived. She said he was alone and did not have speakers with him. The speakers and the money were never recovered.

The jury found Harris guilty of residential burglary. The court found he qualified for a Class X sentence under Ill. Rev. Stat. 1989, ch. 38, par. 1005-5-3(c)(8) and sentenced him to 15 years in the Illinois Department of Corrections.

Harris first argues on appeal that he was prejudiced because the State violated discovery Rule 134 Ill. 2d R. 412(a)(ii), which requires disclosure upon request of any statement made by the accused.

After the jury was chosen, the State disclosed for the first time that when Harris was arrested he told Young, "I will not only steal your speakers, I will steal your mother-fucking life." The State learned of the statement when the prosecutor interviewed Young on the morning of trial. The State then notified the defense of the statement. Defense counsel objected to the late notice. The trial Judge agreed that the State should have learned of the statement before the morning of trial and stated he was inclined to impose a sanction. The Judge then asked the defense how the statement prejudiced the defendant. Defense counsel replied that she would have spoken to Harris about the statement. The court granted a fifteen minute recess so counsel could speak to Harris and Young.

Once a court finds a discovery violation it may order further discovery, grant a continuance, exclude the evidence, or impose any sanction which it finds appropriate under the circumstances. (Ill. Rev. Stat. 1989, ch. 110A, par. 415(g).) The preferred sanction is a recess or a continuance if either would protect the defendant from surprise or prejudice. People v. Aguilar (1991), 218 Ill. App. 3d 1, 9, 578 N.E.2d 109.

Here the court granted a recess so defense counsel could speak to Harris about the alleged statement. At trial defense counsel attacked Young's credibility regarding the statement. She asked Young on cross-examination, "And, isn't it true, Ms. Young, that you have told your attorney, the State's attorney, for the first time this morning about this alleged statement that your brother made as he was being arrested?" Young replied, "Maybe it was the first time, I am not sure." We believe the court did not abuse its discretion when it determined that a recess was sufficient to protect Harris from the prejudice of late notice.

Harris next argues the court erred when it did not allow the defense in opening statement to describe the ...


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