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04/26/96 PEOPLE STATE ILLINOIS v. MICHAEL HARPER

April 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL HARPER, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. No. 88 CR 8605. THE HONORABLE DANIEL M. LOCALLO, JUDGE PRESIDING.

The Honorable Justice Cousins delivered the opinion of the court: McNULTY, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Cousins

JUSTICE COUSINS delivered the opinion of the court:

The defendant, Michael Harper, was convicted in a jury trial of arson and two counts of first degree murder and sentenced to natural life imprisonment without parole. On appeal, defendant contends the trial court erred by: (1) refusing to find that the State violated his right to a speedy trial; (2) excluding evidence of a subsequent arson on the same real estate parcel; (3) refusing to quash a search warrant procured through anonymous sources and deliberately false statements; (4) withholding production of part of the State's felony review folder on the basis of work product privilege; (5) failing to disqualify the assistant State's Attorney after his prosecutorial misconduct in defendant's first trial; (6) allowing the State to use evidence which violated the mandate of this court from defendant's first appeal; (7) admitting videotapes into evidence without a sufficient chain of custody; (8) admitting a debris sample into evidence without a sufficient chain of custody; (9) permitting the State to present the autopsy findings of a nontestifying medical examiner; (10) refusing to instruct the jury on the offense of involuntary manslaughter; (11) allowing the State to use improper closing arguments; (12) allowing the jury's verdict to stand when defendant had not been proved guilty beyond a reasonable doubt; and (13) denying defendant a fair trial by the accumulation of these trial errors.

We affirm.

BACKGROUND

On May 28, 1988, an arson occurred at the building located on the 400 block of East 63rd Street in Chicago. Pismai Panichkarn and Kiert Phophariat died from smoke inhalation during the fire. Defendant was indicted on two counts of first degree murder, one count of arson, and one count of aggravated arson. On April 23, 1990, a jury convicted defendant of arson and two counts of murder, and defendant was sentenced to natural life without parole.

Defendant appealed his conviction, and on September 3, 1993, this court reversed defendant's conviction and remanded for a newtrial in People v. Brown, 253 Ill. App. 3d 165, 192 Ill. Dec. 26, 624 N.E.2d 1378 (1993). Among the errors cited by this court were the improper introduction into evidence of a gasoline can where a chain of custody had not been established; an indirect reference by the State on defendant's decision not to testify; and argument by the State that the decedents had burned alive when there was no evidence of such a fact.

Before the second trial, defendant moved to exclude the gasoline can from evidence based on the Brown decision, but the motion was denied. Defendant then moved to require the State to tender its felony review folder. After performing an in camera inspection of the folder, the trial court allowed access to notes made with respect to defendant's confession, but the court did not allow any other access.

Defendant also sought to quash a search warrant and suppress evidence obtained after a search of his truck, arguing that the complaint for the search warrant to search the truck contained deliberately false statements. Defendant alleged that the source of information of the warrant, Mr. Sid Malone, had given testimony in defendant's first trial which contradicted the warrant's allegations. Defendant sought and received an evidentiary hearing on the matter pursuant to Franks v. Delaware, 438 U.S. 154, 57 L. Ed. 2d 667, 98 S. Ct. 2674 (1978). At the hearing, the complainant for the search warrant, Detective Joseph Campbell, testified that part of the warrant's information had come from Mr. Malone, but that much of the warrant's statements came from accounts of defendant's confession which Detective Campbell had learned in conversation with other detectives. The trial court denied defendant's motion.

Lastly, defendant moved to dismiss the charges pursuant to section 103-5(a) of the Code of Criminal Procedure of 1963 (725 ILCS 5/103-5(a) (West 1992)), arguing that the State had not brought him to trial within 120 days from the date he was taken into custody. This court's mandate reversing defendant's conviction was filed on January 14, 1994, beginning the running of the speedy-trial term. From April 19, 1994, to May 17, 1994, the term was tolled by agreement pursuant to defendant's motion to quash the search warrant. On May 17, 1994, when the Franks hearing was scheduled to occur, the State indicated that it was ready to proceed by way of stipulation as to the complaining detective's testimony. At this point, the trial court indicated that it had not ruled on whether defendant had met the threshold requirements to require a Franks hearing, although the court had previously stated on April 26, 1994, that the State had acknowledged that a hearing would be necessary. The State agreed to examine whether defendant had met the threshold. The court asked defendant for case law to support the proposition that conflictingtrial testimony would make a Franks hearing necessary. Defendant responded that Franks itself would show that he had met this threshold. The following colloquy ensued:

"MR. BRUCE [Defendant's Counsel]: We're going to rest on the case law which has been cited.

THE COURT: So, the Court has told you I'm giving you an opportunity to bring case law to support your position and you're not going to bring in any new case law?

MR. BRUCE: Okay.

THE COURT: Then I'll set it over.

MR. BRUCE: Who will this delay be assessed against?

THE COURT: Delay is still assessed against you, Mr. Bruce. It's still your motion. This is your motion.

MR. BRUCE: We'll submit additional --

THE COURT: During the pendency of the motion, the term is not running.

MR. BRUCE: But, your Honor, the only reason we're not prepared to go today is because Detective Campbell is not here. That is not a delay attributable to us.

THE COURT: The bottom line is, Mr. Bruce, is that I have told you what the Court wants you to do and you have said I'm not going to do it.

MR. BRUCE: I would do it.

THE COURT: No.

MR. BRUCE: When should I have additional case law?"

Defendant was allowed a Franks hearing on May 24, 1994, when his motion was denied. From May 24, 1994, to June 30, 1994, the time period was tolled by agreement, and from June 30 until trial began on July 20, 1994, the time was charged to the State. Defendant claimed that 122 days had elapsed before defendant had been brought to trial, contending that the week from April 17 to 24, 1994, should have been charged to the State. The trial court again held that the week's delay ...


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