{ "id": 2493642, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HARRIS, Defendant-Appellant", "name_abbreviation": "People v. Harris", "decision_date": "1990-03-09", "docket_number": "No. 1\u201487\u20140116", "first_page": "507", "last_page": "513", "citations": [ { "type": "official", "cite": "195 Ill. App. 3d 507" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "530 N.E.2d 1360", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1364" }, { "page": "1364" } ], "opinion_index": 0 }, { "cite": "125 Ill. 2d 50", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5554525 ], "weight": 3, "pin_cites": [ { "page": "61" }, { "page": "62" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/125/0050-01" ] }, { "cite": "540 N.E.2d 421", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 459", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639763 ], "weight": 2, "pin_cites": [ { "page": "465" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0459-01" ] }, { "cite": "404 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "pin_cites": [ { "page": "239" } ], "opinion_index": 0 }, { "cite": "79 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3069192 ], "pin_cites": [ { "page": "577" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/79/0564-01" ] }, { "cite": "522 N.E.2d 1124", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 3, "pin_cites": [ { "page": "1130" }, { "page": "1130" } ], "opinion_index": 0 }, { "cite": "122 Ill. 2d 176", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5550081 ], "weight": 3, "pin_cites": [ { "page": "186" }, { "page": "186-87" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/122/0176-01" ] }, { "cite": "476 U.S. 79", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12787 ], "weight": 6, "pin_cites": [ { "page": "99-100" }, { "page": "89-90" }, { "page": "1724-25" } ], "opinion_index": 0, "case_paths": [ "/us/476/0079-01" ] }, { "cite": "540 N.E.2d 1014", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1019" } ], "opinion_index": 0 }, { "cite": "184 Ill. App. 3d 703", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2639152 ], "weight": 2, "pin_cites": [ { "page": "711" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/184/0703-01" ] }, { "cite": "464 N.E.2d 1045", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "102 Ill. 2d 181", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3156888 ], "opinion_index": 0, "case_paths": [ "/ill-2d/102/0181-01" ] } ], "analysis": { "cardinality": 723, "char_count": 14006, "ocr_confidence": 0.752, "pagerank": { "raw": 5.607139536214477e-08, "percentile": 0.3511505883161528 }, "sha256": "6a2cf7f47c1a6770b8ec075586cd02dae87b838bf60c5f53d64c279279b5189b", "simhash": "1:9b31b4245f106cdd", "word_count": 2244 }, "last_updated": "2023-07-14T21:36:46.192333+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HARRIS, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE LORENZ\ndelivered the opinion of the court:\nFollowing a jury trial, defendant Louis Harris was convicted of the armed robbery and aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 18\u20142, 12\u20144(b)(1)) of Johnnie Wilson, a cab driver.\nWe affirm.\nThe incident giving rise to this appeal occurred on the night of March 28, 1986. After hailing a cab driven by Wilson, defendant asked to be taken to 45th Street and Saint Lawrence Avenue in Chicago. En route, Wilson stopped at a liquor store, at defendant\u2019s request, so that defendant could obtain change for the fare. According to Wilson, the sole occurrence witness, as he approached the destination, defendant held a gun to the back of his head, instructed Wilson to park the cab, and proceeded to rob him. A struggle ensued and the gun fired. According to defendant, he had no gun and had merely asked Wilson to park and briefly wait while he spoke to another individual about a moving job before proceeding on to 44th Street and Cottage Grove Avenue. An argument ensued when Wilson told defendant he would not take him to that address because it was in a public housing project. The argument escalated into a physical fight during which Wilson produced a gun. As the struggle continued, the gun fired.\nIt is undisputed that two shots were fired from the gun. The first bullet grazed Wilson\u2019s left leg. The second bullet struck Harris\u2019 left forearm.\nIn corroboration of Wilson\u2019s testimony, the State presented testimony of Chicago police officer Wayne Campbell, who responded to Wilson\u2019s telephone call, Dr. Jean Claude Jacob, a physician at Provident Hospital who treated both Wilson and defendant, Terry White, an emergency room nurse at the hospital who also treated defendant, and Cook County Assistant State\u2019s Attorney John Malevitis, who interviewed both Wilson and defendant at the hospital.\nDefendant alone testified in his defense.\nWe detail further facts below in consideration of the contentions raised by defendant on appeal.\nOpinion\nI\nPrior to commencement of defendant\u2019s sentencing hearing, counsel for defendant filed, and the trial judge then considered, a motion prepared by defendant\u2019s counsel for a new trial. The motion was denied. After denying that motion, the trial judge considered comments from the State and defendant\u2019s counsel in aggravation and mitigation for sentencing purposes. The trial judge then asked defendant if he wanted to say anything. At that time, defendant indicated that, in addition to counsel\u2019s motion, defendant desired to present a handwritten pro se motion for a new trial based on ineffective assistance of trial counsel. The trial judge permitted that motion to be filed as an addendum to defendant\u2019s counsel\u2019s motion. The trial judge promptly denied that motion and proceeded to impose sentence.\nOn appeal, defendant argues the failure of the trial judge to properly consider defendant\u2019s pro se motion and to appoint other counsel to represent defendant in a post-trial hearing, on the ineffectiveness issue constituted error under People v. Krankel (1984), 102 Ill. 2d 181, 464 N.E.2d 1045.\nKrankel, however, has not been interpreted as establishing a per se rule that all pro se motions for a new trial by defendants alleging ineffective assistance of trial counsel mandate appointment of new counsel. (People v. Washington (1989), 184 Ill. App. 3d 703, 540 N.E.2d 1014.) Instead, it has been observed:\n\u201c[T]he trial court should examine the factual matters underlying the defendant\u2019s claim, and, if the claim lacks merit or pertains to matters of trial strategy, then no new counsel need be appointed. Only if the allegations show possible neglect of the case for which counsel could undertake an independent evaluation of defendant\u2019s complaint and present the matter to the court should new counsel be appointed.\u201d Washington, 184 Ill. App. 3d at 711, 540 N.E.2d at 1019.\nAlthough the record reflects that the trial judge did not give lengthy consideration to the content of defendant\u2019s pro se motion, the above considerations provide guidance in determining whether the trial judge\u2019s denial of the motion was nevertheless proper. Where defendant\u2019s assertions do not indicate neglect of the type alluded to above, there would exist no basis to disturb the ruling on the motion below.\nDefendant\u2019s post-trial motion in the instant case consists of a two-page \u201cNotice of Motion for a New Trial or Arrest of Judgment,\u201d and an attached 10-page \u201cAffidavit in Support of Motion for New Trial or Arrest of Judgment.\u201d Pertinent to the allegation of ineffective - assistance of trial counsel, the affidavit focuses on the failure to subpoena witnesses on defendant\u2019s behalf. Specifically, the affidavit states the attorney defendant retained, E. Duke McNeal, had passed the case on to an associate, Akim Gursel, defendant\u2019s trial counsel. However, defendant was not made aware of McNeal\u2019s \u201cdisassociation\u201d with the case until the trial commenced. Further, on . the day prior to trial,- defendant stated, Gursel indicated he had not made contact with the defendant\u2019s witnesses and was not sure if McNeal had spoken with them. Gursel had indicated he would attempt to contact those witnesses. The affidavit also states Gursel was not familiar with the case. Defendant stated he was led to believe that McNeal had given Gursel the necessary information to try the case but that it was evident Gursel was without subpoenas to call forth witnesses on defendant\u2019s behalf.\nWhen given opportunity to argue his motion orally, defendant reiterated his assertion regarding subpoenas not being issued to have family members and fellow workers called forth to testify.\nDefendant\u2019s assertions do not support a basis to determine that the trial judge\u2019s denial of defendant\u2019s motion without appointing new counsel was improper. The record discloses several discussions between defendant\u2019s counsel and the trial judge regarding the subpoenas and whether counsel was going to present witnesses in addition to defendant. Defendant\u2019s counsel stated that subpoenas were prepared, but he was informed that the subpoenas had not been served. However, counsel stated that he had been assured, during voir dire, by a woman interested in defendant\u2019s case, that those witnesses would voluntarily appear in court to testify on defendant\u2019s behalf. The record also discloses that, following defendant\u2019s testimony, the trial judge adjourned court early to permit counsel additional time to produce the witnesses before resting. On the following day, counsel stated that he had been unsuccessful in personally attempting to contact the witnesses.\nMore importantly, however, defendant\u2019s counsel\u2019s offer of proof as to what the witnesses would testify to, if produced, removes any doubt that the issue with respect to the subpoenas could support an assertion of ineffective assistance of trial counsel. Defendant\u2019s counsel stated one of the witnesses, a woman, would testify defendant was on his way to speak to her on the night of the incident about helping her move. The other witnesses would also testify defendant took the cab to 45th Street and Saint Lawrence Avenue to inquire about a moving job.\nThus, the witnesses were neither alibi nor occurrence witnesses, and their testimony, at best, would merely corroborate, and be cumulative to, defendant\u2019s own account of why he had hired the cab. We find no reason to conclude that the allegations regarding the failure to subpoena those witnesses could provide the type of evidence of neglect for which an independent evaluation by new counsel would be warranted. We therefore conclude denial of defendant\u2019s motion was proper.\nII\nFollowing selection of the jury and two alternates, the trial judge indicated for the record that defendant\u2019s counsel had objected, during voir dire, to the State\u2019s use of peremptory challenges to excuse black venirepersons because of their race. However, observing that the jury included three black individuals and noting that both alternate jurors were black, the trial judge found defendant had failed to establish a prima facie case of discrimination based on exclusion of blacks from the jury.\nDefendant now contends the trial judge erred in that determination and that the case should be remanded for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712.\nWe decline to reach the merits of that argument because we conclude defendant has failed to properly preserve the issue for review.\nIn People v. Enoch (1988), 122 Ill. 2d 176, 522 N.E.2d 1124, the supreme court reaffirmed that, in this State, in non-capital cases, both a timely trial objection and a written post-trial motion raising the issue are required to preserve an issue for consideration on appeal. (Enoch, 122 Ill. 2d at 186, 522 N.E.2d at 1130.) The court observed that while the requirement of a trial objection is designed to permit opportunity to correct the error at trial (see People v. Carlson (1980), 79 Ill. 2d 564, 577, 404 N.E.2d 233, 239), the requirement of a written post-trial motion is statutory. Enoch, 122 Ill. 2d at 186-87, 522 N.E.2d at 1130.\nAlthough, in the case at bar, defendant\u2019s counsel made timely objection to the State\u2019s exercise of peremptory challenges, neither the post-trial motion filed by defendant\u2019s counsel nor defendant\u2019s pro se motion addresses the issue. We find that failure fatal to presentation of the issue on review.\nDefendant argues that the timely objection was alone sufficient to preserve the issue for review, citing People v. Whaley (1989), 184 Ill. App. 3d 459, 540 N.E.2d 421, in which defendant\u2019s contention on appeal pursuant to Batson was considered notwithstanding defendant\u2019s failure to include that issue in his written post-trial motion. Concluding defendant had not waived the opportunity to raise the issue, the court in Whaley cited the supreme court\u2019s \u201crecognition in [People v. Evans (1988), 125 Ill. 2d 50, 530 N.E.2d 1360] that Batson requires only a \u2018timely objection\u2019 to the State\u2019s use of peremptory challenges.\u201d Whaley, 184 Ill. App. 3d at 465, 540 N.E.2d at 425.\nEvans, However, cannot be read to stand for that proposition. Pertinent here regarding waiver of a contention pursuant to Batson, the supreme court, in Evans, determined defendant had waived any right to assert that Mary Patton, a black venireperson, had been improperly excused by the State. In its decision, the court did indeed state, \u201cBatson requires that the defendant make a timely objection to the prosecutor\u2019s peremptory challenge.\u201d (Evans, 125 Ill. 2d at 61, 530 N.E.2d at 1364.) However, that statement cannot be read out of context as delineating some new minimum requirement, specifically applicable to a contention on appeal pursuant to Batson, which would preserve the issue for review in a departure from the waiver doctrine reaffirmed in Enoch. First, the supreme court noted the defense in Evans had failed to object either at trial or in post-trial motions to the exercise of the peremptory challenge of Mary Patton and, because the objection was being raised for the first time on appeal, the court considered the objection waived. (Evans, 125 Ill. 2d at 62, 530 N.E.2d at 1364.) At no place in the court\u2019s analysis is it even remotely suggested that, had the defense timely objected to the use of a peremptory challenge to excuse Mary Patton at trial, that objection, alone, would be sufficient to preserve the issue for review. Moreover, in Batson, the Supreme Court\u2019s only reference regarding timely trial objection occurs in the Court\u2019s observation that its holding would not create serious administrative difficulties and that, in the case before it, the defendant\u2019s objection had, in fact, been timely. (See Batson, 476 U.S. at 99-100, 90 L. Ed. 2d at 89-90, 106 S. Ct. at 1724-25.) The Court simply did not address itself to what might constitute waiver for purposes of appeal in application of its holding.\nTherefore, we find no basis to conclude that the requirements as to waiver of issues on appeal set forth in Enoch should not be applied in the case at bar. And, because defendant failed to include objection to the State\u2019s use of peremptory challenges in either post-trial motion, we conclude defendant has waived the issue.\nIll\nDefendant received concurrent prison sentences for armed robbery and aggravated battery.\nDefendant now contends the cause must be remanded for a new sentence because both aggravated battery counts were based on a single gunshot wound.\nContrary to defendant\u2019s assertion, the record discloses that the jury found defendant guilty of, and the trial judge sentenced defendant for, only one count of aggravated battery. The trial judge instructed the jury to find defendant guilty of aggravated battery if the jury determined defendant used a deadly weapon or if defendant knew Wilson was a driver of public transportation. Only one verdict form was provided for that purpose. Accordingly, the jury foreman\u2019s recitation of the verdict was limited to finding defendant \u201cguilty of the offense of aggravated battery.\u201d Finally, in sentencing defendant, the trial judge stated:\n\u201cThe sentence *** will be fifteen years in the Department of Corrections as to the armed robbery, five years Department of Corrections as to the aggravated battery, concurrent both counts.\u201d (Emphasis added.)\nRemand is therefore unnecessary.\nFor the above reasons, we affirm the judgment of the circuit court.\nAffirmed.\nMURRAY and GORDON, JJ., concur.", "type": "majority", "author": "JUSTICE LORENZ" } ], "attorneys": [ "Michael J. Pelletier and Ann C. McCallister, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Cecil A. Partee, State\u2019s Attorney, of Chicago (Marilyn F. Schlesinger, Special Assistant State\u2019s Attorney, and Inge Fryklund and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LOUIS HARRIS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1\u201487\u20140116\nOpinion filed March 9, 1990.\nRehearing denied April 5, 1990.\nMichael J. Pelletier and Ann C. McCallister, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nCecil A. Partee, State\u2019s Attorney, of Chicago (Marilyn F. Schlesinger, Special Assistant State\u2019s Attorney, and Inge Fryklund and James E. Fitzgerald, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0507-01", "first_page_order": 529, "last_page_order": 535 }