{ "id": 3391581, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE HEARD, Defendant-Appellant", "name_abbreviation": "People v. Heard", "decision_date": "1977-10-20", "docket_number": "Nos. 61436, 62712 cons.", "first_page": "1042", "last_page": "1049", "citations": [ { "type": "official", "cite": "53 Ill. App. 3d 1042" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "259 N.E.2d 19", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "45 Ill. 2d 305", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2895361 ], "opinion_index": 0, "case_paths": [ "/ill-2d/45/0305-01" ] }, { "cite": "150 N.E.2d 815", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "14 Ill. 2d 95", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2769106 ], "opinion_index": 0, "case_paths": [ "/ill-2d/14/0095-01" ] }, { "cite": "253 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1958, "opinion_index": 0 }, { "cite": "43 Ill. 2d 318", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2843886 ], "year": 1958, "opinion_index": 0, "case_paths": [ "/ill-2d/43/0318-01" ] }, { "cite": "351 N.E.2d 339", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "342" } ], "opinion_index": 0 }, { "cite": "40 Ill. App. 3d 52", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2970737 ], "weight": 2, "pin_cites": [ { "page": "55" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/40/0052-01" ] }, { "cite": "363 N.E.2d 838", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "845" } ], "opinion_index": 0 }, { "cite": "66 Ill. 2d 551", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5463653 ], "weight": 2, "pin_cites": [ { "page": "566" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0551-01" ] }, { "cite": "141 N.E.2d 33", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "11 Ill. 2d 21", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2784242 ], "opinion_index": 0, "case_paths": [ "/ill-2d/11/0021-01" ] }, { "cite": "237 N.E.2d 697", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "40 Ill. 2d 4", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2857846 ], "opinion_index": 0, "case_paths": [ "/ill-2d/40/0004-01" ] }, { "cite": "244 N.E.2d 182", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "41 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2853933 ], "opinion_index": 0, "case_paths": [ "/ill-2d/41/0401-01" ] }, { "cite": "149 N.E.2d 96", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "13 Ill. 2d 290", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2775877 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/ill-2d/13/0290-01" ] }, { "cite": "399 U.S. 149", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6168934 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/399/0149-01" ] }, { "cite": "358 N.E.2d 1116", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "pin_cites": [ { "page": "1121" } ], "opinion_index": 0 }, { "cite": "65 Ill. 2d 401", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5435628 ], "weight": 2, "pin_cites": [ { "page": "411" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/65/0401-01" ] } ], "analysis": { "cardinality": 810, "char_count": 17792, "ocr_confidence": 0.836, "pagerank": { "raw": 1.0146607950434855e-07, "percentile": 0.543133595819679 }, "sha256": "8bf03c47bdd9016134a2b9e439587f07c33ae1d77b3bc75356d037520f1816d9", "simhash": "1:8fa8bdedb7b6b863", "word_count": 3086 }, "last_updated": "2023-07-14T21:36:14.469992+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. JESSE HEARD, Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE DIERINGER\ndelivered the opinion of the court:\nThis is an appeal from a judgment of the circuit court of Cook County. The defendant, Jesse Heard, was tried before a jury, convicted in the circuit court of armed robbery and unlawful use of weapons, and sentenced to not less than five nor more than 15 years in the State penitentiary for armed robbery and concurrently one to two years for unlawful use of weapons. The cases were consolidated on defendant\u2019s appeal.\nThe issues submitted for review are (1) whether the court erred in admitting the transcript of the preliminary hearing testimony of a deceased witness; (2) whether the defendant was proven guilty beyond a reasonable doubt; (3) whether the armed robbery and unlawful use of weapons charges were both crimes arising from the same conduct, thereby prohibiting conviction of the lesser charge; and (4) whether the sentence imposed was excessive.\nOn February 18,1972, at about 9 p.m., Andy Pickett and Wesley Taylor were robbed at gunpoint by two men. The robbery took place near the intersection of Central Park Avenue and Roosevelt Road, in Chicago, Illinois. Within minutes after the robbery, the defendant and another man were arrested and charged with two counts of armed robbery and unlawful use of weapons.\nAt trial, the first witness for the People of the State of Illinois (hereinafter \u201cthe People\u201d) was Investigator John Laskey, of the Chicago Police Department. Officer Laskey testified that on February 18,1972, at about 9 p.m., he was on duty and was patrolling the area near Central Park Avenue and Roosevelt Road. He was in a squad car, with his partner, Lonnie Seagroves. Laskey and his partner were driving northbound on Central Park Avenue when they saw four men standing in a formation of two men standing behind the other two. Laskey saw the two men at the rear shove the men standing at the front. He observed these events from a distance of about 80 or 90 feet. The area where the four men were standing was the site of an old abandoned gasoline station which had several cars parked in its lot. The figures suddenly disappeared from the police officer\u2019s view into the vacant lot. Officer Laskey drove the squad car forward (north) until the car reached the point where the four men had disappeared. The officer entered the lot and shone his flashlight in the area. He could tell the two men standing in the rear were armed. The man on the left had a shotgun and the man on the right had a pistol. At this time the officer was 25 feet from the four men. An older gentleman then ran toward the officer and told the officers he had just been robbed. Meanwhile, the two armed men began to walk away, toward the parked cars in the lot. The officers walked in the direction of the two men, and arrested both men, one of whom was the defendant, Jesse Heard. Several feet away from the point where Mr. Heard was arrested, a shotgun was found, hidden partially under a parked car. There were three persons sitting in a parked car in the area. These persons were searched by the police and released.\nThe next witness to testify for the prosecution was Wesley Taylor, one of the robbery victims. Mr. Taylor testified that on February 18,1972, he and his friend, Andy Pickett, went to a store to buy alcoholic beverages at about 9 o\u2019clock in the evening. The two men left home at 1137 South Central Park and walked south one block to purchase the liquor at a store. After leaving the store the two men walked north, back toward the house.\nOn the way back to the house a man with a shotgun told Mr. Taylor to \u201cget on in there.\u201d Mr. Taylor looked over his shoulder for two seconds at the man, who then told Mr. Taylor if he looked back again he would blow Mr. Taylor\u2019s head off. Mr. Taylor did not look around any more, but saw someone with a pistol pointed at Andy Pickett. Mr. Taylor and Mr. Pickett were standing side by side and the men with the guns were right behind them. Mr. Taylor could feel someone going into his pockets. He saw lights, turned around and saw the police car. He told the police he had been robbed. By this time the two gunmen were walking away. The police arrested two people, including the defendant, Jesse Heard. Mr. Taylor identified Mr. Heard as the person with the shotgun.\nThe court then admitted into evidence, over objection by the defendant, the transcript of Andy Pickett\u2019s testimony which was given at the preliminary hearing held in this cause. Mr. Pickett, one of the robbery victims, died before the case came to trial.\nAt the preliminary hearing Andy Pickett testified that on February 18, 1972, at about 9:10 p.m., he was at 1155 South Central Park, walking with his friend Wesley Taylor. As he was walking, a man came and put a pistol to his head, while a second man put a shotgun to the head of Wesley Taylor. When asked if he saw the second man in court, Mr. Taylor identified Jesse Heard as the man. Mr. Pickett said he was told to \u201cget up in there,\u201d as the man with the pistol went into his pockets. Pickett heard the man with the shotgun warn Mr. Taylor if he looked back again the gunman would blow the side of Mr. Taylor\u2019s jaw off. The witness then saw the second robber go into Mr. Taylor\u2019s pocket.\nThe next witness to testify for the People was Lonnie Seagroves, Officer Laskey\u2019s partner on the night the robbery took place. Officer Seagroves testified that on February 18,1972, at 9 p.m., he was on duty as a Chicago policeman and was patrolling the area of Roosevelt Road and Central Park Avenue with his partner, John Laskey. They were in a squad car driving northbound on Central Park Avenue. As they stopped at a stoplight at the comer of Roosevelt Road at Central Park, he saw four men standing in a small alcove. He noticed one of the men was holding a shotgun at the head of another man. He called out for the man to hold it. The man with the shotgun turned to face the officer, then turned and started to walk away. He told the man to stop again and the man stopped. He then walked up to the man, told him to turn around, told him to lean over a car and put handcuffs on him. Jesse Heard was identified by the officer as the man he stopped. A Browning automatic shotgun was found six to eight feet south of the spot where Mr. Heard was stopped. The People rested at this time.\nThe first witness to testify for the defendant was Connie Vaughn. Miss Vaughn testified that on February 18,1972, she was working as a cashier at the Big Bee Grocery store on the comer of Roosevelt Road and Central Park Avenue. She knew Jesse Heard because he was a frequent customer of the store. She remembered Jesse Heard coming into the store on February 18,1972, at about 9 p.m. She remembered he purchased a light bulb and left the store after a few minutes. She could easily remember the date and the defendant being in the store on that night. Mr. Heard went into the store to buy a light bulb. The bulbs are packaged in pairs. She charged Mr. Heard for two light bulbs, and because he only wanted one bulb she had to make a refund. She noticed he did not come into the store for two weeks after this incident, which as unusual for Mr. Heard, since he shopped at the store almost daily. Two weeks later Heard came into the store and told Miss Vaughn he had been arrested earlier.\nJesse Heard then testified in his own behalf. Mr. Heard testified that on the date of the robbery he had returned home from school and remained at home until some time after 8 p.m. that evening. He then left his home and walked to the Big Bee Supermarket. He went to the store in order to purchase a light bulb. He remembered seeing Connie Vaughn, the cashier, at that time. As Mr. Heard was walking down Central Park Avenue back toward his home, he saw a police officer, who he later learned to be Officer John Laskey, searching three men in a car parked at the curb. The officer asked Mr. Heard if he would like to run down the alley so the officer could try out his new gun. Mr. Heard answered he would not run. The arresting officer then left the three suspects in the car and arrested Mr. Heard. The first time Mr. Heard ever saw the shotgun was at the police station.\nThe Reverend Edna Norwood testified next for the defendant. Reverend Norwood is the pastor of the Holy Trinity Church of God and Christ, which is located at 5010 West End Avenue, Chicago, Illinois. She had known the defendant for over 12 years. Mr. Heard was an honorable boy. She knew Mr. Heard very well and he worked for the church. The defense then rested.\nThe defendant was found guilty of two counts of armed robbery, and unlawful use of weapons. He was sentenced to not less than five to not more than 15 years for the armed robbery conviction, and one to two years for the unlawful use of weapons conviction, the sentences to run concurrently.\nArticle I, section 8 of the 1970 Illinois Constitution provides, in pertinent part:\n\u201cIn criminal prosecutions, the accused shall have the right to\" * * meet the witnesses face to face * 0\nAmendment VI of the United States Constitution provides, in pertinent part:\n\u201cIn all criminal prosecutions, the accused shall enjoy the right * * * to be confronted with the witnesses against him; 0 *\nThe parties agree the leading case in Illinois on the issue of the admissibility of the preliminary hearing testimony of a deceased witness is People v. Tennant (1976), 65 Ill. 2d 401, 358 N.E.2d 1116 (see also California v. Green, 399 U.S. 149, 26 L. Ed. 2d 489, 90 S. Ct. 1930.) In Tennant, the court, per Mr. Justice Underwood, held:\n\u201c* * \u00b0 where, as here, there was an adequate opportunity for cross-examination of the preliminary hearing testimony of a witness who dies prior to trial, the earlier testimony of that witness is properly admitted at trial.\u201d 65 Ill. 2d 401, 411, 358 N.E.2d 1116, 1121.\nAlthough all parties agree with the statement of the court in Tennant, the question of whether \u201can adequate opportunity to cross-examine\u201d was in fact presented at the preliminary hearing does not lend itself to a per se determination and must be decided upon the circumstances of each case.\nOn appeal the defendant specifically claims he did not have an adequate opportunity to cross-examine the deceased witness to determine the reliability of his identification of the defendant as one of the robbers. An examination of the record concerning Andy Pickett\u2019s testimony, however, reveals the issue of the reliability of his identification was an important part of both the direct and cross-examinations of the witness during the preliminary hearing. The defendant\u2019s counsel, who was the same attorney who represented the defendant at trial, engaged in extensive cross- and re-cross-examination of Pickett, which included questions as to whether the area was illuminated enough to see, whether Pickett saw the suspect, how long Pickett saw the suspect and the approximate height of the suspect. This cross-examination of Andy Pickett ended with defense counsel saying, \u201cI have no further questions.\u201d\nIt is clear from the record the defendant has had the benefit of cross-examination at the preliminary hearing, and the complainant\u2019s preliminary hearing testimony was properly admitted into evidence.\nThe defendant next contends the evidence produced at the jury trial does not suffice to prove him guilty beyond a reasonable doubt.\nThere is no question a judgment of conviction can be sustained only by credible evidence which proves the guilt of the defendant beyond a reasonable doubt. (People v. Coulson (1958), 13 Ill. 2d 290, 149 N.E.2d 96.) The testimony of a single witness, however, if positive and credible, is sufficient to sustain a conviction. People v. Novotny (1968), 41 Ill. 2d 401, 244 N.E.2d 182.\nIn the case at bar, four witnesses identified the defendant as the robber. The record discloses Officer Laskey saw the defendant at the scene of the crime in possession of a sawed-off shotgun. Officer Seagroves testified he saw the defendant carrying a sawed-off shotgun and the defendant \u201cmade a complete turn to face me.\u201d Wesley Taylor stated the defendant was wielding a sawed-off shotgun while committing the robbery. Andy Pickett testified he saw the defendant robbing Wesley Taylor, while he placed a sawed-off shotgun up to Welsey Taylor\u2019s head.\nTestifying on his own behalf, the defendant stated he was an innocent passerby who was arrested for no reason.\nOn appeal, courts of review may not substitute their judgment for that of a jury on questions of credibility of witnesses, and may not reverse a criminal conviction unless the evidence is so improbable as to raise a reasonable doubt of guilt. (People v. Mills (1968), 40 Ill. 2d 4, 237 N.E.2d 697.) This is so because the jury, acting in its peculiar capacity as trier of fact, has ample opportunity to observe the demeanor of the witnesses, assess their credibility and weigh the evidence (see People v. Stevens (1957), 11 Ill. 2d 21, 141 N.E.2d 33). We have made a complete search of the record and find the evidence fails to raise a reasonable doubt of guilt.\nRegarding sentencing, the defendant claims the trial court erred in providing sentences for armed robbery and unlawful use of weapons, even though concurrent, as both crimes arose from the same conduct.\nThe Supreme Court of Illinois, in People v. King (1977), 66 Ill. 2d 551, 363 N.E.2d 838, confronted the issue of determining when multiple convictions and concurrent sentences are permissible. The court, speaking through Mr. Justice Moran, stated:\n\u201cWe hold, therefore, that when more than one offense arises from a series of incidental or closely related acts and the offenses are not, by definition, lesser included offenses, convictions with concurrent sentences can be entered.\u201d King, 66 Ill. 2d 551, 566, 363 N.E.2d 838, 845.\nA lesser included offense is defined in section 2\u20149 of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 2\u20149(a)), as follows:\n\u201c \u2018Included offense\u2019 means an offense which\n(a) Is established by proof of the same or less than all of the facts or a less culpable mental state (or both), than that which is required to establish the commission of the offense charged, * *\nThe defendant was convicted of carrying a sawed-off shotgun, in violation of section 24\u20141(a)(7) of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 24\u20141(a)(7)). This section provides, in pertinent part:\n\u201cA person commits the offense of unlawful use of weapons when he knowingly; * * * possesses or carries * * * any shotgun [with a barrel] less than 18 inches in length * *\nThe foregoing element must be shown over and above the proof the defendant was \u201carmed with a dangerous weapon,\u201d which is a prerequisite to a conviction for armed robbery. Ill. Rev. Stat. 1971, ch. 38, par. 18\u20142(a).\nIn the circuit court, the defendant was convicted of armed robbery and unlawful use of weapons. While the defendant\u2019s acts were closely related in time and place, the carrying of the shotgun and the armed robbery were separate and distinct acts requiring different elements of proof. In light of the King opinion, we hold the defendant\u2019s convictions and concurrent sentences for armed robbery and unlawful use of weapons were proper and are affirmed.\nThe defendant also maintains the prison sentence of five to 15 years in the State penitentiary was excessive.\nThe defendant was convicted of armed robbery and unlawful use of weapons. Armed robbery is a Class 1 felony. The minimum term of a Class 1 felony, by statute, is four years unless the court, having regard to the circumstances of the offense, sets a higher minimum term. Ill. Rev. Stat. 1973, ch. 38, par. 1005\u20148\u20141.\nAt the trial the court heard evidence the defendant, while carrying a sawed-off shotgun, stopped one of two men (the defendant\u2019s accomplice stopped the other man) and told the man, \u201cIf you look back again, I will blow the side of your head off.\u201d The defendant then continued the robbery by going through the pockets of this man, in search of money. The robbery, however, was interrupted by the appearance of two police officers.\nIn People v. Gray (1977), 40 Ill. App. 3d 52, 351 N.E.2d 339, this court, speaking through Mr. Justice Dieringer, held:\n\u201cThe Illinois Supreme Court has consistently held, where it is contended the punishment imposed in a particular case is excessive, though within the limits prescribed by the legislature, Illinois reviewing courts should not disturb the sentence unless it clearly appears the penalty constitutes a great departure from the Illinois constitutional requirement that all penalties shall be proportioned to the nature of the offense. (People v. Richardson (1969), 43 Ill. 2d 318, 253 N.E.2d 420; People v. Smith (1958), 14 Ill. 2d 95, 150 N.E.2d 815.) Furthermore, it is the position of the Illinois Supreme Court the trial court is normally in a superior position during the trial and hearing in aggravation and mitigation to make a sound determination as to the punishment to be imposed than are the courts of review. People v. McCullough (1970), 45 Ill. 2d 305, 259 N.E.2d 19.\u201d 40 Ill. App. 3d 52, 55, 351 N.E.2d 339, 342.\nWe find the court properly weighed the facts before sentencing the defendant, and there was no abuse of discretion in sentencing.\nFor the foregoing reasons the judgment of the circuit court of Cook County is hereby affirmed.\nAffirmed.\nJOHNSON and LINN, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE DIERINGER" } ], "attorneys": [ "Nathaniel R. Howse, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Mary Ellen Dienes, and Michael J. Madden, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. JESSE HEARD, Defendant-Appellant.\nFirst District (4th Division)\nNos. 61436, 62712 cons.\nOpinion filed October 20, 1977.\nNathaniel R. Howse, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Laurence J. Bolon, Mary Ellen Dienes, and Michael J. Madden, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "1042-01", "first_page_order": 1064, "last_page_order": 1071 }