{ "id": 5576831, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON PETE HARRIS (Impleaded), Defendant-Appellant", "name_abbreviation": "People v. Harris", "decision_date": "1979-03-28", "docket_number": "No. 77-1836", "first_page": "363", "last_page": "369", "citations": [ { "type": "official", "cite": "70 Ill. App. 3d 363" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "367 N.E.2d 1313", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "67 Ill. 2d 564", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5811071 ], "pin_cites": [ { "page": "578" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/67/0564-01" ] }, { "cite": "379 N.E.2d 24", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "62 Ill. App. 3d 199", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5621727 ], "pin_cites": [ { "page": "202" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/62/0199-01" ] }, { "cite": "253 N.E.2d 389", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "43 Ill. 2d 251", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2844436 ], "year": 1978, "opinion_index": 0, "case_paths": [ "/ill-2d/43/0251-01" ] }, { "cite": "279 N.E.2d 363", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1969, "pin_cites": [ { "page": "367" } ], "opinion_index": 0 }, { "cite": "3 Ill. App. 3d 872", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2838059 ], "year": 1969, "pin_cites": [ { "page": "878" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/3/0872-01" ] }, { "cite": "302 N.E.2d 324", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "55 Ill. 2d 172", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2937684 ], "opinion_index": 0, "case_paths": [ "/ill-2d/55/0172-01" ] }, { "cite": "368 N.E.2d 528", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "53 Ill. App. 3d 521", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3395812 ], "pin_cites": [ { "page": "524" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/53/0521-01" ] }, { "cite": "356 N.E.2d 413", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 499", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642782 ], "pin_cites": [ { "page": "502" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0499-01" ] }, { "cite": "386 N.E.2d 579", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "68 Ill. App. 3d 873", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3306926 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/68/0873-01" ] }, { "cite": "326 N.E.2d 420", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "27 Ill. App. 3d 337", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2868574 ], "pin_cites": [ { "page": "340-41" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/27/0337-01" ] }, { "cite": "356 N.E.2d 947", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642593 ], "weight": 2, "pin_cites": [ { "page": "985" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0978-01" ] } ], "analysis": { "cardinality": 747, "char_count": 14498, "ocr_confidence": 0.904, "pagerank": { "raw": 1.601728517393891e-07, "percentile": 0.6839948969997864 }, "sha256": "1003592132b75a5c5d02269d6eee86683dd37503ae5a6966fede790d06f9ee97", "simhash": "1:3f55b00eed779443", "word_count": 2373 }, "last_updated": "2023-07-14T21:04:20.751997+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. LEON PETE HARRIS (Impleaded), Defendant-Appellant." ], "opinions": [ { "text": "Mr. PRESIDING JUSTICE SIMON\ndelivered the opinion of the court:\nThe appellant, Leon Pete Harris, and co-defendant, Ben Dorsey, were found guilty by a jury of the murder of Rogers Walton, a taxicab driver. Harris appeals from his conviction and sentence of 14 years to 14 years and 1 day contending: (i) that he was denied his right to a speedy trial; (ii) that the jury was improperly prevented from hearing a statement made by the deceased shortly prior to his death which the defendant contends detracted from the credibility of the State\u2019s key witness; (iii) that prejudicial prosecutorial comments denied him a fair trial, and (iv) that his guilt was not established beyond a reasonable doubt.\nWe first consider Harris\u2019 contention that his trial was delayed in violation of the Criminal Code of 1961 (Ill. Rev. Stat. 1975, ch. 38, par. 103 \u2014 5). A 60-day extension affecting Dorsey\u2019s term was requested by the State and allowed after a hearing in which both defendants were represented. The justification for the State\u2019s request was to give the prosecution additional time to locate a missing witness. The order extending Dorsey\u2019s term, which was scheduled to expire the day after the hearing, also extended Harris\u2019 term, which still had more than 30 days to run. Harris advances several reasons why the extension should not have applied to him.\nFirst, Harris contends that the State\u2019s petition did not set forth that the State was seeking an extension of his term. Nevertheless, Harris voluntarily participated in the hearing, participation which was in no way compelled by the State. Rather, his own attorney appeared at the hearing and expressly requested the opportunity to oppose the extension. He argued that since Harris\u2019 term was to end in less than 60 days, he was also affected by the State\u2019s petition and should be allowed to participate in the hearing. The trial court agreed.\nIn his argument against the extension Harris\u2019 attorney never suggested, as Harris now argues, that he had not received notice of the hearing. His only argument in the circuit court was that the State was not diligent in its efforts to locate a missing witness. The defendant\u2019s failure to object on this ground in the trial court waives this objection on review. But, even if Harris did not receive proper notice, the fact remains that his attorney was present at the hearing, acknowledged that he had received a copy of the State\u2019s petition and that his client\u2019s name appeared thereon, and he argued in opposition to the extension. Thus, regardless of any shortcoming in Harris\u2019 receipt of notice, he suffered no prejudice.\nHarris also argues that the hearing did not conform with the procedure outlined in People v. Green (1976), 42 Ill. App. 3d 978, 356 N.E.2d 947. In that case this court stated that in a hearing on the State\u2019s request for an extension of the statutory term under the speedy-trial act \u201cit is essential that a defendant be given # 6 \u201d an opportunity to cross-examine all witnesses testifying against him and an opportunity to present evidence in support of his specific denial * # (Green, 42 Ill. App. 3d 978, 985.) These requirements were satisfied here. Harris\u2019 attorney presented his argument against the extension and also cross-examined the prosecution\u2019s witness. Defendant objects, however, that he was deprived of the opportunity to present evidence in opposition to the extension because he lacked sufficient time to obtain such evidence. On the day of the hearing Harris\u2019 attorney insisted that he be allowed to participate and made no request for additional time to obtain evidence. His present claim that he required additional time, not having been raised at that hearing, was waived.\nDefendant\u2019s argument that he had no knowledge that his own term would also be extended at the hearing in question is belied by the record of that hearing. His counsel expressly asked that a specific finding with respect to his client be made at that time.\nThe defendant also contends that the trial court acted prematurely in granting the extension prior to the expiration of Harris\u2019 term. The defendant has cited no authority, and we have found none, which requires that a motion for extension under the Speedy Trial Act must be made by the State only at a time immediately prior to the expiration of a defendant\u2019s term. People v. Moore (1975), 27 Ill. App. 3d 337, 340-41, 326 N.E.2d 420, holds that there is no such requirement. Moreover Harris\u2019 attorney, as pointed out above, requested the court to make a specific finding with respect to his client at the hearing in question. Defendant\u2019s voluntary participation in the hearing and request with regard to his own term is equivalent to a concession that the extension was not premature. Nothing in the statute (Ill. Rev. Stat. 1975, ch. 38, par. 103 \u2014 5) suggests the proper time for presenting a petition for an extension in relation to the expiration of the term. Moore.\nHarris finally claims that the extension was improper because the State failed to meet the statutory requirement of showing due diligence in its efforts to find the missing witness. An investigator for the State\u2019s Attorney testified at length regarding his attempts as well as efforts of others to locate the missing witness believed to be in Mississippi. He represented that among the agencies contacted were the Post Office, the Department of Public Aid, the Mississippi Department of Public Aid, and the Biloxi, Mississippi, police department. In addition, the investigator spoke to the building superintendent of the building where the missing witness formerly lived. Neither defense attorney argued that the missing witness was not material. Harris\u2019 attorney argued only that the facts asserted by the investigator, assuming them to be true, failed to establish due diligence. In view of the \u201cseveral attempts\u201d which the record shows, and Harris acknowledges, were made to find the witness, the trial court\u2019s decision to allow the extension should not be disturbed. A decision to grant an extension of time rests in the sound discretion of the trial judge, and his action in granting or denying the request should not be disturbed upon review unless there is a clear abuse of discretion. (People v. Elliott (1979), 68 Ill. App. 3d 873, 386 N.E.2d 579.) There is no evidence of such abuse here.\nWe next consider whether it was error to exclude as hearsay a statement made by the deceased to a police officer while he was in a hospital shortly after he had been wounded by several gunshots and shortly before he died. According to the officer, Walton, who was shot while sitting in the driver\u2019s position in his cab during a holdup, said that he \u201cthought his passenger set him off.\u201d Gene Williams, who was the prosecutor\u2019s key eyewitness, was a passenger in Walton\u2019s cab at the time of the shooting, and the defendant maintains that this statement implicated Williams in the crime and should have been admitted under the hearsay exceptions for dying declarations or spontaneous excited utterances. It is not necessary to decide whether the statement qualifies as an exception to the hearsay rule because the statement itself was so ambiguous that the trial judge\u2019s decision to exclude it was proper.\nIt is impossible to determine from the police officer\u2019s account of the victim\u2019s statement what it was that the victim meant. The content of the statement is vague and the identity of the person to whom it relates is unclear. The defendant contends the deceased in making the statement was implicating Williams as having \u201cset him up\u201d for the robbery. The words however which were related by the police officer were \u201cset him off\u201d and these words have no discernible meaning. Equating these words with \u201cset him up,\u201d as Harris insists should be done, is merely conjecture.\nThe ambiguity of the statement is compounded by the uncertainty over the identity of the person to whom the deceased was referring. Though Williams, who remained with the wounded driver until the police arrived, was the only passenger in the cab when the shooting took place, the record discloses that another rider had been in the cab shortly before the crime occurred. The presence of this second passenger, identified only as \u201cEddie,\u201d leaves the suggestion that the deceased was referring to Williams rather than \u201cEddie\u201d or someone else, an untenable speculation.\nIt is unclear how the statement of the deceased, even if admitted in ' evidence, would have had any probative value or could have added anything meaningful for the jury\u2019s deliberation. Even if the trial judge erred in excluding the statement, because of the statement\u2019s ambiguity, the error was harmless. In any event the statement failed to exonerate the defendant.\nWe next consider whether certain remarks by the prosecution denied Harris a fair trial. Harris asserts that prejudice occurred when the jury was twice exposed to the existence of an eyewitness to the murder who did not testify. The jury was so informed first during the prosecution\u2019s opening statement and again during the direct examination of one of the State\u2019s witnesses. There is little doubt that these remarks were improper, for when statements \u201care not based upon evidence admitted at trial, [they] may not properly be argued to the jury.\u201d (People v. Rogers (1976), 42 Ill. App. 3d 499, 502, 356 N.E.2d 413.) Such impropriety, however, necessitates a reversal only when there has been substantial prejudice to the defendant. (People v. Kitchen (1977), 53 Ill. App. 3d 521, 524, 368 N.E.2d 528.) In both instances prompt defense objections were sustained, thus preventing the jury from hearing the prejudicial evidence.\nNeither counsel nor the judge could prevent an assistant state\u2019s attorney while testifying as a State\u2019s witness from referring to the missing witness. Nevertheless, the court effectively stopped the State from introducing any further references to the missing witness. The trial judge observed in denying a motion for a mistrial that he did not regard these comments as \u201csubstantially tainting the case,\u201d and he was in a better position than this court to determine what effect the improper statement and answer might have had upon the jurors. People v. Smothers (1973), 55 Ill. 2d 172, 302 N.E.2d 324.\nHarris next claims that he was prejudiced when the prosecution in its closing argument mentioned, \u201cI want you to listen to the points that I deleted from that [Dorsey\u2019s] written statement.\u201d Harris argues that this remark prejudiced him by bringing to the jury\u2019s attention that the court earlier had excised certain portions of Dorsey\u2019s statement that implicated Harris. However, a colloquy outside the presence of the jury revealed that the deletions in question were those the prosecutor had voluntarily made and not those which the court had previously ordered. The court, aware of the nature of the deletions that the prosecutor was referring to, properly allowed the prosecution to continue its reference to them. Even if the jury had misconstrued how the deletions happened to be made, nothing in the record suggests that it could have inferred that the substance of the deletions implicated Harris.\nHarris also complains of other remarks by the prosecutor in his closing argument, including references to the absence of deals with or promises to Gene Williams \u2014 who then was under indictment for possession of a controlled substance, to the absurdity of various defense arguments, and to whether Williams was a drug addict as the defense had claimed. After each of these statements, the defendant offered prompt objections which were immediately sustained. Consequently, even if the prosecutor\u2019s comments were improper, their effect cannot be regarded as prejudicial. \u201cIt is not the policy of this court to reverse a judgment merely because error has been committed unless it appears that real justice has been denied or that the finding of guilty may have resulted from such error.\u201d (People v. Olivier (1972), 3 Ill. App. 3d 872, 878, 279 N.E.2d 363, 367; see also People v. Daugherty (1969), 43 Ill. 2d 251, 253 N.E.2d 389; People v. Haynes (1978), 62 Ill. App. 3d 199, 202, 379 N.E.2d 24.) It appears to us that the defendant\u2019s conviction was the result of an eyewitness\u2019 incriminating testimony and not questionable prosecutorial comments to which objections were sustained.\nHarris maintains that because his conviction rests solely upon the testimony of Gene Williams \u2014 a person he labels an incredible and unreliable witness \u2014 he was not proven guilty beyond a reasonable doubt. Harris argues Williams\u2019 testimony should be viewed with great suspicion because of his prior criminal history and drug habit, and the victim\u2019s statement to the police shortly prior to his death. Harris argues that Williams actually took part in the shooting and that his account of the crime was a fabrication necessitated by the unexpected arrival of the police. Harris also asserts that Williams\u2019 identification of him from a photograph of a lineup was a product of this fabrication, because he was the only person in the lineup who matched Williams\u2019 description of one of the assailants. Finally, Harris points to testimony that Williams tried to shake him down as well as his family by offering to leave town in exchange for cash.\nHarris\u2019 argument amounts to an attack upon Williams\u2019 credibility. The examples of Williams\u2019 alleged unreliability, which Harris raises, do not automatically disqualify Williams as a witness. Rather, they were matters for the jury to consider in its deliberations, for \u201c[a] reviewing court may not substitute its judgment for that of the trier of fact \u2018on questions involving the weight of the evidence or the credibility of the witnesses [citations].\u2019 \u201d (People v. Manion (1977), 67 Ill. 2d 564, 578, 367 N.E.2d 1313.) The jury\u2019s verdict is supported by the evidence, and we should not assume the function of the jury by re-evaluating the credibility of a witness who the jury, as the trier of fact, heard and saw.\nJudgment affirmed.\nMcNAMARA and McGILLICUDDY, JJ., concur.", "type": "majority", "author": "Mr. PRESIDING JUSTICE SIMON" } ], "attorneys": [ "Ralph Ruebner and Andrew Herman, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Bernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. LEON PETE HARRIS (Impleaded), Defendant-Appellant.\nFirst District (3rd Division)\nNo. 77-1836\nOpinion filed March 28, 1979.\nRalph Ruebner and Andrew Herman, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nBernard Carey, State\u2019s Attorney, of Chicago (Lee T. Hettinger and Pamela L. Gray, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0363-01", "first_page_order": 385, "last_page_order": 391 }