People v. Amos

561 N.E.2d 1107, 204 Ill. App. 3d 75, 149 Ill. Dec. 411, 1990 Ill. App. LEXIS 1431
CourtAppellate Court of Illinois
DecidedSeptember 20, 1990
Docket1-86-3410
StatusPublished
Cited by36 cases

This text of 561 N.E.2d 1107 (People v. Amos) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Amos, 561 N.E.2d 1107, 204 Ill. App. 3d 75, 149 Ill. Dec. 411, 1990 Ill. App. LEXIS 1431 (Ill. Ct. App. 1990).

Opinion

JUSTICE JOHNSON

delivered the opinion of the court:

After a jury trial, John Amos, defendant, was found guilty of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9 — 1(a)(1)), home invasion (Ill. Rev. Stat. 1985, ch. 38, par. 12 — 11(a)(1)), attempted armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 8 — 4), and armed violence (Ill. Rev. Stat. 1985, ch. 38, pars. 33A— 1, 33A — 2). Defendant was sentenced to concurrent terms of 30 years for the murder count, 28 years each for the home invasion and armed violence counts, and 15 years for the attempted armed robbery count.

Defendant appeals, seeking the reversal of his conviction and remand of the cause for a new trial or, in the alternative, vacation of all improper multiple convictions. Counsel on behalf of defendant raises the following issues: (1) whether the trial court and the prosecution improperly commented on defendant’s failure to testify; (2) whether the trial court’s order prohibiting defendant from introducing certain exculpatory evidence constitutes reversible error; (3) whether defendant was denied the right to a fair trial due to the prosecution’s improper impeachment of his defense witness; (4) whether the trial court erred in its failure to continue the trial when a “critical” impeachment witness for the defense could not be located; and (5) whether defendant’s multiple convictions were improper and should be reversed.

In addition to the above, defendant raises the following issues in his pro se brief: (1) whether he was denied effective assistance of post-trial counsel; (2) whether he was advised of his right to counsel; (3) whether the prosecution knowingly used perjured testimony; (4) whether improper and prejudicial comments were made by the judge and prosecution; and (5) whether the trial court improperly denied defendant’s oral motion for substitution of judges.

We affirm in part and vacate in part.

At trial, the evidence established that on May 21, 1986, shortly after 2:30 a.m., Harold Sylvester visited Hattie Bennett in her apartment. Bennett had previously observed several people, including defendant and Aaron Trimble, standing outside of her building that morning. Bennett used her apartment as a “cocaine house.” In exchange for a fee, she allowed others to sell or smoke cocaine on her premises.

Sylvester had been in Bennett’s apartment for several minutes when, according to Bennett’s testimony, Trimble and defendant burst into the apartment. Trimble entered first, carrying a shotgun. When Trimble saw Sylvester, he ordered defendant to point the gun that defendant was carrying at Sylvester. Defendant refused; Trimble then demanded that Sylvester repay the $40 that Sylvester owed him. Sylvester promised to repay Trimble when he received his paycheck the following week. Defendant also, allegedly, interceded on Sylvester’s behalf and told Trimble that Sylvester would pay him.

Trimble then told defendant to give him the handgun that he was carrying. In return for the handgun, Trimble gave defendant his shotgun. Trimble, who was enraged, threatened to hit Sylvester with the handgun. While Trimble was threatening Sylvester, defendant held the shotgun with his “hand on the trigger and barrel pointed slightly upwards.”

At some point, Sylvester bent down to pick up a piece of paper. As he was standing up, Trimble shot him. Sylvester, however, was able to leave Bennett’s apartment after he had been shot. Defendant and Trimble followed Sylvester out of the apartment and into the hallway. Bennett testified that on their way out, Trimble told Sylvester that he “ought to shoot him again.”

Officer Darwin Adams of the Harvey, Illinois, police force testified that at approximately 2:44 a.m., on the morning of May 21, 1986, he was called to respond to shots in the area of Bennett’s apartment. When he arrived at Bennett’s apartment, he found Sylvester lying facedown outside of the apartment. Shaki Teas, the deputy medical examiner, later testified that the cause of death was due to a gunshot wound to the chest.

Although defendant chose a pro se defense, the trial court appointed an assistant public defender as standby counsel. Defendant did not testify at trial. He did, however, present Lenora Logan as his sole occurrence witness. Logan testified that defendant was in Bennett’s apartment prior to Sylvester’s arrival. This was also prior to the time that Trimble arrived. She stated that the shooting was an accident. The gun that Trimble held accidentally went off when Sylvester pushed the gun away from him.

After hearing all of the evidence, the jury found defendant guilty of murder, home invasion, armed violence, and attempted armed robbery. It is from this decision that defendant now appeals.

As a preliminary matter, we note that it is not the function of a court of review to retry the defendant. (People v. Phillips (1989), 127 Ill. 2d 499, 509.) There is no issue raised as to the sufficiency of the evidence against defendant. Defendant’s arguments for reversal are based upon alleged errors made by the prosecution or the court. The evidence of defendant’s guilt was overwhelming, and he was properly found guilty beyond a reasonable doubt.

We will now address the first of five issues raised by defendant through his counsel. It is contended that reversible error was committed when comments were made concerning defendant’s failure to testify. Specifically, defendant points to remarks made by the State alluding to his failure to subject himself to cross-examination; remarks made that jurors should not consider evidence by witnesses that do not take the stand; and implications made that defendant had the burden to prove his innocence.

Defendant also points to a remark made by the court, in sustaining a hearsay objection, which highlighted his failure to testify. While conducting a redirect examination of Logan, defendant asked her if he had been involved in a conversation with Trimble concerning Sylvester. The trial court informed him that only he could testify to this alleged conversation but that he had a right to take the stand.

The State maintains that defendant waived consideration of this issue by failing to object to these alleged improprieties both at the time the remarks were made and in his two motions for a new trial. (People v. Enoch (1988), 122 Ill. 2d 176.) We agree.

When a defendant represents himself, he assumes the responsibility for conducting his own defense and is not entitled to favored treatment. (People v. Beardsley (1985), 139 Ill. App. 3d 819, 826.) We cannot give defendant special consideration due to his failure to raise these objections at the appropriate time. We find, therefore, that defendant waived this issue.

Even assuming, arguendo, that defendant had not waived this issue, we find that because of the overwhelming nature of the evidence against defendant the error, if any, is harmless beyond a reasonable doubt. See People v. King (1972), 4 Ill. App. 3d 942.

The second issue raised is whether the trial court’s prohibiting certain exculpatory evidence from being introduced constitutes reversible error.

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Cite This Page — Counsel Stack

Bluebook (online)
561 N.E.2d 1107, 204 Ill. App. 3d 75, 149 Ill. Dec. 411, 1990 Ill. App. LEXIS 1431, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-amos-illappct-1990.