People v. Douglas

431 N.E.2d 406, 103 Ill. App. 3d 456, 59 Ill. Dec. 121, 1982 Ill. App. LEXIS 1393
CourtAppellate Court of Illinois
DecidedJanuary 12, 1982
DocketNo. 80-279
StatusPublished

This text of 431 N.E.2d 406 (People v. Douglas) 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. Douglas, 431 N.E.2d 406, 103 Ill. App. 3d 456, 59 Ill. Dec. 121, 1982 Ill. App. LEXIS 1393 (Ill. Ct. App. 1982).

Opinion

JUSTICE KASSERMAN

delivered the opinion of the court:

The issue in this appeal is whether the circuit court of Madison County abused its discretion in denying defendant’s motion to withdraw his guilty plea. We find no reversible error in those proceedings and therefore affirm.

Defendant was charged with an armed robbery which occurred on Christmas Day of 1979. He entered a negotiated plea of guilty to that charge during his jury trial after the State and defense had closed their respective cases in chief and prior to the State’s anticipated rebuttal. Eight days later, defendant’s motion to withdraw his guilty plea was filed. Subsequently, defendant was sentenced to eight years’ imprisonment. Then, after an evidentiary hearing, defendant’s motion to withdraw his guilty plea was denied.

The record indicates that defendant’s trial counsel, Michael Glenn, moved for and was granted leave to withdraw prior to sentencing and prior to the hearing on defendant’s motion to withdraw his guilty plea. Private counsel then was appointed in Mr. Glenn’s stead. The main thrust of defendant’s arguments at the hearing to withdraw the guilty plea was that Mr. Glenn had overborne the 18-year-old defendant’s will and coerced defendant into pleading guilty. The witnesses at this hearing, all appearing on defendant’s behalf, were Mr. Glenn, defendant, and defendant’s mother, Clara Douglas.

Mr. Glenn testified that he urged defendant to plead guilty for two reasons: (1) he did not expect to prevail if the case went to the jury and (2) he was of the opinion that defendant might well receive a sentence longer than eight years if he persisted in his plea of not guilty in view of defendant’s juvenile record. Mr. Glenn further testified that he expected the testimony of Arthur Price for the State on rebuttal to be particularly damaging. In that regard, in reciting the factual basis for defendant’s plea, the prosecution summarized Mr. Price’s expected testimony as indicating that defendant gave Mr. Price a check stolen from the robbery victim and went with Mr. Price to cash it and, also, that defendant had written letters to Mr. Price asking him to change his testimony regarding those events. Mr. Glenn stated that he was of the opinion that defendant would not have pleaded guilty except for his urging. Mr. Glenn recalled that he and defendant had spoken about changing the plea several times. At first defendant refused, and then Mr. Glenn asked members of defendant’s family to help convince him. According to Mr. Glenn, defendant maintained his innocence “all the way through” and “in no way wanted to stop the trial at that point.” Mr. Glenn further testified that he had listened to a tape recording of the guilty plea proceedings and had noted that when the court asked defendant whether he had committed the robbery, defendant had answered “yes” only after a 20-second pause. According to Mr. Glenn, he had taken defendant aside at that time and explained to him that his guilty plea would not be accepted if he did not admit his guilt.

Defendant next testified in his own behalf and stated that he paused before admitting the offense because he did not commit it. He confirmed that Mr. Glenn was the person who first mentioned pleading guilty and stated that at first he had wanted to go through with the trial but that Glenn had predicted a lengthy sentence in that event. Asked whether his change of plea was voluntarily made, defendant replied: “I just thought it was the best way out.”

Mrs. Douglas, defendant’s mother, then testified that she had spoken with Mr. Glenn concerning the guilty plea about three times at the jail, twice in the company of defendant. Defense counsel questioned her as to (1) whether defendant expressed “an interest or desire to change his plea * * and (2) whether defendant ever told her that he was pleading guilty voluntarily. The State’s objections to both questions were sustained on the grounds that they sought to elicit hearsay evidence. The last question defense counsel asked her was: “In your opinion did your son plead guilty voluntarily or of his own free will when he pled guilty?” Her reply was: “I couldn’t say.”

We reject defendant’s assertion that those questions directed to Mrs. Douglas to which objections were sustained did not seek to elicit hearsay evidence. We are aware that the declarant, defendant, was present in court and available for cross-examination, as pointed out by the defense. Further, we recognize that the opportunity for cross-examination is the main rationale underlying the hearsay rule, as stated in People v. Olmos (1978), 67 Ill. App. 3d 281, 384 N.E.2d 853, People v. Morris (1978), 65 Ill. App. 3d 155, 382 N.E.2d 383, People v. Carpenter (1963), 28 Ill. 2d 116, 190 N.E.2d 738, and McCormick, Evidence §245 (2d ed. 1972). However, we conclude that in order to utilize the opportunity to cross-examine the declarant to prevent the testimony sought to be elicited from being hearsay evidence, the opportunity to cross-examine must, in fact, exist. In the case at bar, the defendant presented the testimony of Mr. Glenn, the defendant, and then defendant’s mother, in that order. Thus, Mrs. E>ouglas could have attributed any statement to defendant; and, since defendant could not be called as a witness by the State after her testimony, there would have been no effective availability of cross-examination. Additionally, if there had been any error in excluding the testimony, it would have been harmless because the questions put to Mrs. Douglas sought to elicit answers which were nothing more than conclusions. Defendant made no attempt to establish by this witness or any other what actually transpired at defendant’s plea discussions with his trial counsel.

The record’s failure to disclose the content of those • discussions requires us to conclude that defendant’s assertions of coercion and undue influence were not supported by the evidence. Mr. Glenn’s testimony does not establish that he exceeded his proper role as counselor and advisor to his client. His advice to plead guilty was, by his own account, based on his evaluation of the very difficult situation which faced the defendant. We note that after reflecting on the matter at the later date, Mr. Glenn failed to suggest that he believed that this was not the best advice he could give under the circumstances.

Several factors present here indicate that defendant’s decision to plead guilty was voluntary. The admonitions by the trial court to defendant prior to acceptance of the plea were exemplary; defendant does not challenge their sufficiency. During the conference with his attorney in which defendant decided to plead guilty, defendant was accompanied by his mother, who was his alibi witness, and, apparently, at least one other member of the family. Defendant had heard the evidence for the State and in his own defense at the trial and thus had an opportunity to make his own evaluation of his chances for acquittal, an opportunity not normally afforded an accused contemplating the entry of a plea of guilty. Defendant’s own statements just prior to acceptance of his guilty plea and at the hearing on the motion to withdraw it indicate that the choice to so plead was ultimately his own. Prior to his change of plea, defendant was asked at least twice whether it was his desire to plead guilty.

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Related

People v. Morris
382 N.E.2d 383 (Appellate Court of Illinois, 1978)
People v. Olmos
384 N.E.2d 853 (Appellate Court of Illinois, 1978)
People v. Zuckerman
197 N.E.2d 136 (Appellate Court of Illinois, 1964)
The People v. Carpenter
190 N.E.2d 738 (Illinois Supreme Court, 1963)
People v. Hale
411 N.E.2d 867 (Illinois Supreme Court, 1980)
People v. Hale
396 N.E.2d 317 (Appellate Court of Illinois, 1979)

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Bluebook (online)
431 N.E.2d 406, 103 Ill. App. 3d 456, 59 Ill. Dec. 121, 1982 Ill. App. LEXIS 1393, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-douglas-illappct-1982.