People v. Harris

561 N.E.2d 1361, 204 Ill. App. 3d 491, 149 Ill. Dec. 665, 1990 Ill. App. LEXIS 1603
Appellate Court of Illinois·Decided October 15, 1990·No. 2-88-1257·Published·Cited by 9 cases

Opinion

PRESIDING JUSTICE UNVERZAGT

delivered the opinion of the court:

Defendant, Don Harris, was convicted of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19 — 3) and felony theft (Ill. Rev. Stat. 1987, ch. 38, par. 16 — 1) and sentenced to four years’ imprisonment. Defendant appeals, contending he was prejudiced when the prosecutor elicited a confession of a nontestifying codefendant. Based on our review of the facts of this cause, we believe the actual issue is whether the defendant was prejudiced when a witness made a reference to the confession of the nontestifying codefendant. The State argues that the defendant waived the alleged error and that the plain error rule does not apply in this situation.

The evidence adduced at trial revealed that the apartment of Robert Kievert was burglarized on December 23, 1987. Twenty-three wrapped Christmas gifts, including an opal ring, were missing. The police found no signs of a forced entry.

Stacey Harris, who was not related to defendant, testified that she was staying in the apartment opposite the Kievert apartment. On December 23, 1987, between 5 and 6 p.m., she heard a knock in the corridor outside her door. She peered through the peephole in her door and saw two men removing gift-wrapped packages from Kievert’s apartment. One man was tall, black, wearing a green hat, gray jacket and sweat pants. The other was short, black and wearing a brown leather coat. The shorter man wiped the door knob, and the two men left. After calling the. police, Ms. Harris worked with the police to compose a plastic sketch of their faces, one of which was introduced into evidence. She also identified defendant as the shorter man in court. She estimated she saw defendant’s profile for 30 seconds and his full face for three to five seconds in the dim light of the corridor.

Detective Donald Janus of the Woodridge police department testified that he worked with Ms. Harris to compile a description of the two men. Six days later, Janus had a discussion with a man known as “Tall Paul” Coleman. Two days later, Janus interviewed defendant in the Woodridge police department. Janus read defendant his Miranda rights, and defendant signed a waiver of the rights. Janus did not record the interview; no one else was present for the full interview, and no written transcript was made of the interview for defendant to sign.

Detective Janus then gave-the following testimony:

“Q. After the Defendant signed the waiver and agreed to talk to you, can you tell the ladies and gentlemen of the jury what you asked of him or said to him at that point?
A. I told him that Paul Coleman had confessed to me, that I had recovered the opal diamond ring that was taken and that I had an eyeball witness putting him and Coleman leaving that apartment.
Q. Did the Defendant say anything at that point?
A. Yes, sir.
Q. What did he say?
A. He denied it.
Q. When you say denied it, did he say anything in particular?
A. He said he didn’t do it.
Q. What did you say to him after that?
A. I told him that we would not be here on this afternoon, the first day of the new year, if we did not believe and have sufficient evidence to charge him with residential burglary.
Q. Did he say anything in response to that statement?
A. Yes, sir, he did.
Q. What did he say?
A. Can I back up?
Q. Well, did you say anything else [to] him at that point?
A. Yes, I did.
Q. What did you say to him?
A. I asked him if it was his idea it was [sic] to enter the apartment.
Q. Did he say anything in response to that question?
A. Yes, sir, he did.
Q. What did the Defendant Don Harris say?
A. He said he didn’t really remember whose idea it was, his or Coleman’s.
Q. What else did he say at that point or did you say to him?
A. He related to me that he entered the apartment, removed the Christmas gifts, and then he and Paul left the apartment, going out the west door to the next, to a vacant building next-door.”

Janus then testified that they discussed which building next door defendant entered. In court, Janus acknowledged a diagram, which he said defendant drew, which showed Kievert’s building, the adjacent buddings and the location to which the two men removed the packages.

On cross-examination, defense counsel inquired regarding what Janus said to initiate the interview. Janus again testified that “I told [defendant] what Paul Coleman had told me” and that Janus told him there was enough evidence to charge defendant with residential burglary. Janus also admitted that the opal ring, which had been later identified by Kievert, was recovered not from defendant but from Coleman’s girlfriend.

On redirect examination, Janus stated defendant said he and Coleman entered the apartment with a key and removed the gift-wrapped packages to a vacant apartment. They opened some of the packages but left some behind. Janus said defendant related to him that Coleman later told defendant that someone else had stolen the packages left behind. After Janus had determined the location of the vacant building from defendant’s diagram, Janus visited the apartment and found only the remains of some unidentified wrapping paper.

Kenneth Davenport testified as defendant’s witness. Between 4 and 4:15 p.m. he left his apartment to go to his job. Outside his apartment, he passed two men whom he had never seen before. His description of the two men was similar to that of the two men Ms. Harris had given. Davenport said hello and took a good look at their faces for a minute in clear light because he was suspicious of strangers after his own apartment had been burglarized. Davenport, who was acquainted with defendant but not Coleman, stated that the shorter man with the leather jacket was not defendant.

The defense also recalled Detective Janus to the stand, who admitted that the descriptions of the two suspects given by Ms. Harris and Davenport were virtually identical in terms of dress, hat, height, color, age and sex. However, during cross-examination, Janus reproduced the facial composite for the shorter man as described by Davenport, which used a different chin, nose, hairstyle, lips and hair than the facial composite as described by Ms. Harris.

Free access — add to your briefcase to read the full text and ask questions with AI

People v. Harris, 561 N.E.2d 1361, 204 Ill. App. 3d 491, 149 Ill. Dec. 665, 1990 Ill. App. LEXIS 1603 (Ill. Ct. App. 1990).

561 N.E.2d 1361 (People v. Harris) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Related

People v. Ruiz
Appellate Court of Illinois, 2000
People v. Cortes
692 N.E.2d 1129 (Illinois Supreme Court, 1998)
People v. Murdock
632 N.E.2d 313 (Appellate Court of Illinois, 1994)
People v. Woodrome
604 N.E.2d 486 (Appellate Court of Illinois, 1992)
People v. Mendez
582 N.E.2d 1265 (Appellate Court of Illinois, 1991)
People v. Arnold
577 N.E.2d 1355 (Appellate Court of Illinois, 1991)