*1 891 on v. Allen Defendant also relies supreme N.E.2d in which our court sanity ordered evaluation it first after a although only requested plea had guilty (People v. Allen been entered and defendant had been sentenced. 36-37, 24, 25-26, 337.) so, 101 Ill. 2d doing N.E.2d it was a find including noted because unusual circumstances ing that defendant was unfit to stand of motions trial and assortment examinations, of defense counsel progression psychological Allen which were refused defendant. Ill. 2d 36-37, 27-29, 337.) present None of those circumstances are in this case and argument unconvincing. defendant’s
Accordingly, defendant’s convictions are affirmed.
Affirmed. SCARIANO, JJ.,
STAMOS and concur. ILLINOIS, THE PEOPLE OF THE STATEOF Plaintiff-Appellee, v. HARRIS, Defendant-Appellant. KENNETH (5th Division) First District No. 85 — 0464 19, 1986. Opinion September filed *2 J., PINCHAM, dissenting. Defender, Doherty,'Public Chicago (James Reddy,
James J. of H. Assist- Defender, counsel), appellant. ant Public Daley, Attorney, Chicago (Joan Richard M. State’s Cherry, Mary S. Dienes, Zick, Ellen Attorneys, and Steven J. Assistant State’s of counsel), for the People.
JUSTICE LORENZ delivered the of the court: opinion a Following jury defendant, Harris, trial was Kenneth convicted invasion, aggravated of home in battery, robbery, rape and connection on with an attack I.B. He also of home in- 79-year-old was convicted vasion, and an aggravated battery, robbery connection with attack 93-year-old on B.G. for the years Defendant received sentences convictions, convictions, aggravated-battery robbery for the years of 60 for the and years and extended-term sentences home invasion An rape I.B., to be sentence concurrently. all served extended-term remaining of 60 for the home-invasion conviction was made con- years latter two secutive the sentences. 60-year trial (1) On defendant contends he denied a fair the appeal by was trial, in a single (2) imposition of separate charges an of discre- 60-year extended-term sentences was abuse consecutive tion. affirm.
We was, trial. I.B. adduced at was following pertinent testimony The floor of living on the second a tenant 79-year-old on January p.m. At 5:30 Chicago. about North Dearborn at 678 building building, day, getting while her mail in first-floor vestibule man, defendant, she her in as the enter the by saw identified Back building. again on the second floor she saw defendant. When she her the neck grabbed ran her door he from open by behind and carried her into the money defendant demanded apartment. I.B., from from her He taking purse containing threatened to $25. her, kill her, choked and her money demanded more diamonds. back, When escape dragged throwing she tried to he her her headfirst He then tore off her inter- floor. clothes and had forcible sexual course her. After that her old I.B. with act asked how she was. lost she consciousness. When she came to from her bleeding stairs, head. She out of out to apartment, crawled down the the street where a tenant came to her aid and She police. called subsequently identified the defendant from array photographs.
B.G., 94 old years trial, at the time of on testified that Jan- uary she was on the floor living Hotel, fifth of the Croyden at 616 North Rush Chicago. midnight after Shortly morning, she mailed a letter on the man, first-floor vestibule. A subsequently defendant, identified her as the on the got elevator with her and got off her with on fifth floor. she door When unlocked her her grabbed the neck her pushed from behind and in- *3 side.
The defendant asked were, her where jewels her then took from her a person money bag containing about pleaded When B.G. $500. with defendant not harm her he old, said she too that he was rape would not her. She was then struck on jaw, the conscious- losing ness a Dillon, until neighbor, Jerry arrived. that Dillon testified he found B.G. on the floor at conscious, 3:15 that afternoon. She was incoherent, wearing only slip. a Her clothes on were scattered the floor.
B.G. testified that she could remember nothing more until she found herself in the hospital weeks later. a police However detective 1984, that on January 21, testified he photo- showed B.G. of array her graphs. Because of she not injuries speak could then but she se- of lected a the photograph defendant and handed it to detective. He attacker, asked if that like looked her and she nodded her head af- firmatively. At trial B.G. she was asked if saw her attacker in the defendant, courtroom. She “It pointed saying, looks like that man.”
Frankie England testified that she the saw defendant at a tavern some time on evening 17, the of had January 1984. He in about $600 bills, large which he told her he lady obtained from a at the Croyden was a the of that incident she that at time England Hotel. admitted drug expenses shared and of heroin who prostitute frequent a user with the defendant. about questioning officers testified that under
Two Chicago police the women. Defendant attacking defendant admitted these incidents into 16, 1984, he an older woman that on followed January stated of He followed her just Chicago on Dearborn south Avenue. building door, her when she her forc- grabbed opened and from behind upstairs hit and then money her He demanded and received ing inside. times in the face. woman several 1984, 18, that he fol- January
Defendant told officers on also opened another into the Hotel. When she her Croyden lowed woman behind, her neck. He holding inside from pushed door her times in the face and obtained four five struck the woman several in He then stocking wearing. hidden she was hundred dollars bed, on so she the woman to and lie purportedly forced disrobe not him out. would follow consider defendant’s contention
We first A charges single proceeding improper. for trial in defend these one offenses if placed proceeding ant be on trial in (Ill. offenses are the same those 38, trial court has substantial 4(a).) Rev. Stat. Ill — v. Peterson determining joinder (People the propriety discretion N.E.2d and 1103), 108 Ill. 3d its determination (1982), App. (Peo of that discretion showing not be reversed absent a abuse will 550). 73 Ill. ple App. v. Mikel temporal considered are: and Among physical the factors presented, of evidence to be proximity charged, identity the acts acts, similarities method and whether there was common Duncan operation perpetrator. 1125.) Thus, v. Tate N.E.2d the defendant was with home inva- aggra- at one location and home invasion attempted rape
sion a mile and one hour later. The battery away vated at another location its discretion court found the trial court did abuse reviewing alia, charge, inter similari- noting, a motion to sever the denying attack, the method of de- entry, in the method of gaining ties *4 of the attacker. scriptions the two approximately
In this cause
offenses occurred within
In each instance the offender fol
blocks and within about
hours.
grabbed
to
them around the
elderly
apartments,
lowed
women
their
behind,
them into
Both
apartments.
neck from
and forced
their
women were beaten and
of
Both were asked
money.
robbed
about
jewels. One victim was
and had all her clothes
raped
except
removed
her stockings. The other was told she was too old to be
raped,
regained
wearing
when she
consciousness she was
State-
only
slip.
ments
relating
made
defendant to the
included
to
by
police
admissions
factors,
both attacks. Of these
the
the common
physical proximity,
method of
operation, and
common
of victim all
type
support
grant
trial court’s
Although
determination to
State’s motion.
period
Tate,
time
than the
greater
span
one-hour
involved in
(cid:127)factor alone is not
v.
dispositive. People
(1984),
White
Ill.
App.
308,
We do find the two cases cited by controlling or persuasive. In People Bricker the defendant allegedly robbery committed the armed
a desk clerk in Bloomington hotel as well as the armed of a robbery attendant service-station south of Bloomington. The offenses occurred within a three-hour period. court, However the reviewing finding improper joinder, expressly noted nothing record estab- lished a plan crimes, concerted action or scheme linking which were committed several miles v. York apart. defendant was accused of having sexual intercourse with two minor stepdaughters over a period Even years. though the reviewing court found that the acts charged were of a similar character and of a parts constituted com- mon scheme or the court also plan, found that the acts were not part of the same comprehensive transaction. The may York court have been influenced the fact that one of the victims testified that she was pregnant defendant, a fact which the court believed to have been improperly introduced. In event we any find that the facts in this clearly cause established that the two series of offenses were of a so transaction as to their permit trial.
We also find no merit to defendant’s contention that the sen tences were excessive. imposed Defendant does not dispute that Class X rape may felonies home invasion and statutorily result extended-term of 60 years. (Ill. sentences Rev. Stat. 8—2.) Nor does he contend that extended-term sentences 1005—
not be consecutively. (People v. Jordan 103 Ill. 2d imposed 192, 469 N.E.2d He contends that the 569.) only sentences were an to be Among abuse discretion. the factors considered as a basis for an extended-term sentence are commission of a felony accompanied *5 of a fel- or behavior and commission brutal heinous exceptionally 1985, or ch. years age (Ill. older. Rev. Stat. ony against person if the 38, may imposed Consecutive sentences be par. 5—3.2(b).) 1005 — required protect is of the that such sentences are to opinion Rev. (Ill. from further criminal conduct the defendant. Stat. public the offenses of a 8—4(b).) part ch. Where were par. 1005 — one change objective, course of conduct with no in criminal single have a Class X or Class and severe felony of the offenses been must par. Stat. ch. must have been inflicted. Ill. Rev. bodily injury 8—4(a). 1005 — had served a term for 30-year-old previously jail This on one victim caused her to lose one attempted murder. His attack other also her His attack on the victim broke her jaw. broke eye teeth, ribs, and her to a heart fractured her caused have at- jaw as by the “re- sentencing judge tack. These acts were characterized *** heinous, inhuman, The found that depraved.” judge also volting, from the these facts protected needed to be defendant. Given society disturbing find im- findings and these we no basis sentences posed.
Affirmed. P.J.,
SULLIVAN, concurring. dissenting:
JUSTICE PINCHAM upon elderly I crimes were committed Despicable dissent. The horrors deserving society’s protection. who were most women homes, to in most entitled they safety, took their where were place committed them at against The crimes were security sanctuary. he, severely punished, should as con- offender be even night. be, as rule of law which should not may entitled temptible may so strong temptation distorted however do have have been granting the trial court erred in the State’s my judgment, been. In the defendant offenses trying simultaneously motion and 111— arose of two unrelated criminal transactions. Section out (Ill. Procedure of 1963 Rev. Stat. 4 of the Code of Criminal 4(a)) provides: Ill — charged the same indict- “(a) or more offenses Two each ment, or count for of- complaint information or charged, fense whether felonies misdemeanors if act, based the same both, 2 or more acts which are on or on comprehensive the same transaction.” (Emphasis are added.) bar,
In the on charged case at the offenses that were based two or more related acts the same which were
Indictment on alleged number 84 C 923 that the defendant Jan- uary battery, committed the offenses of rape, aggravated invasion, home unlawful re- robbery, kidnaping, aggravated kidnaping, straint and residential charges of I.B. These arose out burglary acts which were upon committed I.B. at about 5:30 in her sec- p.m. ond-floor at apartment 678 North Dearborn in Chicago.
The defendant was indictment number 84 C with *6 committing the offenses of aggravated home inva- robbery, battery, sion, kidnaping, aggravated kidnaping, residential and un- burglary lawful upon restraint B.G. on January charges 1984. These arose out of acts which were committed at in her upon B.G. about a.m. fifth-floor apartment Street, at 616 North Rush Chicago.
Although the trial court stated when the indictments came before the court that the State had filed a written motion “to join consol- idated purposes a trial the two indictments of the versus Harris, Kenneth 924,” 84 C 923 and 84 C the written motion is not in the appeal record. The assistant State’s to the trial Attorney argued court in of the support State’s motion to consolidate two indict- ments for trial: “It is clear it on the the trial discretionary part of ***
court. The Sockwell case [People v. Sockwell 55 Ill. App. 3d 371 N.E.2d gives test as the mar- precise 100] [a] gins for determining whether or not offenses are separate of the same comprehensive transaction ***.
In the Mikel case [People v. Mikel 550], the Court stated in determining whether grant severance, some factors to be considered are the proximity times and of the charges, locations various and the identity evidence would presented to prove each charge. *** substantially the same evidence would have [A]nd [sic] been presented by the State at the trial of each offense.
I think if we those apply bilaterally, Judge, to the evidence here, factors, which I believe would show at trial we have these in case 1 it Number occurred on 1984 at about 6:40 January in a p.m. residential hotel at 678 North City Dearborn woman, Chicago. The case involved an female elderly age white seventy-five, who lived alone. 18th, 1984 at ap-
The case occurred on January second at building a.m. in a residential proximately apartment In the vic- Chicago. again North Rush in the that case City female, tim is an four lived alone. age eighty white who elderly
* * * rape the first case the defendant then proceeded woman involved. In the second case he said to the woman that her, he should too old. rape she is In each case the victim describes the to members Police The same as it Chicago Department. police officer turns out woman. The speaks initially investigation to each into these was conducted the same team detec- tives. The victim identified the defendant based ar- upon photo from their Each ray description. which resulted identified the same array. defendant from * * * to each crime. His was made [He] confesses confession ev- Attorney. same detective and the same Assistant State’s case, idence would show the same motive involved in each to ob- money tain for narcotics and alcohol which he consumed with female companion. think, honor, I that this evidence is so intertwined it your ***
would be identical in each case. I mention that the arrest in each case was effected might after to the 16th floor year he followed the 73 old white woman Hotel, 16 North Croyden Wells.
So, reasons, that the Judge, for those would ask People of the it.” (Emphasis Court allow the two cases before added.)
The assistant State’s factual recitations of the two Attorney’s cases established that the transactions not the same com- part transaction. The not prehensive Attorney urge assistant State’s did Instead, they argued were. that because the crimes same, I.B., transactions rape were the with the of the be- exception cause the similarly crimes the two transactions were somewhat committed, and, as he more of the simi- emphatically argued, because evi- larity post-offense post-arrest investigative the State’s dence, for trial. These two indictments should be consolidated should not been grounds urged the assistant State’s have Attorney establish determining the criteria for consolidation and did not they that the of the trans- part comprehensive two transactions were action. noted,
Preliminarily, it should be
to the assistant State’s
contrary
Attorney’s argument, that this case
a
of the
present
question
does
admissibility
evidence
a defendant’s criminal transaction for
trial,
which the defendant is not
or on
to
such fac-
charged
establish
tors
motive,
as a defendant’s knowledge, design, plan,
identity, pres-
ence, concealment, consciousness of
or modus
for a
guilt
operandi
criminal transaction for which the defendant is
and on trial.
then,
Even
evidence of collateral
to
factors has
crimes
such
establish
risk of
high
prejudice, as the court
out in
v. Lind-
pointed
gren (1980),
79 Ill. 2d
At the defendant’s Lindgren, pre- trial murder State sented evidence that within few hours after the defendant commit- murder, ted the he committed an arson of the of his former residence wife. The court rejected State’s contentions that evidence of the defendant’s commission of the arson tended to establish a conscious- guilt, ness of a concealment motive or the defendant’s near presence the murder scene at the approximate time the murder was commit- ted. The court pointed out that the arson was a distinct crime com- mitted at a different place and time. In reversing, court held:
“The erroneous admission of evidence of other crimes carries risk of calls for high prejudice ordinarily reversal.
* * * There is also the A liti- matter of the of the integrity system. gant’s to a trial right by an unbiased is violated where jury in fact based its decision This is a jury on extraneous matters. right substantial and innocent normally guilty afforded defendants alike. is likely Collateral-crimes evidence violate right. Therefore, this we hold that the defendant deserves a new trial with a jury unbiased with evidence arson.” 129, 140, 143, People Lindgren (1980), 79 Ill. 2d 238.
This of the consolida- appeal presents question validity tion for a trial of criminal arose out of two single jury offenses which distinct only criminal transactions. Such a consolidation is permissible if the two criminal transactions were of the same transaction. motion the defense at- opposition State’s consolidation argued:
torney
“The crucial two or more acts are question whether the same comprehensive
I feel that these cases aren’t of the same transaction. part It is and dis- separate charges separate and distinct of two *** tinct I [occurrences], they For this reason feel It defendant joined. shouldn’t be would be to the prejudicial making objection hearings. who is this joinder This Court should separately.” have these cases tried A trial court has no separate discretion consolidate offenses one if trial the offenses were not of the same part comprehensive (1974), 15, transaction. v. Pullum 57 Ill. 2d (People 565.) N.E.2d If separate offenses were not of the same part comprehensive transaction, the court is not to consolidate the empowered separate offenses for a trial. The single People court stated v. White 308, 314-15, 129 App. 553: cannot, over his made properly objection, be “[A] on trial placed charging under indictment separate it affirmatively appears they part when are not one and transaction, are separate and distinct both law and 97, fact 121 Ill. (People Fleming (1970), 102), nor may a defendant be forced to trial under indictments charging disassociated felonies. v. Benka App. 3d *** 221, 223; v. Woods 23 Ill. 2d 471.) [J]oinder unrelated, is not when the are permitted charges where apart, crimes occur several or where there is no concerted days link plan action or scheme that would the two felonious acts * * * ff
When, when, and offenses are of the same only separate transaction does the to con- comprehensive trial court have discretion event, solidate the offenses for a trial. In that the trial separate single governed court’s discretion is section 114—8 of the Code Crimi- nal (Ill. 8), Procedure Rev. Stat. 114— provides: “If it appears that a defendant or State is prejudiced of related or defendants in a prosecutions single charge or or defendants for trial by joinder separate charges trials, order grant severance of defend- ants, other relief as provide any justice may require.” Thus, the initial trial question that the court was re- required solve was whether the January p.m. rape, robbery 5:30 Dearborn, alleged other offenses committed I.B. at 678 North against in indictment 84 2 a.m. January robbery C Street, against other offenses committed B.G. at 616 North Rush al- in indictment 84 C of the same leged Again, the assistant failed to address Attorney State’s *9 Instead, this issue in argument argued: his for consolidation. he we have here is I think the Court conclude this “[W]hat as a continuing robbery part on the of the defendant dur- spree ing elderly, assaulted, old are severely ladies beaten and again, so I Judge, People’s would ask the Court allow motion to consolidate these cases for trial.” The trial court did not determine that the offenses alleged of part indictments were the same comprehensive transaction. Nor the trial predicate did court to grant its decision the State’s mo- tion to consolidate on the of premise they the same comprehensive Instead, transaction. the trial court considered and re- lied on impermissible in its factors decision consolidate the offenses for trial. The trial court ruled:
“The motion to for join consolidated trial of 84—923 purposes and will be sustained.
The Court has been further listening to what evidence is an- ticipated be introduced in of each of these instant support trials. There a strong, very is strong similarity in the nature cases, each or design common scheme and the of of operandi to, modus as relative to each the crimes in each of of the counts on separate indictments, and furthermore that it a product, is each is product case design common investigation. common similarity disassociated, This cannot be think, upon stated, I based the motion you therefore that motion shall added.) be sustained.” (Emphasis A very strong in case, the nature of each similarity common scheme, design, modus operandi investigation or common are not the for criteria determining whether two criminal separate transactions can be consolidated for a single (See People trial. v. Triplett (1981), 99 1077, Ill. 1236, N.E.2d where the defendant’s convictions for the murder and of a Clark man- robbery gasoline station-service ager were presented reversed because the State evidence a similar robbery by defendant of another Clark station.) The criteria section 4(a) Code Criminal Procedure of 1963 Rev. (Ill. 111— 1985, Stat. 4(a)) consolidating different offenses Ill — which arise out of sepa- criminal transactions whether the rate criminal comprehensive transactions were a of the same transaction.
The defendant relied on Bricker (and the trial in this as court) authority court opposition his to the court’s denial of the consolidation motion. In in count my judgment, controlling. Bricker is Bricker was one Wilkenson, of an indictment with armed robbery Wayne the desk clerk at the Illinois House in Bloomington, Hotel around 3:30 a.m. on July 1972. Count two that Bricker committed the alleged offense of armed of John Inter- robbery Murphy, attendant at the state Service Station Skelly Bloomington south of at Route 51 and I- around 12:30 a.m. on 1972. July Bricker contended in his mo- tion to sever the two counts for trial that the two offenses were distinct and independent crimes and that it was improper prejudi- cial to try two unrelated armed robberies the same trial. The State contended that the two counts of armed robbery represented two parts what an overall comprised
trial court denied the guilty motion to sever. The found Bricker jury on count I and him acquitted assigned on count II. appeal On trial court’s denial of his severance motion as error. This agreed, holding:
“The critical is whether the question two or more acts are part of ‘the comprehensive same transaction.’ v. (People Petit- *** 7 jean, 231, App. 137.) 3d N.E.2d trial, It is axiomatic that a may placed not be on defendant over his timely objection, on an indictment charging separate when it appears these are not one and offenses offenses of transaction, the same but are and both in ‘separate distinct law and A trial cannot be [Citations.] fact. defendant forced on disassociated v. 121 Ill. People Fleming [(1970),] felonies.’ 271, 2d 273. App.
In this the case, defendant was with the commis- sion of two armed robberies. The first armed occurred robbery around 12:30 A.M. at a Bloom- service station located south of on ington Route 51 on 1-74 in McLean The second County. armed a hotel robbery occurred at 3:30 A.M. at approximately located in downtown miles from the loca- Bloomington, several tion of the first armed in the record robbery. nothing There to establish that or scheme plan there was a concerted action of on the that would link the two armed rob- of defendant They beries. are and acts. Un- separate independent felonious der the cited should have tried authority, the State defendant added.) proceedings (Emphasis each offense.” 396-97, v. People Bricker 23 Ill. App. N.E.2d 255.
The majority’s rejection v. York 29 Ill. relies, in my judgment, on which the defendant which the majority I with the distinction agree is ill-founded. do to reject cites York. of two counts of aggra-
In York a found jury guilty appeal incest minor On defend- stepdaughters. vated with his two charges improp- ant contended for reversal that the two incest were The and tried in same indictment. State contended erly joined charges that the were on or acts which were part based two more the same transaction therefore comprehensive properly and were in a of the brought single 4(a) indictment under section Code 11— (Ill. Criminal Procedure of 1963 Rev. Stat. Ill— 4(a)).
The court in York out that Committee pointed Comments state section 111—4 is based on Rule of the Federal Rules Criminal Procedure Rule that Rule 8 (18 8) provides U.S.C. and or two more offenses charged in the indictment if are the same similar character or based on two or more or acts together transactions connected or constituting parts of common scheme or plan. York court that had the legisla- stated ture chosen to adopt Rule 8 its it could have done so entirety, joinder two incest offenses in one indictment for trial would character, then have been in that the proper offenses were similar in constituted parts plan. a common scheme The court contin- ued that the legislature rejected the similar character and the com- mon scheme In- plan as a or more offenses. charging basis stead, continued, the court the legislature chose the the same part of multiple criteria for charging transaction as a basis offenses in the same indictment or The court rejected information. State’s contention that the proper incest offenses was and stated:
“They
offenses,
two distinct
with different victims
not,
dates. That the offenses were
nature
it-
similar in
does
self,
joinder.
authorize
Bricker
*11
rule,
The
that
(1974).)
as most often stated is
cannot,
‘a
made,
his
objection properly
over
placed on trial
charging
in
indictment
separate
when it affirmatively appears
are not of one and the same
they
”
transaction,
both in
but
and distinct
law and fact.’
People
113,117,
v.
(1975),
York
29 Ill.
“The sole common thread between the two series of acts was
the defendant’s desire for sexual gratification. Although the of
fenses themselves
required
same elements of
the ele
proof,
ments as to each daughter
proved
were
testimony
each,
of the other.
independent
That the secondary, corrobora
tive evidence came from common sources was a
of a
product
common investigation and does not affect the independence of
the offenses themselves. We find that the offenses were sepa
distinct,
rate and
not constituting
transaction,
the same
that trial of both in the same
was error.”
v.
proceeding
People
York
29 Ill. App.
In the trial the State on relied Mikel 391 N.E.2d as authority its consolidation mo- tion. The also relies on majority authority Mikel as its affirmance of the trial court’s This misplaced. consolidation order. reliance is two or more criminal acts involved in Mikel were of the same argue contrary Mikel did not trial court or in the court. He that was appellate agreed joinder proper argued was for trial and prejudiced preparing trial during because of the on section joinder Relying offenses. motion, 111—4 in his Mikel pretrial requested severance because The motion was alleged prejudicial joinder. denied. codefendant, In the information Mikel and his Charles multicount Seaton, Patton, W. assault of aggravated Gary were with' the murder of Annie Nelson and the assault aggravated Tyrone Grant. Mikel and Seaton were tried Both were found separately. guilty The evidence that Mikel and Seaton drank by jury. established intoxicating in a Danville tavern. Mikel and Seaton left beverages tavern. The affirmed appellate pointed opinion out its Seaton’s him conviction that Seaton told the officers who arrested “ tavern, said, he and Mikel left the Mikel ‘Let’s us a get when that,” he, Seaton, like and that Seaton said that nigger’ something gun. had a v. Mikel Mikel in Seaton’s truck to a Danville
550.)1 pickup and Seaton rode exchanged group intersection where Mikel racial insults with a Mikel fired standing men and women near the corner. black who hit Patton. This Gary a rifle out of the truck window.2 He almost prejudicial appeal. 1 Seaton did not raise the issue his gun pickup 2 Seaton’s rifle in a rack in Seaton’s truck. *12 the was the basis for Mikel’s conviction for as-
shooting aggravated sault of Patton. Gary Patton,
After shot at drove to another in- Mikel Seaton Danville tersection than where Mikel fired the rifle again less two blocks away of the a Nelson, out truck window. The shot killed Annie black who pedestrian shooting was on the street. This was basis of Mikel’s murder conviction. mission,
Still bent on their drove a few Seaton blocks where and Mikel came Grant was in his upon Tyrone who car. Mikel fired at rifle Grant. The bullet went through door on driver’s side of Grant’s car shooting but missed Grant. This constituted the basis of Mikel’s the aggravated conviction of assault of Grant. Tyrone stated, previously
As Mikel not did contend his acts were not part of the Rather, same he contended that he was prejudiced by of the offenses and various under section 111—4 he was entitled to a severance. shootings Mikel were a part same comprehensive
transaction and were properly joined for trial. The pointed out that the decision on whether or not sever is a matter within the sound discretion of the trial court and will not be reversed on appeal absent an abuse of discretion. v. Mikel (1979), 73 App. 21, 27, 391 550.) The court did not hold that the trial court had discretion sever or join part which were not same comprehensive transaction.
In holding that Mikel’s were shootings part acts were the same comprehensive transaction and that the trial court did not abuse its discretion motion, when it denied Mikel’s severance court stated:
“In the
case,
instant
the first aggravated assault and the mur-
der
just
occurred
minutes and less than
city
apart.
blocks
The time and distance between the murder and
ag-
the second
gravated assault was several minutes and a few miles. The evi-
is strong
dence
that the alleged
actions were
of a shooting
engaged in
spree
by defendant
and Seaton. Those
[Mikel]
actions, thus,
general
transaction or
scheme and
motive,
show common
design
op-
and method
eration.
Substantially
same evidence
pre-
could have been
sented
the State at the trial
of each offense. For these rea-
sons, the denial of the defendant’s motion for severance was
an
not
abuse of discretion.” People v. Mikel
73 Ill.
21, 27-28,
Regarding fallen husband, Irshell, to bed and gone her had Lettie Rife and and a ob- sharp a hand on her shoulder by she was awakened asleep, and moved his quiet The man told her to be her neck. ject against turned on a the man away hand across her chest. Rife pushed assailant, who then fled. The Her was stabbed light. by husband and home-inva- aggravated-battery Tate of the Rife guilty found jury sion offenses. abused its discretion asserted that the trial court
On Tate appeal, from the Rife charges the Blaylock his motion to sever denying out: charges. pointed The court transaction, evidence are of the same part
“When offenses
as
probative
of the offenses is
committed one
that
not so re-
are
of the other. When
to his commission
offenses
lated,
danger
and there is
may
present
not be
probative value
com-
consider the evidence
jury may
that the
defendant’s
of
to have
propensity
showing
as
mission
one
of
of
v. Tate
added.) People
(Emphasis
committed other offenses.
776-77,
550.
391 N.E.2d
Ill.
3d
(1982),
App.
Danville,
the of-
as were
in Tate were committed
The offenses
3d
The court did not
explain
wearing ap-
assailant’s
advances,4
method
parel, weapon,
sexual
or
entry,
flight,
alibi de-
fense established that the
the Rife
Blaylock
part
acts and
acts were
the same comprehensive transaction. Crimes
be
com-
identically
mitted and the modus
operandi
criminal conduct
bemay
compara-
ble, but neither establishes that such criminal
part
acts were
“No precise
test has emerged
determining
whether
are
separate offenses
of the same
‘comprehensive trans-
action,’ and each case turns largely upon the facts presented.
[Cita-
*** The critical
question
whether
defendant’s two
tion.]
more acts were
transaction,’
‘the same comprehensive
[cita-
***. Important factors to be
considered
the trial
de-
tions]
termining whether to sever charges for trial include the
proximity
time and location of the various charges
identity
and the
of evidence
charge.” which would
each
v. White
presented
prove
The holding that the thefts and burglary offenses were of the same comprehensive transaction, pointed out that the loca- same, tion of the offenses was the the State’s witnesses were the the and that State’s evidence established the unauthorized re- on moval three occasions of shock absorbers from the Merlin Muffler defendant, others, the Shop by acting with the and conversion of the shock v. absorbers each occasion into (People White cash. noteworthy Tate, 4 It charged only defendant was with sex offense Blaylock jury acquitted in the alleged transactions and that the attempted- him of this rape offense. concluded in 553.) 3d 472 N.E.2d App. White: that in all three instances the strongly evidence shows
“[T]he in order on his to capitalized position employment defendant by employer facilitate of the owned his from property removal of the contra- employment, of his and conversion place other than into cash was someone ready accomplished band himself. record, it to illogical
Based on the is not unreasonable or be- in the the shock removing lieve the ‘usual’ means ab- change switch/dumpster/retrieval from the method packaging sorbers vary format was an to mo- burglary strictly attempt to from suspicion away dus in order to operandi police draw such, As the theft offenses employee theory. burglary theft and view, were, gen- of the same large comprehensive concerted, or scheme. The offenses constituted eral transaction from the Muffler over a Shop period theft Merlin systematic 308, 317, 472 time.” 129 Ill. N.E.2d 553. App. v. Ill. 439 N.E.2d Peterson tried driv-
1103, also relied on was majority, and resisting peace the influence of of- intoxicating liquor under ing 30 to feet off the road into a soybean ficer. The defendant drove slumped wheel when the asleep steering field and over on his breath. officer arrived. The defendant had an odor alcohol car back into the car when get slumped He refused to out of his him the car. minutes later attempted pull Thirty the officer from arrived, the officer in truck the tow-truck driver assisted when a tow no error of the The court held that oc- the defendant out car. taking curred trial. because People Duncan relies, at analogous
on is not the case bar. In majority Duncan, charged with Olinger jointly William Duncan and Perry Falls, Illinois, Adams in and of Gordon the murders James Rock Illinois, on Sterling, May and Debbie Bushman nearby Stevens armed violence robbery, were also with armed They 1982. were interwoven the murder of- conspiracy, which offenses with Duncan, Kline, of Ed introduced Adams to employee fenses. former *15 and Duncan Kline, City. sold to Adams in Kansas Adams drugs who Later, in Ad- Falls, Rock Illinois. Duncan was discovered returned to found, bludgeoned cut and death. ams’ house where Adams to death in and Bushman were found shot morning, The same Stevens that there Duncan’s assertion response Sterling. their home occurrences, was no connection between the two the trial court apparent stated: disagree.
“We We believe the crimes were related in time and dis sufficiently tance to be are properly joined. opinion We also of and, offenses were transaction therefore, joined. that Olinger It was disclosed wanted to properly eliminate Adams and run area. Fur drug operations ther, that he any would behind. could leave witnesses Stevens murder, have tied Olinger Adams and because this he was also murdered. This was sufficient evidence to connect the occurrences.” 133 Ill. N.E.2d 1125. It is clear to me that the foregoing authorities relied on the ma jority are not similar or comparable to case before us and they are not controlling. therefore It is clear that the equally offenses of the two distinct criminal transactions in the case at bar was prejudicial and was 4(a) unauthorized section of the Criminal 111— Code of (Ill. 1961. Stat. 4(a).) Rev. I would there Ill — fore the judgments reverse and remand new conviction for a trial with directions that the two indictments be tried separately. CARROLL, Plaintiff-Appellant,
JOHN v. COMMONWEALTH EDISON al.,
COMPANY et Defendants-Appellees. (1st Division) First District No. 85 — 3545 Opinion filed September 1986.