People v. Lewis

say most one can the evidence is that it is something actually inconclusive. That taken is not evidence, by this is not foreclosed but it established it is principled jury either. Because there no basis for the did, robbery to decide as it for convictions armed should be reversed. Because those convictions were sentence, predicate Wiley’s sole for death the sentence should, turn, vacated, of death cause be hearing. sentencing should be remanded for new (No. 72308.

THE ILLINOIS, PEOPLE OF THE STATE OF Appel

lee, CINQUE LEWIS, Appellant. Opinion January 19, Rehearing May denied 1995. filed 1995.—

HARRISON, J., dissenting. Defender,

Rita Fry, Eisner, Public of Chicago (Emily Defender, counsel), Assistant appellant. Public of for Burris, Attorney General, Roland of Springfield, W. (Ter- O’Malley, Jack Attorney, Chicago State’s Madsen, General, ence M. Attorney Chicago, Assistant Cook, and Renee G. Goldfarb and Christine Assistant Attorneys, counsel), State’s for the People. opinion

JUSTICE FREEMAN delivered court:

Following jury in the court of trial circuit Cook defendant, Lewis, County, Cinque was convicted of mur (111. 1(a)(2)) 38, 1985, der par. Rev. Stat. ch. and armed 9— (Ill. 2(a)). 38, robbery 1985, ch. par. Rev. Stat. There 18 — after, eligible jury the same found defendant for the and, further, death penalty mitigat there were no ing facts sufficient death. Defendant preclude sentenced death on murder conviction and to a term of for years’ imprisonment robbery the armed conviction. (Ill. appealed directly to this

Defendant court Const. 1991, 38, VI, 4(b); ch. par. art. Ill. Rev. Stat. § 1(i); 603), stayed has been 134 Ill. 2d R. and sentence 9 — 609(a)). (134 Rules We af pending our review Ill. 2d for firm defendant’s convictions and sentence armed sentence; remand for a robbery; vacate death hearing. sentencing new death every phase at asserts numerous errors here, will than list them we proceedings. Rather opinion. it is state each as considered

FACTS at trial. Brunell following evidence was adduced 5, 1985, Donald, she that on age testified November Donald, and mother, younger lived with her Yvonne sister, Winthrop at North Quiana, in an apartment and Chicago. years Brunell was then 10 old Avenue in 5, she On afternoon of November grade. in the the fifth the someone knocked on watching was television when her given permission by asked door. Brunell and door, to the asked who was mother to answer. She went there, "C.Q.” heard reply, and C.Q. apartment in the lobby

Brunell had seen building She had also heard his voice prior on occasions. home, before, times once her and most about or 10 5, in recently, morning lobby the of November the morning, On that apartment building. particular her C.Q. concerning her with mother. Brunell had conversed her Upon ascertaining C.Q.’s identity, Brunell asked Her open mother if she wanted her to the door. mother her responded pants reached into back affirmatively, key, took the pocket pulled key. and out a Brunell C.Q. unlocked the door and it. was there. Brunell opened her person defendant in court as the known to identified C.Q. the defendant went into the apartment, Once inside living sat couch to Yvonne Don- room and on the next child, Quiana, sleeping to younger lay ald. next watching television while Yvonne. Brunell continued later Yvonne and talked. Moments defendant Yvonne go and into the "back told Brunell to take the television (one Brunell apartment). in the room” bedrooms room” leaving open. to the "back complied, the door in the "back watching Brunell continued television scream, ran hearing her mother Brunell Upon room.” hallway, "C.Q. into the where she saw over [her] mother stabbing screaming, her.” As Brunell "C.Q. stood turn[ed] around and stop.” face[d] [her] and told [her] stopped screaming defendant, Brunell again, and started Yvonne., stabbing When screaming Brunell started again, go then told her to to her or room he would kill both and her her mother. Brunell estimated her from distance defendant and her mother at time to be about 25 feet. Yvonne, Defendant turned back to her up "rolled *** took key pocket.” out of her He back then and,

went to door with key the knife and the his hand, right attempted unlock the door. Unsuccessful attempt, he open summoned for Brunell door key. and handed her the door,

Brunell leaving key unlocked the in the again,” lock. Defendant then took the key, it "turnfed] pulled it out of the lock and ran out of the apartment. took key with him. left,

After defendant Brunell went to her over mother, cousin, telephoned then Tonya Chap- her man, building. in talking who also lived the After to Chapman, police. Brunell called the police gave

When the arrived a Brunell them de- scription defendant. She was able to defen- describe height by pointing per- dant’s to an officer whom she be of comparable height ceived to defendant. She did describing likewise in weight. defendant’s fur- Brunell ther described for the officers wear- what defendant was ing, told and them his nickname and that he had a dark complexion. According Brunell, day on the of the mur- der, coat, wearing long defendant was "a black blue jeans, shoes, white, light black a kind and dark shirt glasses” carrying and was a defen- Additionally, cane. right dant had a scar on his it side of face "and met his mouth.” aunt, her Eddie later, at the home of days

Two while that police with officers. At again spoke Brunell Cathey, time, photographs showed her several the officers recognized any persons pictured of the asked if she chose her mother. Brunell who had stabbed person picture. C.Q.” a police lineup. out "picked In Brunell cross-examination, that she told On Brunell testified about 29 or 30 that her mother’s assailant was police investigating officers at the years old. She also told the a scene, police detectives at the station at crime date, had a his later that her mother’s assailant scar on the offender had a telling police face. She denied that build; pointed I that I slight skinny [was] or knew "[a]ll Further, weight.” that police to the officer looked telling the assailant police she did not recall a limp. walked with she told the officers at the

Brunell also testified that morning. seen defendant scene that she had However, did not tell until about her police, she morning conversation with defendant on the of the mur- der. she tell them that she had seen defen- Neither did prior dant on several occasions. Stukel and James

Chicago police Stephen officers apartment p.m. at the Donalds’ at 5:05 Gildea arrived respectively. and 6 Officer Stukel noticed p.m., in the locked apartment lock on the door was deadbolt down, open. but the door was position. The bolt was at that time were Lighting apartment conditions light good; daylight it and there turned on was hallway apartment. of the Brunell, apartment. children were in the Two child, attempted appeared older calm and Stukel from her. Brunell description obtain a of the offender offender, general which gave police description facts, "male black” and police report, on the reflected "scars unknown.” Because Brunell did not understand weights numerical heights, and give Stukel had her height weight descriptions by comparing weight and height police present during officers investiga- tion. Brunell additionally gave "C.Q.” Stukel the name as the assailant and a clothing "basic description.” testimony

Gildea’s was substantially the same as cross-examination, Stukel’s. On Gildea testified that 5, 1985, his November supplemental report he described male, old, the offender as a black years 29 to 30 slender build, who slight Nothing walks with a limp. in his report examination, indicated a scar. On redirect Gildea testified that he did not recall whether he had specifi- cally asked Brunell whether the assailant had scars.

Detective Robert Elmore Chicago police department concerning testified selection of Brunell’s defendant’s photograph five-picture from a array two days after the murder. Elmore’s interview Brunell on November also included a description of the offender male, build,” "slight black "thin limp,” without indicating scarring. facial

Elmore also testified that in an interview with Kevin Keith, roommate, Keith told him that he had sold Yvonne Donald cocaine and that Donald owed Keith $200. technician,

Officer Thomas Reynolds, a crime scene testified that no or weapons fingerprints were recovered from the murder scene. An,

Dr. Tae an assistant medical examiner for Cook County, testified concerning autopsy performed Yvonne Donald. It his testimony was the victim wounds, cutting sustained 31 stab wounds and six multiple the cause of death was stab wounds which organs. lacerated internal objec- Over defense counsel’s tion, An Dr. further testified to his internal examina- genitalia, tion of the decedent’s which revealed that she pregnant. five months roommate, testified Keith, defendant’s Kevin early In 1985. summer of during defendant he met his defendant, being evicted from after year, fall of that recalled that Keith in with Keith. apartment, moved his face and scar on prominent had a defendant never cane, although Keith a walked with periodically limp. saw defendant and had Yvonne Donald with acquainted

Keith was occasions, includ- or three apartment on two visited her He recalled with defendant. ing in October 1985 once in mid-October 1985 with defendant conversation Donald owed that Yvonne defendant told Keith which conversation, During that for cocaine. defendant $200 collecting the difficulty had claimed to have defendant said, kill b----.” Keith denied "I’ll money money. any Donald owed Keith Yvonne 1985, Keith was arrested for shoot- On November during an father’s home ing a hole in the wall of his until argument. County jail Keith remained in the Cook jail, home from he met de- November 6. On his arrival fendant, way apartment. out of the De- who was on his indicated large bag duffel and he carrying fendant was Al- way that he was on his to the laundromat. to Keith out, moving had not Keith though spoken again. Defendant left his stereo never saw defendant clothing apartment. at the and a few articles of Don- next when Keith learned that Yvonne day, killed, anonymous telephone he made an ald had been that he police. police dispatcher call to the He told the had killed a certain individual. thought he knew who he "was identity police Keith withheld his from because thought knew who had committed [he] [he] afraid person not know where that the murder and did [he] was.” supplied Keith phone police,

In a second call to thought informed that he police name and address and Yvonne Donald. Cinque Lewis had murdered In his third telephone call to police, Keith of- asked ficers pick up him Argyle at the El stop because he give wanted to them police information. The responded and transported Keith to the police Area 6 station. station, While at Keith told detectives that he believed that defendant murdered Yvonne Donald. cross-examination,

On acknowledged Keith that on 3, 1985, November he was arrested for criminal damage property disorderly conduct. He further testified cocaine, addiction, he had used but denied and that he had never been hospitalized for cocaine dependency. Keith stopped using cocaine in October and was using cocaine either on November the day of his arrest, disorderly conduct or on day he made the phone three police. recall, calls to Keith did not however, whether he had stopped using cocaine before hearing or after defendant make the threat on the decedent’s life. although

Keith stated that had he used cocaine and problems it, had had some got with he for the help problem. Following arrest, given his November 3 he was option remaining jail being in or evaluated at Lu- theran General Hospital for cocaine addiction. After be- ing evaluated, Sellers, beginning he saw Dr. on January 16, 1986, bi-polar disorder, for a affect for which Dr. prescribed Sellers Lithium. ingest

Keith saw Yvonne Donald cocaine and did so "maybe Contrary with her once.” to Detective Elmore’s testimony, Keith stated that he told Elmore neither that he had sold cocaine to the owed deceased nor she him $200. redirect,

On although Keith testified that he was diagnosed depressive, as a manic he saw Dr. Sellers for number year less than a a limited His on of occasions. swings, only symptoms were mood which Keith de- be you very, very happy scribed "where would for for down very, very be you then would awhile in symptoms about questioned Specifically awhile.” that he 1985, Keith testified and November October was loss. Keith memory or any suffer blackouts did not treatment psychiatric prolonged have required to never psychiatric for been institutionalized and he has never care. depart- Chicago police Paul Carroll

Sergeant 21, Carroll, October According to also testified. ment fingerprints 1987, he submitted any to locate in order Investigation Bureau of Federal within jurisdictions defendant other records of fingerprints FBI informed Carroll country. The Kirk, James named Louis person of a matched those request, At Carroll’s in California. custody who was Kirk. photograph him authorities sent California Carroll determined pictures, Noting a facial scar both was photograph in the California depicted man that the proceedings Extradition man as defendant. the same commenced, defendant and in June were Chicago from California. returned to guilt phase at the no witnesses presented evidence, jury Following the close of the of trial. robbery and the armed guilty verdicts on both returned charge. the murder eligible for the death defendant jury

The same found aggravat statutory two presence on the penalty based pars. Stat. ch. factors. Ill. Rev. ing (b)(6).) sufficient 1(b)(3), Finding mitigation no 9— death on death, was sentenced to preclude years and to a term of murder conviction conviction. robbery on the prison appeal. of 25 issues on Defendant raises excess upon the categorized claimed errors based have his We claimed error oc- in which the stage proceedings curred.

JURY SELECTION asserts the trial court’s refusal to "reverse-Witherspoon” or "life-qualify” prospective jurors constituted a denial of right to due process. See Morgan v. Illinois 719, 504 U.S. 119 L. Ed. 2d Witherspoon 492, v. Illinois 2222; 112 S. Ct. 510, 776,

U.S. 20 L. Ed. 2d 88 S. Ct. 1770. trial, Prior tendered questions several to the designed court bring before the venire "reverse-Witherspoon” (See Morgan, 504 U.S. inquiry. 719, 2222.) 119 L. Ed. 2d 112 S. Ct. The questions were intended to discover and to cull from the venire potential those jurors who automatically would vote to impose the penalty. State, turn, death asked that jury be "death-qualified” such that any juror who might automatically oppose death could be excused for Witherspoon, cause. 391 U.S. 20 L. Ed. 2d 88 S. Ct. The court initially ruling reserved both parties’ requests.

In a ruling later on defendant’s motion to "life- qualify” jury, expressed court its intention select jury in its "usual fashion” and to ask both parties’ questions tendered "at some if point [the court] they felt were appropriate.” The court stated:

"[I]initially going I’m to ask if someone indicates that they difficulty have some imposition with the aof death penalty, your I will opposition ask them is to the extent you automatically as such that against would vote any regardless sentence person of death for of the facts of questions appropriate.” the case and other I deem dire, voir During questioned the court potential each juror concerning against his or her scruples imposing However, death. the court only juror asked one a "life- qualifying” question. juror That was ultimately excused for cause State.

The State does complain concerning "reverse-Witherspoon” entitlement to the inquiry.

323 defen capital to Indeed, right a is available that such (See v. People question. to longer subject no dants is 130-35; v. Cloutier People Ill. 2d 159 Johnson 483, 497-500; v. Smith People (1993), 156 Ill. 2d 273-74.) the although at Additionally, Ill. 2d 152 a "reverse right to he had no trial time of defendant’s dur which was decided inquiry, Morgan, Witherspoon” case, retroac applies of defendant’s ing pendency right. with such defendant tively to vest 359-60; Cloutier, 156 Ill. (1985), 106 Ill. 2d Brisbon 497-98.) suggestion Further, makes no the State 2d at is questions tendered of defendant’s the substance regard, we In that "life-qualify” jury. inadequate to Cloutier, 156 purpose. See adequacy for note their Ill. 2d at 499. however, court the trial argue,

The State does In State’s jury. "life-qualify” to never refused in not do- discretion view, merely exercised its the court fail- for defendant’s urges then waiver ing so. The State the court stated issue after press ure continue to to under advise- questions take defendant’s its decision to ment. The disingenuous. argument as reject

We the State’s is "exercise of discretion” effect of the court’s practical "life-qualify” the right to was denied that defendant ruling final on the simple. court’s jury, pure if it deemed questions it would ask the matter was that so. deemed them apparently It never appropriate. them defendant, upon However, requires that Morgan into inquire pro opportunity be afforded request, penalty. of the death support spective jurors’ opinions 503-06, 729-35, at 112 119 L. Ed. 2d 504 U.S. at (Morgan, 2230-32.) Furthermore, was not at S. Ct. had an the court in his demand once required persist fashion.” in its "usual proceed its decision to nounced do not find waiver. We

Defendant, upon his request, was entitled "reverse-Witherspoon” His inquiry. request having been denied, his death sentence must be vacated and the cause remanded for a new sentencing hearing. See Johnson, Cloutier, 97; Ill. 2d Smith, 483; Ill. 2d 152 Ill. 2d 229.

GUILT PHASE alleges in excess of 11 errors at guilt trial, phase of presence any one, maintains, he entitles him ato new trial.

He initially contends that he was denied a fair trial. In regard, that urges he first reversible error in the trial court’s denial of request for a continuance. De- fendant maintains that the continuance was neces- sitated the State’s late disclosure of psychiatric rec- ords of one witnesses, of the State’s key Kevin Keith. Denial of the continuance deprived defendant of his right to effective process. cross-examination and due De- fendant makes no contention that the State failed dur- ing discovery to timely disclose Kevin Keith as a wit- ness.

The record reveals that trial in this matter was 5, scheduled to commence on March 1991. Prior proceeding trial, with the advised the court that 4, on the preceding day, 1991, March the State learned from Keith and disclosed to defendant Keith hospitalized had been and had psychiat- received ric treatment in mid-December 1985. Defendant advised that, the court in light evidence, of this he could not be ready to proceed 25, with trial until March 1991.

The acknowledged State the existence of medical rec- reported ords which 30-day Keith’s 28- to hospitaliza- tion for diagnosis substance abuse and a of him as manic Further, depressive. the State offered that Keith would willing be testify at trial concerning hospitaliza- tion. produced

The trial ordered the medical records court ruling upon without defendant’s motion for continu- ance. following day, the State tendered Keith’s medi-

cal records. The medical records have not been made record; however, part of this court the trial noted that treating records consisted of notes Keith’s from Sellers, physician, Dr. two letters from him to a circuit worker, 9, court social February dated and December 1986, specimen and three pathology reports consultation 14, 1986, on urine specimens April received June and December 1986. informed the court that he had received the reports morning ready and that he was not to proceed with trial. Defendant asserted that he needed to have a psychiatrist read reports and to consult with the psychiatrist effectively prepare order cross-examination of Keith.

In response, the State offered that Dr. Sellers was available for consultation on that date and could be made Additionally, available to defendant. the State noted it had drafted a subpoena compelling doctor’s appearance morning court on the of March 7.

Concerning records, the medical the court stated: "They long. Basically, are not that it person would take a maybe reports five minutes to read set of the whole here. Basically, page maybe Dr. Sellers has of a handwritten notes that report. includes his entire The relevance of it is screening mostly typewritten. sheet that’s There is some there, written person information in but won’t take a it very long any to read Most this. of it is self- explanatory.” acknowledged

The court that defendant was entitled to concerning consult with a doctor of his choice the re- Further, cords. the court allowed that the medical reports However, could be to presented jury. the the necessity” delay not see real to the "any court did concluding, In so court noted that proceedings. defendant, therefore, and jury yet picked been had to a of his reports had time to submit the doctor choice. stated, however, he had do so "within the The court to trial.” then parameters of The court denied defendant’s motion for continuance. completed and was on

Jury selection commenced day March 7. Trial commenced same recessed (The Friday’s adjournment 8. time of on March Friday, record; however, by judge is not the trial indicated adjournment early,” and "quite commented that after reflects occurred soon the lunch the record it recess.) March at Monday, Court was reconvened no that he had evidence which time defendant declared testify. present. to Dr. Sellers was not called to prejudiced that he was because Defendant asserts Keith, witness, uniquely damag- key provided State’s "admissions,” to ing "flight,” motive evidence murder, led to defen- commit and his accusations argues psychiatric He his- dant’s arrest. witness’ credibility. op- of an tory is to his The absence relevant history, fully psychiatric Keith’s portunity explore to maintains, pro- to a denial of due amounted A cess, proceed.” at a "loss on how as defendant was preparation afforded him the continuance would have which he was entitled. of the accused to have right

The constitutional right of with it the counsel assistance of counsel carries v. (People the defense. adequate prepare to have time to 297.) murder, charge On a Lott penalty, death seeking is prosecution where the given be defen opportunity should every reasonable against him and to investigate prepare dant witnesses Ill. 2d (People Crump defense. however, Illinois, both is, course, settled It

327 (Ill. 38, par. ch. legislative enactment Rev. Stat. 4(e)) judicial edict v. Davis by (People as well as 114— (1966), (1970), 514, 519; 35 v. Latimer People 178, 181), granting of a for Ill. 2d continuance resting preparation additional trial is a matter within judicial the sound discretion of the trial court. it Where of man appears that refusal additional time some ner embarrassed the in the his preparation accused of thereby rights, resulting defense and his prejudiced a. be conviction will reversed. People See v. VanNorman (1936), (hold 28, 31; 364 Ill. also 2d Crump, see 5 Ill. 251 ing of that denial continuance was unreasonable where days investigate witnesses, defendant had to 11 to cross-examination, prepare prepare defense chief). analyzing error,

In defendant’s claimed we have prior examined decisions which have is considered this If general gleaned sue. there is one principle to be from decisions, those it is this: where there evi is sufficient to support finding guilt, dence of a con denial tinuance will not constitute reversible error. See Van (defendant Norman, 364 Ill. 28 prejudiced not by denial of continuance where identification was positive and defendant’s confession was complete, leav ing no guilt); doubt of defendant’s v. Amos (denial 204 Ill. App. 3d 75 procure continuance impeachment witness held not reversible error where verdict did hinge not on impeachment particular aspect of testifying testimony); witness’ People v. Cobb cf. (finding 97 Ill. 2d 465 the denial of a contin uance secure the prosecution’s important "most wit ness,” whose if testimony, jury, believed standing alone, have would been sufficient convict the defen error). dants, constituted reversible question, Without important Keith was an wit- State However, testimony ness. flight motive, the heart of the supportive, while which, standing It testimony State’s case. was Brunell’s alone, to this defendant. was sufficient convict

Further, opening his statement to we notice that in argued the counsel the fact Keith’s jury, defense depression. Additionally, and on "cocaine addiction” cross-examination, examined Keith on defense counsel presentation both issues. Defendant’s of this evidence served, extent, some to diminish Keith’s cred- likely to independent psychiatric that an ibility. accepting Even opinion would have served to further diminish Keith’s yet overcome the credibility, such evidence could not testimony. strength eyewitness of Brunell’s issue, find In our consideration this we concluding expert significant presented it that the State no psychiatric abuse and treat- issues of Keith’s substance Error, if defendant a continuance any, denying ment. was a reasonable doubt. beyond harmless argument support

Defendant’s second prejudicial injected that State unfair-trial claim is pregnancy of the victim’s inflammatory and evidence preg- that the victim’s into the trial. He maintains case, was issue in the this matter was an nancy for jurors’ sympathy presented appeal unfairly outrage against de- and create a sense of the victim ruling trial dur- Further, argues, he court’s fendant. suggested to the ing admissibility trial evidence’s urges He that significant. jury that such evidence reversible error. its admission constituted An testified as follows: Dr. Attorney]: part of As [Assistant State’s

"MR. JONKER examination, doctor, you what’s did examine internal genitourinary system? known as the Yes. WITNESS: system? genitourinary What is the

MR. JONKER: genital system Genitourinary system means WITNESS: genitalia including and urinary system female and kidneys. your MR. JONKER: What did examination of Yvonne concerning genitourinary system? Donald reveal Judge. Objection, [Defense Counsel]: MR. STRUNK May I side have bar? Yes, minute, you may. us

COURT: Excuse one ladies gentlemen. and * * * *** objection gentlemen, will

COURT: Ladies be overruled. An, again

MR. JONKER: Once Doctor what were the genitourinary your system results of examination? genitourinary On WITNESS: the examination of the system I pregnant. observed she was And the fetus awas measuring length. female fetus 25 centimeters gestation fetus was at five months.” maintains The State testimony this was physical during victim’s condition an discovered autopsy was, therefore, relevant. Relevant evidence having any tendency is evidence any make the existence of that is consequence fact of to the probable determination of the action more it than be (1977), would without the (People evidence. v. Monroe 322.) 317, However, 66 Ill. 2d when even evidence is rel evant, it in the may, discretion, trial court’s be excluded prejudicial substantially if its outweighs effect its proba (1989), (People tive value. Eyler 173, v. " context, In this prejudice tendency means ’an undue suggest basis, decision on an an improper commonly one, hatred, emotional such as or sympathy, contempt, ” 218, Graham, Eyler, horror.’ 133 Ill. 2d at M. quoting Cleary & Graham’s Handbook of Illinois Evidence (4th 1984). 403.1 ed. §

Dr. An testified that the cause victim’s death was multiple Certainly, stab wounds. the additional evi- dence the was pregnancy victim’s not relevant agree that pregnancy issue. We with defendant —the ev- idence bore no absolutely relationship to defendant’s guilt or innocence for victim’s murder. This evi-

330 excluded,

dence, had netted properly it been would have damage to the State’s casé. appreciable no argument response In to defendant’s that death, no to the victim’s pregnancy bore relation responds gender, that neither did the facts of her State Yet, had the State weight, that she no needle marks. unquestionably is admis- argues, type this of evidence sible. however, weight note, gender, victim’s

We had factors and the that she no needle marks are fact capable evoking response the same emotional victim at the time of pregnant is evidence that this has not so society her The moral fabric of murder. life as we the loss of perceive deteriorated now valid gender weight. a fact as one’s or No common evidence, this by admission of purpose was served arguments contrary. to the We reject the State’s we effect. prejudicial therefore consider its the introduction This court has condemned about a crime victim’s otherwise irrelevant information guilt relationships at the or familial personal traits 265, (1986), 116 Ill. 2d People Hope of trial. v. phase fact that murder victim (prosecutor referenced 274-77 children); v. Ber People wife and three was survived (evidence (1964), Ill. 2d 370-73 nette 30 children); Dukes People decedent had a wife and (son testified decedent Ill. 2d family).) recognize, concerning wife and We decedent’s however, personal of a victim’s every that not mention right to automatically in a defendant traits will vest Ill. 2d v. Williams a new trial. 229. the evi- matter, are aware that preliminary

As a we dif- is somewhat pregnancy here the decedent’s dence Ber- Hope, in presented in from that ferent character case, though procedurally This and Dukes. nette cases, factually analogous to more to analogous those is (1988), 50, where, during v. Evans the People sentencing hearing, the phase second of the defendant’s commented jury that the victim was prosecutor to the character, Notwithstanding the in pregnant. differences pregnant that a murder victim was at the time evidence no of her murder is more welcome than evidence case, family. left behind a In either evi victim such unnecessary undermining an risk

dence creates and impartiality proceeding. fairness Given concerns, subject comparable we admit improperly ted to scrutiny analysis evidence here the same as in and that line applied Dukes of cases.

The analysis, as first stated in Filippo v. 212, 217, 224 Ill. requires reviewing court to prejudicial consider whether evidence is elicited incidentally. Where this is type presented evidence such a manner jury as cause the to believe it is mate rial, its is highly prejudicial admission and constitutes objection reversible error unless an thereto is sustained jury and the disregard instructed to such evidence. Ber nette, 30 Ill. 2d at 371.

Incidentally, Bernette and prior Dukes were decided changes to the in our capital sentencing procedures. 1976, Prior guilt a defendant’s and sentence were (See single determined in a proceeding. Ill. Stat. Rev. 7(c)(1).) 1971, 38, 1(b), ch. pars. Gregg Since 1— 9— Georgia 153, 859, 428 U.S. 49 L. 2d Ed. S. Ct. capital trials this State have been conducted a bifurcated basis. Rev. par. Ill. ch. Stat. 1(d).)Notwithstanding changes in capital sentenc 9— ing procedures, the test of prejudice announced Dukes, and as Filippo, applied in Bernette and remains viable. See 116 Ill. Hope, 2d at 276-78. urges case wholly analogous is that, therefore, result,

Bernette the same reversible Bernette, error, of mur- should obtain. In the widow the State In by testify. response der victim was called the to to the testified that: prosecution’s questions, the widow her a her baby-sitter; she lived with four children and years youngest oldest child was six and the seven months; of youngest only and the was the one the chil- Further, marriage dren of her to the deceased. born during argument, prosecutor argued the the conse- final by to the quences family jury. suffered the victim’s in additionally Hope, have considered a case We in also which conduct similar to Bernette resulted There, trial, throughout guilt phase in the of reversal. to prosecutor testimony the reference and elicited made he regarding family. only the victim’s Not did murder opening statement, in his but he family reference the did so in direct examination the decedent’s widow Further, and of he had admitted into another witness. and family. a of the decedent his photograph evidence And, closing in family he the finally, referenced convictions, the argument. reversing In the defendant’s family decedent’s court noted that the evidence the in such method presented questions in a was series mate- permit to the conclude the information jury as rial. analogous disagree the case at bar is to Ber-

We further, distinguishable and, Hope. nette find it also from Here, did prosecutor in and the Hope, unlike Bernette pregnancy. Only the the not dwell on fact of victim’s question prejudicial one was elicit propounded however, In both and several testimony. Hope, Bernette wives, questions were asked of decedents’ the extreme of Bernette, prosecutor even went "to Addition- ages children involved.” eliciting testimony here, Hope, unlike in Bernette and ally, family. member of the victim’s presented not instead, of the medical was, presented part as It such, examiner’s autopsy testimony. As the evidence was not laden the same with level of emotional overtone testimony Finally, was the in Bernette Hope. here, unlike and Hope, prosecutor Bernette did argue the fact of the pregnancy jury victim’s Thus, either opening closing argument. or in impact the error was not further exacerbated. People v. Free 94 Ill. In 2d both Ber however, Hope, nette and the prosecutor commented in argument jury to the on the victims’ families. asserts,

Defendant disagree, and we do not that his objection overruled to this testimony, presence in the of the jury, amplify tended to materiality. its Hope, (in 116 Ill. at overruling 2d 278 objections to improper evidence prejudicial Dukes, effect amplified); was see also 12 Ill. at 340 (jury 2d to assumed have deemed evidence objections material where admissibility its were over ruled).) Nevertheless, against measured the conduct Bernette and Hope, we cannot conclude that the manner in which the presented evidence here unduly was focused the jury’s materiality attention on the of this evidence. view,

In our admissibility evidence, of this though prejudicial, irrelevant and did substantially compro- mise right defendant’s to a fair impartial trial.

In footnote, defendant argues that he "doubly was prejudiced” by this error. He contends that since the feticide dismissed, count had been he presumed that pregnancy Therefore, evidence presented. would not be request he did not during appropriate inquiry voir dire potential into the jurors’ on prenatal attitudes life is- Any therefore, sues. "pro-life” juror, remained undetec- ted and may have voted him to convict on an improper basis.

Regardless of any error in admitting pregnancy evidence, feticide is not an issue in this case. Voir dire

334 only improper, have been but subject would not

on v. People the error. See compounded would also have (use handgun Howard (1991), 147 Ill. 2d 135-36 voir dire where such question as properly excluded v. Stack trial); at was not a central issue cf. (reversible ques error to refuse to (1986), Ill. 2d defense, in the jurors insanity an issue tion on potential case). voir dire issue

Moreover, defendant’s we deem dire, voir prior to commence Subsequent but waived. trial, adversely ruled the court ment preg of the victim’s preclude his motion to evidence assertion, during pretrial or made no nancy. Defendant that voir dire ei motion, was rendered post-trial in his the court’s incomplete result of inadequate ther or Hobley 272, 299 (Cf. People ruling. dire).) voir reopening propriety (upholding here for the first claim is raised footnoted Defendant’s People v. is, therefore, issue waived. time on appeal; Enoch Ill. 2d 186. the admission next contends alleged state- concerning testimony

Keith’s b----,” error. He ment, was reversible "I’ll kill hearsay impermissible the statement maintains proof for the of admitted improperly offered and matter asserted. admissibil- any error responds

The State hearsay it grounds was on the ity of this statement basis on this object failure to is for defendant’s waived at trial. that, objections his generally, replies "foundation,” "lack of "speculation,” lack

grounds of "foundation, hearsay” convey it’s trustworthiness,” interchangeably. terms use these tendency loosely though he therefore, that even argues, He apparently such hearsay, the basis object on specifically did not nonetheless, should, inferred. be basis "foundation, Initially, we note that defendant’s it’s objection hearsay” was not asserted to bar the state- here, challenged response ment was in but rather other of the State’s evidence not at issue here. basis for defendant’s trial objection to the statement at now issue was clearly that it lacked trustworthiness because Keith was unable to provide the date on which the state- ment specific legal was made. Defendant’s basis for the objection proper was that no foundation had been laid for admissibility the statement. objection

An admissibility to the of evidence because it a proper lacks foundation is not synonymous with an objection that the proffered fact, evidence is hearsay. In the "lack of foundation” objection may employed be at respect trial with to at least each of following: competency witness, of a lay personal knowledge, quali- fication of an expert witness, relevancy, as well as satisfaction of a hearsay exception. not, The terms are suggests, interchangeable. Graham, See M. Cleary & Graham’s Handbook of Illinois Evidence (6th 1994). 611.18 ed. §

Here, objection was to the effect that ev- idence already presented was insufficient support statement, introduction of the i.e., no date for the mak- ing of the statement supplied prior to its introduc- tion, i.e., no proper foundation was laid for its introduc- Graham, tion. M. & Cleary Graham’s Handbook of (6th 1994).) Illinois Evidence 611.18 § ed. There was no objection to the substance the statement as constitut- ing hearsay, and we decline to infer such from defen- dant’s "loose” use of terms.

It is admission specific settled that a objection to the of evidence grounds waives all specified. (People v. (1986), Barrios 275; Ill. 2d People v. Garcia (1983), 58, 86; 97 Ill. 2d People v. Curry Ill. 2d 170; v. Canaday 423-

336 24.) object is the failure to on settled Equally of the issue proper grounds at trial results waiver v. Coleman People "procedural default.” through v. Lane 340; (1963), 129 Ill. see also 2d 331.) Defendant, having objec his Ill. 2d based foundation, may the statement on a lack tion to (See Lane, hearsay appeal. as the basis now assert 331.) hearsay objection is waived. Ill. 2d at Defendant’s assertion, Further, contrary plain defendant’s to as a mechanism error is not available in this case the evi he We do not deem may which avoid waiver. error, if any, or the closely dence here to be balanced a fair trial. magnitude as to have denied defendant such Enoch, 615(a). 190; 2d 122 Ill. at 134 Ill. R. See 2d assigns in the trial court’s

Defendant next error three testimony concerning Keith’s Keith’s admission of maintains phone police. calls Defendant consistent statements which testimony prior constituted testimony. inadmissible to bolster Keith’s were mo post-trial to in his Although generally objected admissibility tion, objection no to the defendant voiced to avoid required at trial. Both are testimony of this Enoch, 122 Ill. 2d at 186. waiver. See evi- urges insufficiency in the next an robbery his conviction. supporting armed dence sustain a In of evidence to reviewing sufficiency whether, viewing the conviction, is inquiry the relevant prosecution, most to the light in the favorable evidence the elements fact have found any rational trier of could Col (People a reasonable doubt. beyond of the crime lins the evidence We believe rob armed support was sufficient here bery conviction. argument, insufficiency support

In He of an intent rob. was no evidence offers that there key from Yvonne the removal asserts Donald’s for pocket purpose opening door, apartment deprive locked not the decedent brief, her In property. reply urges of defendant that argument the thrust of his is the of a “obvious absence general key intent” to take given where he had key to Brunell and it merely was used to door. open the intent, a showing general Absent of argues, a robbery the armed conviction must be reversed. Robbery general a (People is intent crime. v. Banks " 388-92.)

(1979), 383, Ill. 75 2d '[G]eneral intent exists when from the the prohibited circumstances result may reasonably expected be to follow from the offender’s vol act, untary irrespective any subjective of desire to have ” accomplished (1988), such result.’ v. (People Talley 177 170,173, Ill. App. 3d quoting (1958), Louisiana v. Daniels 899.) 998, 1007, 236 La. 109 So. 2d Unlike specific crimes, intent proof that the prohibited harm was intended is necessary proof general a intent crime. See People (1993), v. Garland 254 App. Ill. 3d 827 (mental state is essential element of specific intent crime); see (1979), also v. People Jackson Ill. App. 76 3d (armed robbery proved by showing defendant took property use or threat of force while armed with dangerous weapon). relies in particular v. People Tiller

(1982), as additional support for his claim of insufficient In Tiller, evidence. the defendant had left the crime prior scene to his murdering codefendant’s the victim. When the defendant returned, later he took the murdered victim’s vehicle. This court reversed the defendant’s armed robbery conviction. In doing, so court stated that reversal necessary was because "there [was] no evidence to show that the force exerted against [the victim] was for the purpose depriving her [property taken].” however, since, expressly repudiated

This court has in Tiller unnecessary holding. to its that statement v. Strickland People Ill. 2d Strickland the statement The court noted Tiller was at with this court’s earlier rationale odds Jordan 303 Ill. 316. Jordan, challenged robbery their

In the defendants their attack claiming a lack of evidence convictions robbery. purpose for on the victim was from the any money asserted taken defendants accomplished afterthought was an victim violence, In sustain any force or intimidation. without that, convictions, the court reasoned ing the defendants’ "[ijf, fight in which quarrel, as the result of occurs overcome, then, and the other parties of the is one the fight the intention having without before formed began, takes one, the of money vanquished added.) Jordan, (Emphasis robbery.” committed is fense 319. Ill. 2d at 303 realigned this the decisions area

Having recently law, deviation. Consistent with the we intend no of Strickland, robbery Jordan proof hold that and we a for required is to sustain conviction intended robbery simply is the robbery. gist of armed armed of force. taking by force or threat property of another’s Banks, 1985, 391-92; Ill. Rev. Stat. Ill. 2d see also at 38, 1, pars. 18 —2. ch. 18 — attempts

Further, extent that defendant the negated the of events a break in the chain argue that Notwithstanding any we it. robbery, reject elements of Brunell, the offenses commit- from solicited assistance single series of essentially a were ted defendant Brunell’s brief and after Significantly, acts. continuous pulled the key, turned assistance, defendant compelled apartment. it from the and ran with it from the lock the did additionally argues evidence taking key of the because not sustain the conviction from the pocket decedent’s after her death was not ac- complished by threat support or use of force. In of this argument, defendant offers that there was no announce- of holdup, ment and no threats to force the decedent key. surrender Force or threat of is an force element of the offenses (Ill. robbery robbery. 1985, armed Rev. Stat. ch. 2.) 38, pars. This held court has that the nec 18— 18— essary force or threat of force must be used aas means taking property (Tiller, from the victim. Ill. 2d long at As as is there some concurrence between taking the defendant’s threat of force victim’s property, for conviction armed is robbery proper. See v. People Williams

416.

Strickland is Strickland, instructive. In the defen fatally dant shot a police officer and then the of took gun. On ficer’s appeal, argued the defendant required conviction reversal because the evidence did not establish that the force exerted was intended or taking used a means of gun. the officer’s rejecting In argument, this this given court held that the series events, necessary concurrence between the defen dant’s use of and taking force the victim’s property was sufficient to support concluding, In conviction. so " Jordan, quoted stating, this court fact that '[t]he had [sic] been to a physical reduced state of non-resistance money before his was taken does not ” relieve the crime the quality constituting robbery.’ added.) (Emphasis Strickland, 154 Ill. quoting 2d at Jordan, 319; 303 Ill. at accord Blake (defendants’ 144 Ill. 314 2d of use threat and force against victims in upper level of during house codefen dant’s removal property essentially of held a related series of acts the establishing necessary concurrence of events to constitute robbery). armed Strickland,

Here, stabbing taking and the the a of essentially single series continuous key of the were teaches, committed by defendant. As Strickland the acts at the time the tak the victim did not resist of fact that of offense as ing negate the character rob does stabbing necessary concurrence between bery. taking key present properly sup and could Tiller, Ill. robbery. armed 2d a conviction for port Cf. (armed robbery conviction of defendant convicted accountability theory reversed where defen murder on by co- left scene before murder was committed dant had returned to take victim’s vehi only later cle).

Furthermore, was no demand or threat of there Williams, is of no moment. The defendant holdup a similarly unavailing argu asserted ment. evidence,

Having any we conclude that reviewed the find the essential elements fact rational trier of could i.e., taking by force or threat of robbery, property armed the convic Nothing required more is sustain force. having proved, been The essential elements tion. is sufficient met its burden. The evidence State has See Col robbery defendant’s armed conviction. support lins, 2d at 261. 106 Ill. of his challenges validity further him grounds denied on the court

convictions someone else present evidence that opportunity assigns He error charged offenses. first committed Chicago of three testimony preclusion the trial court’s another concerning investigation officers their police defendant, ap- suspect’s the other According to suspect. offender description given matched the pearance at the time of the incident. police testimony one-page concerned

The proffered into the record. was read investigation report which report Daryl The detailed the three officers’ contact with Bell, victim, a friend of a friend of the and their investigation sum, In of information obtained from Bell. gave name of report provided: Daryl police Bell as a in suspect Pat McGee this murder. Bell identified police photographs McGee from and informed them that living McGee was housing proj- the Cabrini Green ects. Two addresses for McGee were checked and "bogus.” determined to be report

The additionally provided po- that Bell told lice that injury right thigh, McGee had an to his pos- sibly resulting stab, from a walking cut or that he was cane, with a right bandaged. and that his arm was Ac- cording Bell, to McGee told Debra Crosby, 4848 North that he Winthrop, was beaten "gangbangers” in Ev- report anston. The further stated that police Evanston report. had no such

Defendant made an offer of proof, essentially consist- ing of the report. contents of the After receiving the of- fer, the court noted that the officers themselves could testify concerning neither injuries McGee’s nor that he Further, walked with a cane. the court noted that Bell present murder, at the and is merely friend of a friend of the victim. The court concluded that the in- and, formation the report such, was unreliable would be improper present jury. to the agree We with the trial court’s assessment of this *** evidence. Certainly, accused may attempt "[a]n prove that someone else committed the crime with which charged [citation], he is right but this is not without (1984), limitations.” (People Ward 101 Ill. 2d 455.) Generally, admissibility the test for of evi dence is whether such prove par evidence tends to ticular charged. offense (People v. Peter 55 Ill. 2d 459.) "[WJhether what is offered as evidence will be admitted depends or excluded upon whether it tends to guilt probable.” more or less question

make (Ward, Ill. at Where the offered evidence is 2d court, speculative, uncertain or the trial its discre Ward, 455-56, tion, it. 101 Ill. 2d at may properly reject v. Dukett 432, 450. see also connecting mur- There is no evidence McGee to this concerning by police Mc- der. information received them, only injuries Gee’s and his use of a cane came McGee through police Bell. The never met indirectly, verify not able to information apparently were such, the that McGee given them Bell. As evidence speculative a in this murder was too suspect therefore, was, excluded. properly theory, support In further of his misidentification preclud- trial court erred in defendant asserts the police June 1988 ing certain evidence included significant in the arrest finds report. description for the report on the arrest space provided arrestee, "heavy” for build was checked of the the box "me- marked either "slender” or instead of the boxes assailant, Yet, as reflected description of dium.” a reports, incident denotes on the November inconsis- urges these facts as "slender” build. Defendant report. admission of the arrest supporting tencies of the admissibility reports, In further of the support of the attention to section 115 —12 defendant directs our (Ill. 1991, Stat. Code of Criminal Procedure of 1963 Rev. 12). 12, he 38, Relying on section par. ch. 115 — 115 — police from offic argues testimony of observations arrested is appearance person physical ers of and admissible.” "relevant matter, agreement our we note preliminary

As utility of misperceives with the State —defendant statutory excep 115 —12. Section 115 —12 is section admissibil allows for the hearsay tion to the rule which (Ill. 1991, Rev. Stat. prior of identification evidence. ity 12; par. Pieczynski, ch. see also 6 L. Illinois 115— (1989).) Practice 23.68 Born out of this court’s deci § (1980), sion in 2d the rule is People Rogers 81 Ill. designed permit the use consistent out-of- prior court statements as corroborative or substantive evi dence of a witness’ of a prior identity defendant. (1990), 84, 104-05; People v. Holveck People v. 89, 140; Graham, Hayes Cleary Ill. 2d M. & (6th Graham’s Handbook of Illinois Evidence 611.16 § 1994); ed. see also People App. v. Davis 137 Ill. 3d proffer report Defendant’s of the arrest de scription was neither corroborative Brunell’s prior identification of defendant nor was it substantive evi dence of such. The application rule has no here.

To support theory misidentification, sought to rebut identification, Brunell’s November 1985 as recorded on the reports, incident with identification information included on a June report. 1988 arrest trial court deemed arresting officers’ description on report arrest purpose. agree. irrelevant for that We

Given 21/2-year period between Brunell’s identi fication arrest, report the arrest had little or tendency no to prove defendant’s misidentifica tion theory. Even if description Brunell’s verbal defendant’s body type inaccuracies, suffered from there was no similar infirmity in her ability recognize defendant’s face. More than years after her initial 21/2 description "C.Q.” to police, Brunell continued to rec ognize the face of defendant as that of her mother’s as sailant.

Considering lapse of time between Brunell’s initial arrest, identification and defendant’s the method employed by police to obtain from her a description of body type, and the fact that Brunell positively defendant, identified both before and after his arrest, we conclude that the report arrest was not proba- on the issue of identification. Defendant was not tive prejudiced by preclusion. its jury contends that the venire was

Defendant next “inadvertently” informed tainted when the trial court from Folsom Prison and the the venire that witnesses County police departments Alameda and Oakland would testifying. the venire be Defendant’s motion to strike was denied. argues unquestion- ”[i]n view of the surrounding particular, Prison, in folklore Folsom

able only wondered, assumed, if not the venire could have felon.” It is defendant’s that Mr. Lewis was convicted insinuating that trial court erred in contention engaged activity.” in “collateral criminal defendant had Further, asserts, not be cured defendant the error could tainting He maintains that without further the venire. required. reversal is responds trial court’s informa-

The State that the concerning proper jury the witnesses was tion to the any prospective juror knew a wit- to discover if order points court, Further, out, the trial the State as did ness. jury party which would did not inform the that the court calling Therefore, the State the California witnesses. be court, concludes, trial defendant was not as did the prejudiced information to the venire. the court’s additionally agree note that with the State. We We requires every be tried the constitution partial impartial jury. In satisfaction before a fair and potential mandate, witnesses must be identified of this jurors any between the and these wit- associations Pieczynski, explored. Practice L. Illinois See 6 nesses (1989). § 25.45 assuming irregularity in the selec

However, an even required appears jurors, it unless reversal is not tion way prejudiced. been has in some that the defendant 259-60.) Given the v. Ward (People heard, jury testimony which eyewitness compelling instead, result, likely conviction is informa- witness the limited having heard jury tion. need court that the trial argues further

Defendant witnesses potential names of only given have places occupations identifying without further would limited information Perhaps such employment. against any potential guard appropriate been have impar However, fairness and to defendant. unfairness totally be jurors require potential that tiality do not their they before assume the facts of the case ignorant of (1985), 105 Ill. 2d (People v. Del Vecchio jurors. roles as dire, trial court during voir Notably, judge fairly juror’s ability potential ascertained each Any at trial. presented impartially on the evidence minimal. regard in this was prejudice to defendant that certain other additionally contends In that denied him a fair trial. jury disclosures to he disclosing that regard, argues testimony he first California, testimony in as well as custody was in prejudicial. was concerning procedures, extradition permitted the State was objection, Over defendant’s check re- fingerprint that an FBI present evidence California, custody that defendant was vealed procedure. the details of the extradition along with admissible properly trial court ruled such evidence investigation. Defen- police in the steps to demonstrate however, prej- infer maintains, jury could dant activity criminal from this evidence. prior udicial given was not jury that because posits The State California, there custody in the reason for defendant’s resulting prejudice. was no disagree the State’s assessment with

We the evidence of defendant’s effect of potential prejudicial which has held that evidence custodial status. This court suggests or implies the defendant engaged has prior criminal activity should not be admitted unless somehow relevant. The fact that such evidence comes to jury by way of inference does not alter its potentially (See People v. Lehman prejudicial character. (1955), 5 (where Ill. 2d 337 court considered prejudicial effect of inference that defendant intending other criminal conduct).) Though nonspecific nature, incidental in the jury could have inferred from the presented evidence here that defendant engaged had been in prior criminal See People Bryant activity. (1986), 497, 113 Ill. 2d (evidence police of prior officer’s acquaintance with de criminal fendant could support inference of a prior rec ord); see also People v. Stover (1982), 89 Ill. 2d 196.

The State additionally dispositive offers as gen eral concerning rule the admissibility investigation of stated in People v. rule, evidence. The most recently Hayes (1990), 89, 130, 139 Ill. 2d is that the steps in the investigation of a crime and the leading events an up to arrest are relevant when necessary important to a full explanation of the State’s case to the trier of fact. blush,

At first appears the rule to comfortably mesh govern with those rules which the admissibility of other- Here, crimes evidence. other-crimes evidence is incorpo rated for the purpose explaining of period between Brunell’s identification of the assailant and his ap prehension. Thus, the other-crimes evidence is properly presented purpose for a other than to show the defen People v. Phil propensity dant’s to commit crime. lips Hayes (1989), Yet, makes clear, evidence of other crimes is not merely admissible unfolded unless such evi investigation to show how the dence is also specifically relevant connect the defen (Hayes, dant with the being crimes for which he is tried. v. Richardson 139 Ill. 2d at 131. See People v. McKibbins (construing Ill. 2d 322 96 Ill. 182).) prevent the risk applies The limitation 2d face the State’s in the to a defendant even prejudice in its steps present evidence legitimate need investigation. the decision rely portion on a different

We In claimed error. of defendant’s for Hayes disposition prejudiced he was contended that the defendant Hayes, suggested that he of evidence which by the admission Specifically, criminal conduct. engaged prior had photograph testified that he identified witness po- at the violent crimes photo books testimony that lice station. The defendant claimed such jury he had a crim- informed the that violent improperly background. inal agreed may have raised

This court the evidence jurors’ inference in the minds the defendant an Nevertheless, con history. had a criminal the court prejudicial where cluded the evidence was not so and, such fur there was no direct evidence of conduct ther, persons whose suggestion there was no that po were in the books contact with photos previous had 145-46; Hayes, People lice. 139 Ill. 2d at v. Diaz cf. App. (holding 78 Ill. 3d 277 that detailed evidence error). criminal activity was subsequent defendant’s Here, Hayes, jury as in heard neither direct evi argument dence nor at this of trial of defendant’s phase murder conviction. disclosure was limited other The in custody facility fact that defendant was subsequently California and was extradited here. Con have been ceivably, the evidence could tailored only FBI provide that check revealed defendant’s he was presence subsequently California and that Nevertheless, presented extradited here. the evidence as issue “overpersuade jury” had no on the tendency (1980), 79 guilt. Lindgren of defendant’s unduly prejudiced Ill. 2d Defendant was not this evidence. by

Defendant’s argument second in support of his prejudicial-disclosures contention is that testimony concerning his prior eviction had no proper purpose. He maintains that this evidence was irrelevant and served primarily to portray him as a "deadbeat” and a bad person.

Evidence of defendant’s eviction was elicited on separate three trial, occasions at twice the State and once in the course of defense counsel’s cross-examination of Keith. only objection came at the evidence’s first Further, mention. we notice that this claimed error is included in post-trial motion. We therefore deem the issue Barrios, waived. See 275; Enoch, at 122 Ill. 2d at 187. assigns

Defendant additional error to the admission of evidence offered to prove flight. Defendant contends that the State knew that he had left Illinois to surrender to authorities in California on December 1985. Nev ertheless, the State misled jury to believe that de fendant fled successfully police eluded for years. 21h In a argument, related he asserts that instruction, circumstantial-evidence premised which was on the theory flight, State’s was also error.

The State responds this issue is waived for object defendant’s failure to at trial and to include it in post-trial motion. The record during reveals the instructions conference, the State tendered an instruction circumstantial evidence. objected, arguing the inexistence of such evidence. The responded State the instruction was properly premised on the State’s present intention to circumstantial evidence of flight. defendant’s Over objection, given. instruction was

Initially, we notice objection that defendant’s to the circumstantial-evidence instruction properly has been

349 v. Gosier post-trial People included in motion. 162.) Although voiced (1991), Ill. 2d testimony flight to Keith’s on the objection subject no trial, for given flight at that served as the basis we to the instruction, objection deem defendant’s both errors for preserve instruction sufficient to claimed review. said, we

That nevertheless find no instructional er trial, ror. At Keith that defendant told him testified money the decedent owed defendant and that he testimony would kill her. This was circumstantial evi Thus, dence of to kill. defendant’s motive even absent competent flight, evidence of was ap instruction light propriate of the State’s motive evidence. Furthermore, any giving refusing error in or an instruc justify tion will sup not reversal when the evidence in port convincing of the conviction is so clear that the jury’s verdict been have different had the would given. not been (People (1989), instruction v. Austin 118, 124; Ill. 2d see v. Farnsley also 53 Ill. 546.) 2d Such is the here. case We next consider the propriety presen- State’s flight tation of During evidence at defendant’s trial. opening closing argument, the State informed the jury murder, that after defendant had committed the he fled. In support argument, presented State testimony police from Kevin Keith and investigating of- investigated ficers who the whereabouts af- of defendant ter the murder. flight,

The fact of when considered in connection with case, all other evidence in a is a circumstance which may jury tending be considered by prove guilt. Herbert (People Ill. The infer guilt ence of which may flight depends be drawn from upon knowledge suspect the offense has been committed and is or may suspected. that he be

350 273.) v. Harris

(People (1961), knowledge is absent of his any asserts evidence im therefore, argument and were and, the evidence disagree. We proper. was aware that he that a defendant

While evidence knowl flight, actual suspect prove is essential was necessary to render arrest is not edge possible of his from there is evidence admissible where such evidence Hayes v. People be inferred. may which such fact v. People (1974), 89, 133; also (1990), Ill. 2d see Griffin here presented The evidence 3d App. 23 Ill. knowledge. inference of an properly support could on Keith’s flight of was based theory The State’s the murder defendant day that on the after testimony had Although defendant bag. a duffel carrying left home he never moving apartment, of out of the spoken never some equipment and He left behind his stereo returned. support of In further clothing apartment. in the other extensive, of its presented State evidence theory, its prior at his unsuccessful, for defendant search but was which defendant places and such other residences evidence, jury could this frequent. From known to suspect that he was defendant knew validly infer that consciously police. avoided and that he conclu our subject supports law on the Decisional (evidence Pavelick People (1939), 372 Ill. 567 v. sion. See located in defendant was flight proper held where of of a after commission years than two California more a mere more than evidence showed burglary and abode); People place or usual of his home absence from (evidence that Langford (1992), v. 3d 855 App. 234 Ill. of arrest at time custody in Tennessee flight); People Wilson admitted as evidence properly inference (holding 3d 693 App. 87 Ill. that defen testified drawn where victim flight properly went police she and in his when apartment was not dant him; defendant’s look for officer informed room police mate that defendant was wanted in connection with defendant; rape; unsuccessfully searched for police rape); until 17 after days defendant not arrested (holding Ill. inference App. v. Torres 3d 171 friends, inquired officers had properly drawn where whereabouts, neighbors and relatives inquiries even absent evidence that the officers’ were defendant; related to and defendant failed to return to pick work or to elude up paycheck attempted police by hiding refrigerator); in a Hayes, but see 139 Ill. 2d 89 (finding no which could facts from inference be drawn where evidence showed that went to detective home of defendant, parents, speak defendant’s asked to with left his phone number and returned a number of times to defendant; locate but no evidence that defendant either card, received officer’s was that police informed were looking him, for that parents’ or he even at lived home offense). to prior

Defendant, nevertheless, that his departure asserts from Illinois the purpose surrendering was for of to Cal- ifornia authorities. As the State that departure knew was for that purpose, urges it was improper present flight. to of evidence

The jury concerning heard the evidence defendant’s heard, December Having 1985 surrender. it so was free believe, not, departure or that defendant’s from Il- surrendering linois was for the purpose California. However, evidence of his departure, allegedly to sur- render, admissibility did not defeat the of the same as flight. merely evidence The fact of his surrender went weight to the flight of the State’s evidence. We find no "injection” flight error the into this case. alleged

Defendant’s next trial error concerns the trial court’s refusal instruct on the circum- jury of an stances identification. instruction, tendered an identification pattern our current language of which mirrors (See Illinois identification. eyewitness

instruction Instructions, Criminal, 3.15 No. Jury Pattern Pattern (hereinafter 3d).) 1992) (3d The State IPI Criminal ed. instruction, Illinois Pat- arguing that to the objected Criminal, 3.15, edi- Instructions, No. second Jury tern given on be tion, that no instruction recommended covered identification; subject adequately believability of wit- on the general instruction Instructions, Criminal Jury Illinois Pattern nesses. See 1981). (2d 3.15 ed. No. counsel, tendered instruc- of his support

Defense was in the the instruction tion, the court advised After some instructions. pattern newest edition its record, court announced the trial off proceedings instruction, tendered give declination Instructions, give Illinois Pattern instead to and chose Further, and consis- 1.02, Criminal, second edition. No. instruction, pattern to the with the comments tent argu- him permit he would advised defendant court identifica- eyewitness ment on the circumstances Jury Pattern Instruc- closing. Illinois during See tion (2d 1981). tions, Criminal, No. 1.02 ed. error is noted, instructional previously

As we have when the evi support a reversal may harmless convincing clear and is so in of conviction support dence have been different would not verdict jury’s the (People given. been instruction proper had the even Johnson To determine Ill. 146 2d prejudicial error was so instructional a claimed whether error, the reversible as to constitute facts light in of the viewed must be instruction tendered See United presented. evidence case and the (7th 1413, 1422. 1990), v. Garcia F.2d States Cir. instruction, included which tendered Defendant’s factors, as follows: read five identification you weigh testimony "When the identification of a wit- ness, you should all consider the facts and circumstances evidence, including, to, following: in but not limited the (1) opportunity The the witness had to view the offender (2) offense; degree at the time of the The witness’ of atten- (3) offense; tion at the time of the The witness’ earlier de- (4) offender; scription of the certainty The level of shown (5) defendant; the confronting witness when the length of time between the offense and the identification.” argues that the give court’s refusal to the above instruction was particularly unfair because: the presented State a single eyewitness, who described the age 30, offender as thin and whereas defendant was heavy old; set and only years the police report listed unknown,” offender as "scars in "stark” contrast prominent scar on face; the side of defendant’s witness did not tell the police that she was even remotely offender; familiar with the lineup was not offense, close time to the years later; but 21h Keith, who had "numerous motives to make false ac cusations,” was not an eyewitness upon whose testimony the case depended.

Initially, we note that the court’s instruction was consistent with pattern instructions they existed at the time of Nevertheless, defendant’s trial. we have considered defendant’s instruction, tendered particu- larly the factors, five identification light of the evi- presented. dence regard,

In that we first note that Brunell had more than adequate opportunity to view the offender. She not only observed him prior murder, to the but interacted with him during murder, the course of the and assisted departure from apartment after the murder. Second, Brunell, given who had the offender access to apartment, watched as he repeatedly assaulted her mother, and continued to watch as he up” "rolled her and took key. Brunell then responded to the of- fender’s summons for assistance in departing. Surely, at- concerning the level of her question there can be no Third, the offense. Brunell’s tention at the time of been con- as the offender have descriptions of defendant scar, a exception of the omission of sistent. With the build, de- body issue of her discrepancy some on the and Significantly, positive. scription stranger, a description attempting was not Brunell during of an of- first time the commission seen for the Fourth, known to Brunell. fense. This offender was of defen- unwavering in her identification Brunell was offender, and in police lineup in the dant as the both Brunell identified defendant finally, court. Fifth and nickname, murder, and by the immediately after police later, ap- There was no photo array. in a days two between the commission lapse in time preciable this evi- apparent, As is and her identification. offense jury by any guidance to the unnecessary dence rendered tendered instruc- in defendant’s those factors included tion.

states, whether give an instruction remains a matter for the court’s determination. Where the court deter mines, instance, in the first that an instruction is war ranted, the rule merely requires the pattern use of the instruction, if such legally instruction is correct. See 451(a); Ill. 2d R. People (1981), v. Wilkerson 151, 158-59.

The "complexities pitfalls” might which ordi- narily an attend identification were simply present not in this case. 3.15, IPI Criminal 3d No. Committee Note.) Thus there was no need to instruct on the five identification assuming factors. Even that defendant’s tendered instruction proper was the one to have been however, given, a different verdict would not have resulted. We conclude no error in the court’s identifica- tion instruction.

Defendant’s final guilt phase claimed error is that the evidence does prove not identity sufficient support the that, convictions. Defendant asserts not only does he not fit police him, description of but procedures identification were sufficiently reliable to overcome weaknesses in the identification evidence.

Specifically, defendant points out that Brunell’s de- scription to the police was by means of making compari- sons between officers present during investigation and her recollection of the appearance. assailant’s Her physical description of the assailant was as follows: "male, black, years old, 29-30 build, slender walks with slight Yet, a limp.” defendant was 19 and of heavy build. Further, points out, defendant none of police reports mentioned scarring, facial report and one listed "scar unknown.” Yet prominent defendant had a facial scar. asserts argument, this support

Finally, false accusa- motives to make that Keith had numerous tions. alleged insufficiency addressing

Prior identification, Keith was not an we note that Brunell’s Keith’s of the murder. to the commission eyewitness evi- solely as circumstantial testimony presented Thus, credibility Keith’s is flight. dence of motive identification. eyewitness on the issue of not relevant a rea proving beyond bears the burden State who committed identity person sonable doubt (Ill. 38, par. Stat. ch. charged offense. Rev. vague is or Certainly, an identification which 3— (People á conviction. support is insufficient to doubtful 494.) However, single wit (1984), 102 Ill. 2d Ash is sufficient to sustain of the accused ness’ identification cir accused under if witness viewed the a conviction People identification. permitting positive cumstances 307; v. Jones Ill. 2d v. Slim 60 Ill. 2d 307-08. testimony, courts have our assessing

In identification factors set out certain generally upon relied (1972), 409 U.S. Biggers Supreme Court Neil circumstances, Ct. 375. Those L. Ed. 2d 93 S. pat in our embodied which, incidentally, have now been (1) identification, include: jury instruction tern at the the criminal had to view thé victim opportunity (2) attention; crime; degree of the witness’ of the time (3) of the prior description the witness’ accuracy (4) by the certainty demonstrated criminal; the level (5) confrontation; and at the identification victim the identification crime and between the length of time 307-08; see also Slim, 2d at 127 Ill. See confrontation. 3.15. 3d No. IPI Criminal circumstances recited the previously

As we have assailant, we as the of defendant Brunell’s identification Further, already we have need not them here. repeat of defendant’s analysis these factors in our considered say Suffice it to that none of claimed instructional error. weigh factors in defendant’s favor. Addition above note, ally, discrepancies and omissions as to facial we fatal, physical and other characteristics are not but merely weight given affect the to be the identification (Slim, testimony. discrepancies 127 Ill. 2d Such generate do not in and of omissions themselves long positive reasonable doubt as as a identification has Slim, been made. 127 Ill. 2d at 309. discrepancies and omissions about which defen

dant here complains parallel previ factual situations ously considered and held not to have affected the valid (and ity Slim, of a conviction. 127 Ill. 2d 309-13 cited).) cases We do not find the identification evidence unsatisfactory here so as to justify reasonable doubt Collins, as to guilt. See 106 Ill. 2d at 261. raised, After careful consideration of the issues we guilt find no reversible error at the phase of these proceedings.

SENTENCING PHASE Defendant claims a total of 14 separate errors at the eligibility aggravation phases sentencing. light In issue, disposition of our Witherspoon” "reverse- however, sentencing defendant will receive a new hear Thus, ing. we need not address these additional claimed Cloutier, 510; Smith, errors. See at Ill. 2d 273-74; Johnson, at 159 Ill. 2d at 135. cf. DEATH

CONSTITUTIONALITY OF ILLINOIS PENALTY STATUTE matter, As a final asserts that various aspects penalty of our death statute are unconstitu- He acknowledges challenges tional. that these have been rejected and in prior considered this court cases. Nev- ertheless, urges he our reconsideration. no of our support

As defendant has asserted basis challenges, we decline to do so. reconsideration these prosecu continue to hold that: the manner which We does not penalty tors exercise discretion to seek death (see ex rel. People create unconstitutional arbitrariness Carey v. Cousins (1979), 531, 535-43); 77 Ill. 2d the statute proof shift the burden of to the de impermissibly does not (see People v. Tenner (1993), 341, 390); Ill. 2d fendant sentencing au impermissibly the statute does not bar the considering "sympathy” from for the defendant thority (see v. Terrell People 226); (1989), stat 132 Ill. 2d infirm is not constitutionally ute is not because the State mitigation beyond a rea required prove the absence (see v. Johnson People (1987), 119 Ill. 2d sonable doubt 119, 151); determiñing the standards for whether imposed be are not unconstitution penalty death should (see People King 547); ally vague ar application in the statute do not render its the factors (see v. Johnson People bitrary capricious 109,154); and, finally, comparative proportionality Ill. 2d (see v. Ash constitutionally required review is not 82-83). (1988), 121 Ill. 2d ford

CONCLUSION for affirm defendant’s convictions sentence We "reverse- The trial court’s refusal robbery. armed however, Witherspoon” "life-qualify” jury, or process due to a violation of defendant’s amounted is death sentence rights. Accordingly, for a new death and the cause is remanded vacated hearing opinion. with this sentencing consistent affirmed;

Convictions affirmed; sentence nondeath vacated; death sentence cause remanded. HARRISON, dissenting: JUSTICE defen- any denying error majority holds that expert an independent dant a continuance to obtain opinion psychiatric on the records of State’s witness doubt, beyond Keith was a reasonable Kevin harmless and that the erroneous admission of evidence of the substantially pregnancy compromise victim’s "did not (165 right impartial to a fair and trial.” Ill. 333.) require I these errors 2d at believe that entitle reversal of defendant’s murder conviction and him to a new trial. I therefore dissent. alleges request that his continuance granted newly

should have been after discovered medi cal records of State’s witness Keith were disclosed the In day People of trial. v. Lott this test, court "There statutory stated: is no mechanical or other, determining point for at which the denial of a in judicial proceed continuance order to accelerate the ings right violates the substantive of the accused to 297.) (Lott, properly However, defend.” 66 Ill. 2d at this long recognized court has a grant refusal a con depriving tinuance which results in a accused of prepare reasonable time to his defense constitutes re (Lott, 296-97, versible citing error. 66 Ill. 2d at People v. (1928), 330 Ill. While resolution of Blumenfeld whether there has been an in deny abuse of discretion ing a motion for upon continuance based defense lack of preparation dependent counsel’s is upon par case, ticular facts and circumstances of each it has been held that such a determination is to be considered light diligence part shown on the of the defen dant as well as the extent such a denial hindered the in preparing his defense and prejudiced his rights. See App. Ill. 3d Jefferson 426.

Applying legal bar, these tenets to the case at clearly record establishes the trial court did not refusing grant exercise sound discretion in a continu- requesting anee. Defense counsel’s conduct in a continu day ance on the he became aware of the State’s new material, day begin, trial was set to discovery before Moreover, exemplified diligence. his due unequivocally because defense counsel did not receive Keith’s medical trial, reports day until the it is evident that the trial grant precluded court’s refusal continuance comprehensive analysis by defense counsel of the reports, contents of such which hindered defendant his case. Defendant forced to trial de the defense of repeated his counsel’s statements that he was un spite interpreting proceed able to without assistance records. I fail to see how defense counsel could have expert, prospective to find an interview expected been on the in prepare witnesses and to cross-examine Keith records, and at the same formation contained the effectively participate in the voir dire examination time perform statement and jurors, present opening of the necessary the other functions to insure ade numerous See 35 Ill. quate representation by Jefferson, counsel. 3d at 426-27. App. case, in a majority capital states that murder given the de opportunity reasonable should be

"every against him and to investigate witnesses fendant to 326.) (165 However, Ill. 2d at the prepare his defense.” sidestep question to the majority proceeds then right this substantial whether defendant was denied if evidence analysis. a harmless error Even the favor of overwhelming, it is herein were which presented at trial not be reversed not, judgment that a will rule "[t]he establishes the defendant’s clearly where the evidence rights disregard the total guilt justify does not alleged an crime.” People a on trial for prisoner (1949), 402 Ill. 562. Stanko court this In v. Cobb court, robbery and mur- in an armed the trial held that penalty sought, der case in which the death abused refusing its discretion in to allow the defense a continu lay impeach ance in order a foundation to principal prosecution witness. The evidence the defense sought a continuance obtain would directly have testimony given contradicted the witness State’s key at trial. The Cobb court noted that without this wit testimony, "only ness’ left prosecution would be with vague some circumstantial evidence equivocal (Cobb, testimony [other witness].” identification 2d at Ill. The court therefore found reversible error the trial court’s refusal to allow the defense "a reasonable opportunity” necessary to locate witness. Cobb, 478-79, 97 Ill. 2d at 481.

Here, Cobb, as in prejudiced by defendant was trial grant court’s erroneous refusal a continuance. agrees The majority key that Keith was a State’s wit arrest, ness whose accusations led to defendant’s provided who uniquely damaging evidence flight, of his against victim, threat and motive to commit mur der. The records on Keith which defense counsel requested investigate continuance to multiple included diagnoses of manic-depression, bi-polar disorder, affect hyperactivity, abuse, cocaine and "elevated para mood noia.” just Evidence of mental illness bears upon general truthfulness, the witness’ but also upon the reli ability specific testimony. People v. Phipps 416.) App. 98 Ill. 3d potentially Given the deleteri ous effect of these "powers conditions on Keith’s discernment, memory, and description” 98 Ill. (Phipps, 416), App. 3d at granted the trial court should have continuance for counsel to interview witnesses neces by sitated the untimely disclosures and to prepare to cross-examine Keith on credibility. the vital issue of his Therefore, Cobb, under impeaching testimony where the seriously damaged would have the against State’s case defendant, a continuance the denial of was reversible error. majority

The further holds that the erroneous pregnancy admission of evidence of the victim’s at the death, "though prejudicial, time of her irrelevant and right substantially compromise did not defendant’s (165 333.) fair and trial.” Ill. 2d at I impartial vehe mently disagree. majority correctly ap The states People v. Bernette rule, plicable announced Hope recently and more Ill. 2d testimony capital that in a case where inciden respecting family the decedent’s is not elicited is in such a manner as to cause tally, presented but material, highly is jury to believe it is its admission and reversible error unless an prejudicial constitutes jury sustained and the instructed objection thereto is (Hope, 277-78; disregard 116 Ill. 2d at such evidence. Bernette, 371.) Here, agrees the majority 30 Ill. 2d at concerning that decedent’s unborn child the evidence brought jury’s incidentally. to the attention was not Rather, through patholo to the questions it was elicited jury as to to believe it gist presented permit and so further admits the trial majority material. to this overruling objection of defendant’s court’s materiality,” its in the testimony, amplify "tended (165 333.) Despite appar Ill. 2d at this jury. mind of the set forth in Bernette and finding ent the criteria Hope have case, majority been met in the instant against "measured nevertheless concludes in Bernette Hope,” manner in which conduct "unduly ] presented focus[ here was did the evidence materiality of this evidence.” jury’s attention (165 contrary to both the holding at This is Ill. 2d precedent. of the established spirit and intent legal established guilt "A must be preju- or evidence, by bias uninfluenced competent (Bernette, evidence ***.” 30 Ill. by dice raised irrelevant 371.) at It is for this reason that this court has con 2d evi sistently condemned the admission irrelevant famil concerning personal dence a decedent’s traits or 330.) at In the case at relationships. ial bar, of Yvonne Donald’s the effect of the disclosure only jurors’ sympathy to arouse the pregnancy served condition, in for a victim attacked this and their ven geance outrage against for the additional and loss of the life of the unborn child.

Although a testimony presented by here was not family member of the as in and Hope, victim’s Bernette its presentation part pathologist’s autopsy of the find ings only gave not jury impression erroneous relevant, that such information provided was but also the jury descriptive with more details than could a fam ily Thus, majority, quanti member. unlike the I find no tative distinction between a widow’s emotional testi mony about a decedent’s and family physician’s description vivid of the five-month-old female fetus be ing by carried types decedent herein. Both of testimony highly prejudicial were by prose and were elicited deprive cution to the defendants a by fair trial precluding an unimpassioned determination of their guilt or innocence. As this court stated in Hope, "[t]he only purpose questions these could prejudice serve is to the defendant eyes jury, 'and to arouse ” anger, them hate and passion.’ Hope, 116 Ill. 2d at quoting v. Dukes 2d Ill. 340.

Further, I object majority’s suggestion to the impermissible such be may freely by evidence elicited prosecution during direct examination if the error is "not further during open exacerbated” its mention (165 333.) ing closing argument. court, or Ill. 2d at This (1) Bernette, stated separate two and distinct rules: that reversible error prosecution occurs when the elicits concerning prejudicial testimony irrelevant and cause the it family jury decedent’s so as to believe (2) material, argument dwelling jury on the seeking or family decedent’s relate to the is punishment family inflammatory existence (Bernette, improper. Ignoring 30 Ill. 2d at compounded it breach of the first rule because deteriorating risk by a breach of the second runs the safeguard. an important procedural this Such obvious attempt unfairly jury influence the as occurred herein and should have constituted revers cannot be condoned ible error. reasons, foregoing I dissent. respectfully

For the (No. 74636. ILLINOIS, OF Appel

THE PEOPLE OF THE STATE RISSLEY, lee, Appellant. v. JEFFREY D. May

Opinion Rehearing denied 1995. March filed 1995— notes that the committee note further We instruction, these which includes current identification factors, only that provides identification same five supported that are ones of those factors particular (IPI 3.15, 3d No. given. Criminal should be the evidence Note.) demonstrated, have here Committee As we of those giving any one support evidence does not factors. 451(a) (134 our Rule asserts further 451(a)) instruction on pattern requires Ill. 2d R. if the given be the case should theory of the law. states adequately instruction 451(a) Pat- Illinois that whenever provides Our Rule in a applicable an instruction contain Instructions tern to the due consideration giving case, criminal facts determines law, the court the governing subject, pattern be instructed jury should (134 451(a).) instruction shall be used. Ill. 2d R. Con assertion, trary to defendant’s the rule does not mandate giving of any instruction merely because one exists on defendant’s theory of the case. As the rule expressly

Case Details

Case Name: People v. Lewis

Court Name: Illinois Supreme Court

Date Published: Jan 19, 1995

Citation: 651 N.E.2d 72

Docket Number: 72308

Court Abbreviation: Ill.