APPEAL from the Circuit Court of Cook County; the Hon. FRANK
J. BARBARO, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied September 4, 1979.
After a jury trial defendant, Willie C. Lewis, was found guilty of murder (Ill. Rev. Stat. 1975, ch. 38, par. 9-1), two counts of attempt murder (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), delivery of less than 30 grams of a controlled substance, namely heroin (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1401(b)), attempt delivery of less than 30 grams of heroin (Ill. Rev. Stat. 1975, ch. 38, par. 8-4), possession of less than 30 grams of heroin (Ill. Rev. Stat. 1975, ch. 56 1/2, par. 1402(b)), and possession of a stolen vehicle (Ill. Rev. Stat. 1975, ch. 95 1/2, par. 4-103(a)). Judgment was entered on each verdict except the attempt delivery and possession of heroin findings. Defendant was sentenced to concurrent prison terms of 500 to 1000 years for murder, 50 to 100 years for each attempt murder, 5 to 15 years for delivery of heroin, and 1 to 3 years for possession of a stolen vehicle.
Defendant appeals presenting the following issues for review: (1) whether a warrantless search of defendant's house conducted after defendant had been arrested and removed from the premises was unlawful thereby requiring all evidence seized to be suppressed; (2) whether statements made by defendant to police were made voluntarily or were induced by the physical injuries defendant received at the time of his arrest; (3) whether the State sustained its burden of proving that defendant was advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 16 L.Ed.2d 694, 86 S.Ct. 1602, and that he knowingly and intelligently waived his rights; (4) whether defendant was found guilty beyond a reasonable doubt of attempt murder and murder; (5) whether defendant was denied his right to confront witnesses against him when he was not permitted to impeach their testimony with proof of prior inconsistent statements made by the witnesses; (6) whether the trial court erred in refusing to admit into evidence a prior consistent statement made by defendant to police; (7) whether the giving of attempt murder instructions subsequently held to be erroneous in People v. Harris (1978), 72 Ill.2d 16, 377 N.E.2d 28, constituted plain error; (8) whether defendant was denied a fair trial when the trial court inadvertently read to the jury an instruction that had been submitted by the State but then withdrawn; (9) whether evidence of the criminal background and former drug addiction of a State's witness is admissible on direct examination; (10) whether the prosecutor improperly questioned defendant regarding the veracity of witnesses for the State; and (11) whether comments by the prosecutor during closing argument were improper and prejudicial to defendant.
On the evening of September 13, 1976, police officers James Duigan, James McKeon and Patrick Crowley were conducting a narcotics surveillance of a house at 6243 South Aberdeen, Chicago, Illinois. At approximately 8 p.m. Officer Duigan observed a man, identified as Jessie Hayes, go to the back door of the house and attempt to trade a stereo for a quantity of heroin. A voice inside stated that he would only give a lesser amount than requested and Hayes replied that he would have to check with his partners. Hayes left and when he came to the alley behind the house the officers stopped him and told him to make the trade. The officers remained in the alley behind a gate which was approximately 10 to 12 feet from the back door. The back door had a burglar gate and a porch approximately three feet by three feet with three stairs which led up to the back door. A porch light and lights in the alley were illuminated. Hayes went to the back door and told the person who answered (identified in court as defendant Willie C. Lewis) that he wanted to trade. As defendant opened the burglar gate, the officers came into the yard and yelled "halt, police officers." Defendant denied that he heard anyone yell "police" and testified that he only saw Hayes and one other person with a gun pointed at him. Crowley reached the stairs first and as he did defendant fired several shots, one of which hit Crowley. Defendant then backed into the house and closed the door. Several other officers arrived at the house and defendant was arrested inside the house along with a woman, Bernadette Markham. At the time defendant was arrested he sustained physical injuries requiring 13 sutures to his head. Police conducted a search of the premises at the time of the arrest and seized two weapons that were in plain view. A second search was conducted by other police officers approximately two hours after the arrest, and several packets of controlled substance and paraphernalia were observed in plain view and seized. Defendant was charged by indictments with the murder of Patrick Crowley; the attempt murders of James Duigan and James McKeon; delivery, attempt delivery and possession of heroin; and possession of a stolen vehicle.
Prior to trial defendant filed a motion to suppress physical evidence recovered during the two searches on the basis that no warrant was obtained, no consent to search was given, and the second search was not incident to the arrest. The following evidence was adduced at the hearing on the motion:
Defendant testified that on September 13, 1976, he was with his common-law wife, Bernadette, at 6243 Aberdeen. Defendant lived in the two-story house part of the time and he also lived with Bernadette at 6730 South Shore Drive. The first floor of the house at 6243 Aberdeen had a kitchen, dining room, living room and two bedrooms, one of which had a trap door to the basement. The second floor had three bedrooms and a bathroom. When a man came to the back door and tried to sell a stereo, defendant saw a second man enter the yard and point a gun at defendant from a distance of four or five feet. Defendant saw no one else enter the yard and did not hear anyone yell "police." Defendant stood right inside the kitchen door and fired three or four shots toward the gun pointed at him from a .41-caliber revolver which he owned. Defendant then closed the door and laid the gun down. He was standing in the dining room on the first floor when he heard someone say "Get some help over here, this is the police." Two police officers came through the back door with their guns drawn and told defendant he was under arrest and to lie down on the floor. One officer was black and in uniform and the other was white and in plain clothes. Defendant could not recognize either officer or recall their height, weight, age or hair color. Defendant told the officers that someone was upstairs and that he did not shoot any police officer. Defendant testified that Jimmy Jones and Herman Everett were in the house on the night in question, that he heard them upstairs 10 to 15 minutes before police arrived and he did not see them leave.
Defendant testified further that as he began to lie on the floor, the white officer struck him on the head with a gun. Several officers then came in and began kicking defendant and the next thing he knew he was in a police car. Defendant did not resist arrest or struggle and his physical condition prior to the incident was good. After the beating, defendant's right front tooth was broken, and he had cuts below both eyes and on his head. The cuts on the head required nine stitches. The police did not show defendant a search warrant and defendant gave no one permission to search the house.
Police officer Milton Battle testified that on September 13, 1976, at approximately 8 p.m. he entered the house at 6243 Aberdeen through the back door and he observed defendant and a woman. Battle told defendant to step out with his hands up, which he did, and then he told defendant to lie on the floor. Battle then entered a bedroom on the first floor because the woman said there was a gun on the bed and he found a .41 Smith and Wesson revolver in plain view on the bed. There were no lights on in the room but Battle had a flashlight lit. Battle did not observe any other persons or any packets of narcotics in the room.
Police officers John Herr, Thomas Manion, Gerald Dahlberg and John Howe testified that on September 13, 1976, they entered the premises at 6243 Aberdeen at approximately 10 p.m. with their guns drawn to assist the crime lab in locating evidence and firearms and to search for a second offender who may have been in the building. Herr entered the bedroom on the first floor and observed on the floor a clear plastic bag containing a brown powder suspected to be heroin. Herr recovered the heroin and inventoried it. Herr then searched with his gun drawn, the closets, crawl spaces and places where a man could hide but he found no additional persons. Herr prepared a report on the night of the incident but the report does not indicate where in the bedroom the packet was found. Manion testified that while he was looking in the hallway for a firearm he shined his flashlight into a heating duct and observed two clear packets of a tan powder suspected to be heroin. One packet was small and the other was large and contained several small packets. Manion recovered the items and inventoried them. Dahlberg entered the kitchen area and observed in plain view some bottles on the sink. One bottle contained pink pills believed to be a controlled substance. Dahlberg recovered the bottles and inventoried them. Dahlberg also recovered some money from the bathroom sink on the first floor. Howe went up to the second floor with his partner; he entered the bathroom and observed a hypodermic needle, syringe, pressure rope and telephone cord on the toilet basin and several packets of what he believed to be heroin in the toilet. Howe recovered the items and inventoried them. Howe's partner recovered a packet of marijuana from the window sill in the middle bedroom. Howe testified that he tried to look for any evidence and for possible exits or hiding places on the second floor. Howe did not have a warrant.
Before the court ruled on the motion, defense counsel withdrew the motion in regard to the two guns recovered in plain view upon the initial search. The court denied the motion to suppress the evidence finding that exigent circumstances were present to justify the warrantless search and seizure of items in plain view. The court found that the officers were lawfully present for the purpose of protecting other officers and evidence because they had a reasonable belief that other persons might have been on the premises.
Prior to trial defendant also filed a motion to suppress statements he made to police officers and assistant state's attorneys on the basis that he was not advised of his Miranda rights, he did not waive such rights, and the statements were the result of physical, psychological and mental coercion. The following evidence was adduced at the hearing on the motion:
Police officers George Gaynor and David Barrios testified that on September 13; 1976, at approximately 8 p.m. they went to 6243 South Aberdeen to remove a prisoner, identified as defendant, from the scene and transport him to St. Bernard Hospital. Defendant had blood on his face and was handcuffed. The officers were instructed not to let anyone talk to defendant. At the hospital they put defendant in a cubicle in the emergency room. No one talked to defendant from the time they left the scene until they entered the cubicle. A nurse and an orderly entered the cubicle and then a doctor entered, and the officers stood outside the cubicle. Gaynor testified that while the doctor was still present, Investigator Quinn arrived and entered the cubicle. Barrios testified that Quinn did not arrive until after the female doctor had left; that Quinn stated he was going to advise defendant of his rights but Barrios could not hear Quinn or defendant speak; and that after Quinn left, a male, oriental doctor entered the cubicle. Quinn remained for a few minutes and then instructed Gaynor and Barrios not to let anyone talk to defendant, and when the doctor was finished, to transport defendant to Area 3 headquarters at 39th and California. The officers then transported defendant from the hospital to headquarters and put him in an interrogation room on the third floor. When they left the hospital defendant had bandages on his head and forehead. At headquarters, the officers stood guard outside the interrogation room. No one spoke to defendant after they left the hospital, and only Quinn entered the interrogation room for a few minutes. No one threatened, beat or made promises to defendant.
Investigator Thomas Quinn testified that he was in charge of the investigation of the death of patrolman Patrick Crowley. Sometime after 8 p.m. on September 13, 1976, Quinn went to the scene of the crime and then went to St. Bernard Hospital where he observed defendant in a cubicle in the emergency room. At approximately 9:30 p.m. Quinn entered the cubicle, identified himself and read defendant his rights. A nurse and an orderly were present when Quinn entered. After Quinn read each right from a card, he asked defendant if he understood, and each time defendant replied affirmatively. Quinn asked defendant if he would waive his rights and make a statement, and defendant replied that he would. Defendant had blood on his face and forehead, but he seemed alert. A male doctor then entered the cubicle, and Quinn left. Quinn instructed officers Gaynor and Barrios to permit no one to speak to defendant and to transport him to Area 3 headquarters. When the officers arrived at headquarters Quinn told them to put defendant into an interrogation room and to stand guard and allow no police personnel into the room.
Quinn further testified that at approximately 11:25 p.m. he entered the interrogation room, identified himself and advised defendant of his rights. At this time defendant had a bandage on his head, his face was washed and there was swelling around his eyes. Defendant stated that he waived his rights and then he made a statement. Quinn terminated the interview when he learned that assistant state's attorneys Ficaro and Urso had arrived. Quinn did not threaten defendant with physical harm and did not make any promises. Defendant was cooperative, did not indicate a fear of additional physical harm and did not request an attorney at any time. Defendant acted alert and his answers were precise.
Dr. Sarah B. Cobbs testified that on September 13, 1976, at approximately 8:30 p.m. she treated defendant in the emergency room at St. Bernard Hospital. Defendant, who walked in with two uniformed policemen, had blood on his face and had head injuries. After an orderly, Carl Spacone, cleaned the wounds, Dr. Cobbs sutured the wounds. There were no fractures or signs of internal bleeding. Defendant's blood pressure was normal, but his respiratory rate was high, indicating excitement. Defendant was oriented and alert, and he received only nonnarcotic drugs, novocaine and tetanus toxoid. Dr. Cobbs had a conversation with defendant in which defendant said he had been beaten. Dr. Cobbs did not see any plainclothes policemen in the emergency room.
It was stipulated that if Carl Spacone and Mary McAlpine were called to testify, they would testify that on September 13, 1976, Spacone was employed as an orderly and McAlpine was employed as a nurse at St. Bernard Hospital. They were working in the emergency room and were present when investigator Quinn entered the room and read rights from a card to defendant.
Investigator John Ridges testified that in the early hours of September 14, 1976, he was stationed outside the interrogation room in which defendant was being held. At approximately 2:30 a.m. Ridges escorted defendant to the bathroom and upon returning to the interrogation room, defendant asked Ridges what would happen to Bernadette. Ridges replied that he thought she would be charged with murder on accountability. Ridges did not know at that time that Bernadette had been released. Defendant then asked if they would let Bernadette go if he told them what really happened; Ridges replied that he could make no deals. When asked if he had been read his rights, defendant replied affirmatively, but Ridges advised defendant again, and defendant stated he understood. Defendant then stated that he and Bernadette were in the house, and that another man in the house had done the shooting and then he ran upstairs and escaped out a window. Ridges told defendant he did not believe the story because earlier Bernadette said that she and defendant were in the house alone and that the police were conducting a narcotics raid and had the house surrounded. Defendant then told Ridges that the police came into the building and beat him for no reason; Ridges replied that the officers reacted because one of their fellow officers had been shot and that perhaps they did overreact. Ridges and defendant then talked about the police in general and their activities including raids. Ridges did not threaten defendant, made no threats to harm Bernadette and made no promises to defendant. After Ridges spoke to defendant he had a conversation with assistant state's attorney Urso, and then he, Urso and another assistant state's attorney, Angarola, went into the interrogation room. Defendant gave an oral statement but refused to give a written statement. Defendant never requested an attorney. Ridges did not prepare a written report regarding the conversation with defendant, but he reported it orally to Quinn.
Michael Angarola and Joseph Urso, assistant state's attorneys assigned to the felony review unit, testified that on September 13, 1976, at approximately 11:30 p.m. they went to Area 3 headquarters after learning that a police officer had been killed. At approximately 3 a.m. investigator Ridges called Angarola and Urso, and the three of them entered the interrogation room in which defendant was sitting. Urso asked defendant how he had been treated, and defendant stated that at the time of his arrest he was struck by some officers but that since his arrest he had been treated well and had not been threatened or coerced. Angarola advised defendant of his rights, and after each right defendant stated that he understood. Defendant stated that he had already been advised of his rights. Angarola asked defendant if he waived his rights, and defendant replied in the affirmative. Defendant gave an oral statement but when requested to give a written statement, defendant refused. Defendant did not request an attorney or ask to make a phone call. Defendant was responsive. Angarola conducted the interview, and it took approximately 15 minutes. Urso was not present throughout but officer Ridges was in the room the entire time.
Assistant state's attorney Ficaro testified that he did not hear anyone threaten or strike defendant or make any promises to defendant. Ficaro heard no conversation regarding Bernadette nor any request by defendant for an attorney. Ficaro did not speak to defendant.
Lucius Robinson testified that on September 15, 1976, he was a personal bailiff to Judge Pompey, and he observed defendant in the criminal courts> building. Defendant had a bandage on his forehead, his eyes were red, his lips were swollen and his face was puffy. Defendant had a scar on the left side of his head, and his clothing had spots that looked like human blood.
Defendant testified that on September 13, 1976, at approximately 8:15 p.m. he was arrested at 6243 Aberdeen. A police officer told him to lie on the floor, and as he did, he was hit over the head with a gun and then kicked and beaten. Defendant did not know the names of the officers who beat him, and he could not describe them. Defendant tried to cover his face with his hands, and he did not recall anyone pulling his hands back to put handcuffs on him. Defendant could not recall the officers who took him to the hospital, but they did not handle him roughly or threaten him. He did not recall speaking to any policeman or doctor or being advised of his rights at the hospital. Defendant went to the police lockup and was placed in an interrogation room on the third floor. He was not threatened or beaten, and no one told him he would get an additional beating if he did not cooperate. Defendant was questioned by four persons in regular clothes. The first person, whom defendant could not name or describe, came in and said he wanted defendant to cooperate. Defendant said he wanted to call an attorney first, but the person said defendant did not need an attorney. The person then left, and a second person came in, told defendant to cooperate and made threats to beat defendant and to harm Bernadette. Defendant told the second person he wanted to call an attorney. The first person returned and asked defendant if he knew a Dale Hudson. Defendant then talked to Dale Hudson, who was his cousin, and told her to call an attorney. Hudson gave defendant a jacket because he was cold. After Hudson left, the first officer came in and asked defendant if he was ready to cooperate. Defendant stated that he should not talk without an attorney but that he would give a statement because he did not want to get hurt any more. Defendant gave a statement and later gave a statement to the state's attorney. Defendant also asked the state's attorney if he could call an attorney, but he said it was not necessary.
Defendant testified further that he did not use drugs and that he gave a statement because he believed he would be beaten by police and was in fear of his safety. Defendant told police that as the policeman was running up to the stairs, defendant saw the gun and it frightened him so defendant shot him. Defendant was not asked to make a written statement. Defendant did not recall giving a statement to Quinn at the hospital or making a statement to Quinn at the station. Defendant denied telling the state's attorney that he had been treated well. Defendant was advised of his rights only after he made a statement.
Effie (Dale) Hudson testified that she was defendant's cousin and she saw defendant at Area 3 headquarters on September 14, 1976, at approximately 10:30 a.m. Hudson spoke to defendant and gave him a jacket.
Based on the foregoing evidence, the trial court denied defendant's motion to suppress. The court found that the force used to effectuate the arrest was reasonable, was not for the purpose of eliciting a statement, and that the effect of any contact had dissipated by the time defendant made any statements. The court found that defendant had knowingly waived his rights and that the statements were voluntarily made. *fn1
Chicago police officers James Duigan and James McKeon testified that on September 13, 1976, they were conducting a narcotics surveillance at 6243 South Aberdeen, along with their partner, Patrick Crowley. All three were in plain clothes but carried police equipment (i.e., guns, handcuffs, flashlights, radios). The building at 6243 Aberdeen was a two-story residence with alleys to the south and east; there was a "burned out" building behind the residence and a yard area between the two buildings which was enclosed by a fence that opened out to the south alley. A porch approximately three feet by three feet with three stairs, led to the back door; the back door had a burglar gate. Duigan positioned himself in the gangway between 6243 and 6241 Aberdeen, while McKeon stood behind the burned-out building and Crowley remained in the alley. Duigan observed a tall black man exit the gate to the south alley and he signaled to his partners. McKeon and Crowley questioned the man and then released him. Duigan returned to the gangway and he observed a shorter black man, identified as Jessie Hayes, approach the rear door of the house and ring the bell. Hayes was carrying a stereo. A porch light was turned on and an inside door was partially opened. Hayes then stated he wanted to trade the stereo for "half a spoon of P" or heroin. The voice inside said he would only give "two $20 bags of P" so Hayes said he would have to check with his partners. Hayes put the stereo down on the porch and left. The officers stopped Hayes in the alley and told him to go back and accept the deal. McKeon testified at this time he observed a man in a yard across the alley and he asked the man what he was doing.
Officers Duigan and McKeon testified further that as Hayes returned to the house they and Crowley crouched at the gate leading to the yard area. Hayes knocked, and told the person who answered that the deal was "okay." The voice Duigan had heard earlier told Hayes to get off the porch; Hayes went down one step and then the person inside began to open the burglar gate. As the gate was opened and the person identified as defendant bent down toward the stereo, Crowley said "let's go" and he pushed the alley gate open. The officers entered the yard, each yelling "halt, police officers." Crowley reached the stairs first and yelled "freeze." Crowley then motioned Hayes off the porch and as Hayes began to move Crowley shouted "Look out, he's got a gun." McKeon then saw defendant raise a gun and fire one shot. Duigan and McKeon heard a loud explosion, saw a flash and then saw Crowley fall backward to the ground. Duigan and McKeon both dived down and Hayes fled. Duigan testified that he told defendant to drop the gun and Duigan raised his weapon to fire but from his crouched position he could not fire because the banister was in the way. As the officers ducked, defendant fired two shots directly over their heads, then backed into the house and fired a fourth shot. Duigan asked McKeon to cover him while he went to call for assistance and McKeon fired two shots into the house. In their written report, Duigan and McKeon did not state that Crowley yelled "freeze" or that he motioned Hayes to get off the porch.
Duigan and McKeon testified further that other police officers then arrived at the scene. McKeon and two others carried Crowley's body to a squadrol. Duigan testified that he entered the house, saw 10 or 12 officers already there, and as three officers were helping defendant up off the floor, he pushed his way past them, grabbed defendant's arm and hit him on the head with a flashlight. McKeon testified that he heard Duigan yelling "you shot my partner." Some officers pulled Duigan away from defendant.
Jessie Hayes testified that on September 13, 1976, he and some friends were trying to sell a stereo but could not find a buyer so they decided to try "Willie's dope pad" at 6243 South Aberdeen. Hayes went to the back door; defendant put the porch light on and partially opened the door, but not the burglar gate. Hayes told defendant he wanted to sell the stereo for some heroin, but defendant offered only two $20 bags. Hayes told defendant he would have to check with his partners, he put the stereo down on the porch and left. As Hayes walked out the gate, two police officers stopped him and asked what he was doing. Hayes told them he was looking for a friend, but a third officer related the conversation between Hayes and defendant. Crowley then told Hayes to go back and make the trade. Hayes went back into the yard, knocked on the door and told defendant he would take the two $20 bags. Defendant told Hayes to back up, which Hayes did, and then defendant unlocked the burglar gate. As defendant bent down to pick up the stereo, the three officers ran through the gate saying "hold it, police." Hayes stated it was 8 or 9 feet from the gate to the porch. Crowley reached the stairs, told defendant to freeze, and told Hayes to come down. Someone then said "look out, he's got a gun" and Hayes saw defendant raise a gun and fire it downward. Hayes heard someone say "Oh my God" and then he ran. As he ran out the gate Hayes heard more gunshots.
Hayes testified that he had previously been addicted to drugs, but he was not addicted on September 13, 1976. Hayes had "chipped", meaning to "get high", two or three times in 1976 and about two weeks prior to the shooting. At the time of trial, Hayes was on probation for unlawful use of a weapon and he had served 22 months in a penitentiary in Michigan for attempt breaking and entering.
James Carpenter testified that on September 13, 1976, he had been residing for a month at 6244 South Carpenter, which was across the alley from 6243 South Aberdeen. Carpenter noticed a lot of traffic and activity at the house in question. At approximately 7:30 p.m. on September 13, 1976, Carpenter was in front of his house, and he observed three police officers in plain clothes get out of an unmarked car and go to the alley behind his house. Carpenter went into his backyard and after some time passed he observed two of the officers apprehend a tall black man as he came out the gate at 6243 Aberdeen; a third officer came from the gangway but then went back. The officers then stopped a short black man, talked to him for a few minutes and then they all went back to the gate. The black man went through the gate and the officers crouched behind it. Carpenter then heard a knock on the door, then a screech and then the officers burst through the gate and one yelled "halt, police" very loudly. Carpenter heard footsteps on the stairs and then a gunshot. The black man came running out and then Carpenter heard two more gunshots and then another shot. The officers ran out of the gate and Carpenter heard one of them say "Oh my God they shot Crowley."
Jerome Gougisha testified that on September 13, 1976, he resided at 6236 South Aberdeen, which is across the street from the house in question. At about 8 p.m. he was looking out the front window of his second floor apartment and he heard a shot. Gougisha saw a black man run from the alley, and then he heard two more shots, a pause and then another. Gougisha saw a white man use a radio and about 30 seconds later ...