APPEAL from the Circuit Court of Cook County; the Hon. R.
EUGENE PINCHAM, Judge, presiding.
MR. PRESIDING JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Rehearing denied July 25, 1980.
At the conclusion of a jury trial in the circuit court of Cook County, defendant, George Lawson, was convicted of murder. (Ill. Rev. Stat. 1975, ch. 38, par. 9-1.) Defendant was sentenced to a prison term of 18 to 30 years.
On appeal, defendant contends: (1) he was not proved guilty beyond a reasonable doubt; (2) the State committed plain error when it elicited, as substantive evidence of his guilt, a witness' prior inconsistent statements inculpating defendant; (3) the testimony of a State's witness was rehabilitated improperly with evidence of prior inconsistent statements; (4) evidence of a police officer's efforts to arrest defendant lacked probative value and admitting such evidence was prejudicial; (5) he was denied a fair trial when the trial court refused to call a witness as a court's witness; (6) he was restricted improperly in efforts to present relevant evidence to the jury; (7) he was denied a fair trial by the State's closing argument; (8) his right to be presumed innocent was violated when the State commented on his failure to present the testimony of alibi witnesses; (9) he was denied effective assistance of counsel because his attorney labored under a per se conflict of interest.
We affirm. An analysis of the factual background is required since defendant raises a reasonable doubt issue.
The evidence discloses that during the early morning hours on July 16, 1976, Lalice Stanley was in his apartment when he was shot with a .38-caliber gun. He sustained a bullet wound to his neck which lacerated his larynx and caused his death. Defendant was charged with Stanley's murder.
At trial, during opening statements, defense counsel informed the jury that the evidence would show that Lenora Dean, who was present during the shooting, first told the police and the grand jury that defendant shot Stanley but later, at defendant's bond hearing, told the court that defendant did not shoot Stanley. The jury also was advised that Dean had been indicted for perjury. Defense counsel further asserted the evidence would show that the three persons who were present in Stanley's apartment when he was shot were angry with defendant and conspired to falsely identify defendant as the murderer.
The State's witness, Terry Ann Jones, was present in Stanley's apartment when he was shot. On direct examination, she testified that she had known Stanley for approximately four years, but she did not know defendant. On July 16, 1976, Jones lived with James Henley, who also was present in Stanley's apartment when the shooting occurred. Stanley was Lenora Dean's boyfriend.
Jones further stated that on the evening of July 15, 1976, prior to the shooting incident, she was with Henley, Dean, and Stanley in the central courtyard of her apartment building. They were there about 10 minutes when Dean began to break defendant's car window. Defendant's car was parked in a lot about 25 feet away from them. From the porch of his building, defendant yelled to Dean to stop damaging his car. Defendant then came downstairs and Stanley grabbed him. A struggle ensued, although no blows were exchanged and no weapons were displayed. As defendant walked towards an apartment building he said, "I'm not going to take no ass whipping, I'm not; going to get my gun." Defendant's wife, who was carrying a knife, started to fight with Dean. Jones asserted she stopped the fight and no one was hurt.
Jones further testified that after defendant left the area, sometime between 10:30 p.m. and 11:30 p.m., she, Henley, Dean and Stanley went to Jones' apartment to check on her children. The group then went to Dean's apartment to play cards. Dean and Stanley were living together at this time. As Stanley walked to the back of the apartment to get a chair, Jones heard a loud noise and Stanley dropped the chair. Jones ran to the screen door and saw defendant with a gun in his hand standing outside the door. Henley walked up behind Jones and looked out the door. Defendant then left the area. Jones stated she was face to face with defendant and a light outside the screen door provided illumination. There also were lights on inside the apartment.
Jones further stated that after defendant left the area, she turned to look at Stanley who was lying on the floor and bleeding from the neck. Henley placed towels over Stanley's neck and Dean called the police. At the close of Jones' direct examination, she identified defendant as the man she saw standing outside Dean's screen door.
On cross-examination, Jones admitted she had been subpoenaed to testify. She denied that she had been "getting high" on the night of the incident. Jones recalled a conversation she had with Investigator Dahlberg on the morning of July 16, 1976, but she could not remember telling him that Dean had a knife. Defense counsel showed Jones a transcript of her conversation with Dahlberg and then asked her whether she had told Dahlberg that she had seen Dean with a knife. Jones denied ever giving a statement in which she said she saw Dean produce a knife and attack anyone. When asked if she saw Dean with a knife, Jones stated, "I saw her comprehend me the knife. [Sic.]" Upon further questioning, Jones asserted the only time Dean had the knife was during the earlier struggle with defendant's wife. Dean had taken the knife away from defendant's wife. Dean then threw the knife down on the ground.
Jones further testified that she could not recall any other persons in the courtyard during the struggle, but she did remember seeing some people on the porch. Jones also stated she was not too far — about 10 feet — from defendant when he said he was going to get his gun. At that time, Henley was sitting on the bench and Dean was approximately 35 feet away, near the parking lot.
Jones stated further that between the time defendant initially left the group, she saw defendant twice: first, when he was struggling with Henley; and second, after he had shot Stanley. She could not recall telling Investigator "Goldberg [sic]" that after defendant left, saying he would get his gun, he returned to the courtyard carrying a stick. She also could not remember telling "Goldberg [sic]" that the victim "backed up and we all left."
After Jones was shown a copy of her written statement, she admitted making the statement to Investigator Dahlberg, but again asserted she did not see defendant return to the courtyard prior to the shooting. When asked if she was saying the statement was false Jones said, "I'm not saying that, I say that I didn't see him come back, maybe at that time everybody was all upset, I probably did make that statement, I did make it." Jones then admitted she saw defendant return to the courtyard a second time and that the statement she had made previously was accurate.
Jones then described that defendant returned with a stick to the courtyard approximately 10 to 15 minutes after he first left the area. Jones was then standing near a bench, Dean was standing near Jones' building, and Stanley was standing next to defendant, about 15 feet from Jones. She did not see defendant with a gun. She saw defendant hit Stanley with the stick, but she could not see where Stanley was hit. Jones further asserted she did not see Stanley stab defendant. Stanley "backed down" from the fight, defendant left the area, and the group went to Dean's apartment to play cards.
Jones identified a diagram of Dean's apartment which she had drawn. She also stated that from where she was seated in Dean's kitchen, she could not see the screen door. When Stanley was walking with a chair towards the kitchen, Jones, Dean, and Henley were seated at the table in the kitchen.
Jones asserted she was at the table after she heard the gun fire and saw Stanley spin around and fall into the living room. When Stanley fell, Dean was standing near the table, and Henley followed behind Jones while she ran to the door.
Jones again stated she saw defendant standing outside the front room screen door, with a gun in his hand. She also admitted she had told the grand jury she had seen defendant with a gun. Defense counsel questioned Jones as to whether she had told Inspector Deloughery that she did not see a gun and Jones responded that he had not asked her about a gun. She also stated she could not remember Investigator Dahlberg. She did remember speaking with police officers about the incident in Dean's apartment. She also recalled speaking with other police officers about the incident at the police station. Jones admitted she had told Investigator Dahlberg that she had heard a gun shot, saw Stanley fall, went to the door, and saw defendant.
On further cross-examination of Jones, the following colloquy took place:
"Q. And you're saying you do not recall telling Inspector Deloughery that you didn't see a gun in the hands of the man at the door?
A. I said he didn't ask me about a gun.
Q. So, you're positive that you never told him you didn't see a gun?
Q. Are you positive you never told Inspector Deloughery that you didn't see a gun?
A. I don't understand what you're saying.
Q. Mrs. Jones, I was, what I'm asking, you're sure —
A. I told the police at the house that I seen the gun [sic]."
Jones further stated that defendant stood outside the screen door "around one or two minutes, it wasn't that long, just until he turned around, around, about one or two minutes." Jones also stated she recalled seeing defense counsel with a young woman, "Ronella Connors [sic]" (Rozelle Conyers), in Jones' apartment, speaking with Henley.
She admitted she had informed Henley that he did not have to speak with defense counsel. Jones denied that she had picked up a diagram which Henley had drawn and accused defense counsel of drawing it. Jones also denied that when Officers Gunnell and Johnson arrived at Dean's apartment after the shooting, she told them she only had seen a man running from the door.
On redirect examination, the State questioned Jones as to whether she had told police officers Gunnell and Johnson who she had seen outside the door. After Jones responded yes, she was asked whether she had spoken with several different investigators after she went to the police station. Jones responded that she had spoken with only one investigator. The State then questioned her as follows:
"Q. And did you speak to them prior to them taking the statement from you?
Q. Who did you tell the investigators you saw?
[Defense counsel]: Objection.
Q. Who did you tell Investigators [sic] was outside that screen door holding a gun in his hand after Lalice Stanley was shot?
Q. When you gave the police officers a written statement, * * *, who did you say * * * was the person * * * standing outside the door with the gun in his hand?
Q. When you testified before the grand jury * * * who did you name as the shooter?
Jones further testified that prior to the shooting incident, defendant had been Dean's boyfriend. She also stated that when she saw defendant standing outside Dean's apartment door, defendant was standing less than one foot away from her.
On re-cross-examination, Jones indicated she had spoken with two police officers at Dean's apartment and one officer at the police station. She also stated that after Dean had obtained the knife from defendant's wife when she was fighting with Dean, Dean threw the knife "where Mrs. Lawson was at." On further redirect examination, Jones testified she had talked with only one police officer at the police station and he also obtained a written statement from her.
Officer Robert Gunnell testified as a State's witness. On the night of the incident, he was working with his partner, Earl Johnson. They were called to Dean's apartment, and after their arrival, they notified the mobile crime unit and Area I homicide. Gunnell described Stanley's condition upon their arrival. Gunnell also indicated that while he and his partner were waiting for the mobile unit and Investigator Deloughery of Area I homicide, they questioned Jones, Henley, and Dean. They also searched the apartment and did not recover any alcoholic beverages, narcotics or weapons. Gunnell observed a hole in the front room screen door and another hole in a closet door of the front room. He also located the bullet's component parts in the closet door. Gunnell also identified the objects composing the one bullet, as well as the screen door to Dean's apartment, and photographs of Stanley's and Dean's apartment.
On cross-examination, Gunnell stated that he was never told by Jones, Henley, or Dean that they were not sure that defendant was the man they had seen. On redirect examination, Gunnell stated that Henley, Jones, and Dean had provided him with defendant's name. On re-cross-examination Gunnell stated his report of the incident was accurate. He admitted that if he felt something he had heard was important, he would have included it in his report. After being shown his report, Gunnell admitted that he had not stated that anybody saw a gun, although he had included "handgun" under "circumstances." He acknowledged that the report had been prepared prior to finding the spent bullet.
Gunnell also stated his report accurately reflected that the witnesses to the shooting incident ran to the front room door and saw defendant running from the door. Gunnell also indicated that nowhere in his report had he noted that someone saw defendant standing at the door. Gunnell said the report he prepared was a summary of what the witnesses had told him.
Defense counsel then moved, outside the jury's presence, to exclude evidence of the Chicago police department's efforts to arrest defendant. Defense counsel argued that such evidence was not relevant to the issue of defendant's guilt or innocence and its admission would unfairly prejudice defendant. The trial court ruled that such evidence was admissible to corroborate the witnesses' testimony that they identified defendant as the shooter.
Officer Joseph Stine testified that on July 16, 1976, at approximately 5 a.m., he was working at a southside Chicago police station when defendant entered and asked if he could get transportation to a hospital. After Stine obtained defendant's name, he placed him under arrest for murder. On cross-examination, Stine acknowledged defendant had requested help for a stab wound.
Dr. Yuksel Konakci, a forensic pathologist, testified to the results of an autopsy he performed on Stanley. He observed two bullet wounds on the left and right sides of the neck where the bullet entered and exited. Konakci determined that Stanley's death was due to the bullet wound of the neck and the consequent laceration of the larynx. Konakci drew a blood sample from Stanley for a toxicology report. He did not perform the test himself but he indicated that the report disclosed Stanley's blood was negative for alcohol, narcotics, and tranquilizers.
James Henley, who described himself as a friend of Stanley's for five to six years, was called as a State's witness. He testified that on July 15, 1976, he was with Jones, Dean, and Stanley sitting on some benches outside their apartment buildings. Dean mentioned to Henley, Jones, and Stanley that defendant owed her money for license plates she had purchased for his car. Dean then walked to the parking lot and knocked out the windshield of defendant's car. From the second floor of a building, Henley heard a man's voice saying "he was going to kick her ass."
Henley further stated defendant then came downstairs and, while defendant was 15 to 20 feet away from the benches, defendant exchanged words with Stanley. They began to "throw punches" and Henley then pulled Stanley away from defendant. Defendant left saying he would "take no ass-kicking. He was going to get his pistol."
Defendant's wife had a knife and began fighting with Dean. After defendant's wife lost the knife, she went upstairs. Defendant, carrying a stick, returned and started to struggle with Stanley. Henley called Stanley and Stanley walked towards Henley and defendant then went back upstairs.
Henley also testified that he, Jones, Stanley, and Dean then went to Henley's apartment to get a deck of cards. They then walked over to Dean's apartment. Jones, Dean, and Henley sat at the table in the kitchen while Stanley went towards the back of the apartment to get another chair. As he returned, Henley heard a shot and saw Stanley fall into the living room. Dean, Stanley, and Henley ran to the door. Through the screen door, Henley saw defendant running away from the door. Henley identified defendant as the man he had seen running from Dean's screen door.
On cross-examination, Henley denied he was aware that Dean had been indicted for perjury. Henley admitted he had moved once in mid-September 1976 and that he had not notified the State because he did not know how to reach the State's office. Henley further denied that there were numerous people sitting outside the apartment building during the time defendant and Stanley fought. Henley restated his testimony on direct examination regarding the first fight between defendant and Stanley. He asserted he never said that he, Jones, Stanley, or Dean had been "getting high" on the night of the incident.
According to Henley, when defendant returned with a stick, he pointed the stick at Stanley, but did not hit him with it. Henley did not see defendant get stabbed. He also had not observed Dean or Stanley with a knife. He asserted that defendant's wife was the only person he saw with a knife. Henley also stated that as far as he could tell, no one who was sitting at the kitchen table in Dean's apartment could see the screen door.
Henley identified a diagram of Dean's apartment which he had drawn during an interview with defense counsel and Rozelle Conyers, a law student who was assisting defense counsel. Henley admitted the diagram showed that no one seated at the kitchen table could have seen outside the kitchen door to the front room door. Henley further stated that after he drew the diagram, Jones entered the apartment and looked at the diagram. Henley denied that Jones said defense counsel had drawn the diagram. He admitted, however, that Jones told him he did not have to say anything else to defense counsel.
Henley asserted that the diagram accurately represented where he, Dean, and Jones were sitting when they heard the gun fire. He admitted the diagram showed he was closest to the screen door and Jones was furthest away from the door. When Henley heard the shot, he saw Stanley standing in the middle of the living room, holding a chair. Henley stood up when he heard the gunshot, but he was the second person to the screen door. He denied ever making a contrary statement.
Upon further questioning, Henley acknowledged a document signed by him stating he was the first person to the door. The statement also reported that he, Jones, Stanley, and Dean were "getting high" when the fight between defendant and Stanley occurred. Although Henley denied he had said this, he admitted he had written the statement.
Henley also testified that when he reached the screen door, he saw the side of a man's face. He denied ever making a contrary statement or stating he had seen the back part of a man's head and body running through the doors that led to the elevators near Dean's apartment. He also denied ever stating that he assumed the man was defendant because earlier defendant had been fighting with Stanley. He, however, did admit that he wrote a statement which indicated he had seen only the back of a man's head and body as he ran and he knew it was defendant because of defendant's prior fight with Stanley. Henley asserted that when he reached the screen door, he saw defendant running away. He did not see defendant standing there for a minute or two.
On redirect examination, Henley testified he told the police defendant was the person he saw outside the screen door. He also had told defense counsel and Conyers that he saw defendant outside the screen door after the shooting. Henley further explained that the week before the trial began, he was with defense counsel's investigator Rene Brown when Henley wrote the statements contained in the document. Brown had come to Henley's home and invited him out for a drink. They went to Reese's Lounge and Henley had seven rum and cokes. Brown paid for the drinks. Henley did not know where Brown got the money for the drinks. Henley did know that Brown worked for defense counsel as an investigator.
Henley further testified that he and Brown first talked about women, then other subjects. Brown brought up the case and attempted to convince Henley that defendant had not killed Stanley. He also attempted to persuade Henley not to testify. Brown told Henley "how the white man be messing over the brothers in the jail and things like that there." After they left the lounge at 1 a.m., they went to a restaurant. Brown had paper and pen and he took Henley's statement. A waiter spilled coffee on the paper and Brown asked Henley to rewrite the statement while Brown went to the washroom. Henley asserted he was intoxicated when he wrote the statement.
On re-cross-examination, Henley admitted he was testifying under a subpoena. Henley also indicated he was not forced to go with Brown to the lounge or to drink with Brown. Henley admitted he agreed with Brown's conversation about the jail conditions, but that parts of the statement he gave to Brown were untrue. Henley estimated that it was approximately 1:20 a.m. when Brown took his statement in the restaurant. He also asserted he remembered clearly the events of the evening, although he was intoxicated.
Officer Earl Johnson testified that when he arrived at Dean's apartment, he saw Stanley lying on the floor in a pool of blood. He spoke with Henley, Dean, and Jones and asked them for the names of anyone they suspected of doing the shooting. Johnson further asserted that based on the information received, he left and proceeded to another apartment building. He called other police units and, with the assistance of a ...