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People v. Lewis

OPINION FILED NOVEMBER 13, 1981.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

CORNELIUS LEWIS, APPELLANT.



Appeal from the Circuit Court of Macon County, the Hon. Robert J. Steigmann, Judge, presiding.

JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:

Rehearing denied January 29, 1982.

Cornelius Lewis (defendant) and his sister, Bernice Lewis, were indicted for armed robbery, aggravated kidnaping, and murder in connection with the December 14, 1978, robbery of the Citizens National Bank in Decatur, during which Donald Bivens, a bank security guard, was shot and killed. Willie Sangster, a Decatur resident, was separately charged with the same crimes. The three defendants requested and obtained a change of venue to Champaign County, where, in a separate jury trial, defendant and his sister were found guilty of the crimes. Defendant was sentenced to death as a result of a jury verdict and has appealed directly to this court. Ill. Const. 1970, art. VI, sec. 4(b); 73 Ill.2d R. 603.

The testimony of the principal witnesses was as follows. Jodi Myers testified that, at 6:45 a.m. on the morning of the crime, she noticed two or possibly three persons in a maroon Monte Carlo automobile in the parking lot of the day-care center where she worked. As she walked near the Monte Carlo, a black man seated in the driver's seat (whom she later identified from a lineup as Maurice Farris) lowered his sun visor.

Mary Comerford testified that, after delivering her child to the same day-care center, she returned to her car, noticing two black persons in a maroon Monte Carlo parked next to her white Mercury automobile. When she entered her car, a black man wearing a ski mask appeared in her back seat and forced her to drive away, eventually taping her eyes and hands and placing her in the trunk of the Mercury.

Kaye Pinkley, a teller at the Citizens National Bank, testified that decedent Bivens normally drove a van with five tellers from the bank's parking garage to an auto-banking facility. Shortly before 8 a.m. on December 14, as decedent was about to start the van in which the tellers were seated, a tall black man pulled the right front door open, leaned his elbows on the witness's legs, ordered the tellers to remain silent, and shot decedent, as the latter apparently reached for his gun. Then the gunman and another robber took three of the tellers' five briefcases containing money for the day and banking paraphernalia, ran to a light-colored Mercury and drove away. Teller Pinkley and two other tellers later identified items recovered from the Macon County landfill as items which had been in their briefcases that morning.

Mr. and Mrs. Joseph Dennis from rural Macon County stated that, while sitting in their car near the Citizens National Bank, they saw two blacks park Mrs. Comerford's Mercury, enter the bank's parking garage, later return to the Mercury, with three black briefcases, and drive off. Gail Thompson, a florist, saw a black man or person dressed as a man, carrying a black briefcase in the vicinity of the parking lot near the bus station, where Norman Goenne, an office worker, saw the driver in a maroon Monte Carlo, waiting with the engine running, at around 7:45 a.m.

Maurice Farris testified that he and Willie Sangster (who according to the prosecution's theory was the mastermind of the robbery) surveyed the Citizens National Bank and the route to the home of Margaret Morgan, where defendant apparently was staying. On two mornings, Farris observed the tellers' routine. Sangster introduced defendant and his sister (using the names "Denise" and "Mingo") to Farris, who at trial estimated the sister's height as 5 feet 11 inches, defendant's as over 6 feet and his own as 5 feet 8 inches. The Lewises and he discussed plans for the robbery of the bank. Farris was to drive the car, the Lewises were to do the actual robbing, and Sangster was to get $10,000 "off the top" the day after the robbery, apparently for his role in planning. On the morning of December 13, when they had intended to carry out the plan, the Lewises and Farris were unable to steal a car for use in the robbery, but they did observe the tellers' routine and drove along the route to Mrs. Morgan's. The next morning defendant and his sister, with Farris driving, went to the day-care center in the Monte Carlo looking for a car to steal. Maurice lowered his sun visor to avoid being identified. Defendant left the car and concealed himself in the back seat of Mrs. Comerford's Mercury. When she entered the car he forced her to drive away and eventually took control of her car, forcing her to get into the trunk. Defendant's sister then left Farris in the Monte Carlo, which had accompanied the Mercury, and sat on the passenger side of the front seat of the Mercury. Farris drove to a parking lot near the bus station, got some coffee at about 7:40, and waited with the motor running until defendant and his sister rejoined him, carrying one and two briefcases respectively. The Lewises concealed themselves on the floor of the maroon Monte Carlo. On the drive to Mrs. Morgan's, a siren prompted comments by the sister, and defendant stated, "The guard went for his gun. I had to burn him." Except for the possibility of a perjury prosecution, Farris received total immunity in return for his testimony.

Mrs. Morgan testified that the Lewises had stayed with her beginning on December 12, 1978. On the morning of December 14, at about 8:05 or 8:10 a.m., she observed the defendants with three black briefcases. She asked Bernice Lewis whether Bernice knew that the bank had been robbed, to which Bernice, with defendant present, replied, "Did he die?" Later that morning Mrs. Morgan saw both Lewises counting a large quantity of money on her coffee table, with black briefcases and "blank money orders from the bank and money wrappers" present. Defendant gave Mrs. Morgan a paper sack to take to Willie Sangster at Jelk's Barbershop, where he worked. Later that day, Bernice Lewis and Mrs. Morgan went to a deteriorated section of Decatur to dispose of the black briefcases and a garbage bag containing two handguns, money wrappers, and other miscellaneous items. Subsequently Mrs. Morgan and two neighbors moved these things from the garbage cans, where Bernice Lewis and she had put them, to a "dumpster." Mrs. Morgan, Shirley Brummet (a neighbor), and the Lewises drove to the Davenport, Iowa, bus station, where defendant and his sister caught the bus to Des Moines. Mrs. Morgan eventually turned over to the FBI some money which she said included that given her by defendant. Mrs. Morgan testified that she discovered a .357-Magnum handgun, which a ballistics expert indicated could have fired the bullet which killed decedent, under a mattress in the room in which the Lewises had been staying. She stated she observed the gun during a January 25 FBI consent search of the room when the agents lifted the foot of the mattress on the bed. According to her testimony the gun was located near the head of the bed and was not seen by the agents. She did not then mention the gun to them but later that day took it to a friend's home from which the agents later recovered it at her direction. The agents both testified that only the lower corners of the mattress were lifted and they did not observe the gun. On January 31 Mrs. Morgan did give to FBI agents five live rounds of .357-caliber ammunition which she had earlier removed from the gun.

Barbara Rigney (one of Mrs. Morgan's children) and Florida Eubanks and Shirley Brummet (two neighbors) testified that Bernice and Cornelius Lewis had been staying at Mrs. Morgan's in mid-December, 1978. Wyonia Adams, another neighbor, testified that she and Shirley Brummet had moved garbage bags containing guns and miscellaneous items from a trash can to a "dumpster." Shirley Brummet testified that, on December 14, she had traveled with the Lewises and Mrs. Morgan to the Davenport, Iowa, bus station. Officer McQuaid, of the Decatur police, testified that he observed a black lady carrying a sack into Jelk's Barbershop on the morning of December 14, 1978.

Defendant's brother-in-law, Dwight David, testified that in late December 1978 defendant had asked him to keep a box which contained money. After he heard that defendant had been arrested, David took the money from the box, put it in a bag, and asked a friend, Mrs. Bradford, to hold it for him. He later retrieved it, and gave it, still in the bag, to the FBI, together with the box from which he had taken it. FBI Agent Ryan testified that new $20 bills with serial numbers G21536201A through G21536247A were included in the money turned over by David. Daniel Kinsella, an official of the Federal Reserve Bank, testified that numbers written on the back of a form (Exhibit 80) indicated that $20 notes with serial numbers G21536001A through G21540000A were in a shipment of currency which had been sent to the Citizens National Bank in Decatur.

Lee Jarombeck, an employee of a Minnesota car dealer, testified that defendant had rented from him the maroon Monte Carlo which had been observed in the day-care lot and eventually recovered from Farris' garage.

Defendant offered no testimony, adopting Bernice Lewis' case, which primarily emphasized Mrs. Comerford's lineup identification of Farris as her kidnapper, and teller King's positive statements to Decatur police officers that the robbers were both male.

Defendant asserts numerous errors, the resolution of which requires reference to the Illinois death penalty statute (Ill. Rev. Stat. 1977, ch. 38, par. 9-1). In relevant part it provides:

"Sec. 9-1. Murder — Death Penalties — Exceptions — Separate Hearings — Proof — Findings — Appellate Procedures — Reversals.

(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:

6. the murdered individual was killed in the course of another felony if:

(a) the murdered individual was actually killed by the defendant and not by another party to the crime or simply as a consequence of the crime; and

(b) the defendant killed the murdered individual intentionally or with the knowledge that the acts which caused the death created a strong probability of death or great bodily harm to the murdered individual or another; and

(c) the other felony was one of the following: armed robbery, robbery, rape, deviate sexual assault, aggravated kidnapping, forcible detention, arson, burglary, or the taking of indecent liberties with a child; or

(c) Consideration of factors in Aggravation and Mitigation. The court shall consider, or shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty. Aggravating factors may include but need not be limited to those factors set forth in subsection (b). Mitigating factors may include but need not be limited to the following:

1. the defendant has no significant history of prior criminal activity;

2. the murder was committed while the defendant was under the influence of extreme mental or emotional disturbance, although not such as to constitute a defense to prosecution;

3. the murdered individual was a participant in the defendant's homicidal conduct or consented to the homicidal act;

4. the defendant acted under the compulsion of threat or menace of the imminent infliction of death or great bodily harm;

5. the defendant was not personally present during commission of the act or acts causing death.

(d) Separate sentencing hearing.

Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in Subsection (b) and to consider any aggravating or mitigating factors as indicated in Subsection (c). The proceeding shall be conducted:

1. before the jury that determined the defendant's guilt; or

2. before a jury impanelled for the purpose of the proceeding if:

A. the defendant was convicted upon a plea of guilty; or

B. the defendant was convicted after a trial before the court sitting without a jury; or

C. the court for good cause shown discharges the jury that determined the defendant's guilt; or

3. before the court alone if the defendant waives a jury for the separate proceeding.

(e) Evidence and Argument.

During the proceeding any information relevant to any of the factors set forth in Subsection (b) may be presented by either the State or the defendant under the rules governing the admission of evidence at criminal trials. Any information relevant to any additional aggravating factors or any mitigating factors indicated in Subsection (c) may be presented by the State or defendant regardless of its admissibility under the rules governing the admission of evidence at criminal trials. The State and the defendant shall be given fair opportunity to rebut any information received at the hearing.

(f) Proof.

The burden of proof of establishing the existence of any of the factors set forth in Subsection (b) is on the State and shall not be satisfied unless established beyond a reasonable doubt.

(g) Procedure — Jury.

If at the separate sentencing proceeding the jury finds that none of the factors set forth in Subsection (b) exists, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections. If there is a unanimous finding by the jury that one or more of the factors set forth in Subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.

Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections.

(i) Appellate Procedure.

The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court."

Defendant argues that this statute violates the eighth and fourteenth amendments to the United States Constitution in that greater consideration — a more "individualized focus" — on the personal characteristics of the defendant and the particular circumstances of the offense are required. The statute, however, is not restrictive. It provides, "The court * * * shall instruct the jury to consider any aggravating and any mitigating factors which are relevant to the imposition of the death penalty." (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c).) It does not limit the factors to be considered in mitigation, which "may include but need not be limited to" (emphasis added) (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c)), the factors outlined in section 9-1(c). Information relevant to those factors is admissible regardless of the rules of evidence in criminal trials. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(e); People v. Gleckler (1980), 82 Ill.2d 145, 157; People v. Carlson (1980), 79 Ill.2d 564, 589-90; People v. Brownell (1980), 79 Ill.2d 508, 531-36; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 535, cert. denied (1980), 445 U.S. 953, 63 L.Ed.2d 788, 100 S.Ct. 1603.) It is entirely clear that this court will require that consideration be given to any mitigating facts in the record of the trial (People v. Carlson (1980), 79 Ill.2d 564, 589-90) as well as any which the defendant offers at the sentencing hearing (Bell v. Ohio (1978), 438 U.S. 637, 642, 57 L.Ed.2d 1010, 1016, 98 S.Ct. 2977, 2980-81 (opinion of Burger, C.J.); Lockett v. Ohio (1978), 438 U.S. 586, 604-05, 57 L.Ed.2d 973, 989-90, 98 S.Ct. 2954, 2964-65 (opinion of Burger, C.J.); People v. Glecker (1980), 82 Ill.2d 145).

Defendant argues that the statutory phrase "no significant history of prior criminal activity," which is a mitigating factor suggested in section 9-1(c), is impermissibly vague. Similarly, he urges that the section 9-1(g) reference to mitigating factors "sufficient to preclude the imposition of the death sentence" cannot withstand constitutional scrutiny. While the "no significant history of prior criminal activity" phrase can, perhaps, be construed or applied by courts> so as to render it overly broad, there is no reason to assume it will be. Even in the case of an aggravating factor, the Supreme Court has refused to invalidate language which need not be construed to be vague and overly broad. (Gregg v. Georgia (1976), 428 U.S. 153, 200, 49 L.Ed.2d 859, 890, 96 S.Ct. 2909, 2938 (opinion of Stewart, J.).) Approval was there indicated of the Georgia Supreme Court's characterization of the phrase "substantial history of serious assaultive criminal convictions" as an impermissibly vague aggravating factor (Gregg v. Georgia (1976), 428 U.S. 153, 202, 49 L.Ed.2d 859, 891, 96 S.Ct. 2909, 2939 (opinion of Stewart, J.).) We do not, however, view that holding as indicating any constitutional infirmity in the mitigating factor suggested by section 9-1(c)(1). Our statute does not contain the same degree of uncertainty inherent in the Georgia phrase "serious assaultive criminal convictions." Too, the suggestions of possible mitigating factors in section 9-1(c) serve a purpose different from that of aggravating factors. (See Jurek v. Texas (1976), 428 U.S. 262, 271-76, 49 L.Ed.2d 929, 938-41, 96 S.Ct. 2950, 2956-58 (opinion of Stevens, J.), 428 U.S. 262, 277, 49 L.Ed.2d 929, 941, 96 S.Ct. 2950, 2959 (opinion of White, J.); Proffitt v. Florida (1976), 428 U.S. 242, 257-58, 49 L.Ed.2d 913, 925-26, 96 S.Ct. 2960, 2969 (opinion of Powell, J.); Gregg v. Georgia (1976), 428 U.S. 153, 221-22, 49 L.Ed.2d 859, 901, 96 S.Ct. 2909, 2947 (opinion of White, J.).) Aggravating factors serve as necessary prerequisites without which the death sentence cannot be imposed; they delineate the borderline between those cases in which death is a possible punishment and those in which it cannot be considered; because of their manifest importance, their scope must be somewhat more precisely marked than the suggestions of mitigating factors which the jury may weigh in cases where the death sentence is a possibility. We believe the phrasing of section 9-1(c)(1) is not a constitutionally impermissible basis for calling to the jury's attention the absence of significant criminal convictions. (See Godfrey v. Georgia (1980), 446 U.S. 420, 426 n. 4, 64 L.Ed.2d 398, 405 n. 4, 100 S.Ct. 1759, 1764 n. 4 (opinion of Stewart, J.).) The argument that the words "sufficient to preclude imposition of the death sentence" in section 9-1(g) are impermissibly vague was rejected by this court in People v. Brownell (1980), 79 Ill.2d 508, 531, 534. Also rejected were the contentions that a single statutory mitigating factor always precludes the death penalty and that the appellate review provided by our statute is inadequate (79 Ill.2d 508, 537-38, 541-44; see Proffitt v. Florida (1976), 428 U.S. 242, 257-58, 49 L.Ed.2d 913, 926, 96 S.Ct. 2960, 2969 (opinion of Powell, J.); Gregg v. Georgia (1976), 428 U.S. 153, 203, 49 L.Ed.2d 859, 891, 96 S.Ct. 2909, 2939 (opinion of Stewart, J.)). Similarly, this court has held that the discretion vested by our statute in the prosecutor does not violate the doctrine of separation of powers or the due process clause. People v. Brownell (1980), 79 Ill.2d 508, 526-28; People ex rel. Carey v. Cousins (1979), 77 Ill.2d 531, 534-44; see Gregg v. Georgia (1976), 428 U.S. 153, 199, 49 L.Ed.2d 859, 889, 96 S.Ct. 2909, 2937 (opinion of Stewart, J.).

Defendant also urges that a second voir dire examination should routinely be conducted before the sentencing phase of a murder case in which the prosecutor seeks the death penalty. He appears to argue that a jury which has convicted a defendant is likely to be "so prejudiced against him as to have a preconceived notion that the death penalty should be imposed" and that this satisfies the statutory requirement of "good cause" for excusing the convicting jury and impaneling another jury for sentencing purposes. We do not agree. The defendant's theory would transform the statutory requirement of "good cause" into a virtually automatic provision that no jury which had heard the guilt phase could hear the sentencing phase. A system so generally providing a new jury for the sentencing phase would arguably be more vulnerable to constitutional attack since, under the present system, the same jury can, at the sentencing phase, consider the entire record, allowing a more perceptive and complete analysis of aggravating and mitigating factors, even in cases where no evidence is presented in that phase by the defendant. People v. Carlson (1980), 79 Ill.2d 564, 589-90; see Jurek v. Texas (1976), 482 U.S. 262, 271-72, 49 L.Ed.2d 929, 938, 96 S.Ct. 2950, 2956 (opinion of Stevens, J.).

Defendant does not deny that a voir dire examination of this jury was conducted in accordance with Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, but argues that qualifying the jury in compliance with Witherspoon rules results in a conviction-prone jury. The Supreme Court recently reversed a death sentence imposed by a jury selected in violation of Witherspoon, but let the conviction stand. (Adams v. Texas (1980), 448 U.S. 38, 65 L.Ed.2d 581, 100 S.Ct. 2521.) Our holdings are to the same effect: qualifying a jury in violation of Witherspoon does not affect the validity of the conviction. (People v. Wright (1974), 56 Ill.2d 523, 535; People v. Clark (1972), 52 Ill.2d 374, 392-93; People v. Brooks (1972), 51 Ill.2d 156, 167.) The studies now cited as supporting a contrary result involve very limited numbers and small variations in results. They are not persuasive of the allegation that qualifying a jury in accord with the principles of Witherspoon results in a jury biased in favor of conviction, and we adhere to our earlier holdings.

Defendant contends that due process is offended by the fact that a jury verdict indicating the death sentence should be imposed makes mandatory its imposition by the judge. It does not, says defendant, accord with due process to deny a trial judge the right to determine whether that verdict may stand in light of testimony here that decedent Bivens reached for his gun before defendant fired, a factor which defendant says section 9-1(c)(4) declares to be mitigating. Thus, it is argued, the jury mistakenly found no mitigating factor sufficient to preclude the death penalty existed, and the trial judge should have been free to sentence defendant to a term of imprisonment. We note that the trial judge, while indicating that he believed himself bound to follow the verdict, stated that, were it only a recommendation, he would have no hesitation in following it under the circumstances of this case. We believe, however, that had the legislature intended the mitigating factors specified in section 9-1(c) to preclude death, that intent would have been indicated as clearly as section 9-1(b) indicates that a single aggravating factor can support a death penalty. (See People v. Brownell (1980), 79 Ill.2d 508, 537-38.) It is clear that maintaining a link between death sentences and contemporary community values has been thought desirable (Gregg v. Georgia (1976), 428 U.S. 153, 190, 49 L.Ed.2d 859, 884, 96 S.Ct. 2909, 2933 (opinion of Stewart, J.); see also Jurek v. Texas (1976), 428 U.S. 262, 269, 49 L.Ed.2d 929, 936-37, 96 S.Ct. 2950, 2955 (opinion of Stevens, J.)). That object is best achieved by a mandatory construction vesting a determination as to the propriety of the death penalty in the jury under specified circumstances, as our statute now provides.

There is no merit to the contention that the prosecutor's action in offering to recommend a 60-year sentence if defendant pleaded guilty, and seeking the death penalty when defendant elected to stand trial, penalized defendant for exercising his constitutional right to a jury trial. It is entirely clear that defendant knew death was a possibility when he chose to stand trial. There is here no indication of a purpose to punish defendant for exercising his right to jury trial, as was the case in People v. Moriarity (1962), 25 Ill.2d 565, nor allegations of prosecutorial vindictiveness as in People v. Walker (1981), 84 Ill.2d 512. (See also Bordenkircher v. Hayes (1978), 434 U.S. 357, 54 L.Ed.2d 604, 98 S.Ct. 663; People v. McCutcheon (1977), 68 Ill.2d 101; People v. Morgan (1974), 59 Ill.2d 276.) Unless we are willing to say that a prosecutor may never seek a penalty greater than that offered in plea discussions, defendant's argument here must fail, for his election to stand trial was made with a complete understanding of the hazards. People v. Walker (1981), 84 Ill.2d 512.

Defendant argues that the prosecutor's closing argument in the sentencing phase was inflammatory and prejudicial in that it referred to the failure of a jury in another case to impose the death penalty shortly before the instant crime. It is also urged that the instructions and verdict forms used in that phase were improper. The fact that the record reveals no objection at trial as to either matter precludes these claims. People v. Carlson (1980), 79 Ill.2d 564, 575-78; People v. Underwood (1978), 72 Ill.2d 124, 129; People v. Skorusa (1973), 55 Ill.2d 577, 585.

Even if not precluded, defendant's claims would not require reversal. The prosecutor's remarks, an effort to dramatize his belief in the deterrent effect of the death penalty, were not so inherently prejudicial that no instruction could have corrected the situation, had one been requested. Although reference to his personal experience in the other trial was inappropriate, the prosecutor could properly urge the imposition of death as a deterrent to murder. We do not view addition of the personal experience as influencing the verdict. (People v. Clark (1972), 52 Ill.2d 374, 390; People v. Nilsson (1970), 44 Ill.2d 244, cert. denied (1970), 398 U.S. 954, 26 L.Ed.2d 296, 90 S.Ct. 1881.) Too, defense counsel may have believed an objection would overemphasize what the jury might otherwise believe to be an unreasoned argument.

Section 9-1(g) provides:

"(g) Procedure — Jury.

If at the separate sentencing proceeding the jury finds that none of the factors set forth in Subsection (b) exists, the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections. If there is a unanimous finding by the jury that one or more of the factors set forth in Subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether the sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death.

Unless the jury unanimously finds that there are no mitigating factors sufficient to preclude the imposition of the death sentence the court shall sentence the defendant to a term of imprisonment under Chapter V of the Unified Code of Corrections." (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(g).)

Defendant urges that reversible error is found in the failure of the court to instruct the jury that if it failed to agree that "there are no mitigating factors sufficient to preclude the imposition of the death sentence" the trial court, pursuant to the final paragraph of section 9-1(g), would impose a sentence of imprisonment. We note initially that there is no indication in this record that defendant either requested that the jury be so instructed or tendered an appropriate instruction.

The jury appears to have experienced little difficulty in deciding that there were no "mitigating factors sufficient to preclude death," returning that verdict in approximately one hour. Too, the judge, at the request of defense counsel, had the jury polled, a process (see People v. Kellogg (1979), 77 Ill.2d 524) which normally reveals any overbearing of one juror by another. The jurors here could not have speculated whether defendant, if not sentenced to death, would go free since the sentencing phase instructions, unlike the guilt phase instructions in Beck v. Alabama (1980), 447 U.S. 625, 65 L.Ed.2d 392, 100 S.Ct. 2382, made it clear that the defendant would be imprisoned even if a mitigating factor sufficient to preclude death were found. Similarly it seems likely the jurors would have realized that, since defendant would be imprisoned even if they found mitigating factors sufficient to preclude the death penalty were present, nothing less severe could result if they could not agree on the absence of those factors. This case, in our judgment, is unlike Beck, where ignorance of the effect of a mistrial added pressure to convict and interjected "irrelevant considerations" into the guilt determination process. Beck v. Alabama (1980), 447 U.S. 625, 642, 65 L.Ed.2d 392, 406, 100 S.Ct. 2382, 2392.

Defendant urges that the prosecution failed to prove his guilt beyond a reasonable doubt. This court has stated that it will not disturb the jury's verdict of guilty unless the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of defendant's guilt. (People v. Clark (1972), 52 Ill.2d 374, 387; People v. Sustak (1958), 15 Ill.2d 115, 123; People v. Horton (1954), 4 Ill.2d 176.) The United States Supreme Court has stated that the standard for reversing a jury's verdict on the ground of insufficient evidence is identical to the test of whether to submit the prosecution's case to the jury:

"The prevailing rule has long been that a district judge is to submit a case to the jury if the evidence and inferences therefrom most favorable to the prosecution would warrant the jury's finding the defendant guilty beyond a reasonable doubt. * * * Obviously a federal appellate court applies no higher a standard [in determining whether the evidence was insufficient to sustain guilt, i.e., whether the prosecution failed to prove guilt beyond a reasonable doubt]; rather, it must sustain the verdict if there is substantial evidence, viewed in the light most favorable to the Government, to uphold the jury's decision." Burks v. United States (1978), 437 U.S. 1, 16-17, 57 L.Ed.2d 1, 13, 98 S.Ct. 2141, 2150.

See also Glasser v. United States (1942), 315 U.S. 60, 86 L.Ed. 680, 62 S.Ct. 457.

Defendant posits the theory that defendant and his sister were "set up" by Maurice Farris, Margaret Morgan, and Willie Sangster, among whom a conspiracy had existed to rob the bank, and who actually committed the crimes with which defendant and his sister were charged. Defense counsel cites as supporting this theory the fact that the results of a paraffin test apparently indicated burnt powder residue on Farris' left hand, thus suggesting that he had fired the fatal shot. Farris, however, testified he was right-handed. He testified that he had, when he returned the Lewises to Mrs. Morgan's house after the crime, lifted one of the suitcases out of the back seat of the Monte Carlo to give it to defendant. Farris testified that he was not wearing gloves at the time. Testimony of teller Carnahan indicated that the gunman had worn gloves while firing at Bivens. The fact that Farris was granted immunity from prosecution also demonstrates, according to defendant, his self-interest and supports the conspiracy theory. Under that theory defendant was not in Decatur at the time of the robbery, although the Monte Carlo rented by him was conclusively shown to have been there. Defendant argues that this is explainable if the three conspirators stole the car from defendant while he was visiting his sister in Des Moines and brought it to Decatur, an explanation without support in this record. There is a further difficulty with defendant's present argument that his trial counsel was incompetent in not aggressively seeking to establish Farris as the killer. Farris was a short man, 5 feet 8 inches, whereas the bank tellers agreed the killer was over 6 feet tall. It seems quite improbable that defendant's situation would have been improved by the strategy now suggested.

It is apparent from this record that the reasonable-doubt issue is basically a question of credibility of the witnesses. If the jury believed, as it apparently did, the testimony of Margaret Morgan and Maurice Farris and other State witnesses, the proof of guilt is overwhelming. Corroboration for much of that testimony is to be found in the testimony of Gail Thompson, Norman Goenne, Shirley Brummet, Wyonia Adams, Florida Eubanks, Barbara Rigney, Lee Jarombek, and Officer McQuaid. There was also the damaging testimony of Dwight David, defendant's brother-in-law, and the testimony of four tellers which indicated that it was a tall robber who had leaned across Kaye Pinkley to shoot decedent. The Farris-Morgan testimony was also corroborated by other evidence. Fingerprints of Bernice and one of the tellers were found on the money defendant gave Dwight David. Serial numbers of some of that money matched numbers of some of the bank's shipment of currency. A .38-caliber handgun, identified by the testimony of a Minnesota gun dealer and other witnesses as having been "pawned" to defendant, was found in the Macon County landfill in the area with decedent's gun and items identified by three of the bank tellers as having been in their briefcases on the morning of the murder. Telephone bills showed calls between Lewis residences in Minneapolis and Des Moines and the Morgan and Sangster-Farris residences in Decatur. An Illinois roadmap with defendant's fingerprint on it was found in the maroon Monte Carlo seized in Farris' garage, together with a billfold containing identification of "Denise" Lewis. In our judgment the evidence of guilt, if believed by the jurors, was ample.

Defendant claims that the performance of his trial counsel was so inadequate as to deny him effective assistance of counsel in violation of the sixth and fourteenth amendments to the United States Constitution. This court has often stated the test applied to the performance of appointed counsel:

"In order to establish incompetency of appointed counsel, the defendant is required to establish actual incompetence of counsel, as reflected by the manner of carrying out his duties as a trial attorney which results in substantial prejudice without which the outcome would probably have been different." (People v. Carlson (1980), 79 Ill.2d 564, 584-85.)

(See People v. Greer (1980), 79 Ill.2d 103, 120-24; People v. Hills (1980), 78 Ill.2d 500, 505-07; People v. Morris (1954), 3 Ill.2d 437, 449.) Arguments that a different test should be adopted have been rejected. People v. Greer (1980), 79 Ill.2d 103, 121.

Public Defender Scott Diamond of Macon County had originally been appointed to represent both defendant and his sister. Attorney Diamond subsequently sought and was granted leave to withdraw from representing defendant because of his representation that the interests of his clients conflicted. Attorney Mark Jackson was then appointed to represent defendant but later sought and was granted leave to withdraw, and Kenneth Kinser was appointed and represented defendant throughout the trial. Diamond continued to represent defendant's sister, and defendant complains that his attorney merely duplicated much of what his sister's lawyer did. Defendant gives numerous examples of action or inaction by his counsel which he considers as demonstrating incompetence. Many of the matters complained of, including waiver of an opening statement after permission was denied to reserve it until close of the State's case (People v. Georgev (1967), 38 Ill.2d 165, 169, cert. denied (1968), 390 U.S. 998, 20 L.Ed.2d 97, 88 S.Ct. 1202) and brief cross-examination (People v. Keagle (1955), 7 Ill.2d 408, 415, cert. denied (1956), 351 U.S. 942, 100 L.Ed. 1468, 76 S.Ct. 842), are matters of trial strategy as to which hindsight frequently indicates a different course might have been preferable (People v. Keagle (1955), 7 Ill.2d 408, 416). Similarly, trial counsel may at times have considered silence preferable to the emphasis which objections, motions to strike, or instructions to disregard give to otherwise objectionable matters. (People v. Greer (1980), 79 Ill.2d 103; People v. Newell (1971), 48 Ill.2d 382; People v. Martin (1970), 44 Ill.2d 489.) The record here shows several conferences during trial but outside the presence of the jury in which both counsel discussed with the judge and their clients the fact that the clients wanted alibi witnesses called whom counsel believed would not be helpful and witnesses cross-examined whom counsel thought best excused without the reemphasis which cross-examination would give to unfavorable facts. At those conferences it is clear that the trial judge considered both lawyers to be competently representing their clients. Defendant complains that counsel presented no evidence other than that of the co-defendant Bernice Lewis. It is clear, however, that counsel had read reports, including reports concerning statements of the possible alibi witnesses. It does not seem to us that duplication of a co-defendant's motions, or adoption of a co-defendant's arguments, can be said to have prejudiced defendant, when no objection is made to their substance.

Of the numerous instances alleged to demonstrate incompetence, several merit separate treatment. Defendant had several prior convictions, including 1965 and 1966 felonious assaults in New York with a knife and a firearm, a 1966 California conviction for second-degree robbery, and a 1969 Minnesota conviction for bank robbery. There is no showing in the record of the periods of imprisonment or the dates of discharge. Under People v. Montgomery (1971), 47 Ill.2d 510, those convictions were admissible for impeachment purposes if defendant had been discharged from confinement within 10 years. Since defendant had been sentenced to 20 years' imprisonment on the bank robbery, it quite likely would have been held admissible. It is here urged that trial counsel was incompetent for failure to make an in limine motion to preclude use of the convictions if defendant testified. We do not agree, for it is by no means clear that the admissibility of his record was the sole motivating factor preventing defendant from testifying during the guilt-determining phase of the trial. The fact that he did not testify in the sentencing phase, even though the full record had been admitted in those proceedings, would seem to be some indication that there were reasons other than his criminal record for his failure to testify. This fact, coupled with the probability that the motion to exclude would have been denied (People v. Spates (1979), 77 Ill.2d 193; United States v. Callison (8th Cir. 1978), 577 F.2d 53, cert. denied (1978), 439 U.S. 873, 58 L.Ed.2d 187, 99 S.Ct. 209; Bendelow v. United States (5th Cir. 1969), 418 F.2d 42, cert. denied (1970), 400 U.S. 967, 27 L.Ed.2d 387, 91 S.Ct. 379), militate against a characterization of that conduct as demonstrating incompetence. Counsel is not required to make losing objections in order to provide effective representation. People v. Johnson (1970), 45 Ill.2d 501.

If made, an objection to the judge-conducted voir dire would have failed (People v. Jackson (1977), 69 Ill.2d 252), and the fact that counsel did not ask for notation of the race of jurors was not incompetence. Defendant's objection to the voir dire examination and jury composition appears to have been an unsupportable demand for a proportionate number of his race on the jury and venire in this case. (Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824; People v. Powell (1973), 53 Ill.2d 465, 477-78.) It was entirely proper for the judge to omit mention of Bernice Lewis in asking whether jurors could obey their oaths despite the possibility of a death penalty, since there was no possibility of that penalty applying to her.

A number of the leading questions posed to Farris were apparently designed not so much to lead him as to limit his testimony so as to avoid any hearsay testimony concerning statements by Sangster. Attorney Kinser had objected to such hearsay, and may have tolerated these leading questions rather than take the risk that hearsay would be elicited, since he would then be forced to rely on the jurors' ability to disregard it.

An additional claim of error involves an episode late in the trial when a prosecution witness made reference to a meeting when defendant was "visiting his probation officer." A motion for mistrial was made by Attorney Kinser. The judge indicated he was willing to grant the motion, but that it would likely result in defendant being later tried with Willie Sangster, whose trial originally had been consolidated with that of the Lewises, but then continued to the following month. The judge also indicated that if the defendant desired to withdraw the motion for mistrial, he would admonish or instruct the jury to disregard the improper reference.

It is an overstatement to assert, as defense counsel now does, that the judge placed a "condition" on the grant of mistrial. The judge, in discussions with defendant, made it clear that motions for severance would be considered later if it appeared that a joint trial would prejudice defendant.

Perhaps some attorneys might have pressed the judge to consider severance at the same time as he considered mistrial and might have attempted to obtain a ruling on that issue prior to deciding whether or not to withdraw the motion for mistrial. However, even the defendant's brief acknowledges that a sufficient showing of antagonistic defenses had not been made when the pretrial objections to Sangster's consolidation had been made. Production of additional evidence would have necessitated delay in the trial, and, if severance were denied, a delay would have resulted in the admonition given the jury to disregard the improper reference. Given the circumstances here, we believe counsel cannot be accused of incompetence for failing to insist that the court rule in a form the judge was not obliged to follow. Nor will we speculate that the court would have erred on a later motion for severance. The effect, if any, of the reference to the probation officer was necessarily limited to the guilt phase of the trial, for defendant's entire criminal record was before the jury during the sentencing phase. As we earlier indicated, the testimony and evidence of defendant's guilt, if believed, was overwhelming, and we do not believe there is any reasonable possibility that the "slip" complained of might have contributed to the conviction. Chapman v. California (1967), 386 U.S. 18, 17 L.Ed.2d 705, 87 S.Ct. 824.

Both in the guilt phase and prior to finding an aggravating factor in the sentencing phase, the jury was given modified versions of Illinois Pattern Jury Instructions (IPI), Criminal, Nos. 1.01, 1.03 (1968), which indicated, among other things, that arguments were to be confined to evidence, and were to be disregarded if not confined to evidence and reasonable inferences therefrom. In view of those instructions we consider defendant's complaint of inaccuracies in the prosecutor's argument to be inconsequential. Similarly, the remarks in attorney Diamond's closing argument implying defendant's guilt (People v. Nilsson (1970), 44 Ill.2d 244, cert. denied (1970), 398 U.S. 954, 26 L.Ed.2d 296, 90 S.Ct. 1881; People v. Clark (1972), 52 Ill.2d 374) were not "material factors" in the jury's verdict. Counsel appears to have made a tactical judgment as to these arguments, as with the probation-officer "slip" where the judge agreed that some attorneys would think it best to say nothing at all, thus lessening the impact on the jury by not emphasizing the matter. People v. Carlson (1980), 79 Ill.2d 564, 584-85; People v. Greer (1980), 79 Ill.2d 103, 120-24; People v. Hills (1980), 78 Ill.2d 500, 505-07; People v. Morris (1954), 3 Ill.2d 437, 449.

Defendant's appellate counsel also claims that the lack of communication between defendant and his trial counsel establishes ineffective assistance of counsel. We do not agree. Although on the day of the post-trial motion defendant stated that there never was any "rapport" between him and his counsel and although he had, prior to trial, written the judge a letter requesting different counsel, he appears to have generally communicated with defense counsel adequately during trial. Thus, on May 18, the fourth day of the trial, he stated:

"DEFENDANT CORNELIUS LEWIS: * * *. Mr. Kinser and I have had misunderstandings since we come on the case. But, since the beginning of this trial I don't — I don't think we have had that ...


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