APPEAL from the Circuit Court of St. Clair County; the Hon.
JOHN J. HOBAN, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendants LaVerne and Lester Lumpkin were convicted of the offense of murder following a joint trial before a jury in the circuit court of St. Clair County. On appeal defendants contend that the trial court erred in denying their motions for mistrial after the prosecutor introduced, in the form of a leading question, prejudicial evidence which the prosecution had represented would not be used at trial. In addition, defendant Lester Lumpkin asserts that he was denied a fair trial due to the trial court's failure to sever his trial from that of his co-defendant, LaVerne Lumpkin, when LaVerne's out-of-court statement was used at trial. Lester argues in the alternative that he was denied effective assistance of counsel by his attorney's failure to raise the issue of severance properly.
The decedent, Ricky Hilliard, was found on March 8, 1980, in a deserted area off Interstate 70 with a shotgun wound to his chest as well as two additional bullet wounds to his back and his left thigh. The defendants were arrested shortly afterwards in the nearby town of Venice, Illinois, and charged with the shooting. At the time they were apprehended, defendant Lester Lumpkin was carrying a .38 revolver, and defendant LaVerne Lumpkin was in possession of a .20-gauge shotgun.
Prior to their joint trial, the court denied LaVerne's motion to suppress a statement made by him after his arrest. Lester's attorney then advised the court that LaVerne's statement implicated Lester and that he would be unable to cross-examine LaVerne regarding this statement if the defendants were tried together. Lester's attorney stated that he had a motion for severance prepared although he felt it would be premature at that time. The court responded:
"We will wait until that arises. If it arises, and you feel it is important to the defense of your case, the severance, then we would have to sever it at that time."
Lester's attorney subsequently made no motion for severance at trial and did not object when LaVerne's statement was admitted at trial.
In his opening statement, the prosecutor advised the jury that the evidence against the defendants was circumstantial and that there was no known motive for the alleged offense. Counsel for LaVerne Lumpkin asserted that the defendants were coming to the aid of the decedent on the day of the alleged murder and that, when they were arrested, they were within a few blocks of the police station on their way to turn in the weapons they had found.
The State's first witness, Dawn Thurman, testified that she had lived with the decedent for several months before his death. On March 8, 1980, the decedent had come home at 8 a.m. after being gone the night before, picked up his shotgun and told her he was going hunting. Ms. Thurman observed two men, whom she identified as the defendants, sitting in the decedent's car, which was parked in front of the house. She stated that she had known the Lumpkin brothers for some time and that the decedent had been a close friend of the defendants, having lived at their home during one period when he was out of a job.
Clarence Hart testified that on March 8, 1980, at approximately 8 a.m., the decedent had driven up to his farm near the intersection of Interstate 70 and Route 203. The decedent had parked his car, approached Hart, and asked for permission for himself and his two companions to hunt on Hart's land. Hart observed two black men in the back seat of the car, which was parked about 50 feet away, but he was unable to observe anything more about them.
Ronald Watson testified that on March 8 he was fishing in a pond near the intersection of Interstate 70 and Route 203. Between 7:30 and 8 a.m. the decedent's blue Buick Electra approached and stopped approximately 100 yards away from him, at which time three black men whom Watson could not describe got out of the car. After the three men left the car, Watson heard shooting which he recognized as shotgun and handgun fire, and he yelled to the men not to shoot in his direction. The men then walked out of sight. About 15 minutes later Watson heard a burst of closely spaced handgun fire, followed by shotgun fire, followed by more handgun fire. A minute or so later Watson observed two black men reappear and walk out of sight on the frontage road that ran west to Route 203 and parallel to Interstate 70. The two men did not appear to be carrying anything. Watson assumed that these were two of the three men he had seen before because he had not seen anyone else in the area; however, he did not actually see any shots fired and did not know for certain that it was this group of three men that had been shooting.
Venice police officer Joseph Mehan testified that the defendants were seen at about 10:30 a.m. on March 8 walking together on Washington Street in Venice, Illinois. As the police car approached them, LaVerne Lumpkin dropped the .20-gauge shotgun which he had been carrying and continued walking until Mehan ordered him to stop. When the defendants were arrested, Lester Lumpkin was carrying a .38 revolver in his pocket. The Venice police department was three blocks from where the defendants were arrested, although the defendants would have had to make one right turn to arrive there. One block in the direction from which the defendants were walking was a field, beyond which were some railroad tracks that ran from the vicinity of the alleged murder to Venice.
Firearms expert Larry Lorsbach testified that tests performed on a spent .20-gauge shotgun shell found at the scene of the alleged offense established that the shell had been fired in the shotgun LaVerne was carrying at the time of arrest. Plastic wadding and shot recovered from the decedent's chest were of the same type as those normally contained in this brand of shell. Examination of the .38 special bullet recovered from the decedent's thigh established that it was fired from the recovered which Lester had in his possession at the time of the arrest. This revolver contained six spent shells, consisting of two of the .38 special variety and four of the shorter .38 S & W variety. This bullet recovered from the decedent's upper body was of the .38 S & W variety. This bullet had characteristics similar to those of a sample bullet fired from Lester's revolver, but Lorsbach could not determine whether the bullet had been fired from that revolver.
Forensic pathologist Dennis Aubuchon testified that a red substance on the shirt LaVerne was wearing when arrested was type "B" human blood, the same type as that of the decedent. A pair of gloves belonging to LaVerne had human blood on them of an undeterminable type. No blood was found on the clothing of Lester Lumpkin. Both LaVerne and Lester had type "O" blood.
Louis Reddo of the Illinois Department of Law Enforcement testified that the decedent's car was found one-quarter mile east of Route 203, on the frontage road south of the parallel to Interstate 70. The car was pointed east and the front passenger door was open. The decedent's dark half-length jacket was found one foot west of the rear of the car. Blood samples found in the vicinity of the car and near the fence along Interstate 70 were determined ...