Appeal from the Circuit Court of Cook County; the Hon. Robert
J. Kiley, Jr., Judge, presiding.
JUSTICE WILSON DELIVERED THE OPINION OF THE COURT:
Following a jury trial, defendant was convicted of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)) and armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)) and was sentenced to prison terms of 50 and 30 years, to run concurrently. On appeal, he contends that: (1) the trial court's admission of his wife's testimony violated the husband-wife privilege; (2) the trial court failed to clarify questions from the jury and failed to provide the jury with a requested transcript of his wife's testimony; (3) the trial court failed to instruct the jury on lesser-included offenses and failed to give a proper instruction on circumstantial evidence; (4) the trial evidence was insufficient to support a verdict of guilty of murder; (5) statements made during the State's closing argument constituted reversible error; and (6) an investigation by the State's Attorney's office of the public defenders who were assigned to defendant's case, which resulted in a replacement of defense counsel, violated defendant's right to effective assistance of counsel and due process. We reverse and remand. The pertinent evidence follows.
Robert Sanders resided at the Boulevard Hotel, room 39, 2801 West Warren Street, Chicago. On October 13, 1978, at some time prior to 2 a.m., he and Milton Walker ("Greek") knocked on 67-year-old Cutis Lovelace's apartment door in the same building, room 37. Lovelace shared his apartment with a woman friend, Louise Drake. Ms. Drake was not in the apartment at the time. Lovelace apparently recognized Sanders and Walker and he invited the two men in. A few moments later, Sanders struck Lovelace on the head with a brick. Lovelace fell to the floor unconscious. The two assailants bound Lovelace's ankles and arms with a necktie, rummaged through his dresser drawers, searched his pockets and scavenged his apartment.
Lovelace's body was taken to Cook County Hospital, where he was pronounced dead. An autopsy revealed scalp lacerations, caused by a blunt instrument, as well as abrasions and contusions on his head and shoulders. None of the blunt trauma injuries were sufficient to cause Lovelace's death, however. Instead, Lovelace died by ligature strangulation. Robert J. Stein, Chief Medical Examiner of Cook County and an expert in the field of forensic pathology, testified that Lovelace's strangulation could have occurred 5 to 10 minutes after the blows were inflicted. A tie found on Lovelace could have been used to strangle him.
During their investigation of the murder scene, the police were given a pair of men's slacks by George Robinson, who resided at the Boulevard Hotel with his wife. Robinson said he had found the slacks behind the hotel. The police found a coat and a white cloth with blood on them below Lovelace's hotel room window. Photographs and blood samples were taken for evidence along with a brick with bloodstains on it and glass fragments. The only items that were processed for fingerprints were glass fragments, a glass bottle and a glass jar.
The next evening, Saturday, October 14, 1978, police responded to a radio call to investigate a fight at 2145 Lake Street, apartment 702. There they spoke with Beverly Sanders, defendant's wife. (Defendant visited and spent the night with Beverly about three times a week.) Beverly gave them a pillowcase containing men's clothing, a wedding band and a watch. She told the police that she had gotten the items from her husband, Robert Sanders, and that Robert had told her about robbing Curtis Lovelace. She went with the officers to look for her husband, whom they found and arrested one block from the Boulevard Hotel.
At the preliminary hearing, defendant objected to Beverly Sanders' testimony as to what he had told her about his involvement in the murder. Defendant argued that the presence of family members, in this case, three of the four children of Robert and Beverly Sanders, did not destroy the confidential nature of a marital communication between husband and wife. In rebuttal, the State argued that defendant sought to enlarge a "narrow privilege to include a family privilege" and that there was no family privilege when a husband and wife are not alone or when they know that other people will hear their conversation. The court sustained defendant's objection and found no probable cause. Later that day, defendant appeared before a grand jury, which refused to return an indictment against him.
Milton Walker ("Greek") was arrested on October 25, 1978, 12 days after the murder. A police officer testified before a grand jury that Walker's arrest report had charged him with murder but that the report had later been altered in writing by someone to change the offense to armed robbery. The police found Walker asleep in a Volkswagen van behind a drugstore on a vacant lot. Walker testified at trial that he had been drinking since 7 a.m. that morning and had consumed 15 pints of wine by the time he was arrested at approximately 11 p.m. Walker also testified that he had been addicted to narcotics for 30 years. After his arrest, he was held in custody in a police station lockup cell.
The following morning, Walker appeared before a grand jury. He later testified at a pretrial hearing that a State's Attorney spoke to him after his arrest and told him that if he (Walker) appeared before the grand jury, "it would go easier" with him. Walker said that the State's Attorney treated him like a child by telling him exactly what to say when asked a question before the grand jury. Walker also said he was made to feel that he would not be charged with a crime if he testified. Walker confessed to having been involved in the murder and the grand jury returned an indictment against him for armed robbery, aggravated battery and armed violence. An indictment was also returned charging Sanders with murder and armed robbery.
During pretrial discovery, defendant filed a motion in limine in a second attempt to prevent Beverly Sanders from testifying as to any conversations she had with her husband. The motion, based on the husband-wife privilege (Ill. Rev. Stat. 1981, ch. 38, par. 155-1), was not ruled on.
Two weeks later, the prosecution informed defendant's attorneys that based on their alleged bribing of witnesses, they were under investigation and that charges may be filed against them for obstruction of justice. Because of this investigation and the possibility that defendant's attorneys would have to refute the allegations made against them under oath during trial, they withdrew from the case. A bar association attorney was substituted, who participated in the jury selection and thereafter represented defendant.
Defendant's trial began September 25, 1980. The State called Roy Gibson, a handyman at the Boulevard Hotel, as its first witness. Gibson explained that at approximately 4 a.m. on October 14, 1978, he saw Louise Drake enter the lobby of the hotel and go to her (Lovelace's) room. Ms. Drake immediately returned to the lobby and told Gibson that she believed Curtis Lovelace was dead. Gibson went up to the room, noticed that the door was ajar and walked in. Lovelace was lying face down and had on nothing but undershorts. His feet were tied together with a necktie. The police were then notified. Gibson further testified that he noticed a trail of blood on the carpeting that led from Lovelace's apartment to the washroom, about 40 feet away. In the washroom, blood was on the bathtub and on the window sill. The bathroom window was open. Gibson said he asked the police to shine a flashlight on the ground, directly below the bathroom window. There he saw a bloody trench coat. The police took the coat as evidence.
On cross-examination, Gibson testified that he was in the hotel lobby from 9 p.m. on October 13 until 4 a.m. October 14 and that he did not see defendant enter the hotel during that period. He said that the hotel had only one front entrance and that everyone, including the hotel residents, had to be buzzed in by the front desk. The hotel residents' keys would not unlock the front door. Gibson testified further that there were bricks in the yard outside the hotel.
On redirect examination Gibson testified that when Ms. Drake came from her room upstairs she was excited and in a hurry.
Next to testify for the prosecution was Dora Husband, desk clerk at the Boulevard Hotel. Dora testified that on Friday, October 13, she saw Robert Sanders come into the lobby and make a telephone call. He was with a boy about 9 or 10 years old who he said was his son. Dora testified further that on Saturday, October 14 between 8:30 and 9 a.m., George Robinson came into the hotel office carrying a pair of pants he had gotten from the alley. Dora recognized the pants as those belonging to Curtis Lovelace.
On cross-examination, Dora stated that she did not see Curtis Lovelace on Friday, October 13. She recognized a sweater she was shown by defendant as one that Curtis Lovelace had worn.
On redirect examination, Dora testified that Robert Sanders was registered in room 39 and Curtis Lovelace in room 37.
The prosecution next called George Robinson and then Isaac Orr, who was a part-time desk clerk at the Boulevard Hotel. They were questioned extensively by the prosecution and by defendant.
After George Robinson identified Robert Sanders in the courtroom, he testified that on the night of the murder he observed Sanders throwing clothes over a fence behind the hotel. The next morning he retrieved a pair of pants that he found and gave them to Dora Husband, the desk clerk. He testified further that he had seen Curtis Lovelace wearing the same pants.
On cross-examination, Robinson testified that he had a drinking problem and had been hospitalized four or five times in 1978. He testified that his eyes "were bad" and that he should wear glasses, but didn't because he disliked them. Robinson testified further that at 9 a.m. on October 13, 1978, he and Curtis Lovelace went to a currency exchange to cash Curtis' government check. They took a walk for the rest of the morning. At 4:30 p.m. they began drinking. Robinson testified that later that evening in the hotel lobby he heard people talking about robbing Curtis.
The prosecution's remaining witnesses were police officers, the evidence technician who photographed and fingerprinted Lovelace's room, the Cook County medical examiner, Louise Drake and Beverly Sanders, whose testimony comprised over 120 pages of record transcript.
On direct examination, Beverly Sanders testified that between October 13 and 14, 1978, she had three conversations with her husband. She said that during the first conversation, her husband told her, in the presence of one or more of their children, that he was going to rob Curtis Lovelace. Beverly testified further that the second conversation occurred on October 14 at approximately 3 a.m. when Robert returned home. Beverly had gone to bed. Robert awakened her and placed a watch on her left arm and a ring on her right finger. She testified that she had never seen those items before. She and Robert were the only ones in the bedroom at this time. The third conversation took place later that morning, between 11:30 a.m. and 12 noon. Beverly testified that in the presence of their three sons, Robert told her that he had robbed Curtis Lovelace by hitting him with a brick and that "Greek" put a tie around Lovelace's neck. The State then showed Beverly a sweater and two pairs of pants. Beverly identified them as items that Robert told her he had stolen from Lovelace. Beverly further testified that Robert said he had bragged about robbing Lovelace, that he had told other people that he and "Greek" had just killed somebody and that Robert didn't appear nervous until he found out that Curtis Lovelace had died.
On cross-examination, Beverly testified that the State had put her and her children in a Holiday Inn for about 10 days and that they gave her $10 a day for cab fare and meals. Defendant read into evidence the bill for this expenditure, which totaled $1,916.41.
Beverly testified on redirect examination that defendant's attorneys (public defenders) who first handled his case, told her to avoid testifying in court, to pretend that she was an alcoholic and had amnesia, to hide from the State's Attorney and that if she was convicted for perjury they (the public defenders) would get her out and would get her a job.
The defense called Michael Morrissey to testify. Morrissey had been one of the attorneys who initially handled Sanders' case but who resigned when the prosecution began its grand jury investigation. Morrissey invoked the fifth amendment testimonial privilege and thereafter refused to answer questions. A law clerk and a second public defender who both had been involved with Sanders' case also refused to testify.
The court then permitted defendant to reopen his cross-examination of Beverly Sanders, who testified that on November 17, 1978, approximately one month after Lovelace was murdered, two men entered her apartment and injected a hypodermic needle filled with "T's and Blue's" (Talwin and Parabenzamine) in her back. The men told her they were instructed by Curtis Brown, Beverly's boyfriend at the time, to inject her with drugs so that she would not be able to appear in court. Beverly further stated that she had to be hospitalized for four days.
Further testifying, Beverly said that four months later, on March 26, 1979, Curtis Brown himself injected her with "T's and Blue's" because he didn't want her to be involved in her husband's trial. Beverly was again hospitalized.
Last to testify was Mary Ann Mohan, an attorney for the U.S. Department of Justice in Washington, D.C., who, at the time of the murder, was a microanalyst in the crime laboratory of the Chicago Police Department. On direct and cross-examination, Ms. Mohan testified that she had analyzed blood, hair samples and other items that were obtained as evidence from Curtis Lovelace's clothes and body. She further stated that Curtis Lovelace had blood type B and that type B blood was found on the brick which defendant used to strike Lovelace as well as on the front of defendant's pants.
After both sides rested and gave their closing arguments, the jury found Robert Sanders guilty of robbery and murder. Sanders was sentenced to concurrent terms of 30 years for armed robbery and 50 years for murder. Defendant appealed.
Defendant specifies certain errors that he contends denied him a fair trial. We will address the first assignment of error in length, since it is dispositive of the others.
Defendant first contends that the trial court's admission of Beverly Sanders' testimony violated the husband-wife testimonial privilege (Ill. Rev. Stat. 1981, ch. 38, par. 155-1). To exclude his wife's testimony, defendant filed a motion in limine prior to trial, however, the court never ruled on the motion and defendant did not object to the conversations. The general rule here, as the prosecution argues, is that on appeal, an issue is considered waived when a defendant failed to either make a timely objection at trial (People v. Ferguson (1981), 102 Ill. App.3d 702, 429 N.E.2d 1321) or to raise the issue in a post-trial motion (People v. Foster (1979), 76 Ill.2d 365, 392 N.E.2d 6). Defendant argues in rebuttal, however, that in spite of his failure to object to Beverly Sanders' testimony and in spite of his failure to renew his motion in limine to exclude her statements, the trial court committed plain error by allowing her to testify. We agree. As far as the first and second conversations are concerned, their admission was, in fact, reversible error.
The principle cases cited by defendant regarding the applicability of the plain error doctrine to the case at bar are on point. One such case is People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233.
The Illinois Supreme Court held in Carlson that although the failure to object to the admission of evidence at trial generally operates as a waiver of the right to consider the question on appeal, this rule is not absolute. The court stated:
"Our Rule 615(a) embodies the exception to the waiver rule. It provides, in part:
`Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court.' 73 Ill.2d R. 615(a)." People v. Carlson (1980), 79 Ill.2d 564, 576.
• 1 A court of review will grant relief, therefore, if an error is so prejudicial and of such magnitude that the commission thereof denies the accused a fair and impartial trial. People v. Carlson (1980), 79 Ill.2d 564, 577.
Applying the above to the present case, we find that because Beverly Sanders' testimony regarding the first and second conversations clearly violated the marital communication privilege, the trial court committed error by admitting them into evidence. Mrs. Sanders' testimony was prejudicial and it could have contributed to the jury's guilty verdict. Its admission therefore denied defendant a fair trial.
People v. Velillari (1980), 84 Ill. App.3d 333, 405 N.E.2d 466, the second case cited by defendant, affirms the general rule that a reviewing court is authorized to relax the general waiver rule as a matter of grace to consider plain errors affecting substantial rights. This case, like Carlson, reiterates a rule of procedure which finds its justification upon the interest of a fair, orderly and expeditious administration of justice. See People v. Harrawood (1978), 66 Ill. App.3d 163, 383 N.E.2d 707.
Reversible error was also found in People v. Morris (1980), 81 Ill. App.3d 288, 401 N.E.2d 284, defendant's third case. The trial court held in Morris that in spite of the defendant's failure to object at trial or in a post-trial motion to the court's failure to give additional jury instructions, the interests of justice required that the issue be considered. Like Carlson and Velillari, Morris restates the proposition that a reviewing court may use its discretion and apply the plain error doctrine as embodied in Supreme Court Rule 615 (73 Ill.2d R. 615) when errors affecting substantial rights are noticed although they were not brought to the attention of the trial court.
In the case at bar, a trial error resulted in substantial prejudice to defendant. The prejudicial trial error was Beverly Sanders' testimony concerning her first two conversations with her husband which was vital evidence in the prosecution's case. The court's admission of the testimony was in contradiction to Illinois law, which states that in criminal cases neither spouse may testify concerning any communication or admission made by either of them to the other, or as to any conversation between them during marriage, subject to certain exceptions not relevant to this case. (Ill. Rev. Stat. 1981, ch. 38, par. 155-1; People v. Dubanowski (1979), 75 Ill. App.3d 809, 394 N.E.2d 605.) Moreover, a statement made in private by one spouse to the other is presumed to be confidential, and is therefore privileged, unless the contrary is evident. (People v. Burton (1972), 6 Ill. App.3d 879, 286 N.E.2d 792, cert. denied (1973), 411 U.S. 937, 36 L.Ed.2d 399, 93 S.Ct. 1917; People v. Palumbo ...