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People v. Winfield

OPINION FILED MARCH 31, 1983.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

KENNETH WINFIELD, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding.

JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial, defendant was convicted and sentenced to concurrent terms of 75 years on each of two counts of murder, 50 years for armed robbery, and 30 years for attempted armed robbery. He contends on appeal that (1) he was denied his statutory right to a speedy trial; (2) he was not proved guilty beyond a reasonable doubt; (3) the trial court erred in (a) not permitting cross-examination of a key State's witness as to criminal charges pending against her, (b) failing to instruct the jury that the testimony of a narcotics addict is to be scrutinized with caution, and (c) refusing to either admit the evidence deposition of a defense witness or issue a bench warrant to compel her appearance at trial; and (4) he was denied a fair trial by (a) admission of a statement by him not disclosed pursuant to discovery and (b) the prosecutor's inflammatory closing arguments.

The State was required by statute to try defendant on or before September 4, 1981. (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a).) On September 3, 1981, a hearing was held on the State's motion to extend that term on the ground that a material witness could not be located. (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(c).) Officer Hood testified that Linda Cousins, an eyewitness to the crimes charged, had contacted him several times, the last time being a telephone call on August 24, 1981, in which she was told that a final conference with the State's Attorney would be set for the following day. Cousins left a telephone number where she could be reached, but when he called to notify her of the time and place for the meeting, he was told she was not staying there. He obtained the name and address listed by the telephone company for that number but was unable to make contact with her despite almost daily calls and visits to that number and address. He went to Cousins' last known residence, where her boyfriend said that he had last seen her approximately two weeks before the hearing and promised to look for her. Subsequent contacts with the boyfriend disclosing that she had been seen in the area within the week before the hearing prompted him (Hood) to look for her in the neighborhood, and he also asked other officers to look for her. Cousins finally called his office the night before the hearing, but he was off duty and did not receive her message until that morning. When he called the telephone number she left, the person answering said that she was not there but that he would tell her to contact the police. Hood admitted that his last contact with Cousins prior to her August 24 call had been in May 1981; that she did not ask Cousins for her address or attempt to arrange a meeting when she called on August 24; that when he went to the apartment building address listed for the telephone number Cousins gave, he did not look for her in other apartments or talk to other residents; that he had not yet ascertained the name and address listed for the telephone number he called that morning; and that he had not contacted the public aid office in his attempt to locate her.

Investigator Ayala testified that he was assigned to serve Cousins with a subpoena on August 25, 1981, and when he went to her last known address, he found that she had moved. He obtained several other possible addresses and telephone numbers, and when a call to one number revealed that she was expected to return there, he delivered a subpoena to that address. He gave other subpoenas and pictures of Cousins to police officers in the area where she normally resided and asked them to look for her. He acknowledged that he had not searched hospitals or tried to locate members of her family; that he did not inquire whether she had been arrested recently; and that he had made no personal attempts to find her since August 28, explaining that he was no longer assigned to the case as of that date and he did not know if other officers were assigned.

The trial court granted a 14-day extension, and trial commenced on September 15, 1981, 11 days after the statutorily prescribed 120-day period had expired.

At trial, Ossie Moore testified that on September 28, 1980, he lived at the Tivoli Hotel and had known another resident, Linda Cousins, for approximately two weeks. On one occasion he had accompanied Cousins to provide protection while she worked as a prostitute, and on the night in question he visited Cousins at her apartment where she showed him an unloaded .38-caliber gun. When defendant and Denise Bradley, another prostitute, arrived at the apartment a short time later, they had a few drinks and Cousins showed them the gun. Defendant loaded it and suggested they use it to rob the women's "tricks," a plan which he and Cousins rejected. Defendant took the gun with him when they left the apartment during the early morning hours of September 29, and after borrowing a car he (Moore) drove them to 47th and Calumet. After he parked the car in a restaurant lot nearby, Cousins and Bradley got out and walked to the corner. Later, a car stopped next to the women and, after a short conversation with the two male occupants, Cousins got into the car and the passenger alighted. The driver then pulled into the parking lot and drove behind the restaurant, and Bradley and the passenger began walking toward 46th and Calumet. Defendant got out of the car to follow them and, after noticing that the gun was no longer in the car, he (Moore) heard a shot from the direction of 46th and Calumet. Shortly thereafter, Bradley returned alone to the car and defendant then walked behind the restaurant where he (Moore) saw defendant pointing a gun through the window on the passenger's side of the car in which Cousins was seated. Defendant then fired the gun, and the car moved forward crashing into a fence. Cousins got out of that car and ran toward his car, while defendant leaned into the victim's car from the passenger side. Defendant then returned to his car and said he had to shoot both men because they would not cooperate, and also said, "I don't leave no witness when I do something like that, what I did, and therefore any one of you say anything about this here to anyone, I'm going to kill you all, too." He received no money for any of the events which occurred that night and first contacted the police on November 11, 1980, when he learned that a homicide detective was looking for him. He did not go to the police immediately because he was afraid of defendant. During the time he knew Cousins, she injected "T's and Blues" two or three times a day.

Linda Cousins testified that at the time of the murders she and her cousin, Debra Bradley, were prostitutes sharing an apartment with defendant at the Tivoli Hotel. She had known Moore for two to four weeks, and he accompanied her once to protect her while she worked. On the night in question defendant suggested using her gun to rob the women's dates, but she and Moore refused to do so. When they arrived at the restaurant, all four of them got out of the car, and she and Bradley walked to the corner where they stopped a car and arranged a date. She accompanied the driver behind the restaurant, had sexual relations with him, and received $15. While she was talking to the driver, defendant approached the car from the passenger's side, pointed the gun at the driver, and told him not to move. When the driver turned on the ignition, defendant shot him, and the car rolled forward crashing into a fence. She and defendant returned to Moore's car where she told defendant that he should not have shot the man as he had no more money, and defendant replied that the other man was also dead and that "he wasn't going back to the penitentiary for anybody, and in the event this was told, he was going to kill everybody." She acknowledged that she had carried the gun occasionally when she went out, had used "T's and Blues" since 1978, and before that had used heroin and methadone for approximately two years, but on the day in question she did not use drugs until they returned to her apartment. She did not talk to the police after the shootings until November 9, 1980, because of defendant's threat, although she had contacted them before then when Debra Bradley was murdered.

Police personnel testified that the bullets recovered at the scene and from the victims were fired from the same gun, which was either a .38 special or a .357 magnum; that Cousins contacted them about Debra Bradley's murder on October 20, 1980, but did not mention the two September 29 murders; that they contacted Cousins and Moore in early November for questioning about those murders; and that in her statements at that time Cousins stated that prior to the murders defendant and Moore had discussed robbing "tricks."

Valerie Davis, a defense witness, testified that she heard a car crash in the vacant lot adjacent to her apartment between 5 and 5:30 a.m. on September 29, 1980, and when she looked out the window she observed a car, which she later identified as the victim's, with a man standing on the driver's side and a woman standing on the passenger's side. Those two people stood beside the car talking for 10 to 15 minutes and then walked toward Calumet Street. She identified those individuals in lineups two days after the murder, and she knew the woman as a prostitute in the neighborhood. She admitted that she did not hear a gunshot; that she saw their faces only for a short time; and that she identified the woman in the lineup because her hair was similar to that of the woman she knew, but she was not sure that she was the same woman seen standing beside the car.

Henrietta Winfield, defendant's mother, testified that she got up at approximately 3:45 a.m. on the morning in question and went to defendant's bedroom where she saw him asleep. He awoke a short time later and joined her in the kitchen, and when she left for work at 5:30 a.m. he was standing at a window in their home. She did not tell the police that defendant was at home at the time of the murders.

Police personnel testified in rebuttal that when interviewed two days after the murders, Valerie Davis said she saw a female impersonator get out of the car and run away, and that when interviewed a few weeks before trial, Davis did not mention seeing a man next to the car and said she was not sure who the woman was but thought that she was a person she (Davis) knew by the name of Joyce.

OPINION

We first address defendant's contention that he was denied his statutory right to a speedy trial. He maintains that the State failed to use due diligence in its attempts to locate a material witness, and the trial court's grant of a continuance was therefore unwarranted.

In order to implement the constitutional requirement of a speedy trial, the legislature has provided that "[e]very person in custody * * * for an alleged offense shall be tried * * * within 120 days * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(a); People v. Garcia (1978), 65 Ill. App.3d 472, 382 N.E.2d 371.) However, that statute further provides for an extension of the 120-day period for up to an additional 60 days "[i]f the court determines that the State has exercised without success due diligence to obtain evidence material to the case and that there are reasonable grounds to believe that such evidence may be obtained at a later date * * *." (Ill. Rev. Stat. 1981, ch. 38, par. 103-5(c).) Thus, the decision whether to grant a continuance has been placed within the discretion of the trial court, and its determination will not be disturbed absent a clear abuse of that discretion. People v. Richards (1980), 81 Ill.2d 454, 410 N.E.2d 833.

In the instant case, once it became apparent 10 days before expiration of the 120-day period that a material witness could not be located, officers visited her last known address, contacted several of her acquaintances, left messages for her at various locations where she was expected to return, and searched the area where she usually resided and was recently seen. The fact that she responded to these efforts the day before the hearing indicated reasonable grounds to believe that she would be located soon. Similar efforts were found to constitute due diligence in People v. DeVore (1978), 62 Ill. App.3d 412, 378 N.E.2d 1302, where the State first attempted to locate two material witnesses 12 days before the 120-day term was to expire. Investigators went to their last known residences and, after ascertaining that the two men were still in the area, left messages with family members that the witnesses were to contact the State's Attorney. We held that, under those circumstances, the trial court did not abuse its discretion in granting the State a two-week continuance, noting that "the State had no reason to believe the witnesses would be unavailable when the initial efforts were commenced to secure their attendance at trial." 62 Ill. App.3d 412, 417, 378 N.E.2d 1302, 1306.

• 1 Defendant argues that this case is distinguishable, asserting that, given Cousins' occupation and criminal background, the State should have known that she would be difficult to locate. Therefore, he posits, the State's attempts to locate her should have begun much earlier and been more intensive. He relies on People v. Shannon (1975), 34 Ill. App.3d 185, 340 N.E.2d 129, where efforts to ascertain the availability of two witnesses first began four days before expiration of the 120-day term. The unavailable witnesses were two police officers who were on vacation and could not be located. In holding that the State had not demonstrated due diligence in locating its witnesses, we noted that police vacation schedules were made up 14 months in advance. Thus, in Shannon, the State should have learned long in advance that a material witness would not be available at the end of the 120-day period. (People v. DeVore (1978), 62 Ill. App.3d 412, 378 N.E.2d 1302; People v. Robinson (1976), 44 Ill. App.3d 447, 358 N.E.2d 43.) For this reason, we believe that Shannon is inapposite. Here, the testimony establishes that the witness voluntarily contacted an officer assigned to the case on several occasions, with the last contact — again initiated by her — being on August 24, at which time she left a telephone number where she purportedly could be contacted. Given the cooperation shown by her up until that time, we do not believe that the State had reason to know before August 24 that she would be difficult to locate. In People v. Hardy (1979), 70 Ill. App.3d 351, 387 N.E.2d 1042, a witness assured the State that he would be available, and no efforts were made to locate him until he failed to keep an appointment with the State's Attorney. We found that "[t]he State's efforts to locate the witness were not unreasonable in view of the fact that in assuring [the State's Attorney] that he would be available as a witness, [he] did not give the State reason to believe that he would be difficult to locate." (70 Ill. App.3d 351, 362, 387 N.E.2d 1042, 1051.) Similarly, here, Cousins' repeated, voluntary contacts with the investigating officer over a period of several months did not give the State reason to believe that she would be difficult to locate; therefore, we believe that the State's efforts were sufficient to demonstrate due diligence, and the trial court did not abuse its discretion in granting a 14-day extension.

Defendant next contends that he was not proved guilty beyond a reasonable doubt. He maintains that the two State's witnesses who provided the only evidence of his involvement in the crimes were not credible, given the inconsistencies in their testimony and their involvement in the events leading up to the crimes.

We consider first defendant's argument that the self-contradiction in the testimony of the witnesses, as well as the conflict between their versions of the events, raises a reasonable doubt as to his guilt. The State has the burden of proving beyond a reasonable doubt that the accused is the person who committed the crime charged (People v. Bridges (1979), 71 Ill. App.3d 868, 390 N.E.2d 407), and it is the function of the jury to determine whether that burden has been met (People v. McDonald (1976), 62 Ill.2d 448, 343 N.E.2d 489); therefore, a reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses (People v. Dunklin (1982), 104 Ill. App.3d 685, 432 N.E.2d 1323) but will reverse only if the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt of defendant's guilt (People v. Carlson (1980), 79 Ill.2d 564, 404 N.E.2d 233; People v. Hancock (1980), 83 Ill. App.3d 700, 404 N.E.2d 914). Moreover, we have repeatedly held that discrepancies or conflicts in testimony affect only the credibility of a witness and the weight to be given his testimony (People v. Childs (1981), 95 Ill. App.3d 606, 420 N.E.2d 513), whether that conflict is between the testimony of two prosecution witnesses (People v. Yarbrough (1977), 67 Ill.2d 222, 367 N.E.2d 666) or within the testimony of a single prosecution witness (People v. Payne (1981), 102 Ill. App.3d 950, 429 N.E.2d 1344), and ...


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