Appeal from the Circuit Court of Cook County, the Hon.
Sylvester C. Close, Judge, presiding.
JUSTICE UNDERWOOD DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 2, 1983.
Defendant, Lonnie Yates, was charged by information in the circuit court of Cook County with a July 11, 1977, murder and burglary, in violation of sections 9-1 and 19-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1, 19-1). Following a February 1979 jury trial he was found guilty of both offenses. The State then requested a separate sentencing hearing to determine whether the death penalty should be imposed. After hearing evidence and argument, and then deliberating some 12 to 15 hours, the same jury found the existence of statutory aggravating factors and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The trial court entered judgment on the verdict, sentencing defendant to death, and also imposed an extended sentence of 14 years' imprisonment for the burglary. The death sentence was stayed by the trial court (73 Ill.2d R. 609(a)) pending this automatic direct appeal (Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1977, ch. 38, par. 9-1(i); 73 Ill.2d R. 603). Defendant attacks his convictions and sentences on numerous grounds, alleging errors at each stage of the proceedings.
On the morning of July 11, 1977, the 17-year-old victim, Veronica Lee, was bludgeoned and stabbed to death in her second-floor apartment in the city of Chicago, where she lived with her mother, Samestine Yancy. The evidence indicated that the assailant had gained entry to the apartment by removing the screen on the rear door and by removing a square of glass from the inner door. Mrs. Yancy had gone to work at 6:30 a.m. that morning, and at approximately 9:30 a.m., Veronica's unclothed body with large scissors embedded in her chest was found in her bedroom closet by her cousin, Timothy Lee, and his friend, Larry Hope. Moments before discovering the body, as the young men approached the second-floor landing on the rear stairwell of the building, they observed a man, whom they later identified in a lineup and in court as defendant, descending the stairwell at a medium pace, while wiping his hands on a white handkerchief or towel.
An autopsy revealed numerous head lesions and numerous stab wounds to the victim's chest and arm; the scissors had penetrated her heart. Human blood was found underneath her fingernails. Mrs. Yancy's iron was found blood-stained with a broken handle near her daughter's body, Veronica's television set was found on her bed, and her mother's radio, which, it was later established, had been located in another bedroom and dusted two days before, was found on the kitchen table with its cord wrapped around it. Veronica's wallet was found with the contents strewn about a cocktail table. Mrs. Yancy testified that approximately $17 was missing.
Defendant was arrested four days later, on July 15, at the home of a relative with whom he had been staying since July 12. Following a hearing, the trial court denied defendant's pretrial motion to quash his allegedly illegal arrest and to suppress the identification testimony of Timothy Lee and Larry Hope as the fruits thereof, a ruling which defendant challenges here under Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371.
The State contends that the Payton issue as well as other arguments presented by defendant are waived because of defense counsel's failure to file any post-trial motions incorporating these alleged errors. The record indicates, however, that an oral post-trial motion was denied, and the State does not assert otherwise. Although our statute provides that a motion for a new trial is to be in writing specifying the grounds therefore (Ill. Rev. Stat. 1977, ch. 38, par. 116-1), we have previously held that "a general oral motion to which the State does not object will preserve for review all errors which appear properly preserved in the record even though not specified in the oral post-trial motion." People v. Pearson (1981), 88 Ill.2d 210, 217, citing People v. Whitehead (1966), 35 Ill.2d 501, 503-04; see also People v. Flynn (1956), 8 Ill.2d 116, 119-20.
In Payton v. New York (1980), 445 U.S. 573, 63 L.Ed.2d 639, 100 S.Ct. 1371, the Supreme Court held that absent exigent circumstances, the fourth amendment, applicable to the States by the fourteenth amendment (Mapp v. Ohio (1961), 367 U.S. 643, 6 L.Ed.2d 1081, 81 S.Ct. 1684), prohibits the police from making a warrantless and nonconsensual entry into a suspect's home in order to make an arrest. See also United States v. Johnson (1982), 457 U.S. 537, 73 L.Ed.2d 202, 102 S.Ct. 2579 (holding Payton retroactive).
Several witnesses were presented by both the State and defendant at the lengthy pretrial hearing, including: four police officers; an assistant State's Attorney; Timothy Lee, age 17 at the time of the hearing; Larry Hope, age 21 at the time of the hearing; and defendant, who testified concerning the circumstances surrounding his arrest and the subsequent station-house events. The officers' testimony concerning the investigation established the following: Timothy Lee and Larry Hope, who were interviewed shortly after the victim's body was discovered, described the man whom they had seen on the rear stairwell of the building as a dark complected 25 to 35 year old black man, with a mustache and a scar over his left eyebrow, approximately 5 feet 7 inches tall, 175 pounds, wearing a rust-colored suit. The witnesses also met with a police artist who prepared a composite sketch of the suspect which subsequently appeared in the Chicago police department's daily bulletin. A crime scene technician photographed the scene of the crime, secured physical evidence, and dusted a number of areas and items, including the radio from which latent fingerprints were lifted.
On the morning of July 15, the police department received an anonymous telephone call from a woman who stated that Lonnie Yates was responsible for the murder of the young girl on Franklin Boulevard. The caller, who refused to identify herself, also stated that defendant's wife's name was Hatti Smith. After this information was related to Officer Daniel Darcy, one of the investigating officers, he reviewed the burglary unit files and discovered that defendant was on probation for a 1976 burglary. The information contained in the file revealed that the burglary for which defendant had been convicted occurred within a mile of Veronica Lee's apartment, at approximately 11 a.m., and that entry had been gained by breaking the window of a rear door.
Later that afternoon, after arranging for a fingerprint analysis, Officer Darcy was told by a police department fingerprint technician that a latent print from the radio was that of defendant's fingerprint on file with the police department. Officer Darcy then proceeded to the probation department and obtained the address of Hatti Smith from defendant's file. The record reflects that Officer Darcy and his partner located Hatti Smith between 5:30 and 6 p.m., after which she voluntarily accompanied the officers to the police station.
During the subsequent interview, Hatti Smith told the officers that she was defendant's girlfriend and that she had been trying to raise money for defendant, who wanted to leave the State. She indicated that she could probably determine defendant's whereabouts by placing a few phone calls. The officers later heard Hatti Smith refer to the person whom she had phoned as Lonnie and also heard her say that she had some money, but that she was scared because "it was getting hot around here." She subsequently told the officers that she did not know the exact address but that she would point out the house wherein defendant was located.
Between 7:30 and 8 p.m., after Hatti Smith directed the officers to a house on LeClaire Street, the officers drove a short distance to a phone booth and directed her to again phone defendant. Meanwhile several officers drove back to the house. After a few minutes, Officer William Frost radioed from the phone booth that defendant was on the telephone inside the house. The officers stationed in front of the house then approached the front door, and Officer Michael Cronin, who had arrested defendant on two previous occasions, saw defendant through the opened door. Because the burglar gates were secured on this door, Officer Cronin immediately went to a side door, entered the house and placed defendant under arrest.
Contrary to defendant's position, it is clear from the record that once probable cause developed for his arrest and the police ascertained his whereabouts, there was no deliberate or unjustified delay during which a warrant could have been obtained. (People v. Winters (1983), 97 Ill.2d 151; People v. Abney (1980), 81 Ill.2d 159, 170.) While several factors have been identified as relevant in determining whether exigent circumstances exist, the guiding principle is reasonableness, and each case must be decided on the basis of the facts known to the officers at the time they acted. (People v. Eichelberger (1982), 91 Ill.2d 359, 370; People v. Abney (1980), 81 Ill.2d 159, 173; see also People v. Free (1983), 94 Ill.2d 378, 395; Steagald v. United States (1981), 451 U.S. 204, 221, 68 L.Ed.2d 38, 51, 101 S.Ct. 1642, 1652, and United States v. Santana (1976), 427 U.S. 38, 42-43, 49 L.Ed.2d 300, 305, 96 S.Ct. 2406, 2409-10 ("hot pursuit" of fugitive).) Among the factors that have been considered useful in judging the exigency of a particular situation are that: (1) a grave offense is involved, particularly a crime of violence; (2) the suspect is reasonably believed to be armed; (3) there exists a clear showing of probable cause; (4) there is strong reason to believe that the suspect is in the premises; (5) there is a likelihood the suspect will escape if not swiftly apprehended; and (6) the police entry, though nonconsensual, is made peaceably. (Dorman v. United States (D.C. Cir. 1970), 435 F.2d 385, 392-93 (en banc).) Although we consider these factors relevant, we emphasize, in accord with several other jurisdictions, that the Dorman principles should be utilized only as guidelines, not as cardinal maxims to be rigidly applied in each case. (E.g., State v. Page (N.D. 1979), 277 N.W.2d 112, 117; People v. Jones (Iowa 1979), 274 N.W.2d 273, 275-76, cert. denied (1980), 446 U.S. 907, 64 L.Ed.2d 259, 100 S.Ct. 1833; United States v. Acevedo (7th Cir. 1980), 627 F.2d 68, 70, cert. denied (1980), 449 U.S. 1021, 66 L.Ed.2d 482, 101 S.Ct. 587.) Indeed, as some courts> have indicated, exigent circumstances may well exist where there is only a serious crime coupled with a reasonable possibility of imminent danger to life, serious damage to property, destruction of evidence, or the likelihood of flight. E.g., State v. Lloyd (1980), 61 Haw. Hawaii, 513, 606 P.2d 913, 918; Weddle v. State (Wyo. 1980), 621 P.2d 231, 240; People v. Ramey (1976), 16 Cal.3d 263, 276, 545 P.2d 1333, 1341, 127 Cal.Rptr. 629, 637 (en banc), cert. denied (1976), 429 U.S. 929, 50 L.Ed.2d 299, 97 S.Ct. 335.
The police here were investigating a brutal murder, and, as the facts demonstrate, there was a clear showing of probable cause to believe defendant was responsible. In addition, there was strong evidence suggesting that defendant would likely escape if not swiftly apprehended since his girlfriend indicated that she was raising money to enable him to leave the State, and the police thereafter overheard what they might reasonably have interpreted as a tip-off to defendant that the police were hot on his trial. Finally, the arrest was made at a reasonable hour in the evening, and the evidence indicates that, in the circumstances presented, the police entry was made in a reasonable manner. We see no reason why the officers should have conducted a surveillance of the house while a warrant was being obtained, as defendant urges, and arrested defendant on the street had he attempted to leave. Given defendant's probable flight had there been any further delay, such a course of action might well have unnecessarily increased the risk of a violent confrontation and further endangered the lives of the officers as well as any passersby. (See State v. Page (N.D. 1979), 277 N.W.2d 112; State v. Girard (1976), 276 Or. 511, 555 P.2d 445; United States v. Campbell (2d Cir. 1978), 581 F.2d 22, 26; 2 W. LaFave, Search & Seizure sec. 6.1, at 395 (1978) ("the question of whether a stake-out is or is not feasible is itself a complicated one, and is unlikely to be seen by hindsight in precisely the same way it was perceived by the police on the scene").) We accordingly conclude that the trial court correctly found no constitutional infirmity in defendant's warrantless arrest.
Defendant contends that because of the State's use of its peremptory challenges he was deprived of his constitutional rights under the sixth and fourteenth amendments to a jury representing a cross-section of the community. He asserts that the State used 13 of its 16 peremptory challenges during voir dire to excuse blacks. (Defendant is black, as was the victim.) At the time of trial, it was clear that at least one black sat on the jury — the first of the venire to be examined by the trial court; the race of another juror was unclear at that time. Subsequent evidence in a post-trial hearing on defendant's motion for the purpose of establishing that only one black sat on the jury indicated that the other juror in question was probably not black. (The juror indicated that his mother was born in Mexico, he identified his father only by his State of origin, but the juror considered himself white.)
We consider that our recent decisions in People v. Williams (1983), 97 Ill.2d 252, and People v. Davis (1983), 95 Ill.2d 1, are dispositive. (See also People v. Payne (1983), 99 Ill.2d 135.) In light of our treatment of the issue in those cases, an extended discussion here is unnecessary. It is sufficient to note that we held, in accord with the overwhelming majority of courts>, that Swain v. Alabama (1965), 380 U.S. 202, 13 L.Ed.2d 759, 85 S.Ct. 824, continues to be the controlling authority: only a systematic and purposeful exclusion of blacks from the jury, in case after case, raises a constitutional question (Swain v. Alabama (1965), 380 U.S. 202, 223, 13 L.Ed.2d 759, 774, 85 S.Ct. 824, 837; People v. Williams (1983), 97 Ill.2d 252, 273; People v. Davis (1983), 95 Ill.2d 1, 16), and defendant has the burden of producing evidence establishing a systematic exclusion (People v. Davis (1983), 95 Ill.2d 1, 16). We also rejected the argument presented here that the Supreme Court, in Taylor v. Louisiana (1975), 419 U.S. 522, 42 L.Ed.2d 690, 95 S.Ct. 692, retreated from its earlier holding. We indicated in Williams that the limited nature of the Taylor holding was clear. As the Supreme Court stated:
"It should also be emphasized that in holding that petit juries must be drawn from a source fairly representative of the community we impose no requirement that petit juries actually chosen must mirror the community * * *. Defendants are not entitled to a jury of any particular composition [citation]; but the jury wheels, pools of names, panels, or venires from which juries are drawn must not systematically exclude distinctive groups in the community and thereby fail to be reasonably representative thereof." (419 U.S. 522, 538, 42 L.Ed.2d 690, 702-03, 95 S.Ct. 692, 702.)
It is clear that the evidence presented by defendant does not satisfy the Swain standard.
We consider next defendant's contention that he was not proved guilty beyond a reasonable doubt. It is, of course, as we have repeatedly recognized, the jury's responsibility to resolve factual disputes, assess the credibility of the witnesses, and determine the weight and sufficiency of the evidence (People v. Davis (1983), 95 Ill.2d 1, 27; People v. Carlson (1980), 79 Ill.2d 564, 583; People v. Clark (1972), 52 Ill.2d 374, 387), and its judgment will not be reversed unless the evidence is so unsatisfactory or improbable that a reasonable doubt as to the guilt of defendant remains. People v. Williams (1982), 93 Ill.2d 309, 315; People v. Lewis (1981), 88 Ill.2d 129, 151, cert. denied (1982), 456 U.S. 1011, 73 L.Ed.2d 1308, 102 S.Ct. 2307.
Mrs. Yancy, the victim's mother, testified that she had arisen for work at 5 a.m. on the morning of July 11, 1977. As she ironed her clothing in her daughter's bedroom, she conversed with her daughter, who was dressed in a nightgown. She identified the iron found near Veronica's body. She had left it on the ironing board in the bedroom with its handle intact. The scissors used to kill Veronica were on a cabinet, and the radio had been on a table in Mrs. Yancy's bedroom. Both the screen and the window of the rear door were intact. When Mrs. Yancy left at 6:30 a.m., she instructed Veronica, apparently in accordance with her usual custom, to lock the front door, and she waited outside the door until she heard her daughter do so.
Both Timothy Lee and Larry Hope identified defendant in a lineup and at trial as the man whom they had confronted on the stairwell on the day of the murder. Both witnesses testified, with minor discrepancies, to the following: shortly after 9 a.m., the witnesses, who were searching for a job, went to visit Veronica to borrow carfare. When they arrived at the building, they called out Veronica's name several times, but there was no response. They then threw pebbles at one of her windows, a practice Timothy had used on several previous occasions to gain his cousin's attention, apparently when the outer door at the front of the building was locked or the doorbell was not operating. During this time the witnesses heard screams from the building, but they could not isolate a particular apartment and thought that the screams were those of a child being physically disciplined. After standing outside for approximately 10 minutes, the young men went to the rear of the building, climbed the stairwell and met defendant descending from the second floor while wiping his hands. Defendant bumped into Timothy, at which point Timothy testified they were staring "face to face"; defendant said, "excuse me," and continued down the stairs at a medium pace. When the witnesses reached the Lees' apartment and saw the condition of the screen and window, Timothy immediately began to chase defendant but lost him at the end of an alley. Meanwhile, Larry had gone into the apartment and discovered Veronica's body. When Timothy returned, Larry, who was visibly shaken, informed him that his cousin was dead. The police were notified and arrived shortly thereafter.
Anna Jean Brown, who occupied the third-floor apartment directly above the Lees, testified that between 9 a.m. and 10 a.m. on the morning of July 11, she heard Veronica's cousin in the front of the building calling out Veronica's name. She walked down the front stairs and knocked on the Lees' door. When there was no answer she returned to her apartment. She then went to her rear outside porch and conversed with her next-door neighbor. While on the porch, she heard Veronica's cousin coming up the stairway. She looked over the bannister and saw a man proceeding down the gangway dressed in an orange two-piece pant suit. She testified that the man was dark complected, 30 to 35 years old, 5 feet 6 inches or 5 feet 7 inches tall, weighing approximately 180 pounds. She did not see his face, however, and consequently was unable to make an identification.
Officer Theatrice Patterson, who had been a fingerprint examiner for over 13 years, and was qualified as an expert, testified that he examined two partially overlapping, identifiable fingerprints which were lifted from the radio found inside the Lees' apartment. A police department lab technician had photographed the prints, and the negative, which was explained as a "one to one of the actual print itself, one to one being actual size," was used for comparison purposes. These prints, as well as the inked impressions of fingerprints, with which they were compared, were later enlarged for demonstrative purposes. Two of the State's experts testified that enlargements of latent prints often lose clarity and are not used for a comparison.
Officer Patterson testified that one of the prints from the radio was Mrs. Yancy's, and the other print was defendant's. In two separate examinations, the officer charted 19 points of comparison between the lifted print and the inked impression of defendant's left thumbprint; there were no dissimilarities. The officer stated that, while there is no standard minimum number of points required, more than 12 points of comparison is never required for an identification.
Officer Herman Kluth, also qualified as an expert in fingerprint analysis, corroborated Officer Patterson's findings. He testified that, based upon his examination, one of the latent fingerprints lifted from the radio was defendant's. He charted at least 12 points of comparison, the spot at which he ordinarily stops when making a corroboration.
The balance of the State's case included testimony from several police officers, the pathologist, and a microanalyst, and physical evidence. That evidence need not be detailed here.
Evidence adduced by defendant included testimony from John Norton, a retired fingerprint examiner from the Chicago police department, who had trained one of the State's experts and who was also qualified as an expert. He had been so employed for 22 years. Mr. Norton, although maintaining that the characteristics should be identifiable on both a good blowup and the one-to-one size, conceded that the blowup of the latent print from the radio which he used was not the proper method of making comparisons. Use of the one-to-one print, he stated, was his standard procedure while he was with the police department, and blowups were used only for demonstrative purposes. He had, however, declined the State's request to make such an examination at the police lab. In Mr. Norton's opinion, 10 to 12 points of comparison are necessary for an identification, and he was only able to chart three or four points between the photo enlargements of the lifted print and defendant's inked impression.
In rebuttal, the State called Burton Buhrke, also an expert in fingerprint analysis. Mr. Buhrke, who had trained Mr. Norton and who considered that Mr. Norton's reputation in the community was very good, testified that, based upon his examination, the one-to-one print lifted from the radio was defendant's. Although he found more, he charted only 14 points of comparison between the lifted print and defendant's inked impression which he considered "very, very conclusive."
Defendant contends that the identification testimony of Timothy Lee and Larry Hope is entitled to little weight because they had, at the time of the confrontation, neither reason to remember the man they saw nor sufficient opportunity to observe him. Further, he argues that the witnesses' credibility was impeached at trial and that they were influenced by their previous "unreliable" lineup identification. The lineup was conducted under less than ideal circumstances because of defendant's deliberate refusal to cooperate with the police. Defendant concedes that whatever infirmities existed were attributable to his own misbehavior but, nevertheless, submits that the witnesses' in court identification was, as a result of the lineup, inherently unreliable. We do not agree.
The record indicates that, at the time of defendant's arrest, he was dressed only in short pants and wearing shoes. The officers observed four scratches on defendant's left bicep about one inch apart which appeared, because of partially formed scabs, to be relatively recent. Their attempts to photograph the scabs were frustrated, the testimony indicates, by defendant's constant movement and action in placing his hands over the scratches. Later that evening, after defendant was taken into custody and questioned concerning Veronica Lee's murder, he was advised that a lineup was going to be conducted. The officers had intended to provide defendant with both a shirt and long pants; however, when they informed defendant that he would be given a shirt, he responded that "he wasn't going to put on a shirt and he wasn't going to stand in a f____ing lineup." The officers then told the other four men chosen for the lineup, who were also in custody, to remove their shirts. After hearing defendant's response, however, they refused, indicating that if defendant would not put on a shirt, they would not remove their shirts. To avoid a physical confrontation in the lock-up, which the officers apparently thought was likely had they forced compliance, and after consulting with an assistant State's Attorney, they placed defendant in the lineup without a shirt. The men were seated on a bench, and the witnesses viewed the lineup separately from a location which precluded a view of the lower portions of the men's bodies; consequently they were unable to observe that defendant was the only man wearing short pants. During the lineup, defendant proceeded to engage in a number of tactics which drew attention to himself. At various times, he covered his face, leaned over, moved around, attempted to stand up, and mumbled.
It seems evident that defendant, who was not unfamiliar with the criminal justice system, sought to destroy or impair the reliability of an identification. It would, however, be little short of ridiculous to hold that because defendant's misconduct during a lineup focused attention upon him, the integrity of a subsequent in-court identification was impaired where that in-court identification would otherwise be satisfactory. One of the principal reasons for lineups is to protect suspects from misidentification and promote the early release of innocent persons. Where, as here, the record shows that the witnesses had an adequate opportunity to observe defendant on the morning of the murder and make a positive in-court identification, the defendant will not be permitted to challenge its ...