Appeal from the Circuit Court of Kankakee County, the Hon.
Luther H. Dearborn, Judge, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied December 9, 1983.
Monroe Lampkin was indicted in the circuit court of Ford County for the murders of Michael McCarter and Donald Vice under section 9-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1977, ch. 38, par. 9-1) and the murder of William Caisse under sections 9-1 and 5-2(c) of the Code (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1, 5-2(c)) by accountability. Prior to trial, defendant's request for a change of place of trial (Ill. Rev. Stat. 1977, ch. 38, par. 114-6) was granted and defendant was tried before a jury in Kankakee County. At the conclusion of the trial, the jury returned verdicts of guilty on all three counts of murder. The State requested a hearing to determine whether the death penalty should be imposed. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(d).) Defendant exercised his right to have the determination made by the jury. The jury found unanimously, beyond a reasonable doubt, that the defendant, Monroe Lampkin, murdered an individual known to the defendant to be a peace officer in the performance of his official duties (Michael McCarter), as well as two other individuals, both of which are aggravating factors supporting the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(b).) The jury unanimously found that there were no mitigating factors sufficient to preclude the imposition of the death penalty. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(g).) The trial judge entered judgment sentencing the defendant to death. The jury that convicted the defendant was the same jury that found there were no mitigating factors sufficient to preclude the sentence of death. Thus, all of the evidence introduced at trial was heard by the jury that sat at the death sentencing hearing. The death sentence was stayed (73 Ill.2d R. 609(a)) pending direct appeal to this court, pursuant to Rule 603 (73 Ill.2d R. 603).
On the evening of April 7, 1979, four brothers, Monroe, Cleveland, David and Clyde Lampkin, were traveling southbound on Interstate Highway 57 near Paxton. Monroe and Cleveland were traveling in a red and silver Ford Thunderbird; David and Clyde in a red camper-type pickup truck. The two vehicles carrying the Lampkins came upon a van driven by Melvin and Phyllis Lynch and a blue Buick driven by Eartis Farrell, carrying Jackie Townsend and their infant son. These four vehicles were traveling south on Interstate Highway 57. Illinois State Trooper Michael McCarter was patrolling the southbound lanes in State of Illinois Car No. 659, an unmarked vehicle. Accompanying McCarter was Donald Vice, his brother-in-law, a civilian.
McCarter began traveling with the convoy of the four vehicles and, after a radar speed check, radioed Iroquois County Deputy Sheriff Gary Weisenbarn requesting assistance in stopping the convoy. William Caisse and Larry Hale, both officers of the Paxton police department, responded. Caisse entered the southbound lanes of Interstate Highway 57, but Hale remained on the Route 9 overpass to stop a motorcyclist and issue him a citation.
McCarter stopped the van and Buick while instructing Caisse to stop the Thunderbird and pickup. The pickup pulled over but not the Thunderbird. Caisse remained with the three stopped vehicles on Interstate 57 at the Route 9 overpass, while McCarter pursued the Thunderbird. Monroe and Cleveland pulled to the shoulder a mile and a quarter farther south, just south of the Route 17 overpass. Trooper McCarter stopped approximately five feet behind the Thunderbird. McCarter ordered Monroe and Cleveland out of their car. Shortly before 9 p.m., Ronald Wallace, a passing motorist, saw the stopped vehicles. Trooper McCarter and two individuals were standing between the vehicles talking. Just after 9 p.m., McCarter radioed Caisse and requested that he bring the other three vehicles to his position and that Caisse "come down here and back me up. I got a subject giving me a hard time." A few seconds later, McCarter again radioed Caisse to "[b]ring those vehicles here to where I'm at right here * * *. This subject down here is giving me a hard time." One and one-half minutes later McCarter radioed "I'm shot, I'm shot."
At approximately 9 p.m., Don Kutz was traveling southbound on Interstate Highway 57. Kutz observed Caisse's car and the vehicles stopped at the Route 9 overpass and the two vehicles stopped at the Route 17 overpass. Kutz "observed three, approximately three flashes of lights and I heard three at least three sounds." They were coming from between the two vehicles. Kutz saw a man crouched at the left rear corner of car 659 and two men just north of the Thunderbird. The flashes coming from between the vehicles were pointed north.
An autopsy showed McCarter had been shot on the right side of the neck, left upper chest and left upper thigh. Dr. Yve T. Ho, who performed the autopsy, opined that the bullet wound to the neck would have been sufficient to cause McCarter's death. Vice had been shot twice. Krail Lattig, a forensic scientist and firearms expert employed by the Illinois Bureau of Scientific Services, established that the bullets recovered from the body of Donald Vice and a bullet recovered from the clothing of McCarter were all fired by the same .38-caliber weapon. None of the weapons recovered at the scene were found to have fired these bullets. Spent casings, as well as live .38-caliber cartridges, were also recovered from the grassy area west of I-57 at the Route 17 overpass south of Route 17; however, no .38-caliber pistol was ever recovered. McCarter shot Cleveland, who later died of the wound, and also shot defendant in the left wrist, wounding him.
Obert and Barbara Litteral were traveling north on Interstate Highway 57 at approximately 9 p.m. when Mr. Litteral observed an individual running northbound on I-57. The individual jumped over the guardrail at the Route 17 overpass in a westerly direction, went behind the pillar of the overpass and then ran south. The individual wore a brownish vinyl-type jacket. Litteral observed a second individual, McCarter, who ran north along I-57 and stopped at the pillar. Litteral observed that McCarter had a weapon in his right hand, appeared to be wounded, and "[i]t looked like the gun was pointed around the pillar." Barbara Litteral also observed the individual in the brown jacket. The Litterals both identified the jacket they saw that night as similar to that which defendant admitted wearing on the night in question and which was in evidence.
It appears that Officer Caisse and the other three vehicles arrived on the scene while the events last mentioned were happening or immediately thereafter. Mr. Lynch (who was in the van) heard gunfire and saw McCarter firing his weapon in a westerly direction up the embankment towards the Route 17 overpass. Caisse then assisted McCarter to his, Caisse's, squad car and placed him in the passenger seat. David and Clyde then got out of the pickup but were ordered back to it by Caisse. Officer Hale, who had been detained while giving a citation to a motorcyclist at the Route 9 overpass, then arrived and fired a few shots in a westerly direction towards the embankment, as he had heard shots and saw muzzle flashes from this area. Hale then went to Caisse's vehicle, removed a shotgun from the trunk and gave it to Caisse. Hale returned to his own vehicle to call for more help and to get additional equipment, and Caisse returned to a position near the overpass facing southwest. David Lampkin then got out of the pickup truck again, put on a brown leather jacket and obtained a rifle from the back of the truck. David shot Caisse in the back, killing him, and then shot Vice and McCarter. David fired at Hale, wounding him; however, Hale returned the fire, killing David on the spot.
Clyde Lampkin was found standing next to the body of David. Trooper Michael McCarter, Officer William Caisse, Donald Vice, David Lampkin and Cleveland Lampkin all died as a result of these events. Officer Larry Hale was wounded but recovered. Defendant was found and arrested 26 hours later, north of Paxton.
As noted above, the jury found the defendant guilty on all three counts of murder, and he was sentenced to death.
After notice of appeal was filed, certain facts became known to defendant's counsel which were dehors the record on appeal. Defendant's counsel felt that this necessitated an evidentiary hearing and filed a combined petition in the trial court seeking post-conviction relief (Ill. Rev. Stat. 1977, ch. 38, par. 122-1 et seq.) and relief from judgment under section 72 of the Civil Practice Act (Ill. Rev. Stat. 1977, ch. 110, par. 72). The proceedings before this court were stayed pending disposition of the combined post-conviction and section 72 petition.
Defendant alleged in his combined post-conviction and section 72 petitions three general areas of constitutional deprivation: suppression of evidence by the prosecution; knowing misrepresentation by the prosecution to the jury; incompetency of defendant's trial counsel resulting from the failure of the trial court to grant sufficient time for trial preparation; and/or a conflict of interest resulting from trial counsel's representation of both defendant and defendant's brother, Clyde Lampkin.
The relief sought was denied, and we now consider the combined appeal from the sentence of death and denial of the post-conviction relief.
We first address the defendant's contention that the court erroneously permitted the prosecution to introduce evidence at trial of a statement made by defendant almost six years prior to the incident in question. In June of 1973, Officer Harold Kunz, on an investigation for the Chicago police department, had occasion to question defendant in connection with an auto theft. Kunz testified at trial that the defendant stated, "You white honky coppers are [expletive deleted] with us now, and we will get you later." The defendant claims the prejudicial nature of this testimony has denied him a fair trial. We agree.
Defense counsel strenuously objected to the testimony from the time Officer Kunz was added to the People's list of witnesses on August 31, 1979. Defense counsel filed a motion in limine seeking "an order barring the use of a statement purportedly made by Defendant, Monroe Lampkin, on June 19, 1973."
The court conducted a hearing on the motion in limine and at the hearing Kunz testified that on June 19, 1973, he was employed as a Chicago police officer assigned to Area 3 Auto Theft. He said that on that day he had seen the defendant Monroe Lampkin, who had been arrested at 7226 South Morgan, Chicago, in connection with a stripped automobile. Kunz testified he saw Monroe Lampkin at the police station in the company of Cleveland Lampkin and Paul Lampkin, at which time Kunz interviewed Monroe Lampkin, and the defendant made the statement that "You white honky coppers are [expletive deleted] with us now, and we will get you later."
In denying the motion in limine the trial court mistakenly relied upon the case of People v. Scott (1918), 284 Ill. 465, as authority for finding that the evidence should not be excluded.
The State asserts that because the comment indicates a hostile purpose on the part of the speaker, and the deceased is encompassed within the scope of the threat against "white honky coppers," that Scott provides authority that such a statement is admissible. We disagree. The remark admitted into evidence in Scott was made two days prior to the killing in that case and spelled out a specific time and location. In Scott the court also said that a "threat by the accused to kill or injure a person other than the deceased, or a mere idle threat of a general nature not directed to any particular person, is not admissible to show malice towards the deceased." 284 Ill. 465, 474-75.
This evidence was not only wrongfully introduced into evidence at trial, it was emphasized in the prosecutor's opening statement and highlighted in the prosecutor's closing argument. It is apparent that the prosecuting attorney wanted to leave no doubt in the jury's mind that the alleged remarks constituted a direct threat that was purposefully and intentionally acted upon. The prosecutor's statements were inflammatory, prejudicial and groundless.
In his opening statement the prosecutor described what he expected the forthcoming evidence to show and stated:
"This is the same man, ladies and gentlemen, who the evidence will show in the past communicated a threat to a Chicago police officer that he was going to get even with the white police."
At trial the prosecution waited until near the close of its case in chief to call Officer Kunz to the stand. The defendant argues that this was done to place ...