Appeal from the Circuit Court of Macon County, the Hon. Harold
L. Jensen, Judge, presiding.
Rehearing denied February 1, 1985.
This is the defendant's second appeal before this court. This appeal is taken from an order of the circuit court of Champaign County denying the defendant, Cornelius Lewis, relief on the basis of his post-conviction petition. The defendant was convicted of murder, aggravated kidnaping and armed robbery. On June 22, 1979, the defendant was sentenced to death. On direct appeal to this court, we affirmed the judgment of the circuit court. (People v. Lewis (1981), 88 Ill.2d 129 (hereinafter referred to as Lewis I).) The United States Supreme Court denied defendant's petition for a writ of certiorari. Lewis v. Illinois (1982), 456 U.S. 1011, 73 L.Ed.2d 1038, 102 S.Ct. 2307.
On August 16, 1982, the defendant filed a petition for post-conviction relief in Macon County, the county in which the original charges against him were filed. The defendant's petition was transferred to Champaign County by order of this court. The post-conviction hearings were held on the petition, and on July 14, 1983, the circuit court of Champaign County issued a written memorandum opinion and order denying defendant's request for post-conviction relief. The defendant appealed to the Appellate Court, Fourth District. We then granted the State's motion to transfer this appeal directly to this court.
We will not repeat the facts in this case except as they relate to the disposition of the issues the defendant has raised in this appeal.
Defendant argues that his right to substantive due process was violated when we transferred this case from the appellate court. He contends that this court does not have jurisdiction to hear his post-conviction appeal and that proper jurisdiction lies with the Fourth District Appellate Court. Defendant bases his argument on Supreme Court Rule 651(a) (87 Ill.2d R. 651(a)), which provides in pertinent part: "An appeal from a final judgment of the circuit court in any post-conviction proceeding lies to the Appellate Court in the district in which the circuit court is located."
Although Rule 651(a) is concerned with post-conviction appeals, we interpret article VI, section 4(b), of the Illinois Constitution (Ill. Const. 1970, art. VI, sec. 4(b)), the Illinois death penalty statute (Ill. Rev. Stat. 1983, ch. 38, par. 9-1 et seq.), and Supreme Court Rule 603 (87 Ill.2d R. 603) to mandate uniform statewide appellate review of cases in which the death sentence has been imposed, even when those cases reach the post-conviction appeal stage.
Article VI, section 4(b), of the Constitution provides in pertinent part: "Appeals from judgments of Circuit Courts imposing a sentence of death shall be directly to the Supreme Court as a matter of right." Ill. Const. 1970, art. VI, sec. 4(b).
Section 9-1(i) of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(i)) provides: "The conviction and sentence of death shall be subject to automatic review by the Supreme Court. Such review shall be in accordance with rules promulgated by the Supreme Court."
Supreme Court Rule 603 provides in pertinent part: "[A]ppeals by defendants from judgments of the circuit courts imposing sentence of death shall lie directly to the Supreme Court as a matter of right. All other appeals in criminal cases shall be taken to the Appellate Court." 87 Ill.2d R. 603.
Defendant's brief states: "Death penalty cases are certainly significant and controversial cases, but they should not be handled on an ad hoc basis." We agree with the defendant that death penalty cases are too important to be handled on an "ad hoc" basis. It is for this very reason that we cannot accept defendant's position. If we were to allow appeals from post-conviction hearings in death cases to go to the appellate court, those cases might not receive a uniform review.
The defendant, as well as this court, is concerned about "ad hoc" handling of death penalty cases. The defendant argues that at some future date this court, relying on Rule 651, may not take a case directly on a post-conviction appeal, thereby treating a death case on an "ad hoc" basis. However, if defendant's argument regarding jurisdiction were correct, defendant or some other defendant who has been sentenced to death could lose a post-conviction appeal in the appellate court and this court could then deny the petition for leave to appeal. In this respect there could be "ad hoc" treatment of a death penalty case. Also, a defendant whose petition for leave to appeal was denied could allege that he was denied equal protection or denied his right to uniform statewide appellate review of his death sentence.
The Constitution, the legislature and this court have made special provisions for death cases because of their significance. To treat a post-conviction appeal in a death penalty case differently than a direct appeal in a death penalty case would be inequitable.
In two other cases now pending before this court, People v. Gaines (1984), 105 Ill.2d 79, and People v. Ruiz, No. 60303, we have granted the State's motion to transfer the case from the appellate court to this court. So to date, there has not been "ad hoc" treatment of any death penalty post-conviction appeal by this court.
The next issue to be addressed, which was not addressed in Lewis I, is whether, as defendant argues, there was a violation of the rule set forth in Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194. In Brady, the court stated, "the suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. 83, 87, 10 L.Ed.2d 215, 218, 83 S.Ct. 1194, 1196-97.
During the police investigation of this case, two negroid hairs suitable for analysis were found. One was found in a ski mask used in the robbery, and the other was found in the back-seat area of the maroon Monte Carlo automobile which was used in the robbery. These two hair samples were compared with hair standards obtained from Cornelius Lewis, Bernice Lewis, and Maurice Farris, three of the people charged with the robbery. All three were black. The standards from the Lewises were obtained in March 1979, while the standard from Farris was obtained in May 1979. The FBI compared these standards with the hair samples found in the ski mask and the car and excluded the Lewises as the source. The tests also excluded Farris as the source of the hair found in the ski mask, but were inconclusive with regard to Farris as the source of the hair found in the car.
The defendant alleges that the prosecutor suppressed an FBI laboratory report dated May 17, 1979. This report contained the results of the tests on the hair standards taken from Cornelius Lewis, Bernice Lewis, and Maurice Farris.
The defendant argues that, without this report, his trial attorney, Kenneth Kinser, was unaware that a hair standard was taken from Farris and analyzed by the FBI. Therefore, Kinser was unaware that Farris was not excluded as the source of the hair sample obtained from the car. The defendant also theorizes that this evidence shows Farris lied when he testified that he drove the car, since the results of the hair analysis suggests that Farris was in the back seat of the car. The defendant bases his theory on the premise that since Farris' hair was analyzed shortly before trial, the prosecutor believed that the wrong man was given immunity. The defendant also believes that since the hair-analysis results excluded him, they also negated his guilt. The defendant further argues that the results of the hair analysis support his theory that Farris was the actual murderer. The defendant concludes that this evidence was therefore material to the punishment he received, since he argues that he could only receive the death penalty if he were the gunman. The defendant's ultimate conclusion is that since the hair-analysis results on Farris were material to his guilt and/or punishment, he was denied due process of law.
The record does not clearly establish whether Kinser received the laboratory report in question. The record does indicate, however, that: (1) Kinser knew the results of the test conducted on Cornelius Lewis' and Bernice Lewis' hair standards; (2) the report of the hair analysis was hand carried from the FBI laboratory in Washington, D.C., to Champaign County, Illinois, where the trial was in session; (3) three copies of the report were delivered to the prosecutor at the courthouse on May 21, 1979; (4) on the day the report was delivered to the prosecutor, Kinser had moved for a mistrial and the atmosphere at the trial was hectic.
In People v. Williams (1980), 91 Ill. App.3d 631, 633-34, the court stated:
"A violation of due process occurs when a prosecutor, regardless of motive, suppresses evidence material to the question of the accused's guilt or innocence after there has been a request for its production. (Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194.) To prove there has been a violation it must be shown that the evidence was suppressed following a request for it by the defendant and that the evidence was favorable to the defendant and material either to guilt or to punishment. (Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562; People v. Nichols (1976), 63 Ill.2d 443, 349 N.E.2d 40; People v. Hovanec (1979), 76 Ill. App.3d 401, 394 N.E.2d 1340.) Materiality in a constitutional sense is not the mere possibility that the undisclosed information might have helped the defense or affected the outcome of the trial. Rather, the omitted evidence is material if, when evaluated in the context of the entire record, it creates a reasonable doubt of the defendant's guilt. United States v. Agurs (1976), 427 U.S. 97, 49 L.Ed.2d 342, 96 S.Ct. 2392; People v. Abendroth (1977), 52 Ill. App.3d 359, 367 N.E.2d 571."
Although the defendant has failed to point out specific discovery requests and orders entered in this case, we note that Kinser requested that the prosecution produce all reports it had access to, including FBI reports. In addition to this discovery request, identical pretrial discovery orders were entered on March 14, 1979, and on April 12, 1979. Those orders provided:
"IT IS HEREBY ORDERED that the State shall disclose to the defense counsel for the above named defendant(s), the following material and information within its possession or control: * * *
(4) Any reports or statements of experts, made in connection with this case, including results of physical or mental examinations and of scientific tests, experiments or comparisons.
(7) Any material or information within the State's possession or control which tends to negate the guilt of said defendant(s) as to the offense charged, or would tend to reduce their punishment therefore.
IT IS FURTHER ORDERED that if subsequent to compliance with the above order, the State discovers additional material or information which is subject to disclosure under the terms of this order, it shall promptly disclose such material or information to counsel for the defendant(s) and also notify the court of its existence. * * *"
Our Rule 415(b) (87 Ill.2d R. 415(b)) imposed the same continuing duty to disclose on the prosecution as the court orders of March 14 and April 12. The pretrial discovery orders referred to above provided that the State was to disclose the results of "comparisons" that it had in its possession. The State first had the results of the hair-analysis comparisons in its possession on May 21, 1979, subsequent to the time the pretrial discovery orders were entered. However, the pretrial discovery orders and our Rule 415(b) provided that if the State received the comparisons after the time in which the State complied with discovery, the State was to disclose the information to the defendants' attorneys and was to notify the court as well. When the State fails to comply with its continuing duty to disclose, the defendant will only receive a new trial if the information which was withheld was material. People v. Davis (1982), 104 Ill. App.3d 1027, 1032.
The record indicates that, at the very least, Kinser knew the results of the hair-analysis comparisons on Cornelius and Bernice Lewis on May 2, 1979. In addition, at the post-conviction hearing, Kinser testified that he had a "faint recollection" of receiving the report. The record does not preclude the conclusion that Kinser received the report at trial. If Kinser received the report, it was received on the sixth day of trial.
The defendant argues that even if the report was produced on the sixth day of the trial, a Brady violation still occurred. The defendant cites People v. Elston (1977), 46 Ill. App.3d 103, for this proposition. We do not believe that Elston applies to the case at bar. In Elston, the defendant was charged with murder and armed robbery. Before trial, the defendant was placed in a lineup. Witnesses to the crime were unable to identify the defendant. After the jury had been selected, but prior to the actual trial, the defendant became aware that the witnesses had not identified him. Instead of suppressing the identifications, the trial court allowed defense counsel several short recesses to prepare for cross-examination. The defendant was convicted. On appeal, the appellate court found that the recesses disrupted the trial and did not give defense counsel enough time to prepare for a proper cross-examination. The appellate court therefore held that the defendant was denied a fair trial and granted the defendant a new trial.
In the case at bar, on May 8, 1979, the trial judge became aware that the prosecutor and defense attorneys were waiting for an FBI laboratory report. At that time, the trial judge indicated that he would afford the attorneys any relief they would need with respect to the report. If Kinser received the report, he failed to request a recess at that time to study the report. Kinser's trial strategy may have been not to use this evidence. This point is discussed in the section dealing with ineffective assistance of counsel.
In any event, this case is not similar to Elston, where the appellate court found that the trial court failed to give defense counsel adequate time to prepare cross-examination and that the recesses disrupted the trial.
As already stated, the record does not preclude the conclusion that Kinser received the report from the prosecutor. However, for our analysis, we will assume arguendo that the report was not received and therefore that the defendant and his counsel knew nothing of the results of the hair-analysis comparisons on Farris' hair or even that a hair standard was taken from Farris. Consequently, to have a due process violation, the omitted evidence, the hair-analysis results on Farris' hair standard, must be material. They must create a reasonable doubt as to defendant's guilt which did not otherwise exist. (United States v. Agurs (1976), 427 U.S. 97, 112, 49 L.Ed.2d 342, 355, 96 S.Ct. 2392, 2402.) To determine if a reasonable doubt would now exist as to the defendant's guilt requires that the hair-analysis results regarding Farris "be evaluated in the context of the entire record. If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." 427 U.S. 97, 112-113, 49 L.Ed.2d 342, 355, 96 S.Ct. 2392, 2402.
We now turn to the evidence presented at trial. The record established that, at the time of the robbery and murder, Cornelius Lewis was a resident of Minnesota. The evidence also established that, shortly before the robbery, he rented a maroon Monte Carlo from a car dealer in St. Paul. Two witnesses testified that they saw this car the morning of December 14, 1978, in the parking lot from which the Lewises and Farris obtained the second car. The Monte Carlo was later seized in Maurice Farris' garage. An Illinois roadmap with the defendant's fingerprints was found inside the car, along with a wallet containing identification of a Denise Lewis, an alias used by Bernice Lewis.
There were five eyewitnesses to the robbery and murder. All five were bank tellers and were seated in the van which was to take them to the drive-in teller facility. Each teller had placed in the van a black briefcase which contained the money she was to use that day, as well as her personal items. The eyewitnesses' testimony established that there were two robbers, both of whom they believed to be men. The eyewitnesses' testimony also established that the gunman wore gloves, was taller than the second robber, and that the gunman drove the getaway car.
A witness who was in a parking lot near the bank testified that she saw two people with ski masks get into a car. She also testified that the driver was the taller of the two.
At trial there was evidence as to the heights of Cornelius Lewis, Bernice Lewis, and Maurice Farris. An FBI agent testified that Cornelius Lewis told the agent that he was 6 feet 2 inches tall. Farris testified that he was 5 feet 8 inches tall, that Bernice Lewis was 5 feet 10 inches or 5 feet 11 inches tall, and that Cornelius Lewis was at least 6 feet tall.
As already noted, Maurice Farris testified at trial. He was arrested and charged in connection with the bank robbery and murder. However, he received immunity in exchange for his testimony at the Lewises' trial and at Willie T. Sangster's trial. Farris testified that on the morning of December 13, 1978, he picked up the Lewises at Margaret Morgan's house, where they were staying. That morning, the Lewises and Farris drove to various locations attempting to locate a car which they could steal and use in the robbery. Farris testified that they were unable to locate a car that morning and therefore had to postpone the robbery. On the morning of December 14, 1978, Farris again met the Lewises at the Morgan house. On that morning, they were able to steal a car to use in the robbery. After they stole the car, the Lewises went to the bank and Farris went to a prearranged location where the Lewises were to return after the robbery. After the Lewises arrived at the prearranged location, Farris drove them back to Margaret Morgan's. Farris testified that, on the way back to the Morgan house, both Lewises were hiding in the car, and that they heard a siren. Bernice asked Farris about the siren. Farris testified: "I told her it's an ambulance. And she said it is going downtown to the Bank. And I said what happened. And Bobby [Cornelius] said he said the guard went for his gun. I had to burn him."
Margaret Morgan also testified for the State. She stated that Willie T. Sangster, the alleged mastermind of the robbery, arranged for the Lewises to stay at her home while they were in Decatur. Morgan testified that she awoke the morning of December 14, 1978, before 7 o'clock and that the Lewises were already gone. She testified that she drove her daughter to school that morning and that, when she returned home, the Lewises had returned and had three black briefcases. Mrs. Morgan also testified that, later on during the morning of December 14, she saw the Lewises counting money at her coffee table and that after dinner Cornelius used her phone to make a number ...