Appeal from the Circuit Court of Cook County, the Hon. Richard
Samuels, Judge, presiding.
JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:
Enice Lyles, Jr., was charged in a three-count indictment in the circuit court of Cook County with the murders of Mary (Nichols) Thigpen and her two young sons, Robert and Roderick Nichols. (Ill. Rev. Stat. 1977, ch. 38, par. 9-1(a).) A jury found the defendant guilty of the murders of Robert and Roderick Nichols and guilty of voluntary manslaughter in regard to the death of Mary Thigpen. Following a separate bifurcated sentencing hearing before the same jury, the defendant was sentenced to death. The sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); 87 Ill.2d R. 603). For the reasons set forth below, we affirm defendant's convictions but reverse the sentence of death and remand the cause for a new sentencing hearing.
On February 25, 1978, at approximately 4 a.m., two Harvey police officers were flagged down by Warren Griffin. Griffin was upset and out of breath. He told the officers that he had just been to the home of his fiancee, Mary Thigpen, but had received no answer. He stated that he then peered through the bathroom window and observed one of Thigpen's sons lying face down in a bathtub partly filled with water. The officers drove Griffin to the Thigpen residence to investigate. They observed the body of the child in the bathtub through the bathroom window. The outer doors of the home were locked and showed no sign of forcible entry. After receiving no answer the police broke down a door and entered the residence.
Inside the police found the body of Roderick Nichols, age 5, lying face down in the hallway. The child's hands were bound behind his back and there was a cord wrapped around his neck. The body of Robert Nichols, age 4, was found in the bathtub. The child's hands and feet were bound and there was a ligature wrapped around his neck. The bathtub faucet was dripping, and the tub was three-fourths full as a towel had clogged the drain. Post-mortem examination showed the cause of death for both boys to have been ligature strangulation. The post-mortem examination also disclosed no indication of drowning in regards to Robert.
The body of the boy's mother, Mary Thigpen, was found propped up against the couch in the living room. She had stab wounds to her abdomen and arms and had a cloth ligature wrapped around her neck. The post-mortem examination showed the cause of death to have been ligature strangulation with stab wounds to the lung and abdomen. At the time of her death Mary Thigpen was six months pregnant.
After being informed that Mrs. Thigpen and the two boys were dead, Warren Griffin told the police that he thought that Enice Lyles had probably killed the family. Griffin stated that approximately two weeks before the killings he was present when Enice Lyles waved a screwdriver at Thigpen and threatened to kill her if she "kept up" whatever it was that was making him angry. Griffin further stated that Lyles had been in prison for murder and was recently released. He also told the police that Lyles lived in the basement of the house in front of the Thigpen residence and had babysat for Thigpen on several occasions.
The police proceeded to the house where Lyles lived. Lyles showed no emotion when told of the killings and stated that he had not seen Thigpen or her children for a few days. While talking with Lyles the police observed that he had three deep open lacerations on his right hand. The officers then asked Lyles if he would accompany them to the police station and he agreed.
Lyles arrived at the police station at approximately 6 a.m. and told the officers questionable and inconsistent stories about how he received the cuts on his hands and about his involvement in the killings. At approximately 10 a.m., Lyles confessed to the killings. Later that day a court reporter was summoned and Lyles gave a statement which was later transcribed and then signed by Lyles.
In the statement Lyles confessed to killing all three victims. Lyles stated that he had babysat for Mary Thigpen on Wednesday night, February 23. He stated that Thigpen became abusive when she arrived home and began threatening him with a knife. A struggle ensued, during which Lyles received the cuts on his hands. Lyles stated that he was able to force the knife away from Thigpen and began to stab her in the stomach with it. He then told of how he strangled Thigpen and her two young sons to death. He also stated that he had purchased first-aid supplies from a local drugstore on Thursday, February 24, and dropped his clothes off at a cleaners because he had blood stains on them. When later asked why he had killed the two boys, Lyles stated because he was afraid they would tell on him for killing their mother.
Lyles' confession was read to the jury. The confession was corroborated by the testimony of the drugstore clerk and the cleaning clerk, who both remembered Lyles coming in with the cuts on his hands. It was also corroborated by the fact that, at the time of the confession, no one other than the murderer knew that Robert Nichols had been strangled to death and had not drowned. After hearing all the evidence the jury found Lyles guilty of the murders of Robert and Roderick Nichols and guilty of voluntary manslaughter in regards to the death of Mary Thigpen. A bifurcated death sentencing hearing was then held.
During the first stage of the hearing the State introduced evidence that Lyles was over the age of 18 at the time he committed the murders of Robert and Roderick Nichols. The jury was also instructed that it could consider the two boys murders in determining if Lyles was eligible for the death sentence. The State also introduced evidence that Lyles had pleaded guilty when he was 14 years old to the murder of a guard at a youth camp. The jury found Lyles eligible for the death penalty.
During the second stage of the sentencing hearing the defense, as a mitigating factor, attempted to establish that Lyles was suffering from a severe mental or emotional disturbance. (See Ill. Rev. Stat. 1977, ch. 38, par. 9-1(c)(2).) The defense introduced the testimony of psychologist Martin Scripp and psychiatrist Marvin Ziporyn in support of this argument. The State responded with the testimony of psychiatrist Gerson Kaplan. The jury found that there were no mitigating factors sufficient to preclude the imposition of the death penalty and sentenced the defendant to death.
The defendant first contends that his conviction should be overturned because the trial court erred by not suppressing his confession and other evidence stemming from his alleged illegal arrest. The defendant filed a motion to suppress the confession on the grounds that it was involuntary, obtained through coercion, and given without a knowing waiver of his Miranda rights. A hearing on the motion began on December 15, 1980, and the motion was subsequently denied.
On the morning the trial was to begin, May 24, 1982, the defendant filed another motion to suppress, this time alleging that the police lacked probable cause to arrest the defendant. Jury selection was set for 9:30 a.m., and the State received the motion at 10:30 a.m. When the case was called, the State asked the court for a short continuance to study and prepare to defend against the motion, noting the untimeliness of the motion and the fact that the case was 4 1/2 years old. The matter was continued until later in the day. When the matter was recalled the State informed the court that it was ready to proceed to a hearing on the motion. Defense counsel stated, however, that he wished to stand on the testimony which was given at the voluntariness hearing held a year and a half before the trial date. The State did not stipulate to the use of the testimony given at the voluntariness hearing. Defense counsel himself had previously stated that the theory at the voluntariness suppression hearing was "simply and solely Miranda voluntariness and that's all. Never any contention made that the suppression should follow on the violation of the illegality of the arrest."
The trial judge noted the lateness of the filing of the motion and the fact that it had been a year and a half since the voluntariness suppression hearing and that "nothing new in the way of grounds" had been discovered since that time. The judge stated that if the motion were going to be heard "at all it would be heard with the trial." He then stated that the motion was "stricken" and "denied at this time."
During the trial the defense renewed its objection to testimony concerning any post-arrest admissions made by the defendant on the grounds that the arrest had been made without probable cause. A conference was then held outside the presence of the jury. The State again informed the court that it was prepared to proceed to a hearing, outside the presence of the jury, on the probable-cause motion. The judge indicated that he would be inclined to hold such a hearing after the jury was excused for the day. The defense, however, stated that it was not asking for a hearing and questioned whether the purpose in holding such a hearing would be "to give them [the State] a chance to correct the defects in their case?" At the end of the day the State, "in the spirit of making the record clear," invited defense counsel to go to hearing on his motion and stated that the prosecution had the arresting officer present to testify. Defense counsel stated, however, that "he preferred to proceed in the fashion previously stated." Given these facts, we believe that the issue of whether there was probable cause to arrest has been waived.
On a motion to suppress based on a lack of probable cause to arrest, the initial burden of going forward with the evidence is on the defendant. (People v. Black (1972), 52 Ill.2d 544, 553-54; People v. Ross (1978), 60 Ill. App.3d 857, 861; People v. Turner (1976), 35 Ill. App.3d 550, 567.) The defendant also has the primary obligation of calling up his motion for hearing and disposition. (People v. Jones (1984), 104 Ill.2d 268, 278-80; People v. Terry (1975), 61 Ill.2d 593, 596.) The trial judge acted within the scope of his discretion in deciding that any hearing on the probable-cause motion would be held in conjunction with the trial, outside the presence of the jurors. (See People v. Hicks (1970), 44 Ill.2d 550, 553; People v. Colon (1973), 9 Ill. App.3d 989, 996.) The defense made it clear during trial, however, that it was "not asking for a hearing" on its motion and complained that a hearing would only give the State "a chance to correct defects in their case." The defense, by failing to request a hearing on its motion, failed to carry its burden of going forward with the evidence and its initial burden of proof. By failing to litigate its motion in the trial court, the defense has waived the issue on appeal.
The defendant next contends that he was denied a fair trial because the State implied to the jury that he had a previous criminal record. During the State's redirect examination of Warren Griffin the following colloquy took place:
"Q. Did you also tell the police something else about Mr. Lyles at that time, something about his background?
[DEFENSE COUNSEL]: Object to that, if the Court please. It has absolutely no probative value whatsoever. Counsel knows that.
What purpose could it serve? I ask that it be stricken and the jury instructed to disregard it.
THE COURT: The last question, sustained.
[DEFENSE COUNSEL]: Move for a mistrial.
THE COURT: Motion for a mistrial denied.
[ASSISTANT STATE'S ATTORNEY]: Would the Court like me to bring out exactly what he said?
[DEFENSE COUNSEL]: Object to that again and move for a mistrial.
The defense later renewed its motion for a mistrial based on the colloquy, stating that the purpose of the question was to elicit the fact that Griffin told the police that Lyles had been in prison for murder and was recently released. The State, in response, explained that the purpose of the question was to elicit the fact that Griffin told the police that, a few months prior to the murders, Lyles had hit him in the head with a golf club. The golf-club incident had been referred to during cross-examination and during earlier redirect examination. Admittedly, the question was ambiguous. The mere mentioning of the word "background," however, without a more direct reference to specific criminal activity, does not imply that someone has a "criminal" background, and thus the question did not deprive the defendant of a fair trial. People v. Guyton (1972), 53 Ill.2d 114, 118-19; People v. Pittman (1981), 100 Ill. App.3d 838, 843.
Defendant claims he was denied a fair trial because of a number of prosecutorial remarks made during closing arguments. Defense counsel, during his closing remarks, suggested that defendant's confession may have been coerced. On rebuttal one of the prosecutors stated:
"Mr. Freeman [defense counsel] talks about the proceedings the police went through after they arrested Mr. Lyles and after they took him to the station and holds this up to you [the waiver form signed by defendant] and he says, `Look at them' He didn't fill out all the blanks. The police said what happened and what the police said is uncontradicted, unrebutted. No evidence that says it happened any other way than that."
Later, after alluding to other remarks by defense counsel concerning the circumstances surrounding the confession, the prosecutor said:
"Why did he talk about it? To raise some confusion. Again there is no evidence to contradict what Coleman McCarthy said. No evidence to rebut it at all."
Defendant asserts that the prosecutor, by characterizing the evidence surrounding defendant's confession as uncontradicted and unrebutted, improperly commented on his failure to testify.
The prosecution cannot directly (People v. Burton (1969), 44 Ill.2d 53, 56-57), or indirectly (People v. Wollenberg (1967), 37 Ill.2d 480, 488), comment on the defendant's failure to take the stand in his own defense. It is well settled, however, that the prosecution may describe the State's evidence as uncontradicted even though the defendant is the only one who could have contradicted it provided it was not "`intended or calculated to direct the attention of the jury to the defendant's neglect to avail himself of his legal right to testify.'" (People v. Hopkins (1972), 52 Ill.2d 1, 6; People v. Mills (1968), 40 Ill.2d 4, 8.) In this case, viewed in the context in which they arose, the prosecutor's remarks were not intended or calculated to direct the jury's attention to defendant's failure to testify. Rather, they were a legitimate response to defense counsel's suggestion that defendant's confession may have been coerced. Where defense counsel provokes a response, defendant cannot complain that the State's reply denied him a fair trial. (People v. Dixon (1982), 91 Ill.2d 346, 350-51; People v. Vriner (1978), 74 Ill.2d 329, 344; People v. Benedik (1974), 56 Ill.2d 306, 311.) For the same reason we find no merit in defendant's contention that he was prejudiced when the prosecutor said on rebuttal, "You have seen in this case classic examples of how an attorney represents the defendant and goes to any length to mis-state the law to try to confuse the jury and tell them things that are absolutely wrong in order to walk the man out of the courtroom." Although we have repeatedly stated that it is improper for a prosecutor to charge defense counsel with attempts to free the defendant by trickery (e.g., People v. Berry (1960), 18 Ill.2d 453, 458; People v. Freedman (1954), 4 Ill.2d 414, 422; People v. Savage (1934), 358 Ill. 518, 522), the prosecutor's remark complained of here was invited by defense counsel's argument in which he misstated not only the State's burden of proof but the weight to be given defendant's confession.
Other prejudicial remarks, defendant alleges, occurred when the prosecutor portrayed defense counsel as defendant's "mouthpiece" and when he interjected his personal feelings about the case by telling the jury, "You might have looked over to our counsel table and noticed some outrage. Some lack of belief. Some question or puzzled looks on our faces * * *." On another occasion the prosecutor objected to a portion of defense counsel's closing argument, calling it "a lie. A bald face lie." Defense counsel retaliated by calling the prosecutor a liar, whereupon the court ordered the attorneys to his chambers "Off the record."
Generally, a prosecutor may not express his personal opinion about the defendant's case (People v. Vriner (1978), 74 Ill.2d 329, 344; People v. Monroe (1977), 66 Ill.2d 317, 324), or make personal attacks against the defendant's attorney (People v. Kirk (1966), 36 Ill.2d 292, 297). We do not believe, however, that the comments complained of here deprived the defendant of a fair trial. "`Where it appears that improper remarks do not constitute a material factor in the conviction * * * the verdict will not be disturbed.'" (People v. Fields (1974), 59 Ill.2d 516, 522, quoting People v. Berry (1960), 18 Ill.2d 453, 458.) Here the evidence of guilt was overwhelming so that no rational jury could have done anything but convict defendant. (See People v. Baptist (1979), 76 Ill.2d 19, 29-30; People v. Fields (1974), 59 Ill.2d 516, 521-22; People v. Berry (1960), 18 Ill.2d 453, 458.) Defendant does not challenge the sufficiency of the evidence, and indeed he admits in his brief that he committed the crimes. Moreover, the State had sought murder convictions for each of the killings. Yet, after requesting and receiving a clarification of the voluntary-manslaughter instruction, the jury convicted defendant of the voluntary manslaughter of Mary Thigpen. Thus, it is clear that the jury thoroughly considered the evidence and that its verdicts were the products of careful and thoughtful deliberation. Under the circumstances, we are convinced that the prosecutor's remarks had no material effect on the convictions.
Defendant also claims he was denied a fair trial when, during defense counsel's closing argument, one of the prosecutors made an objection, stating that defense counsel had been given "an opportunity for four years to present a defense." We find no merit in defendant's contention that the remark was an improper personal attack on his attorney or that it suggested that the defense had a burden to present evidence. Nor do we find any merit in the assertion that the State injected a prejudicial and irrelevant issue into the case by referring to the length of time which had elapsed before trial. The jury was aware that the crimes were committed in 1978. Since the trial took place in June of 1982, they were obviously aware that four years had elapsed. Accordingly, as the State points out, the jurors did not learn anything they did not already know. In addition, the court admonished the jurors that they should not concern themselves with the age of the case.
Defendant refers to a number of other comments which he claims were prejudicial, but since no objection was raised at trial, any error is waived. People v. Gacy (1984), 103 Ill.2d 1, 88.
The defendant next contends that he was denied his right to trial by an impartial jury because the State exercised its peremptory challenges to exclude blacks solely on the basis of race. This court has previously discussed this issue at length and stated that only the systematic and purposeful exclusion of blacks from juries raises constitutional issues. (People v. Mack (1984), 105 Ill.2d 103, 121-22; People v. Williams (1983), 97 Ill.2d 252, 273-80; People v. Davis (1983), 95 Ill.2d 1, 16-17.) Thus, there must be a showing that there has been a systematic exclusion on a case-after-case basis. (People v. Payne (1983), 99 Ill.2d 135, 138; People v. Williams (1983), 97 Ill.2d 252, 273-80.) The defendant in the present case failed to show that there was even a purposeful exclusion in his own case. Unlike many defendants who raise this issue, the defendant in the present case made a record of the identity of the prospective black jurors who were excused by use of the State's peremptory challenges. See People v. Gaines (1981), 88 Ill.2d 342, 359.
The final jury contained 10 whites and 2 blacks. The State used peremptory challenges to excuse 12 blacks and tendered 4 blacks to the defendant as acceptable. A review of the "voir dire" questioning reveals that the State was not exercising its challenges "solely on the basis of race" but rather was exercising its challenges to exclude individuals who had facts in their background, such as criminal records or friends and/or relatives with criminal records, and other factors which might have prejudiced them against the State. A review of the voir dire questioning of 10 of the 12 black jurors excused by the State reveals the following about their backgrounds:
Juror D.M. Had a brother who was recently charged with murder. The case had not yet gone to trial.
Juror J.C. Had a criminal record, was convicted of robbery 33 years ago, charged with assault 10 years ago, charged with gambling since then.
Juror E.H. Second cousin was presently incarcerated for "strongarmed" robbery.
Juror J.M. Had an acquaintance charged with murder.
Juror A.J.F. Had been foreman on a rape jury that ended up deadlocked; father had been charged with killing a man; found not guilty.
Juror T.D. Pleaded guilty to involuntary manslaughter in 1974; brother found guilty of murder in ...