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People v. Porter

OPINION FILED FEBRUARY 21, 1986.

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,

v.

ANTHONY PORTER, APPELLANT.



Appeal from the Circuit Court of Cook County, the Hon. Robert L. Sklodowski, Judge, presiding.

JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Following a jury trial in the circuit court of Cook County, the defendant, Anthony Porter, was found guilty of the armed robbery and unlawful restraint of Henry Williams (Ill. Rev. Stat. 1981, ch. 38, pars. 18-2, 10-3), the murder of Marilyn Green (two counts) (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2)), the murder of Jerry Hillard (two counts) (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2)), and two counts of unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, pars. 24-1(a)(10), (b)). The State requested a separate sentencing hearing to consider whether the death penalty should be imposed. The defendant waived a jury for the penalty hearing (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)(3)), and the trial judge found the existence of a statutory aggravating factor (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(3) (defendant convicted of murdering two individuals)) and concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, the trial court sentenced the defendant to death for the murders of Marilyn Green and Jerry Hillard. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(h).) The death sentence was stayed (87 Ill.2d R. 609(a)), pending direct appeal to this court (Ill. Const. 1970, art. VI, sec. 4(b); Ill. Rev. Stat. 1981, ch. 38, par. 9-1(i); 87 Ill.2d R. 603). The trial court also sentenced the defendant to a concurrent prison term of 30 years for the armed-robbery and unlawful-restraint convictions and the first unlawful-use-of-weapons conviction. The trial court determined that the second unlawful-use-of-weapons conviction "merged into [the] other counts." The defendant's subsequent motion for a new trial was denied by the trial court.

The defendant contends that he was denied his constitutional right to a trial by an impartial jury and that the trial court erred in denying his motion for a new trial. For the reasons set forth below, we affirm the defendant's convictions and sentences.

The following evidence was presented at the defendant's trial. On August 15, 1982, at approximately 1 a.m., Henry Williams and William Taylor went to Washington Park in Chicago. They climbed a fence to enter the pool area in the park and went swimming. At the same time, Jerry Hillard and his fiancee, Marilyn Green, were sitting in the upper portion of bleachers located to the west of the pools. After swimming for a while Williams decided to get out of the water. As he was putting on his pants, the defendant approached with a gun in his hand and asked Williams if he had any money. The defendant put the gun up to Williams' forehead, took $2 from his pocket, and then left. Williams continued to get dressed and looked for Taylor, who was still in the pool. He then saw the defendant up in the bleacher area within three or four feet of Jerry Hillard with a gun pointed at Hillard. Williams finished dressing, and as he jumped back over the fence he heard several shots.

Taylor had continued to swim after Williams left the pool. He got out of the water and as he was drying off he saw the defendant up in the north end of the bleachers. The defendant was standing less than two feet from Hillard with his arm extended and a gun in his hand. The defendant shot Hillard. Hillard fell back, and the defendant shot him again. The defendant then ran down the bleachers toward Taylor, passed within three feet of him, and left the pool area to the south. Taylor went up to where Hillard had fallen. He did not see Marilyn Green shot.

Shortly after 1 a.m., on August 15, 1982, Officer Anthony Liance, of the Chicago police department, responded to a call that a man had been shot in Washington Park. As he approached the pool area from the north he observed Marilyn Green running from the north end of the bleachers. She was holding her neck with her right hand and pointed to the south end of the bleachers with her left hand. Liance continued to approach the pools and saw a person whom he later identified in court as being the defendant, running south next to the bleachers. He stopped and frisked the defendant, but let him go because he did not find a weapon on him. After running past Officer Liance, Green staggered toward Officer B. Johnson and his partner. The two officers were issuing a motorist a traffic citation at the time. Johnson helped Green into a squad car and noticed that there was a hole in her neck. She was taken to a hospital where she died.

Officer Dennis T. Dwyer and his partner also responded to the call. As they approached the pools from the north, Williams walked out from the bleachers and told them that a man had been shot up in the bleachers. Dwyer observed Hillard on the top step of the bleachers lying on his back and bleeding from the head. Hillard was taken to a hospital where he underwent surgery and later died.

Cook County Deputy Medical Examiner Joanne Richmond performed autopsies on both Marilyn Green and Jerry Hillard. Green had received three "through and through" gunshot wounds. She was shot twice in the right side of the neck at close range; within approximately 1 to 1 1/2 feet. She was shot a third time in the left hand. Green died from massive bleeding due to multiple gunshot wounds. Hillard had been shot twice at close range; once above the left eye and once on the left side of the head. There was also a "black powdery substance" on the back of his left hand. Hillard died from multiple gunshot wounds to the head.

Both Henry Williams and William Taylor were taken by the police from the pool area to a police station. Williams identified a photograph of the defendant in a mug book. He testified that he had seen the defendant in the neighborhood almost every day for a period of about a year and a half before Hillard and Green were shot. Taylor also identified a photograph of the defendant in a mug book. He had seen the defendant in the neighborhood once or twice a month for a period of two to three years prior to the shootings. Taylor testified that when he was at the police station on August 15, 1982, he told the police that he did not see the defendant shoot Hillard because he was afraid for his life. He had seen the defendant mug two old men and said that one of his friends had been jumped by the defendant. Taylor was living with his 95-year-old great-grandmother and stated that since he had to leave her alone when he went to work, he feared for her safety. On August 18, 1982, Taylor viewed a lineup at a police station and again identified the defendant.

The parties stipulated that the defendant was over 17 years old on the date of the occurrence. We note that the police officer who arrested the defendant on August 17, 1982, testified at trial that the defendant stated at the time of his arrest that he was 27 years old. The parties also stipulated that on October 6, 1980, the defendant had been convicted of robbery and that he was released from prison on that conviction on November 13, 1981.

The defendant called three witnesses on his behalf. Eric Werner, a professional photographer, presented testimony regarding the physical appearance of the pool area at Washington Park. Werner had photographed the area at the request of the defendant's counsel. The pictures were taken more than one year after Marilyn Green and Jerry Hillard were shot.

Kenneth Doyle also testified for the defendant. He stated that he was at the defendant's mother's house during the evening of August 14, 1982, and sat on the back porch with the defendant drinking until about 2 a.m. the next morning. At that time he went with the defendant and a friend to a nearby playground where they talked and continued to drink until 9 a.m. On cross-examination Doyle admitted he had talked to two detectives on August 17, 1982, and told them that he was drinking with the defendant until about 10:30 p.m. on August 14, 1982, and then spent the rest of the night at home with his mother. At trial Doyle explained that he lied to the police because he was afraid he was going to be "locked up."

Finally, the defendant called Georgia Moody, the "common law" wife of one of his brothers. She saw the defendant at his mother's house during the evening of August 14, 1982, playing cards with her children along with Doyle. She testified that the defendant and Doyle did not go out on the porch and were not, to her knowledge, drinking. According to her, the defendant left the house at about 2:30 a.m. on August 15, 1982, with Doyle and a friend. The defense then rested.

The jury deliberated for approximately nine hours and found the defendant guilty of all charges. The jury was polled and then allowed to go home for the night, and it returned the next morning. That morning the State requested a sentencing hearing to consider whether the death penalty should be imposed. The defendant elected to waive his right to a jury for purposes of the two-phase death penalty hearing.

During the first phase of the death penalty hearing arguments were presented by both the State and the defense in regard to the defendant's eligibility for the death penalty. In addition, a certified copy of the defendant's birth certificate, showing defendant to be in excess of 18 years of age, and the verdict forms from his trial were admitted into evidence. The trial judge found that the defendant had been convicted of murdering two or more individuals and that he had attained the age of 18 at the time he committed the murders. The judge therefore held that the defendant was eligible for the death penalty. At this time the judge had the jurors brought into the courtroom for the purpose of formally dismissing the jury. An oral motion for a mistrial was made by the defendant at that time. The court denied the motion, with leave to file a written motion later. The basis for the defendant's motion will be discussed below.

During the second phase of the death penalty hearing before the court, evidence was presented concerning matters in aggravation and mitigation. The following evidence was presented by the State in aggravation. On April 27, 1979, the defendant was placed on a two-year period of probation for bail jumping. The defendant violated his probation two months later when he robbed and beat Douglas McGhee. McGhee had been sitting on the bleachers next to the pools in Washington Park. On October 6, 1980, the defendant pleaded guilty to robbery and bail jumping and was sentenced to three years in the Illinois Department of Corrections. The defendant was released from prison on November 13, 1981, and was placed on parole for a period of two years.

On August 1, 1982, while on parole, the defendant got into an argument with a man in the neighborhood named Earl Lewis. The defendant had walked by and kicked Lewis' dog. When the defendant passed by again Lewis asked him why he kicked the dog. The defendant threatened to hurt Lewis, but then started to walk away. He then returned and placed a gun to Lewis' head and fired. The bullet grazed Lewis' forehead, who escaped much more serious injury by moving back just as the gun was fired. (On August 4, 1983, the defendant pleaded guilty to the aggravated battery of Earl Lewis and was sentenced to six years in the Illinois Department of Corrections.) Two weeks after the defendant shot Earl Lewis, he committed the offenses that are the subject of this appeal.

The following evidence was presented by the defendant in mitigation. The defendant had attended a church and for approximately two years had helped clean the church. He had assisted an elderly gentleman who was recuperating from a heart attack by taking out the garbage and getting medicine for him. He also had assisted his godmother, who suffered from epileptic seizures, by cleaning her house, making her food, and helping her take her medicine. The defendant has five children; three from one relationship and two from another relationship. The defendant's mother, Clara Porter, related how she had tried to raise nine children in the housing project by herself. In addition, several witnesses expressed the opinion that the defendant could be turned into a useful citizen if he were given a chance and asked that his life be spared.

Following arguments of counsel, the trial court concluded that there were no mitigating factors sufficient to preclude the imposition of the death penalty. The defendant's subsequent written motion for a new trial was denied.

The defendant contends that he was denied his constitutional right to a trial by an impartial jury. He first argues in support of this contention that the scope of the voir dire examination as conducted by the trial court did not provide him with sufficient information to request challenges for cause or to intelligently exercise his right of peremptory challenge. The State argues that the adequacy of the voir dire examination was not raised in the defendant's written motion for a new trial and thus has been waived. Alternatively, the State maintains that the trial court's voir dire examination of the venire was thorough and meticulous. Defendant's second point under his basic contention is that a member of the jury knew the mother of one of the victims, which fact did not come to light until after the jury had reached a verdict.

As previously stated, after the guilty verdict the jury was polled and then was allowed to go home for the night. The next morning, before the hearing commenced as to the penalty, the defendant waived his right to a jury for the death penalty hearing. The trial court conducted the hearing and determined that the defendant was eligible for the death penalty. At that point, before the second phase of the death penalty hearing (the aggravation-mitigation phase), the judge noted for the record that the jury had not been formally dismissed. When the jury was brought into court to be discharged, the following colloquy took place, which is the basis for defendant's second point, that is, that a member of the jury knew the mother of one of the victims:

"THE COURT: Ladies and gentlemen, I did not formally dismiss you so you are still under oath, under the oath that you took as jurors. It was brought to my attention before I actually formally dismissed you that one of the jurors stated that he knew that some other juror purportedly or allegedly went to church — to the same church as one of the decedent's mother. Is that right, was that your — please identify yourself.

MRS. TRICKLET [sic] [The juror's name was Lillie B. Trigleth]: Yes, but that didn't make any difference to me about that.

THE COURT: Thank you, ma'am. It didn't make any difference?

MRS. TRICKLET: No.

THE COURT: Ma'am, your name again?

MRS. TRICKLET: Lilly B. Tricklet.

THE COURT: It didn't make any difference to you, you abided by your oath and did you recognize that fact when I had read you the name of all the witnesses in the beginning ...


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