Appeal from the Circuit Court of Cook County, the Hon. Maurice
Pompey, Judge, presiding.
JUSTICE MORAN DELIVERED THE OPINION OF THE COURT:
Rehearing denied January 30, 1987.
Defendant, Anthony Guest, was charged by information filed in the circuit court of Cook County with five counts of murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1) through (a)(3)), one count of attempted murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-4), three counts of aggravated kidnaping (Ill. Rev. Stat. 1979, ch. 38, pars. 10-2(a)(3), (a)(5)), two counts of aggravated battery (Ill. Rev. Stat. 1979, ch. 38, pars. 12-4(a), (b)(1)), eight counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, par. 33A-2), and two counts of unlawful use of weapons (Ill. Rev. Stat. 1979, ch. 38, pars. 24-1(a)(4), (a)(10)). The defendant waived a jury trial, and his case was tried to the court. At the conclusion of trial, defendant was found guilty of the following charges: (1) one count of intentional murder; (2) one count of knowing murder; (3) one count of felony murder; (4) one count of attempted murder; (5) one count of aggravated battery; and (6) two counts of unlawful use of weapons. The court merged the convictions for attempted murder and aggravated battery.
The defendant received a sentence of 30 years for attempted murder, with a mandatory supervised release period of three years. This sentence was to run consecutively to two sentences in the State of Tennessee for armed robbery and bank robbery and consecutively to two sentences of 35 years and life imprisonment imposed in the State of Missouri for two armed robberies. The defendant was sentenced to 360 days on each count of unlawful use of weapons, with those sentences to run concurrently with the sentence for attempted murder but consecutively to his sentences in Tennessee and Missouri. In addition, the defendant was sentenced to death for murder under the multiple-murder aggravating-factor provision of the death penalty statute (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(3)). Because the death penalty has been imposed, defendant's appeal comes directly to this court pursuant to Rule 603 (87 Ill.2d R. 603).
The facts are not in dispute. On February 5, 1981, defendant entered a Chicago grocery store. Ferris King, a security guard, observed him place toothpaste and a toothbrush in his pocket. King approached the defendant, identified himself, and asked the defendant to accompany him to his office located in the basement of the building. Defendant complied. However, when the two men arrived at the office, defendant confronted King with a handgun.
Thereafter King, followed by defendant, left the office and proceeded to an employee's cafeteria also located in the basement. Three employees Joanne Bailey, Marlean Washington, and Gary Henderson were in the cafeteria when the two men entered. As two of the employees attempted to flee, defendant began firing in their direction. King responded by reaching for his gun, at which point defendant fired at him, hitting him in the shoulder. Defendant then fled, running south down a corridor, up the stairs, and out the front of the store. King then abandoned his pursuit of the defendant and, moments later, found John Geever, another employee, wounded and lying at the south end of the first floor. Geever subsequently died of a gunshot wound.
We briefly summarize certain of the testimony at trial and various stipulations which are relevant to resolution of issues defendant raises concerning the conduct of his trial.
Bailey testified that, shortly before King and defendant entered, she saw Geever come in, purchase a can of soda and leave through a door on the south side of the room. She also testified on direct examination that the defendant fired a shot towards her. On cross-examination, Bailey admitted that on the date of the incident she did not tell police that defendant had fired a shot towards her or that she had seen Geever in the cafeteria prior to the shooting. At this point in Bailey's cross-examination, defense counsel moved to strike her testimony for alleged noncompliance with discovery, specifically asserting the State's failure to disclose her statements regarding Geever's presence in the cafeteria shortly before the shooting. The trial court denied defendant's motion.
Defense counsel then moved for a mistrial, alleging his own ineffective assistance of counsel for failure to interview Bailey prior to trial. Counsel contended that he was ineffective because, considering the asserted circumstantial nature of the State's case, had he discovered this evidence he would not have advised the defendant to waive his right to a jury trial. The trial court also denied this motion.
The parties stipulated that if Washington were to testify she would state that she was in the cafeteria in the company of Bailey and Henderson and that, when the defendant fired the first shot, she tipped one of the tables on its side and hid behind it. She would testify further that, after the defendant and King left the cafeteria, she heard a commotion at the south end of the hallway; that she walked toward the south end of the hallway; and that she found Geever lying on the hallway floor at the foot of the south staircase. She would further testify that Geever told her he was hurt, and that he then got up, climbed to the top of the stairs, and collapsed.
There were other stipulations concerning various police officers who had worked on the investigation. Two detectives would have testified that Henderson picked out a photograph of the defendant and stated that it bore a resemblance to the perpetrator. The detectives would have testified further that they showed various photographs to King, Bailey, and Washington and that each of them picked out a picture of the defendant, stating that it looked like the perpetrator but noting that the perpetrator had shorter hair and was clean shaven. There was a further stipulation that defendant was identified by King and Washington at a later lineup.
The parties stipulated regarding the testimony of two evidence technicians who investigated the scene and discovered bullet fragments in various locations in the basement of the store. They would have testified that the fragments were placed in an envelope and marked for identification but that none of the fragments proved suitable for identification or comparison. In addition, one of the technicians would have testified that he delivered to the crime lab a sealed medical examiner's envelope containing the bullet recovered from the body of the victim. It was stipulated that the crime lab also received the revolver which was used by King on the date in question. By further stipulation, the firearms examiner would have testified that he "test fired" King's gun, compared those bullets with the bullet recovered from the victim's body, and was of the opinion that the bullet recovered from the body was not fired from King's gun.
King testified at trial that he was taken to the hospital by police for treatment of his wound. At the hospital, he removed his shirt, at which time an "intact" bullet fell out. He testified that a uniformed officer retrieved the bullet. However, there was conflicting testimony at trial by uniformed police officers who were at the hospital when King was treated. They testified that they had no knowledge of a bullet being recovered.
We noted above that defendant was found guilty of murder, attempted murder, aggravated battery, and unlawful use of weapons. As to the convictions for murder, defense counsel moved, prior to the death sentencing hearing, for a "specific finding of facts as to the murder counts." He argued that he would have "substantially different arguments to adduce, different mitigation to adduce," during the hearing depending upon whether defendant was found to have killed Geever under the intentional-murder provision of the statute or under the felony-murder provision. The court denied the motion. On several occasions, defense counsel unsuccessfully renewed this motion.
During the first phase of the sentencing hearing, there was testimony that the defendant had been tried by a jury and convicted of second-degree murder in Los Angeles County, California. There, defendant was sentenced as follows: 15 years to life plus a consecutive determinate-enhancement term of 3 years for murder; 2 years for personal use of a handgun; and 1 year for a prior conviction. These sentences were to be served consecutively to the sentences he was serving in Missouri.
The defendant raises 19 issues. The first five issues pertain to the trial of this cause; eight issues concern the sentencing hearing; five issues involve the constitutionality of the death penalty statute; and one issue deals with two motions which we took with this case regarding the Agreement on Detainers.
We turn initially to consideration of the issues raised regarding the trial of this cause. Defendant first maintains that he was not proved guilty beyond a reasonable doubt. He argues that the State's evidence established that the gunshots attributed to him through King's testimony were accounted for in such a way that he could not be the cause of the fatal wound. One shot was fired in the direction of the three employees seated in the cafeteria. Another shot was fired at King, wounding him in the shoulder. The third shot was fired, also in the direction of King, while defendant was fleeing down the basement hallway. Defendant contends that no further shots were attributed to him; therefore, he could not have shot and killed Geever.
The defendant's argument defies logic where the trial court found beyond a reasonable doubt that: (1) only King and the defendant were firing guns at the time of the incident; (2) the ballistics evidence proved that the fatal bullet did not come from King's gun; (3) the victim had been seen alive in the cafeteria shortly before any shooting began; (4) the victim was found wounded in the same hallway which defendant used to make his escape; and (5) there was no evidence to support the defendant's theory that someone else was present and shot the victim, thereby making that theory unreasonable.
Defendant relies on People v. Garrett (1975), 62 Ill.2d 151, where this court held that when a "conviction of murder rests solely upon circumstantial evidence, the guilt of the defendant must be so thoroughly established as to exclude every other reasonable hypothesis." (Emphasis added.) (62 Ill.2d 151, 163.) On the facts of this case, the State has carried this burden. Given the evidence at trial, defendant's theory that someone else shot the victim is unreasonable.
Defendant's second issue concerns the admissibility of testimony given by Bailey. Defendant relies on People v. Pellegrino (1964), 30 Ill.2d 331, arguing that it is analogous to his case and, therefore, controlling. In Pellegrino, this court reversed defendant's conviction for murder. However, Pellegrino is clearly distinguishable. In Pellegrino, there were two witnesses who testified that they had seen the defendant hit and kick the deceased. One witness had been "punched" by the deceased just prior to the beating which killed him. This witness was said to have been stunned, bleeding, and crying at the time the deceased was attacked. She first accused one man, then another, and finally said it was the defendant. The other witness stated that she had been drunk for four weeks, that she was suffering from the "shakes," and that she could not recognize the person located three feet away from her who was assisting the first witness.
Pellegrino is not controlling. Here, when speaking to the police, Bailey omitted the fact that she had seen the victim in the cafeteria prior to the shooting and the fact that the defendant's first shot was fired towards her. These omissions are neither analogous to changing testimony regarding the identity of the person who committed the crime nor analogous to a witness being so ill that she could not identify a person three feet in front of her. Also, it should be noted that Bailey's testimony regarding the defendant's first shot towards her was corroborated by the testimony of King and Washington. These omissions do not justify striking this testimony at trial. The trial court properly allowed it to stand.
Defendant raises an additional challenge to the admission of Bailey's testimony that she saw the victim in the cafeteria. The defendant maintains that this testimony should have been stricken because the prosecution violated discovery by failing to disclose it. The State contends that the trial court properly denied defendant's motion to strike. The State argues that denial was proper because (1) the defendant's motion was untimely; (2) the State had complied with the defendant's request for discovery by tendering Bailey's statement given to the police; (3) the State had no obligation under our Rule 412 (87 Ill.2d R. 412) to reduce Bailey's testimony to writing before she took the witness stand; (4) defense counsel knew for more than a year that Bailey was a potential prosecution witness and could have interviewed her; and (5) the defendant could have requested a continuance following Bailey's testimony but failed to do so.
We agree that the motion to strike this portion of Bailey's testimony was properly denied. The defendant cites Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, as authority for the proposition that the State was required to produce this evidence. In Brady, the Supreme Court held that "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.
The holding in Brady was clarified in Moore v. Illinois (1972), 408 U.S. 786, 33 L.Ed.2d 706, 92 S.Ct. 2562. In Moore, the Supreme Court set out a three-part test for determining if evidence has been suppressed and, if so, whether or not the suppression constitutes a violation of due process. The test requires that: (1) there was, in fact, a suppression of evidence by the prosecution after disclosure was requested by the defense; (2) the evidence suppressed was favorable to the defense; and (3) the evidence was material. (408 U.S. 786, 794-95, 33 L.Ed.2d 706, 713, 92 S.Ct. 2562, 2568.) Under Brady and Moore, defendant must first show that he requested evidence to which he was entitled and that the State did not disclose it. Failure to make this showing ends the analysis, and there is no need to consider the favorability or materiality of the undisclosed evidence.
It is clear, on this record, that the defendant has not established that the State suppressed evidence properly subject to disclosure under Brady and Moore. Here, the State provided the defense a copy of the statement Bailey gave to the police. For more than a year, her name was listed by the State as a potential witness. Further, we do not believe that the State is required to reduce to writing the testimony which a witness is expected to give on the stand.
Defendant, however, argues that Bailey's statement regarding Geever's presence in the cafeteria was made to the prosecutor the morning of trial. This fact does not alter our analysis. The State cannot possibly predict everything to which a witness will testify. It is for this reason that our judicial system provides each side with an opportunity to examine and, possibly, impeach any witness. Further, the State cannot always perceive the weight defense counsel will place on a given piece of evidence. Since the theory of defense counsel that someone else could have been present and shot the victim was unreasonable, it is not likely that the State would have known that the defense viewed Bailey's statement as significant. Consequently, the trial court did not err in denying defendant's motion to strike portions of Bailey's trial testimony.
The third issue raised by defendant relates to his trial counsel's alleged ineffectiveness for failure to interview Bailey. The defendant maintains that if defense counsel had known that Bailey was going to testify as to the victim's presence in the cafeteria, he would not have advised the defendant to waive a jury trial. We find defendant's argument without merit.
Defendant contends that defense counsel proceeded on a "rather sophisticated theory that there was a reasonable hypothesis of the defendant's innocence, and that had he [defense counsel] discovered this critical evidence he would not have advised his client to present this defense in a bench trial." We do not believe that Bailey's testimony was "critical evidence" without which the defendant could not make a knowing jury waiver. Furthermore, on this record, we do not believe that counsel was ineffective in representing the defendant.
Allegations of ineffective assistance of counsel are evaluated under the test enunciated by the Supreme Court in Strickland v. Washington (1984), 466 U.S. 688, 80 L.Ed.2d 674, 104 S.Ct. 2052, which this court adopted in People v. Albanese (1984), 104 Ill.2d 504, 526-27, cert. denied (1985), 471 U.S. 1044, 85 L.Ed.2d 335, 105 S.Ct. 2061. Under Strickland, a defendant claiming ineffective assistance of counsel must show: (1) that advice of counsel fell outside the "`range of competence demanded of attorneys in criminal cases'" and (2) "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." 466 U.S. 668, 687, 694, 80 L.Ed.2d 674, 693, 698 104 S.Ct. 2052, 2065, 2068.
Defendant has not satisfied the Strickland test. During the trial, defense counsel cross-examined Bailey and demonstrated that she had failed to tell the police of the victim's presence in the cafeteria seconds before the shooting began and that the defendant had fired a shot towards her. In so doing, defense counsel attempted to impeach Bailey's credibility, which is what he would have done even if he had interviewed her prior to trial. Further, as stated earlier, there was corroboration of her testimony by that of King and Washington as well as by the deceased's proximity to the area of the shooting. Therefore, the importance of this evidence is not what the defendant maintains. Under the circumstances of this case, we do not believe that defense counsel's failure to interview Bailey prior to trial, even if error, fell outside the range of competence required of a criminal attorney or that, but for defense counsel's failure to interview Bailey, the result of the trial would have been different.
The defendant next contends that he was denied due process of law because his waiver of a jury trial was neither voluntary nor knowing where he was unaware that Bailey intended to testify that she had seen the victim in the cafeteria prior to the shooting. This issue does not require lengthy discussion since a determination of whether a defendant has made a voluntary and knowing waiver of a jury trial cannot be based on his lack of knowledge regarding an alleged inconsistency between a witness' statement and later testimony, particularly where, as here, there is no allegation that defendant was denied a fair trial because he received a bench trial rather than a jury trial. In this regard, we note that the defendant signed a jury waiver in open court; that he was asked by the trial court whether he understood that he was giving up his "right to have twelve men and women determine [his] guilt or innocence"; and that the defendant indicated he understood and still wished to waive his right to a jury trial. Under these circumstances, we believe that the defendant's argument alleging a violation of his right to due process is without merit.
Defendant's fifth issue concerns the alleged loss of ballistics evidence. As earlier stated, King testified at trial that the defendant shot him. According to King, the bullet grazed his right shoulder and became lodged in his shirt. He further testified that while he was at the hospital, he "pulled off [his] shirt and the bullet fell out." He then testified that a uniformed police officer picked the bullet up, showed it to him, and gave the bullet to the attending physician, who "washed it off and put some kind of stuff on it, and put plastic over it." Apparently, that was the last time King saw the bullet.
Defense counsel responded to King's testimony with an oral motion to dismiss or, in the alternative, a motion for a mistrial based on the prosecution's failure to produce this bullet. Defendant's motions were continued until the close of the State's case in chief. During its case in chief, the State called two police officers who were at the hospital. Each officer testified that he had no knowledge of a bullet being recovered from King. There were also stipulations that none of the other police officers who participated in the investigation of the case ever received or had any knowledge of the bullet that was alleged to have fallen from King's shirt. Defendant's motions were subsequently denied.
Defendant again argues that, under Brady v. Maryland (1963), 373 U.S. 83, 10 L.Ed.2d 215, 83 S.Ct. 1194, the State was required to produce the bullet. As discussed above, under Brady, as clarified by Moore, the defendant must establish, as a threshold requirement, that the evidence was requested and that the State failed to disclose it. (Moore v. Illinois (1972), 408 U.S. 786, 794-95, 33 L.Ed.2d 706, 713, 92 S.Ct. 2562, 2568.) However, implicit in meeting this threshold requirement is establishing the fact that the State does possess certain evidence. Here, the defendant has not established that the State ever had possession of the bullet. Other than King's statement that the bullet fell from his shirt, there is absolutely no evidence to support the fact that the bullet existed, much less that it was in the State's possession. In the absence of proof that the State was in possession of this bullet, there can be no violation of Brady and Moore. Accordingly, the trial court did not err in denying the defendant's motions to dismiss or to declare a mistrial based on the alleged loss of this ballistics evidence.
We have determined that none of the issues the defendant raises regarding his trial have merit. We therefore affirm his convictions.
The defendant next raises eight issues concerning imposition of the death penalty. Defendant's major contention is that the trial court erred in concluding that the murder statutes of Illinois and California are substantially similar for purposes of finding him eligible for the death penalty under section 9-1(b)(3) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(3)).
Section 9-1(b)(3) provides:
"(b) Aggravating Factors. A defendant who at the time of the commission of the offense has attained the age of 18 or more and who has been found guilty of murder may be sentenced to death if:
3. The defendant has been convicted of murdering two or more individuals under subsection (a) of this Section or under any law of the United States or of any state which is substantially similar to Subsection (a) of this Section regardless of whether the deaths occurred as the result of the same act or of several related or unrelated acts so long as the deaths were the result of either an intent to kill more than one person or of separate premeditated acts." (Emphasis added.) (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)(3)) (hereinafter, the multiple-murder, aggravating-factor provision).)
Imposition of the death penalty under this provision requires a comparative analysis of the murder statutes of Illinois and California. Under this analysis, we must determine whether or not conduct which constitutes murder in California ...