APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
511 N.E.2d 661, 158 Ill. App. 3d 614, 110 Ill. Dec. 484 1987.IL.744
Appeal from the Circuit Court of Cook County; the Hon. Earl E. Strayhorn, Judge, presiding.
JUSTICE FREEMAN delivered the opinion of the court. McNAMARA, P.J., and RIZZI, J. concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN
Defendants, Willie Lasley and Ivory Lloyd, were indicted on charges of murder, armed robbery, and armed violence resulting from the holdup of a grocery store in which the owner was shot and killed. Their trials were held before the same Judge with separate juries. Both defendants were found guilty of murder and armed robbery. Each was sentenced to 40 years in the Illinois Department of Corrections for murder and 30 years for armed robbery to run concurrently. Defendants appeal their convictions.
The facts of the case pertinent to this appeal are as follows. On the morning of May 9, 1982, Craig Courts took a taxi to his job as a butcher at the United Life Grocery, located at 218 North Homan Avenue in Chicago. Prior to entering the store, Courts asked the cab driver to drive by so that he could see if his boss, Fathe Salem, was in. Courts then made a call from a nearby telephone booth. As he approached the store, he saw the defendants behind him. The defendants followed him into the store as he entered. Salem asked Courts to take care of a customer at the meat counter. Courts testified he then heard someone say "stick-up." He turned and saw Lloyd standing at the cash register facing Salem and holding a gun. As Salem reached for his own gun, Lloyd shot him, as did Lasley, who had been standing by the entrance telling people the store was closed.
Courts further testified that after Salem fell to the floor, Lloyd searched his pockets while Lasley continued to stand by the door. Lloyd proceeded to take the contents of the cash register. He then informed Courts he would kill him unless he indicated where the victim kept additional money. Courts testified that he pointed to an upstairs area. Lloyd went upstairs and returned 5 to 10 minutes later with a bag. He then took Courts by the hand and led him to the lottery machine in the store. When Courts informed Lloyd he did not know how to work the machine, Lloyd began to beat at it. When his efforts proved unsuccessful, Lasley demanded they leave. Lloyd ordered Courts to lie down in the area near the cash register, and the defendants then left the store.
Ms. Jesse Bennett was the customer Courts was waiting on when the incident occurred. She lay on the floor as instructed by the robbers and left the store immediately after they left. Courts proceeded to call his mother and asked her to phone the police. The police arrived within a short time and began their investigation. Officer O'Connor of the Chicago police department testified that, during his first interview with Courts, Courts denied knowing who the offenders were. He also told the officer that he took a taxi to work on the morning in question, and the driver left him off in front of the store. O'Connor did not believe Courts and, after interviewing the taxi driver, learned that he left Courts at a phone booth around the corner from the store and saw Courts walk over to the store after making a call. When O'Connor confronted Courts with this information, Courts told him that he lied because he was afraid and confused, which the officer indicated he believed.
Two days after the incident, Courts and Ms. Bennett were asked to come to the police station to observe a lineup and some photographs. After viewing the lineup, Courts identified Lasley as the person who stood by the door telling customers the grocery store was closed. Courts looked at several black-and-white photographs and identified Lloyd as the man who shot the victim. Ms. Bennett was unable to positively identify anyone in the lineup; however, she did identify Lasley as being the same size as someone she saw participate in the robbery and murder. When she saw the lineup photo, she identified him as the man in "the green suit" near the counter. Warrants were issued for the arrest of Lloyd and Lasley. On cross-examination, Ms. Bennett stated that an assistant State's Attorney had shown her the lineup photo earlier in the day and, at that time, it contained a red "X" above Lasley which Courts placed upon it during the trial.
On November 28, 1982, Officer Wallace of the Chicago police department responded to a call regarding a home invasion in progress at 1359 North Hudson in Chicago. He testified that, upon his arrival, he saw Lloyd coming out of a courtyard at 1361 North Hudson. Lloyd began to flee when he spotted the officers, and they later found him hiding on the roof of the building. When the police returned to the home of the woman who phoned in the complaint, they learned she was Lloyd's former girlfriend, LaFondraetta Lanier. Ms. Lanier testified that she called the police because she was afraid Lloyd would get into her apartment. When they arrived, she informed them Lloyd was wanted for murder and armed robbery.
At trial, Ms. Lanier further testified that the defendants had a conversation in her apartment two days before the victim was murdered in which they discussed a previous robbery and the need to help get someone out of jail. The following day she also heard them discuss the fact that they needed money for this purpose and that they knew someone who worked in a store where they could easily get the money. She stated that Lloyd was at her apartment on the day of the murder from approximately 6 a.m. until 7 a.m. and that, when he left, he informed her he was going to perform the job which they had been planning. Lanier indicated Lloyd was wearing green army fatigues when he left her apartment that morning. The first time she told anyone of the conversations between defendants, however, was not until after her relationship with Lloyd ended.
Although at trial Courts testified he still was standing after the first shots were fired in the grocery store, he admitted he told three detectives on the day of the incident that he did not see anything in the store after the first shot was fired because he immediately hit the ground. On cross-examination by Lasley's attorney, Courts also conceded he did not give Lasley's and Lloyd's names to the police or tell anyone Lloyd was the offender up until November, when Lloyd was arrested. Courts admitted he was the "inside man" in the robbery. He stated he learned about the plan approximately three weeks prior to the occurrence while at the home of Darnell Williams. Both defendants also were there at that time. They told him he would not have to worry about anything and he would not be hurt. Additionally, according to Courts, they threatened to kill him if he informed the police. Courts indicated this was why he initially was not truthful with the police. He claimed that he informed the prosecutors he was involved in the robbery. On the basis that the State withheld this information from defendants, counsel for Lasley moved for a mistrial. The court denied the motion. After several other witnesses testified, the juries found both defendants guilty of the armed robbery and murder charges.
On appeal, defendant Ivory Lloyd contends: (1) the trial court erred when it denied the motion to suppress his lineup identification because he was placed in the lineup in violation of his sixth amendment right to counsel; (2) he was denied due process where the State's primary identification witness offered the Lloyd jury perjured testimony and where the closing arguments compounded the prejudice by convincing the jury that the witness did not lie to them, and (3) the trial court committed reversible error when it permitted the State to elicit testimony and to argue that another unrelated armed robbery and Lloyd's reputed gang membership were probative of his guilt. Defendant Willie Lasley contends: (1) the State deprived him of a fair trial by repeatedly arguing facts not in evidence before the Lasley jury and by other deliberate acts of misconduct during rebuttal arguments, and (2) the trial court erred in denying his motion for a mistrial based upon the State's withholding information regarding Courts' participation in the crime.
Defendant Lloyd first contends the trial court erred in denying his motion to suppress the lineup identification because the police violated his sixth amendment right to counsel. Because adversarial judicial proceedings were initiated against defendant prior to the lineup, his sixth amendment right to counsel already had attached. (Kirby v. Illinois (1972), 406 U.S. 682, 689, 32 L. Ed. 411, 417, 92 S. Ct. 1877, 1882; People v. Martin (1984), 102 Ill. 2d 412, 419, 466 N.E.2d 118, cert. denied (1984), 469 U.S. 935, 83 L. Ed. 2d 270, 105 S. Ct. 334.) In order to waive that right, defendant must have known about it and must have given an intelligent and intentional relinquishment or abandonment of it. (Edwards v. Arizona (1981), 451 U.S. 477, 482, 68 L. Ed. 2d 378, 385, 101 S. Ct. 1880, 1884; Johnson v. Zerbst (1938), 304 U.S. 458, 464, 82 L. Ed. 1461, 1466, 58 S. Ct. 1019, 1023; People v. Swift (1980), 91 Ill. App. 3d 361, 364, 414 N.E.2d 895.) The State bears the burden of proof on the waiver issue (91 Ill. App. 3d 361, 414 N.E.2d 895), and such a burden has been described as a "heavy" one (People v. Taylor (1979), 76 Ill. 2d 289, 310-11, 391 N.E.2d 366; People v. Curtis (1985), 132 Ill. App. 3d 241, 250, 476 N.E.2d 1162). It is for the trial court to determine if there has been a waiver, and the court need not be convinced beyond a reasonable doubt; rather, its decision will not be reversed unless contrary to the manifest weight of the evidence. (People v. Dailey (1972), 51 Ill. 2d 239, 242, 282 N.E.2d 129.) The court will look to the facts and circumstances of the case, including the background, experience, and conduct of the accused. Johnson v. Zerbst (1938), 304 U.S.458, 82 L. Ed. 1461, 58 S. Ct. 1019.
At the pretrial suppression hearing, Officer O'Connor of the Chicago police department testified that he informed Lloyd of his Miranda rights as well as of his right to an attorney prior to a lineup. The officer indicated that, when defendant did not ask to speak to a lawyer, he put him into the lineup. Officer O'Connor admitted upon cross-examination that he did not specifically state in his report that he informed Lloyd of his right to an attorney at a lineup. The report instead indicated that defendant was informed of his rights and, according to the officer, this included his right to counsel at the lineup. Mr. Lloyd, in contrast, testified at the hearing that he was not informed he could have a defense attorney present at the lineup proceeding. The officer testified at trial that defendant informed him he did not need a lawyer.
In support of his position that he did not waive his right to counsel, defendant cites People v. Curtis (1985), 132 Ill. App. 3d 241, 476 N.E.2d 1162, reversed (1986), 113 Ill. 2d 136, 497 N.E.2d 1004, in which the court noted that "the crucible for determining whether there was a waiver of one's constitutional right to counsel is plainly not solely the words attributed to a defendant by a police officer." (132 Ill. App. 3d 241, 249, 476 N.E.2d 1162, citing People v. Dailey (1972), 51 Ill. 2d 239, 241, 282 N.E.2d 129.) The court emphasized that it had to look to the facts and circumstances surrounding defendant's words to determine if he uttered them as an intentional abandonment of a constitutional right known to him. The Curtis defendant, after being given his Miranda warnings, indicated to police he did not want to give a statement until he saw his attorney but he had three and did not know which one to call at that time of the night. About a half hour later, he was informed he would have to stand in the lineup. Under these circumstances, the court found that the defendant did not know the police could not demand that he appear in the lineup without assistance of counsel. The court indicated that it was made to appear that defendant's participation in the lineup that night was inevitable whether or not he had counsel. Thus, the court held defendant did not waive his sixth amendment right to assistance of counsel at the lineup. (People v. Curtis (1985), 132 Ill. App. 241, 248, 476 N.E.2d 1162.) We believe the facts of Curtis are distinguishable. First, the defendant before us claims he was not informed at all of his right to counsel, whereas the Curtis defendant did not so claim. There was testimony that the police informed defendant of his sixth amendment right and, therefore, whether defendant had this knowledge was a question for the trial court in ruling on the motion. Second, the Curtis court found the defendant made known his interest in obtaining an attorney even though ambiguity existed as to the point in time at which he would contact him. In contrast, here we find no evidence or allegations that defendant asked for an attorney or refused to go to the lineup. (See, e.g., People v. Swift (1980), 91 Ill. App. 3d 361, 364, 414 N.E.2d 895.) Police officers need not affirmatively admonish defendants of the right to counsel at every step in official proceedings; rather, once the defendant is aware of his right, if he chooses not to speak up and request counsel, the right is not violated. (People v. Redmond (1980), 85 Ill. App. 3d 599, 603, 407 N.E.2d 132, citing People v. Burbank (1972), 53 Ill. 2d 261, 266, 291 N.E.2d 161, cert. denied (1973), 412 U.S. 951, 37 L. Ed. 2d 1004, 93 S. Ct. 3017.) We therefore do not believe the trial court erred in denying defendant's pretrial motion to suppress evidence of the lineup identification.
Lloyd next contends the trial court denied his constitutional right to due process when the State's identification witness offered the Lloyd jury perjured testimony and where the final arguments compounded the prejudice by convincing the jury the witness did not lie to them. In testifying before the Lloyd jury, Craig Courts stated that he misidentified others as the offenders and confused details about his whereabouts prior to the shooting because he was afraid of the men who committed the crime. Later testifying before the Lasley jury, however, Courts admitted the reason he lied was because he was an "insider" in the scheme, that he was partially responsible for his employer's death, and that the men accused of the crime were his friends. The trial court denied Lloyd's subsequent motions to strike Courts' false testimony, to order the prosecution to recall Courts to the stand, for the court to recall Courts, and to call the court reporter as a witness so that she could read Courts' testimony before the Lasley jury to members of the Lloyd jury. The Judge stated that the jury could evaluate Courts' credibility on the basis of the inconsistencies revealed during cross-examination. The Judge allowed the defense to recall Courts, which it did, but defendant claims that this did not give him the opportunity to cross-examine the witness and question him as an adversary. He argues that in these circumstances he was put into the position of defending himself and prosecuting Courts at the same time, which violated his right to due process of law.
Defendant argues that false testimony cannot be used to obtain a conviction because "[the] jury's estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence, and it is upon such subtle factors as the possible interest of the witness in testifying falsely that a defendant's life or liberty may depend." (Napue v. Illinois (1959), 360 U.S. 264, 269-70, 3 L. Ed. 2d 1217, 1221, 79 S. Ct. 1173, 1177.) Further, where false testimony affecting the credibility of a key prosecution witness "in any reasonable likelihood" may have influenced the jury's finding of guilt, defendant's conviction must be reversed and a new trial ordered. (Giglio v. United States (1972), 405 U.S. 150, 154, 31 L. Ed. 2d 104, 108, 92 S. Ct. 763, 766.) Defendant urges this court to find that, in light of Napue and Giglio, it was the responsibility of the prosecution to inform the jury of false testimony once it had knowledge of it. Defendant maintains that he also was prejudiced where the prosecutor, in closing arguments, was permitted to argue ...