APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
515 N.E.2d 783, 161 Ill. App. 3d 1009, 113 Ill. Dec. 798
Appeal from the Circuit Court of Cook County; the Hon. Roger J. Kiley, Judge, presiding.
Rehearing denied November 10, 1987 1987.IL.1467
JUSTICE LORENZ delivered the opinion of the court. SULLIVAN, P.J., concurs. JUSTICE PINCHAM, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LORENZ
In a jury trial defendant Thomas Crowder was convicted of murder and sentenced to an extended term of 60 years. On appeal he contends: (1) the prosecution improperly used their peremptory challenges to exclude women from the jury; (2) defendant was denied his right to a speedy trial; (3) defendant was prejudiced when an in camera hearing concerning his possible danger to his wife, a State witness, was held outside of his presence; (4) the trial court erroneously restricted defense cross-examination; (5) admission of evidence of defendant's arrest for unrelated crimes was unduly prejudicial; (6) improper closing argument denied defendant a fair trial; (7) defendant was denied effective assistance of counsel.
Defendant has not challenged the sufficiency of the evidence of his guilt. Accordingly we will summarize that evidence only to the extent necessary for consideration of the issues raised.
Two of defendant's alleged accomplices, Earl and Derelon McDade, testified for the State. Earl, 18 years old at the time of trial, testified that on October 8, 1978, defendant told him that the victim, Tony Ross, had set him up on a "reefer bust" and he was going to pay him back. Earl and Derelon both testified that the following day they and Enzie Williams accompanied defendant when he abducted Ross at gunpoint from a parking lot and drove him to the back lot of a factory in Chicago.
Earl admitted driving defendant's car for part of the trip and then holding the gun on Ross when defendant took over the driving. At the factory lot defendant, who again had the gun, forced Ross to step down. He then sent Earl and Enzie to park the car. When they returned Ross was on his knees, with injuries to his head. He was begging for his life, saying this was a mistake. Defendant, holding a business-card-size piece of paper, said he knew the victim had done this. He then picked up a green board. Earl turned his head, heard seven or eight cracks, and never looked back at the victim. He and his brother returned to the car.
Derelon, who was 16 years old at the time of the crime, testified that after they arrived at the factory lot and Earl left to park the car, defendant forced Ross to his knees and beat him about his face with the gun. Defendant told Ross he had "messed up" his family and he was going to kill him. When Earl and Enzie returned, defendant asked the three of them what to do with Ross. Derelon said to just beat him, Enzie said to kill him, and Earl said nothing. Defendant, who, Derelon recalled, had earlier said he knew Ross had set him up, picked up a card the size of a business card. He then obtained an ice pick from Enzie and tried to force it into Ross's chest. Ross resisted, begging for his life, and Derelon never saw it enter Ross. (Earl denied ever seeing an ice pick.) Defendant then dropped the ice pick, picked up a green board, and repeatedly struck Ross on the head with it. Derelon confirmed that his brother was facing in the other direction as this occurred.
After these blows were struck Ross fell to the ground, appearing to Derelon to be dead. On defendant's instructions Derelon and Earl
Earl admitted that at the threw the board away and then went to the car. In 15 minutes Enzie and defendant rejoined them and they all drove away.
Earl admitted that at the parking lot that day he had smoked five or six marijuana cigarettes and had drunk a quart of wine in the half hour before the abduction. However, he stated that although he was "really gone" and was drunk, he had a clear memory of what took place. Earl also admitted that while in jail he had signed a statement saying defendant had nothing to do with the Ross killing. Earl explained that he had not read the statement before signing it. Defendant, who was in jail with him at the time, had prepared it and had told him it was a motion to quash arrest which would free Earl in 120 days. Earl also admitted that he was charged with murder in the case but the State had promised to drop charges if he cooperated. He had been told by his lawyer that cooperation could help him avoid the electric chair.
Derelon admitted that he had been told he could be tried as an adult. After "volunteering" to testify for the State he was transferred to the juvenile authority from an adult facility.
Ross, still alive, was found by the police later that afternoon. A nail-studded green board, identified by Derelon and Earl as resembling the one used by the defendant, was found nearby. The neurological surgeon who treated Ross testified that he remained unconscious until his death on October 20, 1978. The cause of death was severe brain trauma caused by blows which could have been administered by the board found at the scene.
Defendant's wife Dorothy also testified for the State, relating a series of incriminating statements and actions by the defendant. On October 9 at 11:55 p.m., the night of the incident, she heard defendant tell his nephew, Perry Castleberry, that he did not have to worry about Ross anymore because he had killed him. At their home, Dorothy saw defendant's clothes in the bathtub with blood on them. Defendant told her he had cut himself working on a car, but she saw no injuries on him. The next morning defendant took the clothes and left with Enzie Williams, who was Dorothy's brother. Defendant told Enzie he was going to burn them because they were evidence.
On October 15 defendant again told Castleberry he did not have to worry about Ross because he had "iced" him. On the 16th, defendant said if he stayed away for five years the murder charge would be dropped. That same day defendant, Dorothy, their children, Enzie and Earl went to defendant's brother's home in Gary. Defendant told Enzie that he had helped defendant with the murder and so was an accomplice.
On October 30 they went to Detroit, where Dorothy rented an apartment. On November 7, 1978, defendant pulled a gun on them, saying they were all in it together and nobody was going anywhere.
Dorothy admitted falsely telling the police that she knew nothing of the incident. According to Dorothy, as late as August 3, 1979 (trial began August 14), she still planned to testify for her husband. The defendant had asked her to lie. However, a week later she decided to testify for the State.
Several other State witnesses provided corroborating testimony. Chicago police officer Glen Godbold testified that on October 5, 1978, he spoke to Tony Ross and gave him a card with his name and number. On October 7 he arrested defendant and several other people for certain misdemeanors. However, those arrests were not based on any conversation with Ross. Sharlene Griffin testified that on the afternoon in question she saw defendant and Enzie Williams approach Ross in the parking lot. Enzie told Ross to come into the alley, where they wanted to talk to him. Defendant, Enzie, Ross, and the McDade brothers then all went into the alley. Griffin recalled that defendant looked angry.
Linda Carter, a former girlfriend of Tony Ross', testified that on October 8, 1978, defendant told her she would not see him or Ross anymore. Debbie Robinson, who lived with Perry Castleberry, testified that on October 15 she overheard defendant tell him they did not have to worry about Ross "messing" with the family business because he "took care" of Ross., Defendant presented no witnesses in his own behalf.
We find no merit to defendant's contention that he is entitled to a Batson hearing (Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712), because of the State's use of peremptory challenges to exclude women from the jury. As this court recently held in People v. Zayas (1987), 159 Ill. App. 3d 554, a Batson claim requires a showing that a prosecutor has exercised peremptory challenges to remove from the venire members of the defendant's race. This male defendant lacks standing to challenge the exclusion of women from the jury on this ground. Furthermore, defendant's reliance on his sixth amendment right to a jury drawn from a representative cross-section of the community is also unavailing. As we also noted in Zayas, the United States Supreme Court has specifically declined to extend the fair cross-section requirement to petit juries. Lockhart v. McCree (1986), 476 U.S. 162, 174, 90 L. Ed. 2d 137, 148, 106 S. Ct. 1758, 1765; Buchanan v. Kentucky (1987), 483 U.S. , 97 L. Ed. 2d 336, 107 S. Ct. 2906.
We also find no merit to defendant's contention that he was not brought to trial within 120 days as required by the speedy trial act. (Ill. Rev. Stat. 1985, ch. 38, par. 103-5.) The record establishes that at the hearing on defendant's motion for discharge defendant withdrew his motion, apparently because he believed the motion would be unsuccessful. Defendant accordingly has waived this issue. (People v. Pearson (1981), 88 Ill. 2d 210, 430 N.E.2d 990.) We would also note that, in any event, our computation establishes that when delays attributable to defendant are excluded he was brought to trial within 98 days, well within the requisite time period.
Defendant also contends he was prejudiced because he was barred from certain in camera proceedings concerning his wife's fear of him and because the contents of those proceedings were not disclosed to him.
Prior to trial a hearing was held on defendant's motion to suppress certain statements made by him. At that hearing defendant's counsel asked investigator Gary Hill, one of the arresting officers, whether defendant's wife was at the police station voluntarily at the time defendant was being questioned. Hill responded that he would rather not answer that question because a question of safety was involved. An in camera proceeding was then held outside the presence of the defendant. In that proceeding the State revealed that defendant's wife had aided the police in locating the defendant. She had also expressed a fear of defendant to the police. In addition, defendant himself had asked the police who had informed on him.
Defense counsel expressed his intent to continue this line of questioning because it appeared that defendant's wife had been utilized by the police to obtain statements from him. However, the State then stipulated that it would not utilize these statements in its case in chief. Defense counsel agreed to the court's suggestion that if the State sought to use those statements as impeachment, in the event defendant testified, a hearing on voluntariness would first be held. Defense counsel also stated that the only reason he had wished to pursue this questioning was in support of the motion to suppress. The court noted that this goal was met when the State agreed not to use the statements. The court then ordered the transcript impounded and instructed defendant's counsel not to disclose to defendant, without further order of the court, the information that defendant's wife had aided the police in apprehending him. The court indicated that it took this action because it found there was "some reason to give credence to what the police officer said [ sic ]." During the hearing the State and defense counsel stated they were presently unable to locate defendant's wife.
On the record, in defendant's presence, the State informed the court it would not use defendant's statements in its case in chief. Defense counsel stated that because his motion to suppress had in effect been sustained he would not pursue it further. Defendant then personally objected to the in camera proceeding and stated that it appeared his wife might be cooperating with the State.
Defendant now contends that these proceedings violated his constitutional rights to appear and defend in person and to confront witnesses. However, the in camera proceeding at issue here did not detrimentally affect the defendant. His counsel obtained the effective suppression of his statements. Although defendant contends that he had been relying on his wife to assist him in his defense, he in fact had testified at the suppression hearing that he was no longer in contact with her and did not know where she was. Defendant also contends that the trial court demonstrated "some amount of preDisposition" to assume defendant's guilt by giving credence to the State's theory that defendant's wife feared defendant. Defendant contends that had he been aware of this attitude he would have moved for a substitution of Judge for cause. We find this argument to be without merit. The court merely acted to protect a potential witness based upon information presented by the State. That action did not adversely affect defendant in his defense; indeed, it was premised upon a State agreement not to utilize apparently incriminating statements made by the defendant. The cases cited by defendant are inapposite. In People v. Etheridge (1976), 35 Ill. App. 3d 981, 343 N.E.2d 55, the defendant was not present at his sentencing hearing. In People v. Grigsby (1977), 47 Ill. App. 3d 812, 365 N.E.2d 481, defendant was not present at a hearing when testimony was heard concerning a possible conflict of interest by defendant's counsel. Here, no testimony was heard at the in camera proceeding and defendant was not adversely affected by the outcome of that proceeding. Because defendant has failed to demonstrate any prejudice arising from this procedure we find no basis for reversal of his conviction. People v. Harvey (1981), 95 Ill. App. 3d 992, 420 N.E.2d 645.
We next consider defendant's contention that the trial court erroneously restricted defense cross-examination of certain witnesses. In the first such alleged instance defense counsel was questioning Linda Carter about when she first told police that defendant told her she would not be seeing Ross anymore. Counsel asked Carter if she went to the police. She answered "No, they came to me --." Her remaining answer was cut off by a successful State objection on relevancy grounds. However, the answer was not stricken, nor was the jury instructed to disregard it. Defendant contends only that he should have been permitted to adduce from the witness the information that the police had sought her out. Clearly this information was brought out and thus we find no prejudice.
In the second instance the defendant asserts that the trial court precluded any questioning of Debbie Robinson (who lived with Perry Castleberry) concerning whether she was aware Castleberry was a suspect in the case. Robinson had testified that she heard defendant say he "took care" of Ross. Defendant contends he was thus precluded from seeking to establish that she had incriminated defendant to protect Castleberry. But the record establishes no such preclusion. The trial court acknowledged that questioning the witness about her state of mind on this issue was relevant and permissible. The court merely found that the question as framed was too broad and called for an answer that could be based on conjecture and speculation. The court clearly indicated that counsel should elicit the underlying facts from which such a Conclusion could be drawn. Indeed, defense counsel thereupon did elicit from the witness the information that at the time she told police of the statement she knew Castleberry had been placed in a lineup. However, on redirect the State brought out that the witness also knew Castleberry was not identified in that lineup. Accordingly, we find no error in the trial court's action.
The final allegation of erroneously restricted cross-examination concerns Derelon McDade. Derelon admitted that he was transferred from Cook County jail to a juvenile facility after agreeing to testify for the State. However, the trial court barred defense counsel from then asking Derelon whether his attorney had explained to him that he was going to "cut a deal." The court required that counsel first ask this question outside the presence of the jury, presumably as a prelude to asking the question before the jury only if defendant acknowledged the conversation. Defense counsel declined the opportunity. We find that the trial court erred in thus restricting defendant's constitutional right of cross-examination. It has long been recognized that cross-examination is necessarily exploratory and therefore a cross-examiner is to be given reasonable latitude even though he cannot establish beforehand what facts that examination may adduce. (Alford v. United States (1931), 282 U.S. 687, 75 L. Ed. 624, 51 S. Ct. 218; People v. Baptiste (1976), 37 Ill. App. 3d 808, 347 N.E.2d 92; see People v. Triplett (1985), 108 Ill. 2d 463, 485 N.E.2d 9.) We also find, however, that given the overwhelming evidence of defendant's guilt in this cause, the error was harmless beyond a reasonable doubt. People v. Wilkerson (1981), 87 Ill. 2d 151, 429 N.E.2d 526.
Defendant also contends that it was prejudicial error for the court to admit evidence that defendant was involved in other crimes. Such evidence is of course admissible to show motive. (People v. Roberts (1981), 100 Ill. App. 3d 469, 426 N.E.2d 1104.) In this cause the State's theory was that defendant killed the victim because he believed that the victim had caused his arrest. In support of this theory the State sought to introduce evidence that defendant had been arrested several days prior to the attack on Ross. The court permitted the State to do this but specifically instructed them to adduce the additional fact that the arrest was for misdemeanors, without revealing that the specific crimes were for unlawful use of weapons and contributing to the delinquency of a minor. At the State's request a 10-minute recess was declared so that the next witness, Officer Godbold, could be so instructed. On direct examination Godbold testified that on October 7 he arrested defendant for a misdemeanor. However, on cross-examination, after defense counsel adduced the information that the arrest was based on a complaint, the following ensued:
"[Defense Counsel]: Who was the signator of the complaint?
A. There were two complaints actually. One was for contributing to the delinquency of a minor. One --
Q. I asked you what the names of the signatory of the complaint was, who signed the complaint.
A. The name on the U.U.W. was --
Q. Who signed the complaint.
[The Court]: The name of the person that signed the complaint."
Defense counsel then elicited from the witness the fact that a woman had signed the complaints and that defendant's arrest had nothing to do with information provided by Tony Ross. Clearly, the responses of this officer were in violation of the trial court's order. But we find no basis for ascribing these answers to prosecutorial misconduct, as suggested by defendant. As we have noted, it was the State that obtained a recess in order to instruct the witness. In any event, defendant failed to object to these answers or to seek any cautionary instructions. Accordingly, we find the issue to have been waived. People v. Zehr (1984), 103 Ill. 2d 472, 469 N.E.2d 1062.
We find no merit to defendant's contention that he was denied a fair trial by improper closing argument. Suffice it to say that upon review of all the arguments we have found that the comments at issue were either responsive to argument of defense counsel or constituted fair comment on the evidence.
Defendant's final contention is that he was denied effective assistance of counsel by being forced to accept an attorney with whom he had substantial conflicts. The record establishes that prior to trial defendant declined the trial court's offer to have substitute counsel appointed. The record also documents the vigorous and able representation provided by trial counsel, representation which was clearly within the range of competent professional assistance. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052.) Therefore we find no merit to the contention.
For the reasons set forth in this opinion we affirm the judgment ...