SUPREME COURT OF ILLINOIS
521 N.E.2d 38, 121 Ill. 2d 401, 117 Ill. Dec. 927 1988.IL.63
Appeal from the Circuit Court of Cook County, the Hon. Dwight McKay, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court. JUSTICE SIMON, Dissenting.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
In an indictment returned in the circuit court of Cook County, defendant Willie Thompkins, Ronnie Moore, and Pamela Thompkins were charged with six counts of murder and felony murder (Ill. Rev. Stat. 1979, ch. 38, pars. 9-1(a)(1), (a)(2), (a)(3)) in connection with the deaths of Gerald Holton and Arthur Sheppard, two counts of armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 18-2), two counts of concealment of homicidal death (Ill. Rev. Stat. 1979, ch. 38, par. 9- 3.1), four counts of aggravated kidnapping (Ill. Rev. Stat. 1979, ch. 38, pars. 10-2(a)(3), (a)(5)), six counts of armed violence (Ill. Rev. Stat. 1979, ch. 38, pars. 33A-2, 9-1(a)(2), 18-2, 10-2(a)(3)), six counts of obstructing Justice (Ill. Rev. Stat. 1979, ch. 38, par. 31-4(a)), two counts of solicitation to commit murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-1(a)), two counts of solicitation to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-1(a)), two counts of conspiracy to commit murder (Ill. Rev. Stat. 1979, ch. 38, par. 8-2(a)), and two counts of conspiracy to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-2(a)), arising out of the shooting deaths of Holton and Sheppard. On defendant's motion, his case was severed from that of Pamela Thompkins. Prior to trial, all of the aggravated kidnapping and armed violence counts, four of the obstructing Justice counts, and two of the conspiracy counts against defendant were nol-prossed. Following a jury trial, defendant was found not guilty on the two counts of solicitation to commit murder but was convicted on all counts of the charges remaining. Defendant waived a jury for sentencing, and in a death penalty hearing requested by the People, the court found that one or more of the factors set forth in section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1979, ch. 38, par. 9-1(b)) existed and found that there were no mitigating factors sufficient to preclude a sentence of death. Defendant was sentenced to death, and the sentence was stayed (107 Ill. 2d R. 609(a)) pending direct appeal to this court (Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d R. 603). This appeal involves only the conviction and sentence of defendant, Willie Thompkins.
At trial, Keith Culbreath testified for the People in exchange for the State's dropping of delivery of cocaine charges against him. Culbreath stated that around noon on December 22, 1980, he went to Sandra Douglas' home in Harvey. Sandra was the sister of Culbreath's girlfriend, Sherry Dunigan. Sandra and defendant were present. Shortly after Culbreath's arrival, he went with defendant into the bedroom at defendant's request in order to speak privately. Defendant asked Culbreath if he wanted to make some money by committing an armed robbery, to which Culbreath responded in the affirmative. During this conversation, Culbreath saw two guns in the bedroom, a rifle and a silver .38 with a pearl handle. The two men then left the bedroom, and while doing so, Culbreath told defendant he wanted to go home and get his ski mask to use as a disguise during the armed robbery. Defendant responded, "Don't worry about it, [I'll] take care of that." Culbreath then told defendant he wanted no part of the robbery. Approximately 15 minutes later, Sandra and defendant left. Culbreath further stated that for one month prior to the above meeting, he had seen defendant at Sandra's home almost every day, but he did not see defendant for approximately three to four months thereafter.
Sandra was the People's principal witness at trial and the only occurrence witness to the crimes. Due to the crucial nature of her testimony, it will be necessary to recount Sandra's remarks in some detail.
Sandra testified that she and defendant had been dating for approximately three weeks prior to the murders, and had known each other for three months prior to that. On December 22, 1980, Sandra, Ronnie Moore, and defendant were at Sandra's home in Harvey. Around noon of that day, Keith Culbreath stopped by. Culbreath and defendant went into the washroom together and had a conversation. Sometime after that, Sandra, Moore, and defendant left the house in Sherry Dunigan's automobile and drove to the home of defendant's sister-in-law, Pamela Thompkins.
Sandra testified that she, together with Moore, Pamela and defendant, went down into the basement of Pamela's home. Located there was a small kitchen, bedroom, and recreation room. The group sat around the kitchen table for a short while talking. Pamela then made a telephone call, during which, Sandra testified over objection, Pamela said "They're here and they have what I told you they would." Approximately 20 minutes after Pamela made the telephone call, two men, whom Sandra had never seen before, arrived. These men were Gerald Holton and Arthur Sheppard. Pamela escorted the two down to the basement kitchen, where Moore and Sandra were seated. Defendant was not present.
Sandra further testified that Holton placed a small, clear plastic bag of cocaine on the table, while he and Moore discussed the cocaine and tasted it. Moore put a small amount of the cocaine into a test tube and instructed Sandra to cook the cocaine on the stove in order to purify it, which she did. When Sandra turned to show the finished product to Moore, she saw defendant standing in the doorway of the kitchen. He pointed a gun with a pearl white handle at the two men and said, "Put -- all right put your hands on the table. This is the police." Holton, who was sitting at the table, put his hands on the table, while Sheppard, who had been standing, put his hands up in the air. Moore and defendant tied the two victims up with telephone cords, then dragged them into the recreation room. Afterwards, Sandra saw defendant drag Sheppard into the adjoining bedroom. Sandra and Pamela then went upstairs to Pamela's bedroom. Approximately 15 minutes later, at defendant's request, Sandra drove Moore to a nearby drugstore to buy grain alcohol to be used for free basing cocaine.
Upon their return, Sandra went back into Pamela's bedroom and the two talked for a few hours. At approximately 8 or 9 p.m., Sandra heard a banging sound, "like a small garbage can or something hitting up against something" emanating from the basement. And, after the banging sound stopped, she heard two gunshots come from the basement. At that point, according to Sandra, Pamela grabbed her face with her hands and said, "No, I told them not to do it here. I knew it wouldn't go according to plans."
Sandra then testified that she descended the steps leading to the basement and saw the feet of a body being dragged towards the garage. On the feet were construction boots similar to those worn by Holton earlier. Then Sheppard walked past with his hands tied behind his back and Moore walked behind him with one hand on Sheppard's shoulder, helping him along, and a knife in his other hand. Sandra did not see defendant at this time. She then observed Sherry Dunigan's red Torino pull out of the garage, followed by Pamela's white car. After their departure, Sandra was the only adult left at Pamela's house.
Approximately 35 minutes after the group departed, Sandra received a phone call from defendant. He told her to "go downstairs and clean up a little bit for him." In the basement Sandra saw blood smeared in the recreation room, the bedroom, and in the hallway leading to the garage. She also saw little white balls on the floor and a large pool of blood in the garage. However, because she became very nervous after viewing the scene, Sandra did not clean up the area as defendant instructed, but went back upstairs. Fifteen minutes later, Pamela arrived and paced around the house, "mumbling to herself." Twenty minutes later, defendant called. When Sandra expressed to him her anxiety, he told her to calm down and help Pamela. He instructed her to retrieve a gun he had left at Pamela's home and to walk down to the corner of Wood and 163rd Streets, where someone would pick her up.
After locating the gun under the living room couch, Sandra brought it to the designated location where her sister, Sherry Dunigan, picked her up and took her home. When they arrived, Moore and defendant were already there. Defendant then instructed Sandra and Pamela to meet him at the intersection of 147th Street and the expressway. After the two arrived at the location, they followed defendant to the home of defendant's friend, Delmar Watkins, where they spent the night.
The next morning Sandra was taken by Watkins to an apartment on 87th Street, where she was met by defendant. She did not know to whom the apartment belonged. When Sandra questioned defendant as to what the banging noise was she had heard the previous evening at Pamela's home, defendant told her to "just forget about it, the less [she knew], the better off [she'd] be." Upon further questioning, defendant responded that the noise was his "hitting [Sheppard] in the head with a shovel because he [Sheppard] didn't want to get in the trunk." Defendant then told Sandra to go with Watkins in order to wash Sherry Dunigan's red Torino. When the two arrived at the car wash, Watkins opened the trunk and ordered Sandra to stand at the front of the car and let him know if anyone was coming. In the meantime, Watkins sprayed the inside of the trunk with a hose for approximately 45 minutes. When they were finished, the two went to a drugstore and called defendant, after which Sandra drove Watkins to his house, dropped him off, and went home.
The facts at this point are greatly in dispute. Sandra testified at trial that in January of 1982, she fled to Alabama because she thought her life was in danger. In March of that year she called her aunt in Chicago, who informed Sandra that defendant had been arrested. Upon hearing this, Sandra went to a Birmingham, Alabama, police station and informed an officer there that she was aware of facts and circumstances regarding a murder in Chicago. Due to the controversial nature of the events surrounding Sandra's visit to the Birmingham police station, she was precluded from testifying further about this matter.
Officer Michael Alexander, a Markham patrolman, testified that at about 7:35 a.m. on December 23, 1980, he found the body of Gerald Holton lying face down in a ditch on the west side of Western Avenue between 160th and 161st Streets. Immediately thereafter, he found the body of Arthur Sheppard in a clump of trees about 65 feet from the first body. There were wounds to both men's heads and their hands were bound with telephone cord.
Dr. Robert J. Stein, the Cook County medical examiner, testified that he performed post-mortem examinations on the bodies of both Holton and Sheppard. In his opinion, the cause of each man's death was a bullet wound to the head and brain.
Investigator Henry Wilson testified that at about 10:45 a.m. on March 17, 1981, he received a radio broadcast that there was an arrest warrant for Willie Thompkins for the offense of murder. Twenty minutes later Wilson arrested Thompkins near his home in Markham. Thompkins was subsequently charged with and convicted by a jury of the murders of Holton and Sheppard.
We note initially in this appeal that no post-trial motion has been filed specifying the grounds upon which defendant relies for reversal. Defense counsel stated in her brief that "[t]he trial court, the prosecutor, and defense counsel all agreed that there was no requirement for a defendant who has been sentenced to death to file a motion for a new trial." While this is clearly not the law in Illinois (Ill. Rev. Stat. 1981, ch. 38, par. 116-1; see also People v. Caballero (1984), 102 Ill. 2d 23), we, nevertheless, believe that it would be manifestly unfair to hold that defendant should have filed a post-trial motion in the instant case, in light of his obvious reliance on the statements made by the trial court, the prosecutor and defendant's own counsel that none was necessary.
Defendant first contends that he was denied a fair trial and sentencing hearing because the People did not prove that defendant possessed the requisite intent to kill with properly admitted evidence. Defendant argues that Assistant State's Attorney Phillips, during his opening and closing statements, improperly argued facts which could not be inferred from the evidence. Specifically, defendant contends that Phillips repeatedly misstated Keith Culbreath's testimony regarding his conversation with defendant at Sandra Douglas' home.
During his opening statement, Assistant State's Attorney Phillips told the jury:
"Keith Culbreath, a young man of Sherry's acquaintance, went over to Sandra Douglas' house some time around noon or the early afternoon of December 22nd. While he was there, he had a conversation with a man he will identify as the defendant, Willie Thompkins.
Thompkins said to Keith Culbreath, 'Do you want to make some money.' Keith Culbreath is a young man about 22. He said sure I want to make some money, what's up.
Thompkins said there is a guy that owes me $1100 bucks. We are going to go over there. It's supposed to be a dope deal. We are going to set him up and take him off.
Keith thought about that. He said okay. A little bit later, he told Willie, in fact, I'll go get a ski mask to make sure they won't be able to identify me.
Thompkins told Keith, don't worry about a ski mask, there won't be any identification. At that point, Keith said no way. He wanted nothing to do with anybody getting hurt."
Keith Culbreath actually stated on direct examination:
"MR. PHILLIPS: Q. After leaving the bedroom with the defendant, Willie Thompkins, did you initiate any further conversation with him about the stick-up he had proposed?
Q. Where were you when you initiated the conversation?
A. In the front room, going to the kitchen.
Q. And who else was present?
Q. What did you say to Thompkins at that point?
A. I wanted to go home and get my ski mask.
Q. You told Thompkins you wanted to go get a ski mask?
Q. Did you tell him why you wanted to go get a ski mask?
Q. What did Mr. Thompkins do when you said you wanted to go home and get a ski mask?
A. He said don't worry about it, he'll take care of that.
Q. Where did he say that?
A. Between the front room and the kitchen.
Q. After he said not to worry about it, he would take care of it, did you say anything further?
A. I didn't want to be a part of it."
Defendant contends that Phillips "grossly misstated Culbreath's testimony . . . and thereby manufactured 'evidence' of Willie Thompkins' intent to kill which simply did not exist." Defendant argues that the proper interpretation of the remark he purportedly made to Culbreath, "Don't worry about it, [I'll] take care of that," is that defendant would provide the necessary masks or disguises to hide their identities, and therefore it would be unnecessary for Culbreath to go home and get his. Defendant maintains that Phillips' comments cannot be characterized as matters reasonably inferable from the evidence, because Culbreath's actual testimony does not support the "brazen assertions and rank speculation in the prosecutor's opening statement." (People v. Warmack (1980), 83 Ill. 2d 112.) Rather, defendant urges, Phillips' comments were mere assertions of his own unsworn testimony in lieu of competent evidence. People v. Weinger (1981), 101 Ill. App. 3d 857.
The People contend initially that defendant has waived review of this issue by failing to object at trial to any of the allegedly improper comments. (People v. Davis (1983), 97 Ill. 2d 1, 24.) They argue that defendant does not present an appropriate situation in which to invoke the plain error rule because the error here is not so prejudicial that real Justice has been denied or that the jury's verdict may have resulted from the error. (People v. Yates (1983), 98 Ill. 2d 502, 533.) In the alternative, the People submit that should this court consider defendant's contention on its merits, the complained-of comments did not misstate the evidence. They argue that Phillips' opening statement did contain a Discussion of matters which could properly be inferred from the evidence (People v. Albanese (1984), 102 Ill. 2d 54, 78) and that Culbreath's testimony did present ample evidence to support the inference that defendant told Culbreath he intended to kill the victims.
We need not consider the waiver issue because it is clear that the defendant was not prejudiced by the prosecutor's statements. It is well settled that one of the commonly recognized purposes of an opening statement is to inform the fact finder of what the evidence will show. (People v. Warmack (1980), 83 Ill. 2d 112, 125; Gillson v. Gulf, Mobile & Ohio R.R. Co. (1969), 42 Ill. 2d 193, 197.) Although it is improper for a prosecutor to comment on what testimony will be introduced at trial and then fail to produce that evidence, he is free to discuss any legitimate inferences which are based on the evidence. People v. Warmack (1980), 83 Ill. 2d 112, 125-26.
Defendant attempts to persuade us by arguing that the only inference which any juror could possibly have drawn from Culbreath's testimony is that the defendant would provide the necessary disguises. We find this contention without merit, because the evidence simply does not support defendant's interpretation; at no time during the entire episode did defendant ever provide anyone with disguises or attempt to conceal his or his accomplices' identities in any way. It would be illogical to infer that Culbreath immediately withdrew from the plan simply because defendant would not let Culbreath wear his own particular ski mask. Therefore, we conclude that Phillips did not misstate Culbreath's testimony. It was reasonable for Phillips to infer from the evidence that defendant intended to kill Holton and Sheppard.
Defendant next contends that the circuit court erred in ruling that the People had no discovery obligation under Supreme Court Rule 412 (87 Ill. 2d R. 412) to procure, preserve, and turn over to the defense a written memorandum of a statement allegedly made to a Birmingham, Alabama, police officer by Sandra Douglas.
In reliance on Rule 412(g), defendant maintains that the People have a duty to procure and turn over to the defense the memorandum, even though the memorandum was not in the prosecutor's personal possession. (People v. Burns (1979), 75 Ill. 2d 282, 289; 87 Ill. 2d R. 412(g).) Defendant argues that the alleged fact that the Alabama officer mistakenly or in bad faith destroyed his notes is no excuse for the State's failure to exercise due diligence and make a timely attempt to seek the existence of that memorandum, and, if it were found to be destroyed, to reconstruct the contents thereof for in camera inspection by the court. (People v. Szabo (1983), 94 Ill. 2d 327; 87 Ill. 2d R. 412(a)(i).) Finally, defendant urges, if such a memo is found to exist, he is entitled to a new trial and the memorandum should be examined by the trial court in camera to determine if it contains discoverable matters. In the alternative, if such a memorandum does not exist, defendant claims he is entitled to a new trial at which Sandra Douglas would be barred from testifying. People v. Allen (1970), 47 Ill. 2d 57.
Supreme Court Rule 412, in pertinent part, provides:
"(a) Except as is otherwise provided in these rules as to matters not subject to disclosure and protective orders, the State shall, upon written motion of defense counsel, disclose to defense counsel the following material and information within its possession or control:
(i) the names and last known addresses of persons whom the State intends to call as witnesses, together with their relevant written or recorded statements, memoranda containing substantially verbatim reports of their oral statements, and a list of memoranda reporting or summarizing their oral statements. Upon written motion of defense counsel memoranda reporting or summarizing oral statements shall be examined by the court in camera and if found to be substantially verbatim reports of oral statements shall be disclosed to defense counsel;
(f) The State should ensure that a flow of information is maintained between the various investigative personnel and its office sufficient to place within its possession or control all material and information relevant to the accused and the offense charged.
(g) Upon defense counsel's request and designation of material or information which would be discoverable if in the possession or control of the State, and which is in the possession or control of other governmental personnel, the State shall use diligent good-faith efforts to cause such material to be made available to defense counsel; and if the State's efforts are unsuccessful and such material or other governmental personnel are subject to the jurisdiction of the court, the court shall issue ...