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02/11/88 the People of the State of v. Leroy Orange

February 11, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE

v.

LEROY ORANGE, APPELLANT



SUPREME COURT OF ILLINOIS

521 N.E.2d 69, 121 Ill. 2d 364, 118 Ill. Dec. 1 1988.IL.179

Appeal from the Circuit Court of Cook County, the Hon. Arthur J. Cieslik, Judge, presiding.

APPELLATE Judges:

JUSTICE MILLER delivered the opinion of the court. JUSTICE SIMON, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MILLER

The defendant, Leroy Orange, was convicted in a jury trial in the circuit court of Cook County on charges of murder, concealment of a homicidal death, and aggravated arson. The defendant waived his right to a jury for purposes of a death penalty hearing, and the trial Judge sentenced the defendant to death. The defendant's execution was stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 107 Ill. 2d Rules 603, 609(a).

The offenses in question occurred at an apartment building located at 1553 West 91st Street in Chicago on January 12, 1984. Responding to a report of a fire, authorities arrived at the scene around 6:30 that morning and discovered the bodies of four persons in a third-floor apartment in the building. The victims were three adults -- Rene Coleman, Michelle Jointer, and Ricardo Pedro -- and a child, Coleman's 10-year-old son, Anthony. All four persons had been stabbed repeatedly and had died from those wounds. The defendant, who was an acquaintance of the victims, and his brother, Leonard Kidd, were arrested later that day in connection with the offenses. The defendant made a series of incriminating statements to the police, culminating in a signed confession to the crimes.

The defendant does not challenge the sufficiency of the evidence of his guilt, and that evidence may be summarized briefly. According to the defendant's statement, during the evening of January 11, 1984, he and Rene Coleman went to meet Leonard Kidd to ask about using Kidd's combination radio and tape player to exchange for some cocaine. Kidd agreed to the plan, and the defendant and Coleman then returned to her apartment with the appliance. Michelle Jointer, Ricardo Pedro, and Coleman's son were present at that time. After smoking some cocaine, the defendant called his brother at 12:30 or 1 o'clock that morning and asked him to come to the apartment; when Kidd arrived, the defendant explained that he was having some problems with Ricardo Pedro. In the statement, the defendant said that around 3:30 he got into a fight with Pedro and stabbed him and then tied him up, leaving him in the back bedroom of the apartment. Following that, the defendant went to another part of the apartment and consumed more cocaine. The defendant said that he returned to the back bedroom around 5:30 and stabbed Pedro again. The other victims were also in the bedroom at that time, and the defendant tied up Jointer, and attempted to tie up Coleman's son; Coleman, however, insisted on doing that herself, and when she was done, the defendant tied her up also. The defendant said that he gagged Jointer and the Colemans and then stabbed them. The defendant set the bed on fire and started another fire in the front of the apartment. The defendant and Kidd then left the apartment together; Kidd took with him the combination radio and tape player. The defendant said that he disposed of some knives and his cocaine pipe in garbage cans in the vicinity and that he burned some of his clothing.

The defendant testified at trial, and he denied any involvement in the crimes. The defendant's account at trial of the activity preceding his brother's arrival at the apartment corresponded in large part to what the defendant had told the police concerning that period. In his testimony, however, the defendant said that he left the apartment around 2:30 a.m., when he went to the home of friend, Shirley Evans, where he stayed until 8 o'clock that morning. The defendant also testified that the police mistreated him while he was in custody, and he attributed his confession to the alleged abuse. Shirley Evans testified in the defendant's behalf as an alibi witness, and she corroborated the defendant's account of his visit to her home. She explained that the defendant had come over to pick up an employment application from the place where she worked. They talked for several hours, and then he left.

Also testifying in the defendant's behalf at trial was Leonard Kidd. Kidd said that the defendant left the Coleman apartment at 2:30 that morning. Kidd testified that it was he who had committed the murders and set the fires in the apartment. He explained that he got into a fight with Ricardo Pedro over the combination radio and tape player and stabbed Pedro and that, several hours later, after consuming more drugs, he stabbed the other victims. Kidd denied that the defendant took any part in the offenses.

In rebuttal, the State introduced the testimony of the police officers who had taken part in the investigation of the offenses and the interrogation of the defendant; they denied that any mistreatment had occurred. The State also published to the jury the statement that Kidd had given to the police; it was generally consistent with what the defendant had said in his confession. Also testifying as a rebuttal witness for the State was Dr. Shirish Parikh, who had examined the defendant at the county jail medical facility on January 14, 1984, two days after the defendant's arrest. According to Dr. Parikh, the defendant's complaints were that police officers had stuck needles in his back or buttocks and had squeezed his testicles; however, Dr. Parikh testified that he found no evidence of mistreatment.

At the Conclusion of the trial, the jury returned verdicts finding the defendant guilty on four counts each of murder and concealment of a homicidal death, in connection with the deaths of the Colemans, Jointer, and Pedro, and guilty on one count of aggravated arson. The defendant was also charged with the armed robbery of Ricardo Pedro, but the jury acquitted him of that offense. I

As a preliminary matter, we note the State's argument that several of the contentions made by the defendant in this appeal may be considered waived because defense counsel failed to raise them in the post-trial motion filed in this case. (See People v. Szabo (1986), 113 Ill. 2d 83, 93-94; People v. Caballero (1984), 102 Ill. 2d 23, 31-33.) "The waiver rule is one of administrative convenience rather than jurisdiction" (People v. Smith (1985), 106 Ill. 2d 327, 333), and we do not believe that it should be applied here. In this case, defense counsel filed a post-trial motion following the sentencing hearing, raising some 16 allegations of error. At the hearing on the post-trial motion, the defendant said that he was dissatisfied with the motion and that he believed that additional matters should have been asserted. In response, the trial Judge suggested that a contemporaneous objection by counsel was all that was necessary to preserve an issue for review and that, once objected to, a matter did not have to be realleged in the post-trial motion. The trial Judge also said, however, that he would allow the defendant an additional week in which to file a supplemental motion and indicated that he was going to appoint counsel for that purpose. No additional post-trial motion was filed. Because the defendant may have failed to file a supplemental motion in light of the court's remarks suggesting that a contemporaneous objection was, by itself, sufficient to preserve an issue for review, we do not believe that it would be appropriate in this case to consider as waived objected-to matters that were not realleged in the post-trial motion.

A

The defendant first argues that he was denied a fair trial because the State suggested, in cross-examination and closing argument, that Leonard Kidd had fabricated his trial testimony in collusion with defense counsel.

During cross-examination, the prosecutor elicited from Kidd the information that he had originally been represented in this matter by defense counsel, Earl Washington. The prosecutor later asked Kidd whether he had ever discussed his testimony with Washington; when Kidd replied that he had not, the prosecutor asked, "This is a complete surprise to Mr. Washington. Is that correct?" Defense counsel's objection was overruled, and Kidd responded, "That's correct."

We do not believe that the State's cross-examination may be interpreted as an attack on defense counsel. Kidd maintained that he had not previously related his trial testimony to anyone, and in cross-examination, the prosecution was warranted in asking Kidd whether defense counsel had originally represented him and whether he had ever discussed the testimony with counsel.

The defendant also complains of certain remarks made by the prosecution in closing argument. In closing argument, the prosecutor described the defense strategy in this case as "the frick and frack [d]efense. Leonard comes in and testifies for Orange, and then they hope that some day in the future Mr. Orange, after he is out of here, comes in and testifies for Mr. Kidd. Don't let him do that." Defense counsel's objection was overruled. Later, after noting that the pretrial statements made by Kidd and the defendant were consistent, the prosecutor said, "When is the next time that Leonard Kidd and Leroy Orange are consistent in their stories? When they testify, after they have talked to Mr. Washington and another attorney in the County Jail. And that's when Leonard Kidd told you that Mr. Washington would be surprised, surprised by his testimony. Absurd." Defense counsel did not make any objection to the remark.

We do not believe that the first remark complained of may be fairly interpreted as an attack on defense counsel. That "they" were engaging in the "frick and frack defense" obviously referred to the defendant and Kidd, not to defense counsel. With respect to the second remark, we note that defense counsel did not object to it. Immediately after making the statement, the prosecutor invited the jurors to consider the demeanor of the witnesses, and referred to the defendant, who had testified, as a "macho-egotist." At that point defense counsel made a request to argue "motions" at the Conclusion of the State's argument, and at the end of argument, counsel did not complain of the remark contested here. Moreover, defense counsel himself had brought out, on redirect examination, that he and Kidd's counsel had met with Kidd and the defendant in the county jail before trial. In Conclusion, we do not believe that the jurors in this case would have construed the cross-examination and argument complained of as an attempt to impugn the integrity of defense counsel. Cf. People v. Bean (1985), 109 Ill. 2d 80; People v. Emerson (1983), 97 Ill. 2d 487.

The defendant also complains of certain remarks concerning Kidd's credibility that were made by the State in rebuttal argument at trial. The prosecutor mentioned that Kidd had not pleaded guilty to the offenses here. The prosecutor also argued that Kidd's testimony was less than fully self-incriminating, contending that Kidd's description of the events leading up to his initial attack on Ricardo Pedro could support a claim of self-defense (see Ill. Rev. Stat. 1983, ch. 38, par. 7-1), and that Kidd's account of his attack on the three remaining victims could sustain a defense of intoxicated or drugged condition (see Ill. Rev. Stat. 1983, ch. 38, par. 6-3). The trial Judge overruled defense counsel's objections to those remarks. The defendant argues here that Kidd's failure to plead guilty to the offenses was irrelevant and that the prosecutor misstated the facts and the applicable law when he asserted that Kidd had attempted to hedge his admissions of guilt.

The State's argument in rebuttal was warranted by the evidence in this case. Defense counsel recognized that Kidd's credibility depended in part on how self-incriminating his testimony was. In his closing argument to the jurors, defense counsel argued that Kidd was a believable witness "[b]ecause when he got on the stand and confessed to these murders and told you that that man [ i.e., the defendant] had nothing to do with it, he had nothing to gain; absolutely nothing to gain. Look at what he forfeited. He did it here publicly, under oath. And as a jury, I ask you to give it every consideration, because there is no reason, none that anyone can logically conceive why he would lie. When he goes to that stand, he gives all. And there is no road back. He gives it all." In response to defense counsel's argument, the prosecutor made the remarks at issue here, and the trial Judge overruled the defense objection to them. Although Kidd's trial testimony in this case was obviously damaging to his own cause, the prosecutor was warranted in arguing that Kidd had not yet pleaded guilty to the offenses and that his account of the events could support a claim of self-defense or a denial of criminal responsibility. Kidd testified that the charges against him were still pending at the time of his testimony. Kidd said that his initial attack on Ricardo Pedro occurred when Pedro threatened him with a knife. Also, Kidd testified, "I didn't intend to kill nobody. I never did hurt nobody. I didn't know what I was doing. We never had the drugs I had that night. I didn't know what to do." The trial Judge's ruling was proper. The prosecutor's argument was proper, and the remarks did not misstate the evidence.

B

The defendant next argues that the trial Judge erred in limiting certain efforts made by defense counsel to rehabilitate defense witness Kidd following the State's cross-examination. First, during redirect examination of Kidd, the following occurred:

"Q. Now, [the prosecutor] asked you if you had told Mr. Dernbach [ i.e. , the assistant State's Attorney who conducted the custodial interrogation] that Leroy Orange had done all of these different things. You did tell him that, didn't you?

A. Yes, sir.

Q. Why did you tell Mr. Dernbach that?

MR. KAPLAN: Objection.

THE COURT: Sustained.

Q. : At the time that you made the statement to Mr. Dernbach and to the police, were you trying to put the blame on Mr. Orange?

A. Yes, sir."

The defendant argues here that Kidd was entitled to answer the next-to-the-last question quoted above to explain why he had made the earlier statement and that the trial Judge improperly restricted that evidence.

We agree with the defendant that the trial Judge erred in sustaining the State's objection to the question, for counsel may, in attempting to rehabilitate a witness who has been impeached with a prior inconsistent statement, ask the witness to explain his reasons for giving the earlier statement. (People v. Hicks (1963), 28 Ill. 2d 457, 462; People v. Frugoli (1929), 334 Ill. 324, 335-37; People v. Hanson (1980), 83 Ill. App. 3d 1108, 1114.) We believe that the error was harmless, however. Immediately after the objection was sustained, defense counsel asked Kidd whether he had been "trying to put the blame on" the defendant during the custodial interrogation, and Kidd responded ...


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