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04/26/88 the People of the State of v. Kent Starks

April 26, 1988

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

KENT STARKS, DEFENDANT-APPELLANT

(1) THE TRIAL JUDGE FAILED TO ASK THREE REQUESTED VOIR DIRE QUESTIONS DEEMED ESSENTIAL TO SELECTION OF A FAIR AND IMPARTIAL JURY IN PEOPLE

v.

ZEHR (1984), 103 ILL. 2D 472, 469 N.E.2D 1062. (2) THE STATE'S CLOSING ARGUMENT DENIED HIM A FAIR TRIAL AND THE RIGHT NOT TO HAVE HIS FAILURE TO TESTIFY COMMENTED ON.



Before retiring to deliberate, the jurors were instructed that defendant was presumed innocent and that the presumption could be overcome only if from all the evidence they believed beyond a reasonable doubt that he was guilty; that the State had the burden of proof beyond a reasonable doubt; that defendant was not required to prove his innocence; and that the fact that he did not testify should not be considered by them.

APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION

523 N.E.2d 983, 169 Ill. App. 3d 588, 120 Ill. Dec. 72 1988.IL.604

Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.

APPELLATE Judges:

JUSTICE STAMOS delivered the opinion of the court. HARTMAN, P.J., and SCARIANO, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE STAMOS

Defendant, Kent Starks, appeals from his conviction at a jury trial and sentence to concurrent terms of 40 years' and 10 years' imprisonment for murder (Ill. Rev. Stat. 1979, ch. 38, par. 9-1) and attempt to commit armed robbery (Ill. Rev. Stat. 1979, ch. 38, par. 8-4). This was defendant's second trial; his earlier one was the subject of our opinion in People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, appeal denied (1983), 96 Ill. 2d 548.

On appeal, defendant contends that:

(3) Comments by the trial Judge chilled his right to testify in his own behalf.

(4) The Cook County public defender had a conflict of interest in representing both him and a prosecution witness against whom charges were pending.

(5) The Judge erred in refusing defendant's "innocent hypothesis" instruction.

(6) Imposition of a 40-year sentence was an abuse of discretion.

(7) The Judge erred in considering defendant's supposed lack of remorse in sentencing.

(8) The Judge erred in sentencing defendant without a proper presentence report or relevant information, and counsel was incompetent for not adducing evidence in mitigation.

We reverse on the basis of defendant's first contention regarding the voir dire.

Facts

Defendant was arrested on December 25, 1980, indicted by a grand jury, and at his first trial convicted by a jury of the murder and attempt to commit armed robbery of John Lipinski. He was sentenced to concurrent terms of 40 years' and 10 years' imprisonment, respectively. We later reversed his convictions in People v. Starks (1983), 116 Ill. App. 3d 384, 451 N.E.2d 1298, appeal denied (1983), 96 Ill. 2d 548. Upon remand, his case was assigned to a new trial Judge.

Prior to jury selection for his new trial on April 11, 1985, defense counsel submitted eight questions for use during voir dire, including three that are at issue in the present case. The questions and the trial Judge's responses to their submission are set forth hereinafter.

Jury selection proceeded. The trial Judge's pertinent statements and questions to the venire are likewise set forth hereinafter.

At trial, which began on April 12, 1985, Mark Jones, an acquaintance of defendant, testified that he, Mario Godsey, and defendant were walking northward from the intersection of Parkside Avenue and Division Street in Chicago on the evening of July 21, 1980, after purchasing some wine when they encountered a male pedestrian walking toward them. Jones testified that when they observed the same man a few minutes later walking on his return trip past them on the other side of the street, defendant said he needed some money; ran across the street toward the man; told the man, "Stickup, don't run"; and then ran after the man and shot him in the back after the man began to run. Jones testified that defendant then approached the fallen man and began to search him and that, when defendant rejoined Jones and Godsey later, defendant said that he had shot the man because he had run despite being warned, although defendant added that he had obtained no money from the man.

Police officer Johnace Lewis then testified to having found the victim's body and that it had no identification on it but that $12 in a shirt pocket and a gold chain were on the body when she found it. She added that, when found, the body was lying on its back.

Dr. Edmund Donoghue of the Cook County medical examiner's office testified that the victim died of a gunshot wound to the left buttocks that involved the bowel and heart. Donoghue also testified that the victim's chin showed abrasions consistent with falling onto a hard surface and that, after receiving such a wound and falling on his face, a person could have turned himself over.

Mario Godsey, a neighbor of defendant, then testified. His account of the wine purchase, walk along Parkside Avenue, and encounter with the victim generally paralleled Jones'. He also stated that, at the time of his testimony, he was in jail awaiting sentencing on an automobile theft charge; that he had made an arrangement that if he would testify in defendant's case the State would recommend a two-year sentence on his theft charge; and that the Judge in his theft case had told him that he was eligible for an extended 10-year term of imprisonment.

Assistant State's Attorney Michael Markovitz testified as to a statement that he said defendant had given him. In the statement attributed to defendant, he was quoted as having told of seizing a gun from Jones to prevent Jones from using it in robbing the victim, whereupon as defendant approached the victim, who was across the street, the gun somehow discharged after someone yelled from a nearby porch. ...


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