Before she saw the photograph, she gave a description to the police officers of the two men who had come into her home. The descriptions that she gave were, "One was light, tall and slim with a cap on and blue jeans and a blue track jacket. The other one was dark, bigger, a beard, blue jeans, about a hundred and thirty five, forty pounds." On February 17, 1982, Thomas viewed a lineup, and Barnes' exhibit No. 4 was a picture of that five-man lineup. From left to right, number one picture of the persons in the lineup was a person whose photograph the officers previously showed her.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
534 N.E.2d 583, 179 Ill. App. 3d 410, 128 Ill. Dec. 401 1989.IL.133
Appeal from the Circuit Court of Cook County; the Hon. Romie Palmer, Judge, presiding.
Rehearing Denied March 2, 1989.
JUSTICE PINCHAM delivered the opinion of the court. LORENZ and COCCIA,* JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
The issues presented for review are: (1) whether the trial court erred in overruling the defendants' motion to suppress and in admitting evidence of their lineup identifications; (2) whether the death qualification of the jury for the innocence-guilt phase of the case violated the defendants' right to an impartial jury representative of a fair cross-section of the community, guaranteed by the sixth and fourteenth amendments to the Constitution of the United States; (3) whether the defendant Barnes was denied due process by the prosecutor's failure, in violation of the discovery rules, to timely reveal the existence and contents of, and the witnesses to, a statement made by the defendant Barnes; (4) whether the prosecutor's closing argument was improper and denied the defendants due process; and (5) whether during deliberation the trial court erred in denying the jury's request for a trial transcript of a witness' trial testimony.
The trial testimony presented by the State revealed the following facts of the robbery-murder.
On Sunday, August 2, 1981, at about 5 p.m., the deceased, Terrell Jackson, age 33, was enjoying the peace and tranquility of his home, where he lived with his wife and five children on the south side of Chicago. He fell asleep on the floor while watching television in the second-floor bedroom. Jackson's young brother, Arlander Adamson, age 18, was watching television in the first-floor living room of the residence. Jackson's stepdaughter, Gwen Thomas, age 19, was in a second-floor bedroom with her baby, either watching television or sleeping.
Two men burst through the rear door of the premises. Each man had a gun in his hand. The men put their guns to Adamson's head and commanded Adamson to tell them who else was in the house. Adamson told them that his brother, his niece and her baby were upstairs and that no one was in the basement. One of the men checked the basement because a radio was playing there. The two men asked Adamson if there were any drugs or money in the house. One of the men suggested that they should kill Adamson. The other man disagreed. The two men bound and gagged Adamson and forced Adamson to accompany them upstairs.
Adamson indicated to the two men that his niece and her baby were in the room where the door was closed. The men with Adamson went down the hallway to the room of Terrell Jackson, who was asleep on the floor with the television playing. The men ordered Adamson to lie on the floor and Adamson did so. The men told Jackson to get up and asked him, "Where is the s--t at?" As Jackson awakened, the two men fired six shots into Jackson's body. One of the men took Jackson's jewelry and money and the other looked through various drawers in the room while asking, "Where's the s--t?"
One of the men left the room and went to the room of Gwen Thomas, and with the gun in his hand, the man told Gwen Thomas to come with him. The man directed Gwen Thomas to her father's, Jackson's room, which was only about eight or nine feet away. Gwen Thomas saw Jackson lying on the floor, shot, and Adamson was lying beside him.
One of the men told Gwen Thomas that if she didn't tell them where "it" was, the two men would kill them all. Gwen Thomas asked Jackson what the men wanted and where "it" was. Jackson said that he didn't have anything and that he did not want to die. The two men ransacked the room, went into the closets and under the mattress, and pulled out drawers. One of the men put something in his pocket. One of the men tied up Gwen Thomas and made her lie facedown on the floor and took a chain from around her neck. The two men left.
Thomas and Adamson untied each other. Thomas went downstairs, locked the doors and called the police, her grandmother and her cousin while Adamson held Jackson, dying in his arms. Jackson died almost instantly from one of the six bullets which entered his right chest at a range of less than two feet, lacerated his liver, kidneys and aorta, causing massive internal bleeding.
Arlander Adamson and Gwen Thomas gave the police descriptions of the two offenders. Later that evening they looked through photograph books at the police station. Neither made any identification from the photographs. On August 18, 1981, Gwen Thomas looked through a book of photographs which had been brought to her home by Chicago police detectives Redmond and O'Leary. She identified a picture of defendant Maurice Coleman as a picture of one of the robbery-murder offenders. On the following day, Gwen Thomas and Arlander Adamson identified Maurice Coleman in a lineup at a Chicago police station as one of the offenders.
On August 28, 1981, Arlander Adamson was shown a group of photographs by Chicago police detectives Redmond and O'Leary and he identified the picture of the defendant Joseph Barnes as resembling the other offender. On September 6, 1981, a complaint for preliminary examination which charged Joseph Barnes with the August 2, 1981, robbery-murder of Terrell Jackson was prepared and filed by Detective O'Leary in a branch of the first municipal district of the circuit court of Cook County. The court ordered and a warrant was issued for Barnes' arrest. The detectives were unable to locate Barnes in the Chicago area. Upon notice to them, Baltimore, Maryland, police arrested Barnes in Baltimore on September 12, 1981. After extradition proceedings, Barnes was extradited to Chicago on February 17, 1982, and on that date Gwen Thomas and Arlander Adamson identified Joseph Barnes in a lineup as the other offender who invaded their home and robbed and killed Terrell Jackson on August 2, 1981. Adamson and Thomas also identified Coleman and Barnes at trial as the two assailants who intruded into their home, robbed them and killed Terrell Jackson. I
Both defendants now claim for reversal in this court that they were denied their sixth amendment constitutional right to counsel at their lineups and the trial court therefore erred in denying their motions to suppress their lineup identifications. Conversely, the State maintains that both defendants waived their right to counsel at their lineups, that neither defendant presented or preserved the right to counsel issue in the trial court and both defendants therefore waived the issue in the trial court and in this court.
Defendant Maurice Coleman's major basis in his pretrial lineup identification suppression motion was that his lineup identification was suggestive. *fn1 After alleging suggestive photograph identifications by the witnesses and that he was arrested and placed in a lineup, which he characterized as a "witness-suspect confrontation," Coleman's motion to suppress his lineup identification then alleged that " prior to said confrontation the accused was not advised by the police that he had a right to have an attorney present during such confrontation." (Emphasis added.) Likewise defendant Joseph Barnes' main assertion in his lineup identification suppression motion was that his lineup identification was also suggestive. *fn2 Barnes' motion alleged that he was arrested, that the witnesses were suggestively shown photographs, that "on February 17, 1982, Joseph Barnes stood in a five man lineup," and " that prior to said confrontation the accused was not advised by the police that he had a right to have an attorney present during such confrontation." (Emphasis added.)
The defendants' motions to suppress their lineup identifications were consolidated for an evidentiary hearing, at which neither defendant testified. Defendant Coleman's attorney called Gwen Thomas as a witness on the hearing and elicited from her the following testimony.
On August 2, 1981, she lived at 6856 S. Calumet with her father, Terrell Jackson, the deceased, and on that date she went to a police station where police officers showed her photographs in a pile of books for about 1 1/2 hours. On August 18, 1981, police officers came to the home of a friend of Gwen Thomas, where she was visiting, and showed her eight photographs, which she identified in court. She identified photograph "two D" in court as the photograph she identified when she was shown them on August 18, 1981, and told the officers that she recognized the picture. On the following day, August 19, 1981, Chicago police officers returned and showed her another book of photographs and she identified a picture in the book as a picture of one of the persons she saw in her house on August 2, 1981. Later, on August 19, at about two or three o'clock in the afternoon, at a police station she viewed a lineup, from which she identified number three.
Upon concluding her direct examination by Coleman's attorney, as above set forth, Gwen Thomas was then questioned by the attorney for the defendant Joseph Barnes, who elicited from her the following testimony.
On August 28, 1981, she saw some photographs while she was at a friend's home. Barnes' attorney showed her a group of photographs, defendants' group exhibit No. 2, and Gwen Thomas identified them as the photographs she saw August 28, 1981, and from which she singled out the photograph marked "D" as resembling one of the men that had been in her apartment. On February 2, 1982, she viewed a lineup. Before she looked at the photographs she had given a description of the two men who had been in her home to the police officer. Thomas was asked by Barnes' attorney how many people she had described, to which the prosecutor objected. Gwen Thomas was excused from the courtroom while Barnes' attorney argued to the trial court the validity of the question. The argument he presented was that the lineup was suggestive. The trial court overruled the prosecutor's objection, and when Gwen Thomas resumed the witness stand, Barnes' attorney further elicited from her the following testimony.
Gwen Thomas then testified on cross-examination by the prosecutor that when she was shown the book of photographs she identified the photograph of the defendant, Maurice Coleman, and on the next day, August 19, 1981, she identified Coleman in a lineup at a police station. Some days later, she saw a group of photographs which contained a photograph of the defendant Joseph Barnes, whom she thereafter, on February 17, 1982, identified in a lineup.
Arlander Adamson was then called on the hearing of the defendant's motions to suppress identification by defendant Coleman's attorney and he testified as follows.
On August 2, 1981, he was visiting his brother, Terrell Jackson, the deceased, in his home at 6856 South Calumet Avenue and after the incident took place in Jackson's home, he went to a police station where he was shown four or five books of photographs. He did not identify anyone in the photograph books. Adamson went to a police station again on August 19, 1981, and looked at photographs and viewed a lineup. He had previously given the police officers a description of the two individuals that he thought were responsible for the August 2, 1981, robbery-murder of his brother in his house. Adamson told the officers that one of the individuals was approximately 5 feet 4 to 5 feet 6 inches tall, weighed about 140 to 145 pounds and had a full beard and a full mustache. Defendants' exhibit No. 3 was a photograph of the lineup he saw on August 19, 1981, about 4 p.m., and in the photograph he identified number three.
Arlander Adamson was then questioned by the attorney for Joseph Barnes and testified: He was shown about six photographs on August 28, 1981, by police officers. He had previously given the officers a description of the other person as being between 5 feet 10 inches and 6 feet tall, weighing about 140 to 150 pounds, having a thin build, light complexion, a small mustache, wearing black-rimmed sunglasses, a black tam, blue track suit jacket with white stripes and blue jeans. Defendants' group exhibit No. 2 was the photographs he was shown on August 28, 1981, and he picked out photograph "D" as resembling one of the offenders.
Adamson further related that on February 17, 1982, he viewed a lineup and defendants' exhibit No. 4 was a photograph of the five-man lineup.
On cross-examination by the prosecutor, Arlander Adamson testified that when he told the officers that photograph "D" of defendants' group exhibit No. 2 resembled one of the offenders, he also told the officers that he would like to see a lineup in order to be certain. The defendant Joseph Barnes' picture was in the February 19, 1982, lineup photograph.
The attorney for defendant Maurice Coleman then called a Chicago police department detective, James O'Leary, who testified that he was at the August 19, 1981, lineup involving the shooting death of Terrell Jackson, which lineup was viewed by Arlander Adamson and Gwen Thomas. Defendants' exhibit No. 3 was a photograph of that lineup. Coleman, who appears in the lineup photograph, was arrested on August 19, 1981, at 2:45 p.m., pursuant to a warrant which charged him with the murder of Terrell Jackson. The lineup was at 5:30 p.m.
The attorney for defendant Maurice Coleman next called Detective James Redmond as a witness, and he testified that he was present on August 18, 1981, when Gwen Thomas viewed a Chicago police mug book.
Detective Redmond testified on direct examination by the attorney for defendant Joseph Barnes that he conducted a lineup on February 17, 1982, and that defendant Joseph Barnes was one of the five people in that lineup. Gwen Thomas and Arlander Adamson had given Detective Redmond descriptions of the offenders involved in the incident before they viewed the lineup.
Coleman and Barnes rested on the evidentiary hearing of their motions to suppress their lineup identifications. They now urge that they were denied their constitutional right to counsel at their lineups. Other pertinent evidence presented on the hearing is hereafter set forth and discussed.
The right to counsel is provided in the sixth amendment to the Constitution of the United States and is binding upon the States by the fourteenth amendment. (Gideon v. Wainwright (1963), 372 U.S. 335, 342, 9 L. Ed. 2d 799, 804, 83 S. Ct. 792, 795.) The sixth amendment provides that, "In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense." (U.S. Const., amend. VI.) Article I, section 8, of the Illinois Constitution similarly provides that, "In criminal prosecutions, the accused shall have the right to appear and defend in person and by counsel; . . . ." (Ill. Const. 1970, art. I, § 8.) Under these aforementioned constitutional guarantees, a defendant has a right to counsel at all critical stages of the criminal proceedings against him. (United States v. Wade (1967), 388 U.S. 218, 18 L. Ed. 2d 1149, 87 S. Ct. 1926.) A critical stage of a criminal proceeding is when criminal charges have been brought in a judicial tribunal against a defendant, entitling the defendant to his constitutional right to counsel. (Kirby v. Illinois (1972), 406 U.S. 682, 32 L. Ed. 2d 411, 92 S. Ct. 1877.) Adversary judicial criminal proceedings are initiated by the filing of a complaint for examination which charges an accused with the commission of a criminal offense and is a critical stage of the criminal proceeding at and during which the accused has a constitutional right to counsel. Moore v. Illinois (1977), 434 U.S. 220, 228, 54 L. Ed. 2d 424, 433, 98 S. Ct. 458, 464.
In Moore, the rape victim was escorted by a police officer to court, where she signed a complaint for preliminary examination which charged defendant Moore with the rape offense. When the defendant was later that day called before the court without counsel to answer the charge, the rape victim identified him as her assailant. The defendant was later indicted. His pretrial motion to suppress the victim's aforesaid identification of him as her assailant, on the ground that his sixth amendment right to counsel was violated by the identification because of the absence of his counsel, was overruled. The defendant was convicted and the supreme court of Illinois affirmed. In reversing, the Supreme Court of the United States held:
"In Kirby v. Illinois, 406 U.S. 682 (1972), the plurality opinion made clear that the right to counsel announced in Wade and Gilbert attaches only to corporeal identifications conducted 'at or after the initiation of adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' 406 U.S., at 689. This is so because the initiation of such proceedings 'marks the commencement of the "criminal prosecutions" to which alone the explicit guarantees of the Sixth Amendment are applicable.' Id., at 690. Thus, in Kirby the plurality held that the prosecution's evidence of a robbery victim's one-on-one stationhouse identification of an uncounseled suspect shortly after the suspect's arrest was admissible because adversary judicial criminal proceedings had not yet been initiated.
. . . [The Court of Appeals] read Kirby as holding that evidence of a corporeal identification conducted in the absence of defense counsel must be excluded only if the identification is made after the defendant is indicted. [Citation.] Such a reading cannot be squared with Kirby itself, which held that an accused's rights under Wade and Gilbert attach to identifications conducted ' at or after the initiation of adversary judicial criminal proceedings,' including proceedings instituted 'by way of formal charge [or] preliminary hearing.' 406 U.S., at 689. The prosecution in this case was commenced under Illinois law when the victim's complaint was filed in court. See Ill. Rev. Stat., ch. 38, § 111 (1975).
. . . Here, . . . petitioner's Sixth Amendment rights were violated by a corporeal identification conducted after the initiation of adversary judicial criminal proceedings and in the absence of counsel." (Emphasis added.) Moore v. Illinois (1977), 434 U.S. at 226-28, 231, 54 L. Ed. 2d at 432-33, 35, 98 S. Ct. at 463-64, 466.
The purpose of defense counsel's presence at a defendant's lineup after the initiation of adversary judicial criminal proceedings was defined in United States v. Wade (1967), 388 U.S. 218, 230-32, 234-36, 241, 18 L. Ed. 2d 1149, 1159-60, 1162, 1165, 87 S. Ct. 1926, 1934-35, 1936-37, 1939, as follows:
"[There] is serious difficulty in depicting what transpires at lineups and other forms of identification confrontations. . . . [The defendant] can seldom reconstruct the manner and mode of lineup identification for Judge or jury at trial. . . . [Neither] witnesses nor lineup participants are apt to be alert for conditions prejudicial to the suspect. . . . [Neither] witnesses nor lineup participants are likely to be schooled in the detection of suggestive influences. Improper influences [at the lineup] may go undetected by a suspect . . .. Even when he does observe abuse, . . . [the defendant] may be reluctant to take the stand . . .. . . . [Any] protestations by the suspect of the fairness of the lineup made at trial are likely to be in vain; the jury's choice is between the accused's unsupported version and that of the police officers present. . . . [The] accused's inability effectively to reconstruct at trial any unfairness that occurred at the lineup may deprive him of his only opportunity meaningfully to attack the credibility of the witness' courtroom identification.
The few cases that have surfaced therefore reveal the existence of a process attended with hazards of serious unfairness to the criminal accused and strongly suggest the plight of the more numerous defendants who are unable to ferret out suggestive influences in the secrecy of the confrontation.
. . . [There] is grave potential for prejudice, intentional or not, in pretrial lineup, which may not be capable of reconstruction at trial, and [the] presence of counsel itself can often avert prejudice and assure a meaningful confrontation at trial . . ..
. . . [Counsel's] presence at the lineup would equip him to attack not only the lineup identification but the courtroom identification as well . . .."
In People v. Marshall (1977), 47 Ill. App. 3d 784, 786, 365 N.E.2d 367, this court held:
"Defendant initially contends that the trial court erred in denying his motion to suppress the lineup identifications because such identifications were effected after a charge had been placed against the defendant and at a time when the defendant was not represented by counsel. The record reveals that on January 30, 1973, defendant was arrested and identified in a lineup and that during this lineup defendant was not represented by counsel. Approximately one week before this lineup, a complaint for preliminary examination charging defendant with armed robbery and an arrest warrant had been issued.
In Kirby v. Illinois [citation], the United State Supreme Court held that the requirement of presence of counsel at a lineup extends to any 'adversary judicial criminal proceedings -- whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' Relying on Kirby, this court in People v. Hinton [citation], held that the issuance of a complaint followed by an arrest warrant and the actual arrest of the defendant was a 'formal charge' within the purview of Kirby and required the presence of counsel at the lineup. We similarly believe, in the instant case, at the time of the lineup adverse judicial proceedings had begun and that defendant should have been afforded counsel." (Emphasis added.)
The supreme court of Illinois held in People v. Curtis (1986), 113 Ill. 2d 136, 143, 497 N.E.2d 1004, that "[a] lineup which is held after the initiation of 'adversary judicial criminal proceedings' without the presence of counsel for the accused is unconstitutional. [Citation.] Once it has been determined . . . that a lineup violates the sixth amendment right to counsel, any evidence adduced by the prosecution that a witness identified the defendant at the lineup is subject to a per se rule of exclusion. [Citations.]"
"A per se rule excluding testimony that the accused was identified at an uncounseled lineup may be the only effective sanction to assure that law enforcement authorities will respect the accused's constitutional right to the presence of his counsel at the critical lineup." Gilbert v. California (1967), 388 U.S. 263, 273, 18 L. Ed. 2d 1178, 1186, 87 S. Ct. 1951, 1957.
"The right to counsel attaches upon the filing of a criminal complaint or information and the issuance of an arrest warrant." (People v. Jumper (1983), 113 Ill. App. 3d 346, 349, 447 N.E.2d 531.) "After Faulkner was charged by complaint with rape, he was entitled to counsel. [Citations.] Testimony regarding a lineup identification in violation of that entitlement is prohibited . . .. Therefore, defendant's motion to suppress such testimony should have been granted." (People v. Faulkner (1980), 86 Ill. App. 3d 136, 139, 407 N.E.2d 126.) "The law is clear that with the filing of the complaint charging Giovannetti with murder, defendant was entitled to counsel, a point which the State concedes . . .." People v. Giovannetti (1979), 70 Ill. App. 3d 275, 282, 387 N.E.2d 1071.
On the evidentiary hearing of the motions to suppress the lineup identification in the case at bar, it was the uncontradicted testimony of Detective O'Leary that on August 19, 1981, the defendant Maurice Coleman was arrested on a warrant "charging him with the offense of murder in connection with the death of Terrell Jackson." The record before us discloses that the warrant for the arrest of Coleman was based on a complaint for preliminary examination subscribed and sworn to on August 19, 1981, by Chicago police officer Daniel Oravetz. The complaint alleged that "Maurice Coleman on August 2, 1981, at 6856 South Calumet Avenue, Chicago, Illinois, committed the offense of murder, in that he killed Terrell Jackson without lawful justification by shooting him with a gun . . . ." The record also reveals that the Judge before whom the complaint was presented examined the complaint and the officer who presented it, heard evidence thereon, and was satisfied that there was probable cause for filing the complaint, granted leave to file the complaint and issued the warrant for Coleman's arrest. Adversary judicial criminal proceedings, a critical stage of the proceedings, were thereby commenced, which, under the foregoing authorities, thereby entitled Coleman to his constitutional right to counsel upon arrest in execution of the warrant and upon being placed in a lineup, charged with, and viewed by witnesses to the Terrell Jackson murder.
Although defendant Barnes' motion to suppress his lineup identification alleged that, "Prior to said [February 17, 1982, lineup] confrontation the accused [Joseph Barnes] was not advised by the police that he had a right to have an attorney present during said confrontation," Barnes did not present any evidence on the suppression hearing to support this allegation or to support the contention that he now makes before this court that his constitutional right to counsel at his lineup was violated. The sole thrust of the evidence presented by Barnes on the suppression hearing, exclusively through his counsel's direct examination of the robbery-murder witnesses, Gwen Thomas and Arlander Adamson, and the investigating detectives, O'Leary and Redmond, who also conducted Barnes' lineup, was that his lineup identification was suggestive.
Even though defendant Barnes presented no evidence of the circumstances of his arrest on the hearing of his motion to suppress his lineup identification, the record nevertheless discloses that on September 6, 1981, Detective O'Leary subscribed and swore to a complaint for preliminary examination which alleged that on August 2, 1981, Joseph Barnes at 6856 South Calumet Avenue, Chicago, Illinois, committed the offense of murder, in that he, without lawful justification, shot and killed Terrell Jackson. The record further discloses that Detective O'Leary presented the complaint to a Judge who examined him and the complaint, heard evidence thereon, found that there was probable cause for filing the complaint and ordered the filing of the complaint and the issuance of a warrant for Barnes' arrest. Barnes was arrested in Baltimore, Maryland, on September 12, 1981, on a Governor's warrant and pursuant thereto and the extradition proceedings thereon, Barnes was extradited to Chicago on February 17, 1982, and placed in a lineup that same day.
It is clear that adversarial judicial criminal proceedings had been instituted and it was during a critical stage of the proceedings when Barnes was placed in the lineup. Barnes, too, was constitutionally entitled to a lawyer at his lineup.
Coleman and Barnes asserted in their motions to suppress their lineup identifications that the officers did not advise either of them that each of them had a right to counsel at their lineups. Coleman's identification suppression motion alleged that "various witnesses were allowed to be simultaneously present at the witness-suspect confrontation and were allowed to make their identification of the accused . . .. That prior to said confrontation the accused was not advised by the police that he had a right to have an attorney present during such confrontation." Barnes' lineup identification suppression motion similarly alleged that "on February 17, 1982, Joseph Barnes stood in a five-man lineup. Prior to said confrontation the accused was not advised by the police that he had a right to have an attorney present during such confrontation."
Again, under the foregoing authorities, Coleman and Barnes each had the constitutional right to be informed of his constitutional right to counsel at the lineups. Moreover, the officers who conducted the lineups were obligated under the Federal and State constitutional right to counsel to advise each defendant of his right to counsel at the lineup and that neither of them could be required to be a participant in a lineup in the absence of his counsel, should he choose to have his counsel present.
This court recently pointed out in People v. Bailey (1987), 164 Ill. App. 3d 555, 572, 517 N.E.2d 570, that, "The sixth amendment constitutional right to counsel during the critical adversarial stage confers upon the defendant the right to Wade admonitions and the presence and representation of counsel at his post-indictment lineup. The functions of the defendant's attorney at the post-indictment lineup are somewhat different and appreciably more extensive than the role of the arrestee's attorney before or during custodial investigative interrogation of the arrestee by law enforcement officers." We then held:
"The Supreme Court concluded in Wade that the defendant's counsel's presence is a requisite for a post-indictment lineup, in the absence of an intelligent waiver of counsel by the defendant. The Supreme Court, however, did not specifically articulate in Wade the post-indictment right-to-counsel lineup admonitions that the sixth amendment requires be given a defendant. Certainly the sixth amendment, right-to-counsel Wade admonitions, during the critical adversary stage of the proceedings, would be no less than those required by the fifth amendment privilege against self-incrimination Miranda admonitions during the custodial investigative interrogation precritical adversary stage of the proceedings. The sixth amendment, right-to-counsel Wade admonitions seemingly would require more. The Wade admonitions would certainly at least require that the defendant be informed of his right to the presence and representation of counsel at the lineup, that if he did not have or could not afford an attorney, an attorney would be provided him to be present and represent him at the lineup. Further, that the presence and representation of his attorney at the lineup is to insure the fairness of the lineup and to enable his attorney to utilize any lineup unfairness for the defendant's benefit at trial, that in the absence of his waiver of counsel, the defendant could not be compelled to participate in a lineup without his counsel being present and that the lineup would not be conducted in his counsel's absence. The Wade admonitions also require that the defendant be fully advised of the consequences of his waiver of counsel at the lineup and that, in order for there to be a valid relinquishment of the Wade right to counsel, it must be voluntarily, knowingly and understandingly waived by the defendant. . . .
. . . [Our] research fails to reveal a case which holds that to waive the Wade, sixth amendment right to admonitions and to an attorney during the post-indictment lineup, critical adversarial stage, permits less than is required to waive the Miranda , fifth amendment privilege against self-incrimination and the attendant right to an attorney during the interrogation-investigative noncritical and non-adversarial stage. It would seem, and for obvious reasons, that the right to an attorney expressly provided in the sixth amendment would be paramount in the post-indictment lineup critical adversarial stage. Moreover, for there to be a valid waiver of counsel, there must first be a complete admonition to the defendant of his right to counsel and the consequences of asserting or relinquishing the right and then a knowledgeable and voluntary waiver of the right." (Emphasis added.) 164 Ill. App. 3d 555, 573-74.
The Supreme Court of the United States additionally held in Wade that, "[Both] Wade and his counsel should have been notified of the impending lineup, and counsel's presence should have been a requisite to conduct the lineup, absent an 'intelligent waiver.'" (Emphasis added.) (388 U.S. at 237, 18 L. Ed. 2d at 1163, 87 S. Ct. at 1937.) In the case at bar, both defendants Coleman and Barnes should have been notified of their right to counsel at the lineup and their counsel's presence should likewise have been a requisite to the conduct of their lineups, absent an intelligent waiver.
The State contends before us that the record affirmatively establishes that defendant Maurice Coleman was properly informed of his constitutional right to counsel at his lineup and that Coleman expressly, knowingly and intelligently waived such right. The State further contends that neither defendant properly presented or preserved the issue of his constitutional right to counsel at his lineup in the trial court and that both defendants therefore waived the issue in the trial court and on review in this court.
Regarding the right to lineup counsel admonitions given defendant Coleman and his waiver of counsel, we note that on the evidentiary hearing of his motion to suppress his lineup identification, during the prosecutor's cross-examination Detective O'Leary testified that he was present on August 19, 1981, when the defendant Maurice Coleman was arrested at 65th and Eberhart, in Chicago, at which time Detective O'Leary's partner, Detective Redmond, advised Coleman of his constitutional rights. Thereupon the following colloquy occurred:
"[Defendant Coleman's Attorney]: I'll stipulate the officer read his rights at the time of arrest pursuant to Miranda.
[Assistant State's Attorney]: Stipulate that your defendant waived them?
[Defendant Coleman's Attorney]: If that's what he said, yes, you talked to him. I'll stipulate he advised him of his rights and he understood them."
Detective O'Leary further testified, pursuant to the prosecutor's cross-examination, that Detective Redmond also informed the defendant Maurice Coleman that he had the right to have a lawyer present during the lineup and that Coleman waived his right to an attorney at his lineup.
On redirect examination by Coleman's attorney, Detective O'Leary testified that they informed Coleman a second time at the police station that he had the right to have an attorney present during the lineup and at that time Coleman understood he could have a lawyer present. Detective Redmond also told the defendant Coleman that if he could not afford a lawyer's presence at the lineup with him, one would be appointed for him, and that Coleman responded, "Go ahead and have your lineup. Nobody's going to identify me." Detective Redmond also testified on cross-examination by Coleman's attorney that he was present at the August 19, 1981, lineup, prior to which he advised the defendant Maurice Coleman of his rights, during which he told Coleman that he had a right to an attorney at lineup. On cross-examination by the prosecutor, Detective Redmond additionally testified that when he advised the defendant Maurice Coleman that he had a right to have an attorney present at the lineup, Coleman stated to him, "Go ahead and put me in a lineup. No one's going to pick me out anyway."
Detectives O'Leary and Redmond's testimony that Coleman was advised of his right to counsel at the lineup and that if he could not afford an attorney at the lineup, one would be appointed for him and that Coleman told the officers to go ahead and have the lineup, that "[nobody's] going to identify me," or "[no] one's going to pick me out anyway," is uncontradicted, unrebutted and undenied. Moreover, Coleman's attorney stipulated and agreed that the officers advised Coleman "of his rights and he understood them."
On this state of the trial record, it is clear that Coleman was advised of his right to counsel at the lineup, that he understood the right and that he freely, voluntarily, knowingly and intelligently waived the right. Perhaps he anticipated that the cruel, heartless and nerve-wracking manner in which the offense was committed and the extended period of time between the date of the commission of the offenses on August 2, 1981, and the date of the lineup, February 17, 1982, would dull the witnesses' memories. If so, he gambled and he lost. The uncontroverted evidence before us establishes that he waived his constitutional right to counsel at the lineup. People v. Purnell (1984), 129 Ill. App. 3d 253, 256-58, 472 N.E.2d 183.
The State contends before us that neither Coleman nor Barnes, in the trial court, properly presented, by evidence on the suppression hearing, or preserved by their motions for a new trial, the errors of their alleged denial of their constitutional right to counsel at their lineups and that they therefore waived the error in the trial court as well as in this court.
In affirming the defendants' judgments of conviction for armed robbery in People v. Precup (1978), 73 Ill. 2d 7, 16, 17, 19, 382 N.E.2d 227, the supreme court held:
"[No] reference was made to the denial of effective assistance of counsel in the written motion for a new trial. The record contains a transcript of the argument of the motion for a new trial and no suggestion that the defendants were denied the effective assistance of counsel was made orally during the argument. Thus, as the State has pointed out in its brief, this alleged error was never raised in the trial court.
. . . The general rule is that the failure by a defendant to raise an issue in the written motion constitutes a waiver and the issue cannot be urged as a ground for reversal on review. This waiver rule applies to constitutional as well as to other issues. People v. Pickett (1973), 54 Ill. 2d 280.
We are not prepared to say that the trial court in this case committed error by not sua sponte interrupting the trial and taking whatever action would have been appropriate to preserve the defendants' constitutional right to counsel. It would have been entirely reasonable for a trial Judge to assume that it was part of the defense's strategy to permit the police officer to testify as to the statements made by the two defendants. The interruption of this strategy may have, in itself, constituted error.
. . . [The] issue was not raised by the defendants during the trial and was not called to the court's attention in the motion for a new trial. Under the well-established law of this State, the question has been waived and cannot be raised for the first time on review."
The supreme court affirmed the defendant's murder conviction and held in People v. Carlson (1980), 79 Ill. 2d 564, 575-77:
"Defendant now contends that there were numerous trial errors which require reversal of his convictions. We note that several of these alleged errors were not objected to by the defendant at trial. We therefore consider they have been waived.
It is fundamental to our adversarial system that counsel object at trial to errors. [Citation.] The rationale underlying this procedural requirement is based on the need for timely resolution of evidentiary questions at trial. [Citation.] Thus, we have generally held that the failure to object to the admission of evidence operates as a waiver of the right to consider the question on appeal.
The failure of counsel to object at trial waives those errors which the court can correct by sustaining an objection and admonishing the jury. Otherwise, counsel, by not giving the court the opportunity to prevent or correct error at trial, will gain the advantage of obtaining a reversal through his own failure to act, either intentionally or inadvertently."
The cases are legion which hold that a litigant's, a defendant's, or the State's failure to properly present or preserve an issue in the trial court constitutes a waiver of that issue and prohibits the issue from being raised for the first time on appeal. People v. Jackson (1981), 84 Ill. 2d 350, 358-60; People v. Holloway (1981), 86 Ill. 2d 78, 91-92; People v. Weber (1981), 98 Ill. App. 3d 631, 632-33, 424 N.E.2d 874; People v. Chianakas (1983), 114 Ill. App. 3d 496, 501-02, 448 N.E.2d 620; People v. Franklin (1987), 115 Ill. 2d 328, 336-37.
As previously noted, the main thrust of each defendant's pretrial motion to suppress his lineup identification was that they were suggestive. At no time during Coleman's attorney's argument at the Conclusion of the evidentiary hearing, in support of the trial court's granting Coleman's lineup identification suppression motion, did his attorney assert a violation of Coleman's right to counsel at the lineup as a ground for granting the motion. He argued exclusively that the lineup was suggestive and concluded:
"I would ask the court to suppress that lineup identification and deny the in-court identification based on that lineup since it is so suggestive that it overwhelmingly prejudices the defendant [Maurice Coleman]."
Defendant Joseph Barnes' attorney then argued in support of Barnes' motion to suppress his lineup identification. He, too, exclusively argued that, "The nature and circumstances surrounding the lineup identification, are so suggestive as to make the identification at this point invalid. . . . [The] lineup in this situation was suggestive and that the identification should not be allowed to stand."
The prosecutor argued that there was no evidence presented on the hearing of the defendants' lineup identification suppression motions that the lineup identification of either defendant was suggestive. The prosecutor recited to the trial court paragraph by paragraph the allegations of defendant Barnes' petition to suppress his lineup identification, as hereafter set forth in Appendix II.
Upon stating to the trial court, from paragraph 6 of Barnes' suppression motion, that "[prior] to said confrontation the accused was not advised by police that he had a right to have an attorney present," the prosecutor then stated, "We'd ask that that part be stricken. The defense has not inquired of the officers" on this issue. The prosecutor concluded his argument, "There's been no indication that these defendants were deprived of their right to counsel. . . . [We] would ask that the defendant Barnes' motion to suppress identification be denied as well."
The trial court meticulously reviewed the evidence and stated that "the question arises as to whether or not the actions by the governmental officials in the case, the police officers, was conducive to irreparable mistaken identification." The trial court found "that nothing had been done by the police officers here that would be conducive to misidentification . . . of defendants . . .. . . . [There's] nothing that . . . I would find in Coleman's motion that would require this court to suppress the out of court testimony of identification. . . . Accordingly, it's the ruling of this court that the motion to suppress identification testimony on the part of Coleman and also on the part of Barnes are hereby denied."
At the pretrial hearing on the motion to suppress the lineup identification, neither defendant claimed that he had been denied his constitutional right to counsel at his lineup. Moreover, the defendants did not request that the trial court rule on any such claim and the trial court did not so rule.
Defendant Coleman's post-trial motion asserted 22 grounds for a new trial, paragraph 9 of which was concerned with the lineup identification suppression motion. *fn3 Paragraph 9 simply stated, "The Court erred in denying the Motion to Suppress Identification." The post-trial motion of the defendant, Joseph Barnes, for a new trial cited 38 grounds for the allowance of the motion, paragraph 3 of which addressed the ruling of the trial court on the lineup identification suppression motion. *fn4 Paragraph 3 of Barnes' motion for a new trial simply alleged that the "[trial] court denied his motion to suppress identification evidence where defendant's lineup took place 6 months after the offense and the lineup was suggestive." Neither defendant Coleman nor defendant Barnes asserted in his motion for a new trial that his sixth amendment constitutional right to counsel at the lineup had been violated, and both defendants' attorneys waived, and did not present any oral argument in support of, the defendants' motions for a new trial.
The State contends that the meager assertion in Coleman's motion for a new trial, "The Court erred in denying the Motion to Suppress Identification," did not preserve, but waived, for appellate review the issue of the alleged denial of Coleman's constitutional right to counsel at his lineup. Regarding the defendant Joseph Barnes, the State urges that Barnes did not present any evidence on the suppression hearing that he was not advised of, or that he was denied, his right to counsel at his lineup and that Barnes' meager allegations in his motion for a new trial that, the "[trial] court denied his motion to suppress identification evidence where defendant's lineups took place 6 months after the offense and the lineup was suggestive," did not preserve and waived the issue of the alleged denial of Barnes' constitutional right to counsel at his lineup.
We conclude from the above and foregoing that the uncontradicted evidence presented on the hearing of the motion to suppress the defendants' lineup identifications establishes that defendant Coleman was properly advised of his right to counsel at his lineup and that he knowingly, intelligently, freely and voluntarily waived his right to counsel at his lineup. We further conclude that neither defendant, Coleman or Barnes, properly presented or preserved in the trial court the issue of the alleged denial of his right to counsel at his lineup and that each of them accordingly waived the issue and is precluded from raising it on review before this court. We find no error in the trial court's denial of their motion to suppress their lineup identifications. We are indeed mindful of Supreme Court Rule 615(a) (107 Ill. 2d R. 615(a)) that "plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." Because of the foregoing circumstances of this case, we are not prepared to apply the plain error doctrine in this case. People v. Jackson (1981), 84 Ill. 2d 350, 359-60, 418 N.E.2d 739; People v. Carlson (1980), 79 Ill. 2d 564, 576-77; People v. Precup (1978), 73 Ill. 2d 7, 18-19. II
The defendants contend that they were denied their sixth amendment constitutional right to a jury composed of a cross-section of the community by the trial court's exclusion therefrom of all persons who were unalterably opposed to imposition of the death penalty.
Death was a possible penalty for the home armed robbery-murder offenses with which the defendants were charged. Section 9-1(b) of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1(b)(6)(a)(i), (b)(6)(c)) provided that, "A defendant who at the time of the commission of the [murder] offense has attained the age of 18 or more and who has been found guilty of first degree murder may be sentenced to death if . . . the murdered individual was killed in the course of another felony if the murdered individual was actually killed by the defendant" and the defendant killed the murdered individual intentionally and "the other felony was . . . armed robbery." Section 9-1(c) (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(c)) provided that "the court . . . shall instruct the jury to consider any aggravating . . . factors which are relevant to the imposition of the death penalty," and that "[aggravating] factors may include . . . those factors set forth in subsection (b)." It is provided in section 9-1(d) (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(d)) that, "Where requested by the State, the court shall conduct a separate sentencing proceeding to determine the existence of factors set forth in Subsection (b) and to consider any aggravating . . . factors as indicated in Subsection (c)." Section 9-1 (III. Rev. Stat. 1981, ch. 38, pars. 9-1(d)(1), (d)(2), (d)(3)) further provided that the sentencing hearing proceeding shall be conducted: (1) "before the jury that determined the defendant's guilt; or (2) before a jury impanelled for the purpose of the proceeding if . . . the court for good cause shown discharges the jury that determined the defendant's guilt; or (3) before the court alone if the defendant waives a jury for the separate proceeding." Section 9-1(g) (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(g)) provided that, "If at the separate sentencing proceeding . . . there is a unanimous finding by the jury that one or more of the [aggravating] factors set forth in Subsection (b) exist, the jury shall consider aggravating and mitigating factors as instructed by the court and shall determine whether sentence of death shall be imposed. If the jury determines unanimously that there are no mitigating factors [under sections 9-1(c)(1) through (c)(5)] sufficient to preclude the imposition of the death sentence, the court shall sentence the defendant to death."
Prior to the trial on the innocence or guilt phase of the armed robbery and murder charges against them, each defendant asserted that his right to a jury at the separate sentencing hearing proceeding was constitutionally conferred by the sixth amendment to the Constitution of the United States, which guarantees that, "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . .." (U.S. Const., amend. VI.) Each defendant sought to waive jury and signed jury waivers for the separate sentencing hearing proceeding. Each signed jury waiver stated, "I, the undersigned do hereby waive jury for death penalty eligibility and sentencing as provided by law and submit the . . . cause to the court for hearing." The defendants filed and tendered to the trial court their waivers of jury on the separate sentencing hearing proceeding. The trial court rejected and declined to accept the defendants' jury waivers, denied the defendants' motion for waiver of jury at their sentencing hearing and held:
"The State has the jury at such time as the jury has returned a verdict; and if it is a verdict of guilty, they have a duty then to make a determination and only at that time as to whether or not they wish this jury to ascertain whether or not the death penalty should be imposed. They do not have to make that determination at the beginning of the trial. It is made in those cases in which there may be some qualifications for it. They have indicated they want to Witherspoon the jury. At this time that is their prerogative."
During the voir dire jury selection proceedings, pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770, the jurors were asked their views on the death penalty. Witherspoon held that a death sentence was invalid when imposed or recommended by a jury from which venire persons had been excluded for cause simply because they expressed general objection to, or conscientious or religious scruples or convictions against, the death penalty. Regarding the jurors' views on the death penalty, Witherspoon further held that a venire person could be excused for cause only if his or her objections to the death penalty were such that he or she would always vote against, would never vote for and were unalterably opposed to the death penalty no matter what the evidence might be. Such jury venire persons have come to be known as " Witherspoon excludables."
During the voir dire jury selection process, the record reflects that 29 venire persons were excused for cause pursuant to Witherspoon. The defendants argue that 7 of those 29 venire persons were able to swear that their attitudes against the death penalty would not affect their ability to fairly and impartially decide each defendant's innocence or guilt. The defendants further contend that seven additional venire persons were only unable to swear that their attitudes against the death penalty would not affect in any way their determination of either defendant's innocence or guilt. No Witherspoon excludable was chosen as a juror. Thus, all the jurors chosen unalterably favored the death penalty and expressed their favoritism for it. The trial court denied the defendants' requests to ask those jurors who expressed no opposition to the death penalty whether they strongly favored the death penalty or whether their favorable attitude or lack of opposition to the death penalty would affect their ability to be fair and impartial jurors or impair their ability to fairly, impartially and justly determine the defendants' innocence or guilt. Witherspoon, and no other case that our research discloses, does not preclude such an appropriate inquiry by the trial court or counsel of the " Witherspoon includables." Such an inquiry of Witherspoon includables not only is appropriate but is indeed desired, if not required, for if such Witherspoon includables expressed an inability to be fair because of a strong unalterable favoritism of the death penalty, such Witherspoon includables would thereby become excludable for cause from the jury.
The Witherspoon jury found defendants guilty of the armed robbery and murder offenses. Both defendants waived jury at the bifurcated separate sentencing hearing proceeding. The trial court did not impose the death penalty, but rather sentenced the defendants to life imprisonment, from which there is no parole. Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(1)(a).
The defendants complain before this court that the " Witherspooning " of the jury venire and the exclusion of the Witherspoon excludables from their jury produced a conviction-prone jury and did not represent a fair cross-section of the community, in violation of their sixth and fourteenth amendment constitutional rights to a jury composed of a fair, representative cross-section of the community.
In view of the varying prevailing views in the community regarding opposition to and favoritism of the death penalty, even as expressed by the jury venire persons in the instant case, it cannot be persuasively argued that a jury from which Witherspoon excludables have been excluded from the jury, or a jury composed solely of Witherspoon includables, represents a cross-section of the community. Such a jury is representative of only one section of the community and that is the section of the community which is unalterably in favor of the death penalty. The question is whether such a death-penalty favoring jury violates the defendants' sixth amendment constitutional right to a jury of a fair cross-section of the community.
A divided Supreme Court of the United States held that a jury composed exclusively of Witherspoon excludables did not violate a defendant's sixth amendment constitutional right to a jury composed of a fair representative cross-section of the community in Lockhart v. McCree (1986), 476 U.S. 162, 90 L. Ed. 2d 137, 106 S. Ct. 1758.
In Lockhart, defendant McCree was also charged with capital armed robbery-murder. The jury was " Witherspooned " and Witherspoon excludables were excluded from McCree's jury. The jury convicted McCree of capital felony murder but refused to impose the death penalty and instead imposed life imprisonment without parole. In affirming McCree's conviction and life sentence, the Supreme Court majority held:
"In sum, ' Witherspoon -excludables,' . . . may be excluded from jury service without contravening any of the basic objectives of the fair cross-section requirement. . . . . . . [We] conclude that ' Witherspoon -excludables' do not constitute a 'distinctive group' for fair-cross-section purposes, and hold that 'death qualification' does not violate the fair-cross-section requirement." (476 U.S. at 176-77, 90 L. Ed. 2d at 150, 106 S. Ct. at 1766.)
The Dissenting Justices in Lockhart pointed out that "'death qualification' poses a substantial threat to the ability of a capital defendant to receive a fair trial on the issue of his guilt or innocence," and that there is "near unanimity of authority supporting respondent's claim that death qualification gives the prosecution a particular advantage in the guilt phase of capital trials . . .." (476 U.S. at 185, 192, 90 L. Ed. 2d at 156, 160, 106 S. Ct. at 1771, 1774 (Marshall, Brennan, and Stevens, JJ., Dissenting).) The Dissenting Justices further pointed out in Lockhart that "the exclusion of opponents of capital punishment capable of impartially determining culpability infringes a capital defendant's constitutional right to a fair and impartial jury." 476 U.S. at 198, 90 L. Ed. 2d at 163-64, 106 S. Ct. at 1777 (Marshall, Brennan, and Stevens, JJ., Dissenting).
The dilemma of a defendant being forced, against his wish, to be tried by a death-penalty preferred and oriented " Witherspooned " jury on the innocence or guilt bifurcated phase of his trial, which the defendant considers to be advantageous to the State, when the defendant desires to waive jury on the separate penalty hearing proceeding, was rectified by ...