SUPREME COURT OF ILLINOIS.
544 N.E.2d 357, 129 Ill. 2d 123, 135 Ill. Dec. 861 1989.IL.918
Appeal from the Circuit Court of Cook County, the Hon. Kenneth Gillis, Judge, presiding.
JUSTICE CLARK delivered the opinion of the court. JUSTICE RYAN, Concurring in part and Dissenting in part. JUSTICE MILLER joins in this partial concurrence and partial Dissent.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE CLARK
Defendant, James Harris, was charged by indictment in the circuit court of Cook County with four counts of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1) through (a)(3)), two counts of armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 18-2(a)), four counts of aggravated kidnapping (Ill. Rev. Stat. 1981, ch. 38, pars. 10-2(a)(3), (a)(5)), one count of unlawful use of weapons (Ill. Rev. Stat. 1981, ch. 38, pars. 24-1(a)(4), (b)), one count of attempted murder (Ill. Rev. Stat. 1981, ch. 38, par. 8-4), two counts of aggravated battery (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)), and four counts of armed violence (Ill. Rev. Stat. 1981, ch. 38, par. 33A-2). All of these charges stemmed from his alleged involvement in an incident during which Theresa Woods was wounded and Jesse James, Sr., killed. Prior to trial, all of the kidnapping, armed violence, and weapons counts were dismissed. Before the case was submitted to the jury, the State withdrew, without objection, the armed robbery counts and substituted three counts of attempted armed robbery (Ill. Rev. Stat. 1981, ch. 38, par. 8-4). The jury found defendant guilty of the murder of Jesse James, Sr. (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1)), the attempted murder of Theresa Woods (Ill. Rev. Stat. 1981, ch. 38, par. 8-4), the aggravated battery of Theresa Woods (Ill. Rev. Stat. 1981, ch. 38, par. 12-4(a)), and the attempted armed robbery of Theresa Woods and Jesse James, Sr. (Ill. Rev. Stat. 1981, ch. 38, par. 8-4).
Defendant waived a jury for the death sentencing hearing. The trial court found defendant eligible for the death penalty based on the presence of the statutory aggravating factor that the murder had been committed during the course of an attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(b)(6)). The trial court also found no mitigating circumstances sufficient to preclude the imposition of the death penalty. It sentenced defendant to die by lethal injection for the murder of Jesse James, Sr. Defendant was also sentenced to terms of 15 years for each of the attempted armed robbery convictions, the terms to run concurrently, and 30 years on the attempted murder conviction, the term to run consecutively to the terms for the attempted armed robbery convictions. Because the death penalty had been imposed, defendant appealed directly to this court pursuant to Rule 603 (107 Ill. 2d R. 603).
Defendant challenged his convictions on various grounds, which can be grouped under four headings. He claimed that he was denied a fair trial because of (1) the prosecutor's use of peremptory challenges to exclude blacks from the jury; (2) the prosecution's alleged failure to disclose exculpatory material to the defense; (3) the ineffective assistance of counsel; and (4) the prosecutor's allegedly prejudicial remarks in summation. Defendant's various challenges to his sentence can be grouped under two headings. Defendant claimed that his sentence must be reversed because of (1) various errors claimed in connection with the trial court's consideration of evidence, presented at the aggravation-mitigation stage of the death penalty hearing, that the defendant killed a person in 1969, a charge that had been dismissed upon the State's motion of nolle prosequi, and (2) the alleged unconstitutionality of the Illinois death penalty act.
While defendant's appeal was pending, the United States Supreme Court held in Batson v. Kentucky (1986), 476 U.S. 79, 96, 90 L. Ed. 2d 69, 87, 106 S. Ct. 1712, 1722-23, "that a defendant may establish a prima facie case of purposeful discrimination in selection of the petit jury solely on evidence concerning the prosecutor's exercise of peremptory challenges at the defendant's trial." The Court subsequently held that the rule announced in Batson applied retroactively to all cases that had been pending on direct review at the time Batson was decided. (Griffith v. Kentucky (1987), 479 U.S. 314, 328, 93 L. Ed. 2d 649, 661, 107 S. Ct. 708, 716.) We therefore issued a supervisory order retaining jurisdiction of this case but remanding it to the trial court for a hearing to determine whether the State used peremptory challenges to unconstitutionally exclude blacks from the jury. At the hearing, the trial court determined that defendant established a prima facie case of discrimination. However, the court concluded that the State presented neutral, nonracial reasons for its use of peremptory challenges, thereby rebutting defendant's prima facie case. Upon return of the case to this court, defendant renews his earlier arguments and further claims that the trial court's finding at the Batson hearing was incorrect.
Defendant's convictions stem from events occurring in the early morning hours of February 10, 1983. The State's chief witness to these events was Theresa Woods, a waitress at the tavern owned by Jesse James, Sr. According to her testimony, she and James began closing the tavern at 2 a.m. After closing, she checked out the cash registers, leaving $30 in each. Sometime between 3:30 and 4 a.m., Woods and James finished and left the tavern, stopping to lock the door and set the alarm. As Woods and James were leaving, a man whom Woods had never seen before approached them and asked what time the buses stopped running. Woods replied that she did not know and continued to walk away with James.
James and Woods walked across 69th Street to James' car. James stopped to put jumper cables into the trunk. Suddenly, the man who had approached the pair and asked for the time came towards them again, this time grabbing Woods by her coat and pointing a gun at her head. Woods' legs slipped out from under her, and as the man pulled her back up she saw his face.
The assailant ordered Woods and James to get into James' car. Woods went into the rear seat, and following the assailant's command, sat behind James, who was sitting in the driver's seat. Woods testified that from her position in the back seat, and with the aid of streetlights in the area, she was again able to view the assailant's face. Her assailant remained in this position during the time the three spent driving around the streets in the area.
The assailant ordered James to drive to the next corner. When they arrived at the corner, the assailant then ordered James to turn into an alley, drive to the end of it, and stop the car. James complied. The assailant threatened to kill James and Woods if they did not give him $300. He also told them that he did not "care about" killing the two of them because if he was caught he would be "up for good." James replied that he had some money at his tavern. The assailant then told James to drive back to the tavern. James did so, stopping the car in an alley perpendicular to 68th Street, just behind the tavern.
The assailant then ordered Woods to go into the tavern and retrieve the money. He told her that if she did not return in three minutes, with the money, he would kill James. Woods then ran to the tavern, opened the door, and jumped over the counter to the cash register. She took all the paper money from both cash registers and, without stopping to count it, ran back outside.
When she returned, she noticed that the car had been moved from its original position and was now at the intersection of the alley and 69th Street. When she reached the car, the assailant ordered her to get in. James protested, saying that there was no need for Woods to reenter the car. The assailant then told James to "shut up," and that he, the assailant, was "running this." Woods testified that she then saw the assailant pull James toward himself, and shoot James in the head.
Woods turned and ran, tripping and falling a short distance from the car. She landed on her left side and turned over on her back. The assailant came towards her, stood over her, and pointed his gun at her face. He said: "You bitch." She began pleading: "lease do not do this to me," and raised her hands in the air to protect her face. She rolled to her left as the assailant fired. She then remained lying face down, not realizing at that point that a bullet had entered her right shoulder.
She continued to remain in this position for several minutes, pretending to be dead. After a few seconds she heard the footsteps of a person running away, first on the pavement and then through weeds growing in an empty lot on the north side of the street. After several seconds had passed she stood up and saw James lying on the ground. She also noticed that the car had now collided with the glass window of a building adjacent to the alley. She then ran back into the bar and called the police.
Chicago police officer Abraham Wilson testified that he arrived at the scene a few minutes after 4:18 a.m. He met Theresa Woods, who said that she and a man had been shot. Officer Wilson then saw James lying on the ground and went over to him. Officer Wilson testified that James told Wilson that an assailant had reached over and shot James and that "he didn't have to do that." Officer Wilson then called for an ambulance, which took Woods and James to a hospital. James later died of a bullet wound to the head.
In order to impeach Theresa Woods' testimony, the defense called Chicago police officer Rene Daniels, Officer Wilson's partner, and Chicago police detective Geraldine Perry. Officer Daniels testified that Woods provided Daniels with a description of the assailant from which Daniels inferred that the assailant was 5 feet 6 inches tall, a height several inches shorter than that of the defendant. Detective Perry, who interviewed Theresa Woods in Billings Hospital, testified that Woods told Perry that Woods had seen the defendant and James struggling in the car as she emerged from the tavern with the money, that the car was moving, and that she saw it collide with the building on the north side of 69th Street. Woods did not tell Perry that she had approached the driver's side of the car, or that she heard any words spoken between James and the offender. Defense counsel also cross-examined Theresa Woods about statements she had given at the hospital to a Dr. Marion Chung, but the defense did not call Dr. Chung to testify to these statements.
Cleveland Johnson testified that, as he was driving to work, he stopped at the intersection of 63rd and State Streets at approximately 4:15 a.m. While at the intersection, he noticed a man running out from under the State Street underpass. This man, whom Johnson identified as defendant, stopped at the corner of 63rd and State Streets and ducked behind a traffic control box. Johnson then noticed that a police patrol wagon was turning from State Street onto 63rd Street. After the police patrol wagon had passed by, defendant stepped out from behind the box and crossed the street. Meanwhile Johnson, continuing to watch defendant, had slowly turned his car off 63rd Street and onto State Street. Defendant began running behind and alongside the passenger side of Johnson's still moving car. When defendant began hitting the side of the car with his left hand, Johnson stopped the car, reached over to the passenger side and rolled the window several inches down. Defendant then offered Johnson $5 for a ride to 51st Street. As Johnson was considering this offer, defendant reached down with his right hand and tugged at the waistband of his pants.
Officers Michael Grady and Ted Kurzweil of the Conrail police testified that at 4:20 a.m. they were sitting in the front seat of a Chevy Blazer parked on 63rd Street, one block east of State Street. Two Chicago police officers came by and gave the two Conrail officers the description of the man they were looking for in connection with the shootings of Woods and James: "a male black, wearing a blue jean jacket with a large 'fro." The Conrail officers then drove to the corner of State and 63rd Streets, where they saw a man fitting that description, and whom they identified in court as defendant. This man was running alongside a slowly moving car. Officer Grady testified that defendant was holding a gun in his right hand. The two officers turned down State Street, sped up to catch Johnson's car, and pulled up in front of it. They left their own car and pointed their guns at defendant just as Johnson was considering defendant's offer of five dollars for a ride. Officer Grady ordered defendant to "freeze" and drop his gun. According to Grady, defendant placed the gun in his waistband and said that he "gave up." Officer Grady then pushed defendant over the hood of Johnson's car, patted defendant down, and took a .32 caliber revolver from his waistband.
At trial the prosecution's expert on ballistics testified that, in his opinion, this revolver possessed characteristics identical to those of the weapon which fired the bullet recovered from James' head. He also testified that he had examined the revolver on February 12, 1983, two days after the incident, and that, in his opinion, it had been fired three times shortly before that date.
Shortly after the shooting, Chicago police officers visited Woods in her hospital bed and showed her 10 photographs of faces, including one of the defendant. From this array, Woods selected defendant's photo, and identified him as her assailant. She also identified defendant in court.
At trial, defendant admitted to being the man arrested by the Conrail officers, but denied that he was Woods' assailant. Defendant stated that, on February 9, 1983, he lived alone at 1809 East 71st Street, in an apartment next door to his mother's apartment. At approximately 10 p.m. that evening, defendant went to meet Marie Brown, one of his sisters, at the Toast of the Town Lounge at 71st Street and Stony Island Avenue. He stayed with this sister at the lounge until 3 a.m., when he walked her the half block to her home. Defendant accompanied her into her apartment and helped her move some furniture. He left her apartment some time later and went to the house of a second sister at 70th Street and Harper Avenue. There he called his wife, and after a while walked to the corner of 71st Street and Stony Island to wait for a bus.
After a few minutes he realized that the 71st Street bus did not run that late, so he began walking north towards 63rd Street, where he knew he could catch a bus. After catching a bus there, he left the bus at the corner of 63rd and State Streets, walked a short distance and stood in front of a corner tavern, waiting for the northbound State Street bus. As he was waiting, he noticed a car traveling slowly north along State Street in front of the tavern. Defendant walked over to the car, knocked on the window, and asked the driver for a ride to 53rd Street. The driver rolled down his window. Defendant offered to pay the driver $5 for the ride. As he was making this offer, a "jeep or truck" pulled up and two men with guns jumped out. When they pointed their guns at defendant, defendant raised his hands in the air.
According to defendant's testimony, when arrested he had no gun in his possession. One of the two officers told him to lean over the hood of the car, and he was then handcuffed and searched. Defendant testified that the officer did not take any object from defendant's possession.
Defendant's sister, Marie Brown, testified that she was with defendant at the Toast of the Town Lounge from 11 p.m. on the night of February 9, 1983. According to Brown, the two of them left the lounge not at 3 a.m. but at 2:15. They then went to Brown's house, where defendant helped her move some furniture. Defendant then left her house at 2:45 a.m.
At the Conclusion of the trial, the jury found defendant guilty of murder, attempted murder, aggravated battery, and attempted robbery.
After the jury returned its verdicts, the State moved to hold a death sentencing hearing. Defendant waived his right to a jury at this hearing. At the first stage of the hearing, the death qualification stage, all of the evidence presented at trial was admitted by stipulation. In addition, the defense called Dr. Marion Chung, a physician who had interviewed and treated Theresa Woods shortly after the shooting. The State argued that defendant was eligible for the death penalty because he was over 18 years of age at the time of the offense; the killing took place in the course of another felony, attempted armed robbery; and Jesse James was actually killed by defendant.
Dr. Chung testified to a statement made by Theresa Woods. The defense argued that this statement impeached Woods' testimony at trial and established that the killing had not taken place during the course of a robbery. According to Dr. Chung, Theresa Woods stated that "a gentleman had come into her working place and had shot the owner and when she saw that happen she turned and tried to flee. She fell, the bullet hit her right shoulder in the back. She fell to the ground and she hit her chin. After she felt the bullet in the right shoulder she fell to the ground."
The trial court found that defendant was eligible for the death penalty (Ill. Rev. Stat. 1981, ch. 38, par. 9-1(b)(6)).
During the second phase of the death penalty hearing, the aggravation-mitigation phase, the State introduced evidence of defendant's eight prior convictions: four for theft, two for armed robbery, and one each for burglary and robbery. Additionally, the State presented evidence that, on April 15, 1969, defendant killed a person named Gary Green. Although the State had initially charged the defendant with that killing, it moved to nol-pros the charge at a hearing held on January 27, 1972.
Shortly after the State began direct examination of its first witness to this earlier killing, defense counsel stated that he objected to the testimony of the witness and asked to be heard at a sidebar. At the sidebar, defense counsel first stated that he had subpoenaed police reports on the 1969 shooting and had not yet received them. After further Discussion, defense counsel stated that he had ordered, but not yet received, the transcript of the January 27, 1972, proceeding at which the charge was nol-prossed. The following colloquy then took place:
"THE COURT: Now, is this -- is the point that you are making that you should have transcripts to be able to impeach?
THE COURT: That is your total point?
MR. KUNZ: Well my first point is that the state should not be allowed to prove up in aggravation now a case which on their motion was nolled in 1971 or '72.
THE COURT: You are satisfied that it was not a finding of not guilty?
THE COURT: It was not a finding of guilty?
MR. KUNZ: I am satisfied with that.
THE COURT: All right. Insofar as -- do you have any law to the effect that a case nolled cannot be used by the State in aggravation?
THE COURT: Is there anything about the passage of time that you are incorporating to make your point?
MR. KUNZ: Yes. I would like -- I have been telephoning -- well, for one thing I need some time to bring in my rebuttal witnesses. I would like to bring in the brother or unless the State will stipulate to the transcript when I get it, that that was his testimony.
THE COURT: Well, you will be allowed all the time that is necessary to bring in witnesses. Excuse me."
After some Discussion as to whether the witness who was currently testifying had previously testified at the 1972 nolle prosequi hearing, defense counsel said: "I am just suggesting that I might ask to recall this witness to reopen my cross examination in the event that the transcript I ordered weeks ago shows that this witness did testify." The court responded: "All right. Very well. The record will show that." There is no further indication of any ruling on defense counsel's initial objection to the testimony of the State's first witness, or on counsel's argument that the State should not be allowed to introduce in aggravation facts relating to a charge which the State had previously moved to nol-pros.
The State's first witness was Lynn McDonald. At the time of Gary Green's death in 1969, McDonald lived in the same housing project as Green and defendant. McDonald belonged to a gang known as the Disciples, while defendant belonged to a rival gang, the Blackstone Rangers. McDonald had convictions for bribery and theft.
McDonald testified that on April 15, 1969, he was on the fifteenth floor of an apartment building with several other persons, including Gary Green and Gary's brother, Rochester Green. At approximately 8 p.m. they heard gunshots coming from downstairs. They all went downstairs to the front of the building and to a wall which separated the building from a nearby school. Gary Green went over to the east end of the wall and looked over the top. As Gary Green did this, McDonald saw defendant and another person in the schoolyard opposite the wall. He saw a rifle in defendant's hands. After a few gang slogans were yelled out from both sides of the wall, McDonald saw defendant fire the rifle, turn and walk away. After a moment, he saw defendant turn again and fire a shot towards the place where Gary Green was standing.
Rochester Green, the brother of Gary Green, also testified that he was present when Gary Green was shot. According to Rochester Green, he, Lynn McDonald, and others were all present at the wall between the school and the apartment building at 8 p.m. on April 15, 1969. They heard a shot and all fell to the ground. After a while Gary Green rose and went to the east part of the wall. Lynn McDonald followed him, as did Rochester Green. As they were going, Rochester Green heard a second shot. He then walked up to the top of the wall and saw defendant and another person running away from the wall towards the street.
The State also called Rudolph Nimocks, a Chicago police officer. Nimocks testified that he had investigated the killing of Gary Green in 1969 and had interviewed Lynn McDonald and Rochester Green. Over a hearsay objection, he testified that both McDonald and Green told him that they were standing at the wall, heard a shot, and, after hearing the shot, looked over the wall to see defendant -- first standing and holding a gun, and then running away.
Rochester Green had also testified at the 1972 nolle prosequi hearing. At that time he stated he had been playing on a ball field at the time of the shooting, that he had seen the person who shot his brother, a person who had the nickname of "Rat," and who was not defendant.
The defense adduced expert testimony that the bullet which killed Gary Green could only have been fired from a handgun, and could not have been fired from a rifle such as the one Lynn McDonald testified he had seen defendant fire at Gary Green.
Defense counsel also attempted to introduce into evidence statements made by the assistant State's Attorney at the nolle prosequi hearing. At that hearing the assistant State's Attorney stated to the court:
"Your honor, based on this information, and I would first indicate as I told Mrs. Janie Green and also her boy, that on their part, being related to the victim, I am very impressed and the State was very impressed by their candor and by their appearance and their apparent search for the truth during the time this matter had been pending when they found out who, in fact, was the actual murderer, since they called it to our attention this morning, the State would at this time, being interested only in Justice, your honor, move to nolle prosse this case."
At the sentencing hearing defense counsel also attempted to introduce evidence that at the nolle prosequi hearing, the court sustained the State's motion to nol-pros and stated: "The record should indicate that the People of the State of Illinois in this instance, has done what the court feels is right, and they are to be commended for their actions." At the sentencing hearing, the court sustained the State's objection to all of these statements.
Defendant presented the following evidence in mitigation. He testified that, as a youth, he had been intimidated by gang members and forced to pay protection money. Since he seldom had any money he eventually formed for his own protection his own gang, which, he admitted, later became affiliated with the gang known as the Blackstone Rangers. However, he denied killing Gary Green. He was first sent to Cook County jail at the age of 16. During this stay in prison he admitted fighting with other inmates but testified that he fought only in order to protect himself from homosexual rape. During this first stay in prison he was often subject to discipline.
During a second stay in prison he was a model inmate. He taught art classes, was never subject to discipline, was never placed in segregation, and received several commendations. He received one commendation for helping a fellow inmate who had been stabbed several times in the chest in a gang-related incident. Defendant approached the wounded inmate as he lay bleeding in the prison gallery, and persuaded another inmate to help him carry the wounded man to the prison hospital. After receiving ...