APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
545 N.E.2d 268, 189 Ill. App. 3d 323, 136 Ill. Dec. 744 1989.IL.1473
Appeal from the Circuit Court of Cook County; the Hon. Kenneth L. Gillis, Judge, presiding.
JUSTICE PINCHAM delivered the opinion of the court. LORENZ, J., concurs. PRESIDING JUSTICE MURRAY, specially Concurring.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE PINCHAM
Juana Buckner and her husband Cornell Buckner lived in an apartment next door to the apartment in which Allie Bee Anderson -- the deceased -- and her live-in boyfriend, defendant Arthur Robinson, lived. Juana Buckner and Allie Bee Anderson were also co-workers, as maids, at a nearby hotel and defendant Robinson walked them to work daily. About 3:30 p.m. on May 6, 1983, the date of the homicide, defendant Robinson and Cornell Buckner picked up Juana Buckner and Allie Bee Anderson at the hotel. Before the four of them left the hotel, Juana Buckner, while talking to Cornell down the hall, overheard what sounded to her like an argument between Anderson and defendant Robinson. When the four of them left the hotel, the Buckners parted Anderson and Robinson's company to go shopping. Later, when the Buckners returned to their apartment about 5 p.m., they overheard the fatal altercation in Anderson's apartment between Anderson and her assailant. To avoid repetition, the more specific details of the Buckners' witnessing of the incident are later set forth herein.
Anderson's son, Roscoe Harris, and his girl friend, Elisha Ingram, who lived in Indiana, had a key to Anderson's apartment and frequently visited Anderson on weekends. About 11 p.m. on May 6, 1983, Elisha Ingram, Roscoe Harris and his brother, Victor Harris, came to Chicago on a surprise visit to Anderson. They found the front and rear doors to the apartment locked and the back bedroom window broken. They also discovered Anderson's body lying on the back bedroom floor. Anderson's clothing was packed in a carrying case in the front closet. Elisha Ingram noticed writing scribbled on the living room wall, and she described a large picture also on the living room wall as a mural, initialed, "Bee's Paradise," designed for Anderson by her former boyfriend, Walter Hiawatha.
Anderson's neighbor and co-worker, Juana Buckner, knew that Hiawatha was Anderson's former boyfriend, that Hiawatha still "hung around" Anderson's apartment building and that after Hiawatha and Anderson broke up, Hiawatha would occasionally come by the hotel where Anderson worked and attempt to walk Anderson home, but Anderson would refuse. A few weeks before Anderson's homicide, Juana Buckner and Anderson were approached by Hiawatha as they entered a cab. Hiawatha attempted to grab Anderson's clothes. Although Juana Buckner admitted that she said in her pretrial statement that Hiawatha yanked Anderson out of the cab, at trial, however, Juana Buckner denied this occurrence. Juana Buckner further admitted that, a few weeks before Anderson's homicide, Hiawatha had followed Anderson and Buckner around and that Hiawatha followed Buckner and Anderson all the way home from the hotel at which they worked.
Chicago police department evidence technician Joseph Moran testified that when he arrived at Allie Bee Anderson's apartment, he observed her body with her bra and underpants pulled down. (Sperm were later discovered in her vagina.) Anderson was dead from multiple knife wounds.
Evidence technician Moran recovered two knives from the apartment which he took to the crime laboratory but did not process. Moran also lifted an undetermined number of fingerprints from the wall, the pantry door, a metal table leg, a metal table stand, and a piggybank inside the apartment. He also observed and photographed the scribbling on the wall, but the trial court refused to allow defense counsel to cross-examine him on whether he could identify the letters of or read the scribbling. Elisha Ingram and Roscoe also observed the scribbling on the wall, which had not been there before.
After discovering their mother's body in her apartment, Roscoe Harris, his brother Victor, and two of their friends went looking for Arthur Robinson. They waited for him on the street corner at the deceased's building for one and a half hours. When Robinson arrived, Roscoe and Victor Harris and their two friends approached him, whereupon Robinson stated, "I didn't do nothing. I didn't do nothing." The four beat and kicked Robinson until the police arrived.
Chicago police officer Reeger testified that he observed the four men beating Arthur Robinson and stopped them. After speaking to the Harris brothers, Officer Reeger arrested Robinson. Because of the injury and bleeding of Robinson's head inflicted by the Harris brothers and their two friends, Officer Reeger took Robinson to the hospital for treatment.
Robert Lenz, a Chicago police department crime laboratory microanalyst, testified that after examining their blood samples, he determined that defendant Robinson's blood was a type O and deceased Anderson's blood was a type B. Robinson's T-shirt was positive for blood type O and blood type B was found on Robinson's jogging pants which had been ripped off him. Microanalyst Lenz further related that type B blood was not identifiable to a particular person and was consistent with anyone who had type B blood; that anyone who bled during a mutual struggle and came in contact with Robinson could have been the source of the type B blood that was found on his clothing at the time of his microanalysis; Lenz did not know that Robinson had been injured in a fight which involved mutual bloodshed and he did not obtain the blood type of Roscoe Harris, or anyone else. Lenz did not know the source of the type B blood on Anderson's clothing or how long it had been there.
Chicago police officer Thomas Krupowicz, a fingerprint analyst, testified that of the 36 suitable fingerprints lifted from the metal table stand in the apartment of the deceased Anderson and the defendant Robinson, 10 fingerprints belonged to Robinson and two belonged to Anderson; the remaining 24 suitable fingerprints did not belong to Robinson or Anderson and Krupowicz had not determined to whom these fingerprints belonged. A single suitable print from the table leg did not belong to defendant Robinson or to the deceased Anderson. Two of the four suitable fingerprints from the piggybank belonged to defendant Robinson, but Krupowicz did not know to whom the remaining two suitable prints from the piggybank belonged, but he did know however that neither belonged to either Robinson or Anderson. Fingerprints analyst Krupowicz did not test for fingerprints of anyone else other than Anderson and Robinson, and more particularly, he did not test for fingerprints of or even obtain a fingerprint from Walter Hiawatha.
Defendant Robinson's first contention for reversal is that the trial court erred in admitting into evidence statements of the defendant's threats to and argument with the apartment building custodian which the prosecutor had not furnished defendant's attorney pursuant to the discovery rules. We agree that this was error.
The uncontradicted testimony of Juana Buckner and Cornell Buckner established that Allie Bee Anderson was killed in an altercation in her apartment around the hour of 4:30 to 5 p.m. Cornell Buckner was permitted to testify that earlier that morning, at about 11:30 a.m., in the downstairs lobby of the apartment building the defendant became engaged in an argument for 15 minutes with the apartment building maintenance man about the defendant throwing trash off the back porch, that the defendant threatened to kill the maintenance man and told him, "If you don't get away from me I'll throw you through a window. I'll kill you."
One of the grounds on which defendant's attorney objected to this testimony and moved for a mistrial, both of which were overruled, was that the prosecutor had not furnished him with these statements of the defendant's pursuant to the discovery rule and that he was taken by surprise by them.
The prosecutor is obligated to disclose to defendant's attorney, upon request, all oral statements made by the defendant, and a list of witnesses thereto, whether or not such statements have been reduced to writing. (107 Ill. 2d R. 412(a)(ii); People v. Weaver (1982), 92 Ill. 2d 545, 558, 442 N.E.2d 255; People v. Shegog (1976), 37 Ill. App. 3d 615, 619, 346 N.E.2d 208, 211.) The paramount goal of this discovery rule is to avoid giving the prosecutor the unwarranted trial advantage of surprise. (People v. Szabo (1977), 55 Ill. App. 3d 866, 871, 371 N.E.2d 117, 120.) The prosecutor must disclose not only statements made by the defendant to law enforcement personnel in the nature of an admission or confession, but all statements made by the defendant. (People v. Davis (1984), 130 Ill. App. 3d 41, 49, 473 N.E.2d 387, 394.) This includes a defendant's statement to witnesses unconnected with the State. (People v. Greer (1980), 79 Ill. 2d 103, 402 N.E.2d 203.) Compliance with this discovery rule is mandatory. Davis, 130 Ill. App. 3d at 49, 473 N.E.2d at 394.
The prejudice resulting from surprise, from inadequate preparation, as well as from the lack of opportunity to investigate the circumstances surrounding an undisclosed alleged statement is so incalculable that it cannot be conjectured by the court. (People v. Young (1978), 59 Ill. App. 3d 254, 257, 375 N.E.2d 442, 444; People v. Loftis (1977), 55 Ill. App. 3d 456, 469, 370 N.E.2d 1160, 1169.) Consequently, the prosecutor's error in withholding a defendant's statement from defense counsel during discovery may not necessarily be dependent upon the defendant's affirmative showing that he was prejudiced by the prosecutor's failure to produce the defendant's statement. (People v. Loftis (1977), 55 Ill. App. 3d 456, 469, 370 N.E.2d 1160, 1169.) Moreover, this court has recognized that defense counsel's request for a continuance is absolute if defense counsel did not learn of the defendant's undisclosed statement until the jury had heard it. (People v. Weaver (1982), 92 Ill. 2d 545, 559-60, 442 N.E.2d 255.) Under such circumstances, even a trial court's admonition to the jury to disregard the statement may not suffice to overcome potential prejudice to the defendant. People v. Young (1978), 59 Ill. App. 3d 254, 257, 375 N.E.2d 442, 444.
People v. Davis (1984), 130 Ill. App. 3d 41, 49, 473 N.E.2d 387, 394, is quite similar to the case at bar. In Davis, the State failed to inform defense counsel of an oral statement made by the defendant to the victim that he had recently robbed another man. On appeal, counsel contended in Davis that the prosecutor's nondisclosure of the defendant's oral statement prevented defendant from making a motion in limine to bar his statement as evidence of this other crime, and, alternatively, from investigating the facts and circumstances of the making of the defendant's statement to possibly impeach the witness. In reversing the defendant's conviction, this court agreed that the evidentiary purpose of the defendant's statement at trial was to establish that Davis had a propensity to commit robbery and held that it was error for the trial court to refuse to take action to exclude this undisclosed statement of the defendant, especially since the defendant was completely surprised when the statement was first disclosed to him at trial. Davis, 130 Ill. App. 3d at 49, 473 N.E.2d at 394-95.
Likewise, in the instant case the record establishes that counsel for defendant Arthur Robinson was wholly unaware before trial of Robinson's argument and threats to the apartment building maintenance manager. It was in the midst of the trial when the State elicited this argument and the threats of defendant Robinson from State witness Cornell Buckner. They took defense counsel completely by surprise. As in Davis, Robinson's statements were damaging, because their sole expressed (invalid) purpose and effect were to show Robinson's "aggressiveness" and "mood" to kill on the day in question (hereinafter further discussed). (People v. Lampkin (1983), 98 Ill. 2d 418, 421-27, 457 N.E.2d 50, 53-55.) Indeed, Lampkin, like Davis, recognized that evidence of a defendant's prior totally collateral threat is severely damaging evidence, not only because it permits a guilty verdict on the basis of the jury's hostility to a defendant for his evil nature or violent tendencies, but also because it enables and encourages the jury to conclude that a defendant is predisposed to act violently and therefore irrationally find that he committed the violent crime for which he is being tried. (Lampkin, 98 Ill. 2d at 426-27, 457 N.E.2d at 54.) Consequently, had defendant's counsel been timely and properly provided with Robinson's statement which showed his propensity for violence, his counsel could have moved before trial to exclude it on that basis. (Davis, 130 Ill. App. 3d at 49-50, 473 N.E.2d at 394-95; Lampkin, 98 Ill. 2d at 421-27, 457 N.E.2d at 53-55.) However, as in Davis, the jury trial in the instant case had already begun and the jury had already heard this damaging statement when defense counsel learned of it for the first time. Consequently, the prosecutor's untimely surprise disclosure of defendant Robinson's statements was prejudicial error, not only because it was too late for defense counsel to investigate the statements, but also because it was too late for counsel to make a motion in limine to bar these inadmissible, unconnected, collateral threats by defendant Robinson against the maintenance manager as evidence at Robinson's trial. Davis, 130 Ill. App. 3d at 49-50, 473 N.E.2d at 394-95.
It was error, as in Davis, for the trial court to deny defense counsel's motion for a mistrial and to admit Robinson's statements of a totally unrelated collateral threat, never tendered during discovery. This violation of the discovery rules and error entitle the defendant Robinson to a new trial.
Cornell Buckner's testimony of the defendant's 11:30 a.m. argument with the apartment maintenance man about the defendant throwing trash off the back porch and the defendant's threats to throw him through a window and kill him was properly objected to by the defendant's attorney on the additional ground that this testimony was irrelevant to the defendant's trial for the totally unrelated 4:30 p.m. to 5:30 p.m. murder of Anderson, his live-in girl friend. The trial court erroneously overruled this defense objection and motion for a mistrial on the expressed, but likewise erroneous, ground:
"I don't think throwing trash off the balcony or having an argument with the maintenance man is material to the -- to cause a mistrial. I think it is relevant to the defendant's mood and state of mind on this day, and, apparently, this aggressiveness has been shown earlier, and I think that's relevant for the People to show." (Emphasis added.)
The trial court did not cite, the prosecutor did not cite in the trial court, and the prosecutor has not accurately cited before this court any authority for the proposition that the defendant's 11:30 a.m. argument with and threats to throw the apartment maintenance man through a window and to kill him, arising out of the defendant's allegedly throwing garbage off the balcony, were admissible as evidence at the defendant's trial to establish his " mood," or " state of mind," or " aggressiveness," 5 1/2 hours later, during his alleged murder of his live-in girl friend.
The error of the admission of Cornell Buckner's testimony of the defendant's morning argument with and threat to kill the apartment's maintenance man was compounded by the additional similar irrelevant prejudicial inadmissible testimony of State witness police officer Raymond Cooley. He testified that in response to a radio message of a battery in progress at Allie Bee Anderson's apartment, he and his partner went there, knocked on the door, but received no answer, although he heard movement inside the apartment. He attempted to open the door but found it locked. He told Cornell Buckner that they could not enter Anderson's apartment without a search warrant, and they proceeded to leave. The following direct testimony of Officer Cooley then occurred:
A. We were approached by another person, and as we were walking out of the apartment doorway, he said --.
[Defense Attorney]: Objection."
Thereupon, the following colloquy occurred out of the hearing of the jury:
"THE COURT: What's he going to say?
[Assistant State's Attorney]: He's going to say that he met a person who identified himself as the manager, and that he told him of prior problems he's had with the defendant. . . .
THE COURT: I'm going to sustain the objection to the conversation about trouble with the defendant . . .."
Officer Cooley then testified in the presence of the jury as follows:
"[Assistant State's Attorney]: Q. Now, Officer Cooley, this person you had a conversation with, did he identify himself?
A. He said he was the manager's son.
Q. All right. What did you ask him?
A. We asked him if he had keys for the apartment.
Q. Did he give you anything?
Q. What did he respond to you? What did he say?
A. He said he had had a verbal altercation --.
Q. No. Officer, state --.
[Defense Attorney]: Objection. Judge, I want a sidebar.
[Defense Attorney]: Judge, I have a motion, at this time.
THE COURT: Denied. Continue.
[Defense Attorney]: Can the record reflect what my motion is, Judge?
Although the officer did not testimonially identify the person with whom the manager's son had the verbal altercation, and even though the trial court sustained defense counsel's objection to the testimony, no imagination was required for the jury to knowingly conclude that the defendant was obviously the person with whom the manager's son had the altercation and to whom the manager's son referred. The invalid damage was done. The jury heard it. The jury was not instructed to disregard it. But as Moran Allen observes, as the title of his article, "When Jurors Are Ordered by the Court to ignore testimony, the jury instead ignores the court's order," at page 31 of the Wall Street Journal, Monday, January 25, 1988, issue.
The prosecutor flamboyantly capitalized on the inadmissible evidence of the defendant's prenoon argument with and threats to the apartment maintenance man. He exacerbated the erroneous admission of this testimony twice in his arguments to the jury. The prosecutor first stated in his initial opening argument:
"They [Cornell Buckner and defendant Arthur Robinson] came back to the apartment building at approximately 11:00 o'clock and that is where the defendant has, according to Cornell Buckner, an argument with the maintenance man. The maintenance man tells the defendant something about throwing garbage out of the window and they are arguing, according to Cornell Buckner. The argument ends with the defendant threatening the maintenance man, something to the effect of, 'Get away from me or I'll throw you out of a window and kill you.'"
Thereafter, in his final closing argument, the prosecutor for the second time, again (mistakenly) argued to the jury:
"Ladies and gentlemen, the defendant, just before he killed Allie Bee Anderson, got in a fight with a maintenance man for throwing garbage from the second floor. His response to that situation was to threaten to throw somebody out of a window and kill them.
A few minutes later he is in an argument at the Belair Hotel with the victim. Moments after that he is in that apartment with knives in his hands; the victim is receiving defense wounds; furniture is going all over the place and the victim is stabbed . . .." (Emphasis added.)
Parenthetically, we note that it was not "just before," but, rather, the evidence was that it was at least 4 1/2 hours before Allie Bee Anderson was killed that the defendant argued with and threatened the maintenance man. Likewise, it was not "a few minutes" after the defendant's argument with and threats to the maintenance man that Juana Buckner overheard what appeared to her to be an argument between Anderson and Robinson in the hotel where she and Anderson were employed, as the prosecutor mistakenly argued.
A defendant's threats on a collateral matter to a person other than the deceased are inadmissible simply because they are prejudicial and irrelevant. (People v. Lampkin (1983), 98 Ill. 2d 418, 421-27, 457 N.E.2d 50, 53-55; People v. Bryant (1983), 115 Ill. App. 3d 215, 222, 450 N.E.2d 744, 749.) In Lampkin, the Illinois Supreme Court restated the long-honored distinction between a threat against the person actually killed and a threat against someone else. (Lampkin, 98 Ill. 2d at 427, 457 N.E.2d at 55.) The Lampkin decision explained that where a defendant's threat against the deceased may be relevant to show malice and criminal intent, a defendant's threat against a third person or a threat of a general nature has no probative value and serves no other purpose than to "arouse prejudice or hostility on the part of the jury," against the defendant. (Lampkin, 98 Ill. 2d at 427, 457 N.E.2d at 55.) Evidence of a defendant's prior collateral threat is severely damaging with a jury, not only because it improperly encourages a jury's guilty verdict on the basis of its hostility against a defendant because of his evil nature or violent tendencies, but, also, because it erroneously motivates a jury to find that the defendant may be predisposed to act violently and therefore committed the violent crime for which he is charged. (Lampkin, 98 Ill. 2d at 426-27, 457 N.E.2d at 54; People v. Huber (1985), 131 Ill. App. 3d 163, 167, 475 N.E.2d 599, 602.) The supreme court in Lampkin quoted with approval its earlier language in Scott :
"'threat by the accused to kill or injure a person other than the deceased, or a mere idle threat of a general nature not directed to any particular person, is not admissible to show malice' [or intent to kill]." Lampkin, 98 Ill. 2d at 425, 457 N.E.2d at 53, quoting People v. Scott (1918), 284 Ill. 465, 474-75, 120 N.E. 553.
There was no proper purpose for introducing this prejudicial evidence. The sole reason for the testimony that defendant Robinson threatened to kill the maintenance man was the impermissible purpose of showing Robinson's propensity for violence. The trial Judge in fact allowed the evidence of the defendant's collateral threat for the erroneous and prejudicial expressed purpose of showing the defendant's "aggressiveness" or "mood" to kill on the day in question. Additionally, that defendant Robinson had a propensity to act violently and had acted in accordance with that propensity is precisely the way the prosecutor treated this evidence when he argued to the jury, as previously set forth herein.
During the proceedings on the defendant's motion for a new trial, the trial court adroitly retreated from its initial trial position that evidence of the defendant's collateral argument with and threat to the maintenance man was admissible to establish the defendant's aggressiveness and mood on the date of Anderson's homicide. At the post-trial proceedings, the trial court gratuitously inferred that the purpose of this evidence might properly have been to establish Cornell Buckner's ability to subsequently recognize Anderson's assailant's voice as the voice of the defendant in Anderson's apartment during the fatal attack upon her. This shifted, suggested position by the trial court hardly deserves further Discussion. The simple appropriate means for the prosecutor to properly establish Cornell Buckner's ability to recognize defendant Robinson's voice was merely the introduction of the Buckners' testimony that they were Robinson's friends and neighbors and daily talked and socialized with him. Indeed, Cornell Buckner testified that he and Robinson spent the entire day together prior to Anderson's death. Thus, Cornell Buckner's testimony of defendant Robinson's prenoon-day argument with and threat to the maintenance manager to establish Buckner's ability to recognize Robinson's voice utterly failed to warrant the trial court's gratuitous justification for its disclosure to the jury, particularly when "voice recognition" was never the prosecutor's purpose for it, not even during his closing argument to the jury. The trial court erred in admitting this testimony, and the prosecutor egregiously compounded the error in arguing this testimony to the jury as aforesaid. Reversal is therefore required.
The prosecutor also erred, which likewise requires reversal, when he insinuated, wholly without any proof, that Juana Buckner told the police that during the assailant's attack upon Anderson in her apartment, she recognized the assailant's voice to be the voice of the defendant.
Juana Buckner testified that she and Cornell Buckner left defendant Robinson and the deceased Anderson to go shopping, when their tour of duty as maids ended at about 3:30 p.m. at the hotel. Juana Buckner related that she and Cornell Buckner arrived home about 4:30 p.m. She heard banging and crashing noises coming from the Robinson-Anderson apartment, which lasted about 15 to 20 minutes. Juana Buckner heard Anderson say, "Put the knives away. Stop hitting me. Omar, I thought you loved me," followed by a scream.
Juana Buckner testified that she considered herself a close friend of Anderson, and that of the times she was with Anderson, or went out with Anderson and Robinson, and all the time she was good friends with Anderson, and during all the conversations Anderson had with Juana Buckner about Robinson, Juana Buckner never heard Anderson call or refer to defendant Robinson as "Omar." Juana Buckner additionally testified that she did not recognize the male voice she heard coming from the Anderson-Robinson apartment.
Juana Buckner also testified that she had never heard Anderson and Robinson argue like that and she had never seen or heard Robinson slap, hit or threaten Anderson, and that they got along well and had discussed marriage.
Juana Buckner testified, on cross-examination by defense counsel, as follows:
"Q. In fact, she [Allie Bee Anderson] was yelling so loud you couldn't hear the man's voice, could you?
A. No, you couldn't hear the man's voice, but I knew he was in there.
Q. You knew someone was in there, but you really couldn't hear the ...