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02/03/94 PEOPLE STATE ILLINOIS v. DEDRICK COLEMAN

February 3, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DEDRICK COLEMAN, APPELLANT.



Nickels

The opinion of the court was delivered by: Nickels

JUSTICE NICKELS delivered the opinion of the court:

Defendant, Dedrick Coleman, was charged with the April 26, 1989, shooting deaths of Lance Hale and Avis Welch. The charges against defendant included 10 counts of first degree murder (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1 (a)(1), (a)(2), (a)(3)), two counts of armed robbery (Ill. Rev. Stat. 1987, ch. 38, par. 18-2(a)), four counts of home invasion (Ill. Rev. Stat. 1987, ch. 38, pars. 12-11 (a)(1), (a)(2)), two counts of armed violence (Ill. Rev. Stat. 1987, ch. 38, pars. 33A-29-1(a)(2)), and two counts of residential burglary (Ill. Rev. Stat. 1987, ch. 38, par. 19-3). After a jury trial in the circuit court of Cook County, defendant was convicted of two counts each of first degree murder, armed robbery, and home invasion. Defendant waived the right to be sentenced by the jury and the trial court found him eligible for the death penalty and sentenced him to death. (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(h).) Defendant was also sentenced to concurrent terms of 30 years for the home invasions, and to concurrent terms for the armed robberies: 30 years for the armed robbery of Hale, and 60 years for the armed robbery of Welch. The sentences for armed robbery were to be served consecutive to the terms for home invasion. Defendant's death sentences were stayed pending direct appeal to this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rules 603, 609(a).

BACKGROUND

Testimony at trial revealed the following. About a month before the April 26, 1989, slayings, defendant and Alex McCullough had an argument concerning drugs. McCullough ran an illegal drug business in Chicago and employed defendant in the trade. McCullough was also the boyfriend of defendant's sister, Fredricka. The cause of the argument was defendant's alleged theft of seven ounces of cocaine and $2,000 from McCullough.

On the evening of April 25, 1989, defendant went to the house of Victor Truell, his cousin, and told Truell that he was going to "scope out" McCullough's drug house at 43d and Princeton in Chicago in order to "stick it up." Defendant also told Truell that he and McCullough had been threatening each other. Defendant was wearing a Bulls jacket, black pants, gym shoes, and black gloves that evening. Defendant also had a gun, which Truell identified as People's exhibit number one.

Around 5:30 a.m. or 5:45 a.m. on April 26, 1989, Aldene Lockett, who lived above the drug house at 43d and Princeton, heard voices coming from the drug house. Shortly thereafter, Lockett heard a shot and something fall. Lockett later heard two more shots and then a door open. At this time, Lockett looked out her window and saw a young man around 5 feet 6 inches to 5 feet 8 inches tall dressed in black and wearing sunglasses.

Later that morning, defendant visited Truell and asked him if he had heard about the two people killed at 43d and Princeton. Truell had not heard about the murders and defendant told him that he had killed the two. Defendant described what happened. Defendant went up to the window of the drug house and asked for $8 worth of cocaine. When the man behind the window turned his back, defendant shot him through the window. This man, defendant told Truell, was "Greg's brother." Hale was in fact the brother of Gregory Taylor. Defendant then climbed into the drug house through the window and went to the front room where he found the female victim. This woman begged for her life but defendant ordered her to get down on the floor. Defendant then shot her in the head. Defendant took $400 from the male victim, as well as three rings and a gold chain from the drug house. Defendant showed these items to Truell.

Defendant later told Francisco Rico Balberas (Rico) about the murders. Defendant told Rico that he had shot a "boy" and a "girl" in the head on April 26, 1989, on the south side of the city. Rico did not believe defendant, but defendant insisted that he was telling the truth.

On May 1, 1989, defendant, his girlfriend Dorothy, Rico, and Truell went to defendant's sisters' apartment. At this time, defendant showed Rico a gun, which Rico identified as People's exhibit number one. Once inside the apartment, defendant warned his sister, Laurarence Coleman, that she and another sister, Sophia, should stay away from McCullough because a "hit" was placed on him. Defendant denied placing the "hit" on McCullough. Laurarence saw defendant's gun and briefly took it away from him. Laurarence identified the gun as People's exhibit number one. Defendant also asked Laurarence questions about McCullough, such as when he left his home, whether he carried a gun, and how much money he usually carried.

As defendant, Dorothy, Rico, and Truell began to leave the apartment, McCullough was just outside the door. Truell tried to close the door, but McCullough pushed his way into the apartment. McCullough did not have his gun drawn at this time. Defendant began to shoot at McCullough and, as McCullough drew his gun, defendant grabbed Sophia by the neck and used her as a shield. Defendant then shot McCullough and left the apartment through the back. McCullough later died from the gunshot.

Later that day, defendant went to Truell's apartment around 4 or 5 p.m. with a bottle of champagne. Defendant told Truell that he wanted it said that he shot McCullough in self-defense. The two later turned themselves in to the police.

Truell told the police about McCullough's murder and further informed them about defendant's participation in the murders of Hale and Welch. Defendant was arrested for the murder of McCullough. Several months later, defendant was charged with Hale's and Welch's murders.

On May 2, 1989, Lockett viewed a lineup which included defendant. Lockett identified defendant as similar in height and description to the man she had seen leaving the drug house. Lockett asked the police to make the men wear sunglasses, which all the participants did, except defendant, who refused. Lockett could not positively identify defendant as the man she saw leaving the drug house.

On May 5, 1989, defendant called Rico from the county jail. Defendant told Rico to get rid of the gun he used to kill McCullough by throwing it down a sewer. Defendant also wanted Rico to take the gun apart and jam something down the barrel. Defendant told Rico where to find the gun. Rico found the gun and gave it to his cousin "Bubba."

Rico spoke to the police on May 7, 1989, and retrieved defendant's gun for them. This gun became People's exhibit number one. According to the Chicago police department's firearms technician, this gun fired the bullet that killed McCullough. Moreover, the bullet that killed Hale had the same class characteristics as the bullet that killed McCullough: six lands and grooves to the left, the same widths on the lands and grooves, and the same manufacturer. Damage sustained by the bullet as it entered Hale's head, however, precluded a positive determination that it had been fired from the same weapon that killed McCullough.

In May 1989, defendant called Roscita Balberas, Rico's sister, from the Cook County jail. Defendant told Roscita about the McCullough murder and also described the shooting at the drug house. Defendant told Roscita that he had shot a man in the head and had made a woman get down on the ground before shooting her. The woman begged for her life, saying: "You can rape me or do anything you want to do. Please don't kill me." Defendant told the woman to "shut up, Bitch" and shot her in the head. Defendant also told Roscita to tell Rico and another man to have defendant's brother kill Truell so that he could not testify about McCullough's murder.

While defendant was incarcerated at the Cook County jail, he shared a cell with Herbert Arch. Defendant told Arch that he was in jail for killing McCullough. Defendant also told Arch that he had previously served time in jail for stealing meat trucks while working for McCullough. According to defendant, McCullough had owed him money for going to prison for him, but had never paid defendant. Because of this, defendant told Arch, he had planned to kill McCullough once he got out of prison. Once out of prison for the theft, defendant began selling drugs for McCullough and took seven ounces of cocaine and some money from him. Defendant also told Arch that the gun he used to shoot McCullough had "2 or 3 murders in it," and that it was the same gun he used to kill the two at McCullough's drug house.

Additional facts will be presented where required for a thorough Discussion of the issues.

ISSUES

Defendant raises 14 issues in his appeal, the first six of which concern trial error. Defendant argues: (1) he was denied a fair trial where the trial court allowed admission of evidence of other crimes to show his propensity to commit crime; (2) he was denied a fair trial when the prosecutor elicited testimony regarding prior aliases used by defendant and such information was immaterial to any issue in this case; (3) he was denied a fair trial where the prosecutor, during cross-examination of defendant, reminded him that there had been no plea agreement offer made; (4) he was denied a fair trial where the character of one of his key witness was improperly attacked during cross-examination with extrinsic evidence; (5) he was denied a fair trial where the prosecution used its "life and death" witnesses to testify about inadmissible victim impact evidence; and (6) he was denied a fair trial where the prosecutor made improper closing arguments to the jury.

Defendant's next two issues concern trial counsel's performance. Defendant argues here that: (7) he was denied effective assistance of counsel due to various errors during trial and sentencing; and (8) new counsel should have been appointed to represent him regarding various pro se, post-trial claims which challenged trial counsel's effectiveness.

Defendant also raises four issues concerning sentencing. Defendant argues: (9) resentencing should be ordered where the trial Judge found him eligible for the death penalty under two separate statutory aggravating factors, but where the prosecution had sought a finding of death eligibility under only one of the aggravating factors; (10) he was denied a fair capital sentencing hearing when the prosecution introduced testimony, exhibits, and argument regarding defendant's alleged gang membership; (11) he was denied a fair capital sentencing hearing when the Judge found that he could not be "rehabilitated or restored to useful citizenship"; and (12) defendant's waiver of his right to a jury for capital sentencing was constitutionally invalid under the eighth and fourteenth amendments where he was unaware that a contrary vote by even a single juror would preclude a death sentence.

Finally, defendant raises two arguments concerning the constitutionality of the Illinois death penalty statute. Defendant argues that the statute: (13) places a burden of proof on the defendant which precludes meaningful consideration of mitigation; and (14) does not sufficiently minimize the risk of arbitrarily or capriciously imposed death sentences.

We affirm defendant's convictions and death sentence.

ALLEGED ERRORS AT TRIAL

I.

Defendant first argues that he did not receive a fair trial because the State was allowed to introduce evidence of other crimes in which defendant participated. Specifically, defendant argues the following: (1) evidence of McCullough's shooting was inadmissible; (2) the amount of detail of McCullough's shooting severely prejudiced defendant; (3) defendant's involvement in a 1984 theft was inadmissible; and (4) defendant was substantially prejudiced by the evidence of other crimes.

Prior to trial, the State filed a motion to allow proof of other crimes. These crimes were defendant's conviction for a January 12, 1987, theft of semi-trailers containing frozen meat, and defendant's participation on May 1, 1989, in McCullough's death. The State argued the evidence was admissible for the following reasons: (1) the evidence provided defendant's motive for killing Hale and Welch; (2) the investigation of McCullough's murder led the police to witnesses Truell and Rico; and (3) the evidence linked defendant to People's exhibit number one, the gun matching the characteristics of the gun that killed Hale. The trial court allowed the evidence to be admitted, finding a "continuum" of facts linking the two crimes with the murders of Hale and Welch.

Evidence of other crimes in which a defendant may have participated is not admissible to show the defendant's propensity to commit crime. Such evidence, however, is admissible if relevant for any other purpose such as modus operandi, proof of motive, intent, identification, or absence of mistake. ( People v. Richardson (1988), 123 Ill. 2d 322, 339, 528 N.E.2d 612.) In fact, evidence of other crimes is admissible if relevant for any purpose other than to show propensity to commit crime. People v. Evans (1988), 125 Ill. 2d 50, 82, 530 N.E.2d 1360.

a. Evidence of McCullough's Shooting

Defendant first argues the evidence of his participation in McCullough's death was inadmissible. The State responds that defendant has waived this issue for review by failing to object at the trial level. The State notes that after it filed its motion to allow other-crimes evidence, defense counsel objected only to the introduction of the 1987 meat theft. Then, after the trial court granted the State's motion as to both crimes, defense counsel stated:

"Judge, I can understand * * * the one alleged murder [McCullough's], but the thefts also, your ruling applies there too?"

Issues not objected to at the trial level are waived for review. ( People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124.) However, the waiver rule is not without exception. Supreme Court Rule 615(a) provides that this court may review an issue not properly preserved for review as plain error where (1) the evidence is closely balanced, or (2) the error is of such magnitude that the defendant was denied a fair trial. 134 Ill. 2d R. 615(a); People v. Ward (1992), 154 Ill. 2d 272, 294, 609 N.E.2d 252.

Contrary to defendant's assertions, the evidence here is not closely balanced. Just prior to the crime, defendant told Truell that he was going to "hit" McCullough's drug house on 43d and Princeton. Defendant later confessed his killing of Hale and Welch to four persons, each of whom testified at trial. Moreover, People's exhibit number one, the gun that killed McCullough, matched the characteristics of the gun that killed Hale. Defendant admitted killing McCullough, and Truell testified that defendant had People's exhibit number one with him the night of the murders. Also, though not a positive identification, defendant was identified as being of the same height, complexion, and physical build of the person seen coming out of the drug house after shots were heard. Finally, defendant had the motive to kill Hale and Welch, McCullough's employees, to seek revenge on McCullough. The evidence against defendant was overwhelming.

We feel compelled, however, to address defendant's arguments because the evidence, if improperly admitted, could have denied defendant of a fair trial. See People v. Smith (1992), 152 Ill. 2d 229, 255-56, 604 N.E.2d 858.

We first note that the evidence concerning defendant's participation in McCullough's death was relevant to defendant's motive to kill Hale and Welch. Such evidence tends to show that defendant still harbored feelings of revenge against McCullough after being released from prison on the 1987 meat theft conviction. This information was important because defendant testified at trial that he did not bear any ill will towards McCullough or plan to seek revenge after being released from prison. The fact that defendant did go after McCullough and succeeded in killing him refuted defendant's trial testimony, and further supported Arch's testimony that defendant did plan to seek revenge on McCullough. Defendant's bitter feelings towards McCullough thus make it more likely that defendant would have robbed McCullough's place of business and killed two of his employees in the process.

Defendant also argues that evidence of his participation in McCullough's death was inadmissible because it was subsequent to the deaths of Hale and Welch. This court has previously noted, however, that "when 'the question is whether the defendant's conduct evidenced a particular plan to commit a peculiar offense, we see no reason to exclude conduct occurring subsequently.'" People v. Bartall (1983), 98 Ill. 2d 294, 312, 456 N.E.2d 59, quoting People v. Lehman (1955), 5 Ill. 2d 337, 343, 125 N.E.2d 506.

Defendant's participation in McCullough's death was also relevant and admissible to link defendant to People's exhibit number one, the gun which was of a type that killed Hale. Other-crimes evidence is admissible to show that a defendant had access to guns similar to the one used in the charged crime. ( People v. Adams (1985), 109 Ill. 2d 102, 122, 485 N.E.2d 339.) Moreover, this court has held that evidence of a later shooting is relevant and admissible to prove the defendant committed an earlier shooting. ( People v. Richardson (1988), 123 Ill. 2d 322, 528 N.E.2d 612.) This court stated in Richardson:

"The evidence of the April 5, 1980, shooting clearly tended to identify defendant as the perpetrator of the April 1, 1980, murder, in light of the evidentiary links between the two crimes. Expert testimony at trial established that the same gun fired the bullet which killed [the first victim] and the bullet which wounded [the second victim]." ( Richardson, 123 Ill. 2d at 339.)

The same rationale applies here. The evidence of defendant's shooting and killing McCullough links him to the gun that likely killed Hale. Defendant admitted killing McCullough, but denied using People's exhibit number one to do so. However, expert testimony revealed that the bullet that killed McCullough was fired from People's exhibit number one.

We finally note that evidence of McCullough's killing was relevant and admissible to show the circumstances of defendant's arrest. Evidence of other crimes may be admissible to show the context of defendant's arrest. ( People v. McKibbins (1983), 96 Ill. 2d 176, 183, 449 N.E.2d 821.) Evidence of defendant's arrest for killing McCullough was relevant to show how the police became aware of Truell and Rico, who were both with defendant when the shooting occurred. The existence of Truell and Rico is important because defendant confessed to both of them about the murders of Hale and Welch. Moreover, Rico led the police to defendant's gun, People's exhibit number one.

While defendant argues that all this information, motive, defendant's link to the gun, and evidence concerning how the gun and witnesses were located, could have been admitted without mentioning McCullough's killing, we note that defense counsel did not ask the court to limit the State's introduction of evidence at trial. Any such argument has been waived for review. ( Enoch, 122 Ill. 2d at 186.) We further find no plain error here. Any such information, without evidence of McCullough's shooting, would have kept critical evidence from the jury, such as the positive identification of the firearms expert which linked defendant to the gun, People's exhibit number one, that killed McCullough.

b. Detail of the Evidence of McCullough's Death

Defendant next argues that even if evidence of McCullough's killing was admissible, the amount of evidence allowed was highly prejudicial. We first note that defendant has waived this issue for review because defense counsel never objected to any of the evidence of McCullough's killing. ( Enoch, 122 Ill. 2d at 186.) We further conclude that the admission of such evidence was not plain error. Most of the evidence of which defendant now complains was relevant and admissible to show defendant intended to kill McCullough and did not act in self-defense. Such evidence supports the State's theory that defendant killed Hale and Welch as part of his plan to seek revenge on McCullough.

The only evidence of which defendant complains that bears mention here is the testimony that he used his sister Sophia as a shield. We do not find the admission of this evidence to rise to the level of plain error.

c. Evidence of a 1984 Meat Theft

Defendant next argues that the jury was improperly allowed to hear details of another meat theft in which he was involved in 1984 and for which he was convicted in 1985. The general rule is that it is improper to cross-examine a defendant about a prior conviction even where the conviction has been properly introduced into evidence. (See People v. Madison (1974), 56 Ill. 2d 476, 488, 309 N.E.2d 11.) However, this rule does not apply where the defendant opens the door to such cross-examination. (See ...


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