APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE MARY JANE THEIS, JUDGE PRESIDING.
Rehearing Denied April 28, 1994. Petition for Leave to Appeal Denied October 6, 1994.
Scariano, Hartman, McCORMICK
The opinion of the court was delivered by: Scariano
JUSTICE SCARIANO delivered the opinion of the court:
On January 3, 1990, Jennifer Williams was standing in the entryway of her aunt's apartment building, watching as her brother, Leroy Williams, loaded his car with boxes when she noticed a group of approximately seven males huddled together at the nearby corner of Grenshaw Street and Central Park Avenue in the City of Chicago. She recognized one of the individuals on the corner to be defendant, whom she knew by his nickname, "Dusty."
As her brother was placing the boxes in the car, defendant, who was wearing a "Christmas green" jogging suit, fired two shots in Leroy's direction from a position which was around 50 or 60 feet away from Jennifer. After he fired the shots from the corner, defendant ran around the building toward the alley, from which point he fired three more rounds at Leroy. While attempting to flee from the fusillade, Leroy was struck by these later rounds; he fell to the pavement in front of the vehicle, whereupon defendant ran through the alley, heading toward Roosevelt Road. When defendant fired the shots, the sun was shining and nothing obstructed Jennifer's view of him or her brother.
Jennifer went to her brother's aid and called to her cousin, Nakita Bailey, instructing her to telephone for an ambulance. The police arrived on the scene soon after the shooting and learned from Jennifer that "Dusty shot her brother." She provided no description of the assailant nor did the police seek one, and throughout her cross-examination, she repeatedly denied having described the physical characteristics of the shooter to any officer to whom she had spoken. After being interviewed, Jennifer rode to the hospital with her brother, where he was pronounced dead.
Later that night, after she was told that she was being taken to the station to view a lineup in order to identify her brother's suspected murderer, the police led her into a room which had a window that exposed another room where defendant sat, by himself, behind a table. She identified the individual in the room as the person who had killed her brother. She denied defendant's assertion on cross-examination that the police had warned her ahead of time that defendant would be in the room.
Jennifer had been acquainted with defendant fairly well for approximately five years prior to the incident, having played cards with him. She described him in her testimony as being dark-skinned and estimated that he weighed 260 pounds. She stated that she would see him around her neighborhood nearly every day in those five years, and that prior to the shooting she felt no animosity toward him; in fact, she spoke cordially to him the day before he shot her brother.
Jennifer was also acquainted with three of defendant's brothers, including his brother Jimmy, whom she described as tall, although shorter than defendant, with a light brown complexion, and as having curls in his hair. She guessed that Jimmy weighed around 160 pounds at the time of the shooting. Jennifer further testified that she went to school with Jimmy and, that prior to the shooting, had last spoken to him before the Christmas holiday. She did not recall seeing Jimmy hang around Grenshaw Street, but believed him to be seen regularly on Roosevelt Road.
Nakita Bailey testified that on the day of the shooting she was in her third floor apartment, looking out its front window, from which position she had an unobstructed view of the street below her, where she saw Leroy filling a car with packing crates. She observed "Dusty" fire two bullets at the car. When she first saw him, he was wearing a green jogging suit, standing at the corner of Grenshaw and Central Park. After defendant fired the first two rounds, Nakita lost sight of him for about a minute, only to see him again across the street as he fired three more shots at the victim. She had been aware of defendant, whom she knew as "Dusty," and who she later learned was named Sylvester Abrams, for nearly three years before the shooting because he was a companion of her cousin, the victim's twin brother. She had also seen him many times around her neighborhood.
After being reminded on cross-examination that she had related in her direct testimony that she first spoke of the incident during the year of the trial, nearly two years after the fact, Nakita explained that she first told Jennifer of what she witnessed when Jennifer lamented the fact that no one had come forward to testify against defendant. On redirect, when asked why she did not reveal her knowledge of the shooting much earlier, she replied "because I was afraid the gang members would do the same to me." Defendant's objection to this answer was overruled.
Chicago police officer Consuelo Morgan and her partner were the first officers to arrive at the scene of the shooting. She began her initial investigation of the incident by questioning those who had gathered around the body and from these interviews, she learned the name of the perpetrator and obtained what she termed a general description of him. In her report, Morgan wrote that the perpetrator was "5'6" and weighed 185 pounds." In that same report, she listed the names of some of the witnesses with whom she spoke but omitted others "because they were afraid to speak." The court sustained defendant's prompt objection to this response and his motion that it be stricken, but it denied his motion that it declare a mistrial. Officer Morgan testified that Jennifer did not give a description of the shooter because she was distraught, but that she did identify him by name.
Detective John McKenna and his partner Detective Dave Delponte, who were assigned to investigate the murder of Leroy Williams, testified that they went to the scene and found that the victim's automobile had been punctured by bullet holes, and that in the report they filed at the end of their shift, they described the assailant as being five feet, six inches tall and weighing about 160 pounds.
The investigator assigned to the case in the shift subsequent to that of McKenna and Delponte, Detective Mike Miller, upon learning that the perpetrator suspected of the shooting lived at 700 South California, went there with other officers, knocked on his door, which defendant opened but, upon discovering who was knocking, tried to close it. The officer prevented the door from being closed, announced his authority, and informed defendant he was under arrest; defendant, however, turned and raced for the back of the unit. Detective Miller pursued and caught him, placed him in handcuffs, informed of his rights pursuant to Miranda v. Arizona (1966), 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602, and transported him to the station house, where Jennifer positively identified him as her brother's murderer. On cross-examination, Miller responded affirmatively when defendant asked whether he had informed Jennifer beforehand that she would be seeing defendant. The detective explained that he did not employ a lineup in this case because there was no question but that the witness knew the identity of the perpetrator; the purpose of the identification would be to exclude defendant if possible, and a lineup, therefore, would be a waste of police resources.
After Miller completed his testimony, the court recessed for lunch. When it reconvened in the afternoon, counsel for defendant objected to the conditions in the holding cell area provided for attorney/client consultations and complained that in order to converse the two were forced to shout, thus allowing the other detainees to eavesdrop on their conversation. He requested an opportunity to confer with his client before the trial recommenced, to which the court suggested that the two whisper at their table in the courtroom. When counsel informed the Judge that he thought that inadequate because the arrangement afforded them no privacy, she told him that given security considerations, that was the only available option.
The State then called Officer Bruce Brady, who related that on January 4, 1990, while on patrol he observed a man walking northbound on Central Park Avenue, being followed by a group of men wielding baseball bats. The pursuers shouted that the man they chased carried a gun. The officer arrested the man and, while conducting a custodial search, recovered a .38 caliber revolver which was loaded. He subsequently learned that the arrestee was Jimmy Abrams, defendant's brother. The detective estimated in the arrest report that Jimmy was five feet, five inches tall and weighed 145 pounds. The parties stipulated that ballistic tests showed that the .38 which the officer confiscated from Jimmy was the weapon used to kill Leroy Williams.
Defendant testified on his own behalf, stating that he did not shoot Leroy Williams and that he never played cards with Jennifer. He described his brother Jimmy as being about five feet, six inches tall and weighed about 160 pounds with a complexion slightly lighter than his own. He recalled that on the afternoon of the shooting, he was playing basketball with men whom he knew only by appearance.
Defendant also called Chicago police detective Greg Braunberg, one of the six or eight officers who has been present at his arrest in order to clarify in which room of the apartment he was arrested. Braunberg testified that defendant was subdued, after a chase, at the threshold of the door which separated the bedroom from the living room. The jury found defendant guilty of first-degree murder, after which the court sentenced him to 30 years in prison.
The first issue presented for review concerns whether defendant was denied the benefit of counsel over the lunch recess which interrupted the trial when the State had only one more witness to call before it was to rest, after which defendant was to present his evidence. In Geders v. United States (1976), 425 U.S. 80, 47 L. Ed. 2d 592, 96 S. Ct. 1330, the United States Supreme Court held that where, prior to an overnight recess, a trial court instructs a defendant and/or his counsel not to discuss anything about the case during the overnight break, the court had unconstitutionally deprived that defendant of the vital guiding hand of counsel" ( Geders, 425 U.S. at 89, 47 L. Ed. 2d at 599, 96 S. Ct. at 1335 quoting Powell v. Alabama (1932), 287 U.S. 45, 68-69, 77 L. Ed. 158, 53 S. Ct. 55), which mandated a reversal of the defendant's conviction. In Geders, the recess came in the middle of the defendant's testimony after he had completed his direct testimony, but before the Government had commenced its cross-examination of him. The Court concluded that this was a critical time in the proceeding because it would be during the night that counsel and his client would confer to map strategy, obtain potentially valuable information from the defendant not disclosed during his testimony or merely to "discuss with counsel the significance of the day's events." Geders, 425 U.S. at 88, 47 L. Ed. 2d at 599, 96 S. Ct. at 1335.
The rule of Geders has been expanded to strike orders which prohibit attorney/client consultations over the lunch recess ( United States v. Conway (5th Cir. 1980), 632 F.2d 641), or even during a 21-minute break in the conduct of a trial. ( United States v. Allen (4th Cir. 1976), 542 F.2d 630.) In Mudd v. United States (D.C. Cir. 1986), 255 U.S. App. D.C. 78, 798 F.2d 1509, 1511, Judge Mikva, writing for the majority, opined that the lesson of the progeny of Geders was that "a trial court may not place a blanket prohibition on all attorney/client contact, no matter how brief the trial recess." This view of Geders was slightly modified by the Supreme Court in Perry v. Leeke (1989), 488 U.S. 272, 102 L. Ed. 2d 624, 109 S. Ct. 594, where the court held that the sixth and fourteenth amendment guarantees of the right to counsel are not offended where the trial court proscribes consultations between the defendant and his attorney during a 15-minute recess which comes in the midst of the defendant's direct testimony. Leeke emphasized that its rule applied only when the trial court was compelled to interrupt the direct testimony of the defendant; therefore, in a context other than that present in Leeke, the Conclusion of Mudd regarding the unconstitutionality of broad prohibitions on attorney/client conferences during recesses is not invalidated by that decision.
Defendant maintains that his ability to consult with his attorney was impermissibly impaired in this case. He explains that during the lunch recess on the day the State was to rest and he was to begin presenting his evidence, he was not able to speak with his attorney. He does not allege that the court expressly prohibited their consultations, but rather he argues that the bar occurred because the court did not provide him a private room wherein the two could talk confidentially. After the court was again in session, defense counsel informed it that the facilities where defendant, who was detained before and during his trial, was being held did not afford the two any measure of privacy. According to counsel, he could converse with his client in the holding cell only by shouting through a "tiny little hole" in a glass partition. Counsel told the court that because the two were forced to communicate in such loud voices, their conversation could be heard by the other individuals also being detained in the common holding cell area. Counsel therefore declined to hold a conference over the lunch recess, electing instead to seek an opportunity to meet with his client confidentially after the court reconvened.
The trial court, upon learning of the poor acoustics in the holding cell area, suggested that defendant and counsel confer privately at the counsel table within the well of the courtroom. Defendant refused this offer, maintaining that it afforded them insufficient privacy given the close proximity of the prosecuting attorneys, the deputy sheriff and the trial Judge. He requested a conference room, which the Judge explained could not be provided for the reason that the courthouse accommodations did not include that type of facility for defendants and their attorneys because of security concerns. Counsel also asked the court to be allowed to speak confidentially with his client through cell bars, as had been the common past practice in the Criminal Courts building, which the court also had to deny, citing a change in security procedures.
Defendant argues that his inability to consult with counsel violates Geders, and that consequently he must be retried. We disagree, however, because we find that the rule of Geders simply does not obtain in this case. That decision did not hold that a conviction must be reversed whenever conditions existed during trial which rendered client/attorney consultations less than ideal. Instead, the decision found reversible error only because the court, by orderingthe defendant sequestered during the recess, actively prevented him from seeing his attorney. Here, the court imposed no prohibition comparable to the sequestration orders found in Geders and Mudd to have violated the Due Process Clause. Rather, the reason defendant and his attorney did not consult over the lunch recess was because counsel found the area set aside for the types of consultations contemplated by Geders not to be amenable to ...