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04/21/94 PEOPLE STATE ILLINOIS v. EVAN GRIFFITH

April 21, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
EVAN GRIFFITH, APPELLANT.



Heiple, Miller, Freeman, Harrison, Nickels

The opinion of the court was delivered by: Heiple

JUSTICE HEIPLE delivered the opinion of the court:

Following a jury trial in the circuit court of Livingston County, defendant, Evan Griffith, a prison inmate, was convicted of first degree murder and unlawful possession of a weapon by a person in the custody of the Illinois Department of Corrections. (Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a)(1), (a)(2), 24-1.1(b).) He was sentenced to death on the murder conviction and to a consecutive 30-year prison term on the weapon conviction. The death sentence has been stayed (134 Ill. 2d R. 609(a)), and the case is now before us on direct appeal (Ill. Const. 1970, art. VI, § 4(b); Ill. Rev. Stat. 1989, ch. 38, par. 9-1(i); 134 Ill. 2d R. 603).

State's Evidence

The State's evidence at trial was essentially as follows. Defendant and the victim, James Jones, also known as Joseph Moore, and Wilford Mackey were all inmates at the Pontiac Correctional Center in Pontiac, Illinois. Additionally, they were all members of the Black Gangster Disciples street gang. Jones was the Institutional Coordinator (I.C.) of the Black Gangster Disciples within the Pontiac Correctional Center. The I.C. is the leader of a street gang within a prison. The defendant, Evan Griffith, served as Jones' personal secretary and "bodyguard." Due to his position within the gang, he was required by the gang to carry a weapon.

On the morning of October 2, 1990, Jones, Griffith and Mackey were in the prison's south yard. At approximately 11 a.m., Jones was talking on a telephone at a bank of telephones in the yard. While he was on the telephone, Mackey approached him from behind and repeatedly struck him on the head with a metal rod or pipe. Jones dropped the telephone and, unarmed, attempted to defend himself. Griffith then stabbed Jones once in the chest with a "shank." Jones fled but soon collapsed and died. The stab wound was the cause of death.

Defendant's Evidence

The defense theory was self-defense. Defendant claimed that on the night before the stabbing, he received a message that Jones wanted to see him. Defendant sent word that he could not meet with him that night, but would see him the next day. Jones apparently became upset with defendant when he failed to come when summoned. On the following day, defendant attempted to clear things up with Jones. Defendant claims that he tapped Jones on the shoulder while he was on the telephone. Jones angrily ordered defendant to leave him alone and, a few seconds later, produced a shank.

Defendant then produced a shank and took two steps back. Jones dropped the telephone and stepped towards defendant, bobbing and weaving. At the same time, defendant was jabbing his shank towards Jones to repel him. Jones quickly ducked down. When he came up, defendant's shank penetrated his chest. Both Jones and defendant dropped their knives. Defendant did not intend either to stab or to kill Jones.

The Verdict

At the close of the trial, the jury convicted defendant of first degree murder and unlawful possession of a weapon by a person in the custody of the Department of Corrections.

Defendant waived a sentencing jury. In the first phase of the sentencing hearing, the trial Judge concluded that defendant was eligible for the death penalty because the victim was a prison inmate killed on prison grounds.

During the second phase of the sentencing hearing, the State presented evidence in aggravation and defendant presented evidence in mitigation. The trial Judge found that death was an appropriate sentence for defendant and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. Accordingly, he sentenced defendant to death on the first degree murder conviction and to a consecutive 30-year prison term on the inmate weapon possession conviction.

Defendant appeals. Additional pertinent facts will be discussed in the context of the issues raised on appeal.

Discussion

On appeal, defendant claims numerous errors, all without merit. He further claims that the Illinois death penalty statute is unconstitutional. We affirm.

While we will address defendant's contentions on the merits, most of the issues have been waived since either no objection was made at trial or the issues were not properly preserved in a post-trial motion. As to several of the alleged errors, neither an objection nor a post-trial motion was made. People v. Enoch (1988), 122 Ill. 2d 176, 119 Ill. Dec. 265, 522 N.E.2d 1124.

Defendant alleges error since the State insinuated that defendant had a gang-related motive for committing the murder. The evidence brought forth by the State and the defense established that Jones held the position of "institutional coordinator" in the Black Gangster Disciples. While cross-examining defense witness Kevin Walton, who is also an inmate at the Pontiac Correctional Center and a member of the Black Gangster Disciples, the following Discussion took place:

": After James died, was a new I.C. selected?

: No.

: They never replaced James as the institutional chief?

: Not in '90.

: Who is the I.C. now?

: I don't know.

: Did you know an inmate by the name of Mackey?

: Yes.

: Is he a friend of yours?

: I wouldn't say that. I said I knew him."

Defendant contends that based upon this line of questioning, the jury, without supporting evidence, was led to believe that the defendant killed Jones so Mackey could take over as I.C. of the Black Gangster Disciples. This argument is without merit. Mackey and defendant were both implicated in Jones' death. Merely asking Walton who the current I.C. is, and asking him whether he knew Mackey, does not improperly insinuate to the jury that Mackey sought to benefit from Jones' death.

Defendant was asked on cross-examination to give the name of the gang official who was above Jones in the Black Gangster Disciples' organizational structure. Defendant refused to answer the question. By looking at sidebar Discussions which took place outside the presence of the jury, defendant points out that the State thought that defendant may have been ordered to kill Jones. Thus, defendant argues that he was prejudiced in front of the jury since these allegations were never substantiated. However, the State did not pursue this line of questioning in the presence of the jury. Once the defendant refused to answer who was in charge of the gang, this line of questioning ended and no improper insinuations were made to the jury. The defendant cannot base a claim of prejudice upon statements which were made outside of the jury's presence.

Defendant's next contention of error is that the prosecutor, in closing argument, improperly suggested that the defendant had threatened and intimidated two witnesses for the State. Witnesses Marzette and Cleveland, both inmates at Pontiac Correctional Center, upon initially being interviewed about the attack upon Jones denied knowing anything. On the next day, they admitted that defendant was one of the attackers. Both Marzette and Cleveland testified that the reason they initially denied seeing anything was because there is a "code of silence" in prison. They described the "code of silence" as when one organization (gang) does something, then regardless of whether or not you are in that organization, you do not talk about what happened. In closing argument, the prosecutor reminded the jury that while Marzette and Cleveland initially denied having any knowledge about the attack on Jones, they both stated the reason for their denial was the "code of silence." The prosecutor added that Marzette and Cleveland had to face being confined in the same cell house with the same individuals who were responsible for the attack. Defendant contends that these comments conveyed to the jury that the witnesses had been threatened by him. Contrary to defendant's assertions, the prosecutor did not suggest that the defendant had threatened the witnesses. Rather, he merely reminded the jury of the "code of silence" which they had already heard about.

Defendant also claims that the prosecutor improperly elicited testimony from Marzette and Cleveland that they had been threatened by fellow inmates due to their involvement in this case. Inmates Marzette and Cleveland both testified on direct examination that after they identified the defendant, they were moved out of Pontiac and into other prisons. Additionally, they both stated that due to their involvement in this case they had been threatened by other inmates in their new locations. Defendant contends that this testimony was prejudicial and improper since the jury was led to believe that the threats emanated from him. Contrary to defendant's assertions, the prosecutor made no references of this type. Rather, the threats which were made upon Marzette and Cleveland illustrated to the jury that the "code of silence" is an actual code of conduct within prisons. Since the jury was aware of the "code of silence," this testimony was not unduly prejudicial to the defendant.

Defendant further alleges that the prosecutor improperly elicited victim impact testimony from the victim's wife. Defendant points out that Innie Jones, the widow of James Jones, testified that she and Jones had been married for 18 years, they had three children and that the children and the victim loved each other. Defendant also relies upon the fact that in closing argument, the prosecutor told the jurors that they did not have to like the victim, but he was a human being, a son, a father, and a husband, and that no one has the right to take somebody's life for no legal reason. Defendant was not prejudiced by these comments. Mere mention of family relationships does not necessarily result in prejudicial error. From Innie Jones' testimony, defendant takes three questions out of context and claims that the prosecutor intentionally elicited this testimony with the purpose of inflaming the jury. This is not the case. The prosecutor was merely establishing a foundation for Innie Jones' testimony. Additionally, after the prosecutor asked about the victim's relationship with his children, the trial Judge stopped the questioning in regard to family relationships. After this, no more mention was made to the jury concerning the victim's family. Defendant failed to object to any of the questions at trial and has now failed to show that the prosecutor was intentionally attempting to inflame the jury. This court has recognized a distinction between making a jury aware of the family left behind and cases where the prosecution has dwelled upon the victim's family to the point that the jury could have related that evidence to the defendant's guilt. People v. Lear (1991), 143 Ill. 2d 138, 150, 157 Ill. Dec. 412, 572 N.E.2d 876; People v. Del Vecchio (1989), 129 Ill. 2d 265, 288, 135 Ill. Dec. 816, 544 N.E.2d 312.

JURY INSTRUCTIONS

At the close of the evidence, the trial Judge held a jury instruction conference. Present were the defense counsel, the defendant himself, and the prosecutor. During the jury instruction conference, the following colloquy occurred:

"[THE COURT]: And I wish to at this time, before launching into definitions or issues in a murder case, advise Mr. Griffith of the following: His attorney may request, but it's a decision that only defendant can make, as to whether the Court should give instruction to the jury on what in Illinois is called second degree murder.

In Illinois, a first degree murder is defined when a person kills an individual if, in performing the acts which cause the death, he intends to kill or do great bodily harm to that individual or another; or he knows that such acts will cause death to that individual or another; or he knows that such acts create a strong probability of death or great bodily harm to that individual or another.

It is possible in Illinois for a jury to find a defendant guilty of what is called second degree murder. Many years ago it used to be called voluntary manslaughter, but there has been some changes in what the definition is.

In other words, in effect, the jury would be told that if they find that a first degree murder has been proven, but there were circumstances surrounding that first degree murder, specifically, that at the time the murder was committed, you were acting under a sudden and intense passion resulting from serious provocation by him, then those would be elements that could establish a second degree murder, and if I instructed the jury on that, then the State would have the burden of proving that beyond a reasonable doubt, that those reducing factors were not present and they would have to prove to the jury beyond a reasonable doubt that you did not act under a sudden and intense passion resulting from serious provocation. [We note that this is an incorrect statement of the law. The trial Judge's correction of this misstatement is included below.]

What would be serious provocation? If your attorney argued, and I permitted the jury to be instructed, I gather the evidence would be that serious provocation could be from the defense standpoint when you tapped the decedent on the shoulder and he turned and pulled out a shank, that that could be serious provocation. It also could relate to self-defense.

[DEFENSE COUNSEL]: Your Honor, I think that the defendant, contrary to our prior Discussions, has concluded that he wishes me to tender that instruction. I don't have one available right now. I would tell the Court that I do intend now to tender such an instruction and would ask the Court to rule on whether it would be given or not now. I will tender the standard Murder II.

[THE COURT]: Mr. Ahlemeyer, because I was assuming from a conversation before defendant was brought in that perhaps he didn't want them instructed on second degree murder--

[DEFENSE COUNSEL]: I was too. I thought so, your Honor.

[THE COURT]: Let me tell you, Mr. Griffith, practically what it means to you. A second degree murder instruction telling them that they can consider that and telling them what they would have to find in order to find you guilty ...


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