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May 19, 1994



The opinion of the court was delivered by: Mcmorrow

JUSTICE McMORROW delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Eddie Williams, was convicted offirst degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1(a)(1)), conspiracy to commit murder (Ill. Rev. Stat. 1987, ch. 38, par. 8-2(a)), and armed violence (Ill. Rev. Stat. 1987, ch. 38, par. 33A-2). Following a separate sentencing hearing, the jury found defendant eligible for the death penalty and found no mitigating circumstances sufficient to preclude its imposition. Accordingly, the trial Judge sentenced defendant to death. That sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, § 4(b); 134 Ill. 2d Rules 603(a), 609(a).

Trial Evidence

The charges arose from the fatal shooting of Valerie McDonald. Valerie was the wife of Louia McDonald and the mother of their two daughters, LaChina and Lakeya, ages 16 and 8, respectively, at the time of the shooting. Louia, LaChina and Lakeya testified, in varying degrees of detail, to the following events.

At approximately 9:30 p.m. on June 23, 1987, Louia picked up Valerie, LaChina and Lakeya at the church attended by them. As they neared their home and were looking for a parking space, both Louia and LaChina noticed a man standing in front of their apartment building on the corner of Winthrop and Glenlake Streets on the north side of Chicago. After circling the block, Louia located a parking space across the street from their building. Valerie was the last to exit the car. As they walked to the building, LaChina noticed that the man she had seen earlier was still on the corner, leaning against the building. The man looked to be in his late 20s, approximately six feet tall, 150 to 160 pounds, with a small mustache and straight hair pulled back into a ponytail.

LaChina unlocked the building's outer door and held it open for the other members of the family. The lights in front of the doorway were on, as were the lights insidethe vestibule. As Valerie approached the doorway, LaChina saw the man from the corner come up behind Valerie and raise his hand to her head. LaChina heard a gunshot and saw Valerie fall. The man then stood directly in front of the door and pointed a gun toward LaChina. Louia had already entered the vestibule when he heard what sounded like firecrackers. He turned and pushed the door closed as he saw the man coming toward it. Lakeya was also inside the vestibule when she heard a shot and saw Valerie on the ground. The man, whose hair was in a ponytail, came up to the glass door and looked inside. Both LaChina and Lakeya shouted that Valerie had been shot. Louia ran out the door and chased the man to a nearby supermarket parking lot. There, the man entered the passenger door of a burgundy-colored Buick Regal, said something like "hit it" or "go, go," and rode away. Louia and LaChina identified defendant in separate lineups and in court as the man who shot Valerie. Valerie died within two days of the shooting.

Louia testified that he reported to the responding police officers that the burgundy car into which the man entered looked identical to the car owned by Geraldine Smith, with whom he had been having an affair since 1985 and with whom he had an infant son. Louia further testified that following Valerie's discovery of the relationship in early 1986, Valerie and Smith had several verbal and physical altercations. On one occasion, the police were called and confiscated a .25-caliber weapon they found in Smith's handbag. A short time before the shooting and murder of Valerie, Louia told Smith that he wanted to end their relationship and reconcile with Valerie. Louia acknowledged that at the time of trial he was still seeing Smith even though she had been arrested and charged in connection with Valerie's murder.

Daniel Posthlewait testified that he was walking with his nephew in the area of Winthrop and Glenlake Streets when he heard gunshots from behind him. He turned and saw a man running toward him with a second man in pursuit. He described the first man as being black, 5 feet 10 inches tall, with a ponytail and some facial hair, and wearing a gray jacket and blue jeans. The man got into a burgundy Buick and twice said what sounded like "Jeff, take off." Posthlewait saw another person in the car but was unable to discern the person's race or gender.

Detective Phillip Mannion testified that at approximately 10 p.m., after obtaining from Louia a description of the offender and the car in which he escaped, Mannion and his partner, Detective Raymond Kaminski, proceeded to Smith's home. Smith voluntarily accompanied the officers to Area 6 police headquarters where she was questioned. Smith told the officers that her niece, Marva Golden, had borrowed her car the previous evening. Smith gave the police Golden's employment address and agreed to take a polygraph examination the next morning. The officers went to Golden's place of employment, but she did not appear for work as scheduled.

Detectives Tony Jin and Ronald Yawger came on duty at 8:30 a.m. on June 24, 1987. Following a briefing by Mannion and Kaminski, they drove Smith and her son to the home of a baby-sitter who told Smith that Golden had called from Smith's home looking for Smith. The officers took Golden into custody and then took Smith for a polygraph examination. Following the exam, Smith was driven home and, with her consent, her car was processed by evidence technicians.

Later that evening, Golden took and failed a polygraph examination. Confronted with the results of the examination, Golden made a statement to DetectivesKaminski and Bernard Richter implicating herself and a man she knew only as "Eddie" in the shooting of Valerie. Following her statement, Golden agreed to show the detectives where Eddie was staying. Golden and several detectives left Area 6 at approximately 12:15 a.m. on June 25, 1987. Golden first directed the detectives to a house on South Wolcott Avenue, but Eddie was not there. Two detectives remained there while she and the other officers went to a house a few blocks away on South Honore Avenue. Eddie (defendant) was found there and arrested. The specifics of Golden's inculpatory statement and the details of defendant's arrest are recounted in our Discussion of defendant's pretrial motion to suppress evidence.

Defendant was transported to Area 6 and questioned by Detective Mannion. Defendant initially denied any knowledge of the shooting, but when advised that Golden had implicated him in it defendant responded that he was not going to "go down alone." He then orally confessed to the shooting of Valerie McDonald. After arresting Smith at her home at about 3 a.m., Mannion had a second conversation with defendant during which defendant repeated his earlier confession. Later that morning, defendant made a third confession to Assistant State's Attorney Joel DeGrazia, who reduced defendant's statement to writing.

Mannion and DeGrazia testified to the following. Defendant related that as he was leaving a tavern on Sunday, June 21, 1987, Golden drove up in a car and introduced him to Smith, who was in the passenger's seat. Golden told defendant that she had some "business" for him if he was interested. The next day, Golden and Smith drove defendant to the north side of Chicago and pointed out the McDonalds' car and apartment building to him.

On Tuesday, June 23, Golden and defendant droveto the home of Golden's cousin "Tippy." Golden came out with a silver-colored .25-caliber semiautomatic handgun and gave it to defendant. She told him that the plan was that he "take Valerie McDonald completely out" for which Smith would pay him $500, $100 of which Golden would receive for "setting the job." They drove to Winthrop and Glenlake Streets, where they saw the McDonalds' car. When they returned to the intersection after parking Smith's car, the McDonalds' car was gone. A short time later, Golden observed the McDonalds' car approaching. She pointed out Valerie in the back seat, stating "that is the bitch you have to take out, right there." Golden then returned to Smith's car. Defendant walked across the street and waited next to the McDonalds' building. Valerie was the last person to exit the car. As she was about to enter the building, defendant came up behind her and shot her once in the head. He then fired a second shot into the hallway which Louia and the two children had just entered. However, he did not shoot directly at Louia because Golden had instructed him not to hurt Louia in any way.

Defendant then turned and ran, with Louia in pursuit. Defendant jumped into Smith's car and told Golden to "move it." As they were driving, Golden asked, "Is the bitch straight?" to which defendant replied, "Yes, I think she's dead." They returned to Smith's house where defendant was paid for the shooting. Golden kept part of the money, thanked defendant, and drove him home.

Defendant told Assistant State's Attorney DeGrazia that he had been treated fine while in custody, that no one made any threats or promises to him, and that he made his statements voluntarily. After transcribing the statement, DeGrazia read it aloud to defendant and then gave it to defendant to read for himself. After doing so, defendant signed each of the six pages. The statement was completed shortly after noon on July 26, 1987.

Detective Ryan was then dispatched to the home of Olivia "Tippy" Norris for the purpose of recovering the murder weapon. Earlier that day, Norris had denied any knowledge of a gun, but after a conversation with her husband, they retrieved the gun from an abandoned garage where they had hidden it and surrendered it to Ryan. When it was shown to him, defendant identified the gun as the one he used to shoot Valerie. A firearms expert confirmed that the bullets and casings recovered from the shooting were fired from the weapon recovered from Norris.

Norris testified that Golden came to her home in the evening of June 22, introduced the person with her as "Eddie," and said that she had come for "the piece" she had left there previously. After retrieving the gun, Golden and Eddie left. Golden returned the gun later, but came back for it again the next evening, June 23. At that time she was accompanied by Eddie and another person whom Norris did not see. Golden brought the gun back again later that night.

Defendant was placed in a lineup a few hours after he had given his written statement, on the afternoon of June 26, 1987. As noted earlier, Louia and LaChina viewed the lineup separately; both identified defendant as the person who shot Valerie.

In addition to the weapon evidence, the State introduced fingerprint evidence and the testimony of an expert who identified defendant's fingerprints on lifts taken from the "T-top" of Smith's car, the interior passenger window, and a Coke can found on the rear floor of the car. Smith's and Golden's fingerprints were also found on various parts of the interior and exterior of the car.

At the outset of his testimony, defendant acknowledged that in August 1983, he pleaded guilty to voluntary manslaughter and was sentenced to 10 years inprison. He was paroled on March 3, 1987. Thereafter, he and a former girlfriend, Evelyn Miller, resumed their relationship and, in May 1987, he moved in with her and her two children. Defendant denied any involvement in Valerie's murder. He also denied that his custodial confessions were voluntary, asserting that the statements were the product of police threats and abuse, and an extended lack of sleep.

Defendant also testified that on June 21, 1987, Golden came into a lounge where he, Miller and other friends were celebrating Father's Day. He knew Golden because he had dated her sister. Golden bought him a drink and then invited him outside to smoke a joint. They walked to Golden's car, where Golden introduced him to Smith, who was in the front passenger's seat. He leaned down from outside the driver's window and said "hello," but otherwise conversed only with Golden. After approximately 10 minutes, Golden left and he rejoined his friends inside the lounge. The next time defendant saw Golden was later that week when they both appeared before a Judge.

Defendant was found guilty of the murder of Valerie McDonald and sentenced to death. Defendant raises 29 general issues and numerous subsidiary issues for our review. Thus, additional facts will be incorporated into our Discussion of those issues to which they are relevant.

Pretrial Suppression Hearing

Defendant has not pursued his pretrial contention that his inculpatory statements should have been suppressed as involuntarily made. He continues to maintain, however, that his statements should have been suppressed because they were the fruit of an unlawful warrantless arrest inside his home.

Hearings were conducted on defendant's motions to quash his arrest and to suppress his statements. Severalpolice officers, including Detectives Kaminski, Mannion, Richter, Gildea and Jin testified regarding defendant's arrest both at the hearings and at trial. Theresa Williams, who owned the house where defendant was staying, and Evelyn Miller, defendant's girlfriend, also testified concerning defendant's arrest at the pretrial hearing and at trial. A composite of those witnesses' testimony is as follows.

After obtaining a description of the offender from witnesses on the scene and questioning Smith, police officers took Golden into custody. Confronted with her failure of a polygraph examination, Golden made a statement implicating herself and defendant in Valerie's murder.

According to Detective Kaminski, Golden related that Smith was angry that Louia had decided to end their relationship. In conversations on June 21, and June 23, 1987, Smith told Golden that she wished Valerie were dead and asked Golden if she knew anybody who could "do it." Golden responded that she did, but that it would cost $500, which Smith agreed to pay. Smith and Golden drove to a lounge near 59th and Honore Streets. Golden approached a man whom she knew only as "Eddie" and told him that the woman in the car (Smith) wanted somebody "hit" and was willing to pay $500. Eddie accepted the offer and agreed to give Golden $100 from Smith's payment to him.

Smith, Golden and Eddie drove to the home of Golden's cousin Tippy, where Golden obtained a gun. After taking Smith home, Golden and Eddie drove to the apartment building where Valerie McDonald and her family lived. They left when they saw that Louia's car was not there. They returned the gun to Tippy and agreed to meet again the next day. The following evening they picked up the gun, drove past the McDonalds' residence and then parked the car a short distanceaway. Golden pointed out the McDonalds' car as it passed. Eddie then exited the car. Sometime later he ran back and, in response to Golden's inquiry, said "I shot her in the head. I think she's dead." They then drove to Smith's house, where Eddie was paid $500, from which he gave Golden $100.

Detective Kaminski testified that Golden told him that she did not know the address of the house where Eddie was staying, but that she would be able to direct the detectives to it. Shortly after midnight on June 25, she and seven detectives drove, in three cars, from Area 6 on the north side of Chicago to a house on South Wolcott Avenue. A middle-aged man and woman, who stated that they were Eddie's aunt and uncle, advised the police that Eddie was not there. Detectives Mannion and Jin remained there while the other detectives and Golden proceeded to a house a few blocks away on South Honore Avenue. Detectives Richter, Gildea and Johnson approached the front door; Kaminski went to the rear of the house. All the officers had their weapons drawn; Richter was armed with a shotgun. Richter's knock on the front door was answered by a woman named Theresa. When Richter asked if Eddie was there, Theresa opened the door, allowed the officers to enter the foyer, and told them that Eddie was downstairs with his girlfriend. Theresa led them through the house to a rear door leading down to the basement. Theresa pointed to a room with a partially open door at the front of the basement from which some light was emanating. The officers did not notice any furnishings as they walked through the basement. Richter looked in the room and saw that the man in the bed fit the description of the offender. When Richter asked, "Are you Eddie?" the man responded that he was. Richter ordered defendant out of bed and advised him that he was under arrest. Defendant, wearing only undershorts, wasordered to his knees and handcuffed. The woman in the room with defendant (Evelyn Miller) handed one of the detectives some clothing before defendant was taken out of the house. Defendant was placed in a squad car and driven away from the house, where bystanders had gathered. The police stopped the car a few blocks away and allowed defendant to put on his clothing.

Theresa Williams (not related to defendant) testified that at approximately 1 a.m., her brother Ronald woke her and her boyfriend, Dwight, by calling out and knocking on their bedroom door. When she came out, police officers were standing on each side of the door with their guns pointed toward her. She did not know how the police gained entry into the house. When Dwight came out of the bedroom, an officer said, "He's not the guy." Williams asked who they were looking for and told them she had a basement tenant who had a boyfriend staying with her. The officers instructed her to take them downstairs. She had to unlock the bottom basement door to enter the basement; as she did, the police pushed her inside. Williams called out for Miller, but Miller did not answer. Williams knocked on the bedroom door and announced that the police were there to see Eddie. When the light went on the police again pushed her through the door first. They followed her into the room with their guns drawn and said, "Get up right now Eddie Williams." An officer took a photograph from Miller's mirror and searched under the mattress while defendant was being handcuffed. Defendant was then taken out the back door in his undershorts.

On cross-examination, Theresa Williams stated that the police asked if they could go downstairs to see Miller's boyfriend, and that she gave her permission. Williams also stated that the basement contained several pieces of Miller's furniture, including bunk beds where Miller's two children were sleeping. The childrenawoke when Miller began screaming at the police officers.

Evelyn Miller testified that she and defendant were asleep when Theresa Williams knocked on the door and said that some police officers wanted to see Eddie. As soon as she reached up and turned on the light, two police officers came in with their guns drawn. They asked defendant if he was Eddie Williams; defendant said that he was. The officers ordered defendant out of bed and onto his knees. Miller was not allowed to get out of bed. The officers searched under her mattress, asking, "Where's the gun?" They also took a photograph of defendant from her mirror. As the officers were leaving, Miller asked where they were taking defendant so that she could bring him some clothes. She later went to Area 6 and gave an officer there some clothes for defendant. Theresa Williams had given defendant permission to move in with Miller, and he had contributed some money for the rent. The remainder of Miller's cross-examination is the subject of a separate issue and will be discussed later in this opinion.

Although defendant did not testify at the suppression hearings, his testimony at trial included an account of his arrest. Defendant testified that when Miller turned on the light in their room, he awoke and saw several police officers with their guns drawn. They ordered him to get out of bed. He repeatedly asked them what he had done. They responded that he knew what he had done and to "just shut up." The officers ordered him onto his knees, pushed his face on the floor and, while pointing a gun to the back of his head, handcuffed him. He requested but was not permitted to put on his clothes. He was led out to a squad car and transported to the police station, where he was handcuffed in an interview room. Many hours later, as a result of some "smacks" and threats by Mannion and a lack of sleep, defendant began agreeing to the version of events recounted to him by Detective Mannion and Assistant State's Attorney DeGrazia. Eventually he signed the statement that DeGrazia had composed in advance and brought into the interview room with him.

The trial court denied defendant's motion to quash his warrantless arrest. In its ruling, the court found that the police acted reasonably, that they had probable cause to arrest defendant, that exigent circumstances were present, and that there was no forced entry. The court also denied defendant's motion to suppress his statements as having been illegally procured and involuntarily given.

Defendant argues that his arrest at 1 a.m. by three heavily armed officers who confronted the owner of the house with their weapons drawn, ordered her to unlock the basement apartment door, burst their way into his bedroom while he was asleep, ordered him to his knees, handcuffed him and forced him to leave his house clad only in his undershorts constituted a flagrant violation of the constitutional protections against warrantless arrests inside a suspect's home. Defendant asserts that there was no exigency sufficient to countenance the officers' failure to obtain a warrant for his arrest. He maintains that the police had ample time and opportunity after obtaining information from Golden to procure an arrest warrant, and that there was no reason for the police to believe he might flee. He also argues that the number of officers involved made it possible that one officer could have obtained a warrant while the others secured the location from the outside, and that their armed entry into both the house and the basement apartment, which awakened and frightened all of the residents including two young children, was neither consensual nor peaceful.

In the absence of consent or exigent circumstances, the police are prohibited from making a warrantless entry into a private residence to effectuate a routine felony arrest. ( Payton v. New York (1980), 445 U.S. 573, 63 L. Ed. 2d 639, 100 S. Ct. 1371; People v. Abney (1980), 81 Ill. 2d 159, 163-74, 41 Ill. Dec. 45, 407 N.E.2d 543.) Factors which have been considered relevant to a determination of exigency include whether: (1) the crime under investigation was recently committed; (2) there was any deliberate or unjustified delay by the police during which time a warrant could have been obtained; (3) a grave offense was involved, particularly a crime of violence; (4) there was reasonable belief that the suspect was armed; (5) the police officers were acting on a clear showing of probable cause; (6) there was a likelihood that the suspect would escape if he was not swiftly apprehended; (7) there was strong reason to believe the suspect was in the premises; and (8) the police entry was made peaceably, albeit nonconsensually. People v. Foskey (1990), 136 Ill. 2d 66, 75, 143 Ill. Dec. 257, 554 N.E.2d 192; People v. White (1987), 117 Ill. 2d 194, 216-17, 111 Ill. Dec. 288, 512 N.E.2d 677; People v. Yates (1983), 98 Ill. 2d 502, 515, 75 Ill. Dec. 188, 456 N.E.2d 1369; Abney, 81 Ill. 2d at 169-74.

This list is not exhaustive of the factors which may constitute exigent circumstances. The fundamental guiding principle is reasonableness, in accord with constitutional provisions governing searches and seizures. ( Foskey, 136 Ill. 2d at 75-76; People v. Cobb (1983), 97 Ill. 2d 465, 484, 74, 74 Ill. Dec. 1, 455 N.E.2d 31.) In determining whether the police acted reasonably, the court must look to the totality of the circumstances confronting the officers at the time the entry was made. ( Yates, 98 Ill. 2d at 515.) The decision of the trial court on a motion to quash and suppress will not be disturbed by a reviewing court unless that decision is determined to be clearly erroneous. White, 117 Ill. 2d at 213.

As a preliminary matter, we take note of the parties' arguments regarding whether the police had consent toenter the residence. The State argues that Williams gave her consent, and that defendant has not challenged on appeal the trial court's "implicit finding" of a reasonable belief by the officers that consent was granted. In reply, defendant asserts that the entry was nonconsensual and that he has not conceded otherwise, but he has not raised the issue directly because the State did not argue against his motion to quash on the lack-of-consent basis in the trial court.

This court has held that the rule of waiver, that an issue not raised in the trial court generally will not be considered on appeal, is a limitation on the parties, not on the courts, and that waiver may be disregarded by a reviewing court in order to achieve a just result. ( People v. Hoskins (1984), 101 Ill. 2d 209, 219, 78 Ill. Dec. 107, 461 N.E.2d 941.) However, in the present case, we do not reach the parties' assertions of waiver on the issue of consent for two reasons. First, by denying the motion to quash on the ground that exigent circumstances justified the warrantless arrest, the trial court impliedly ruled that the entry was nonconsensual, since consent to enter a residence by the suspect or by a third party with control over the premises validates a warrantless arrest and renders unnecessary a showing of exigent circumstances. ( People v. Henderson (1990), 142 Ill. 2d 258, 297-98, 154 Ill. Dec. 785, 568 N.E.2d 1234.) Second, even absent a clear ruling on the issue of consent, we conclude that the trial court's finding of exigent circumstances is supported by the evidence.

The crime involved was of the most serious nature, involving unprovoked, deadly violence against the victim. From the time of the murder until defendant's arrest only 27 hours later, the police conducted an around-the-clock investigation, acting on every lead they received without delay. (See People v. Jones (1989), 184 Ill. App. 3d 412, 133 Ill. Dec. 295, 541 N.E.2d 132.) During the course of their investigation, the police learned that the car used in the offensebelonged to Smith, who led them to Golden. Golden provided the police with a detailed statement regarding the conspiracy and the shooting. Her statement was corroborated by several facts which were already known to the police, e.g., the relationship between Smith and Louia, that Valerie had been shot in the head, that the getaway car was parked in a supermarket lot, and that after the shooter jumped into the car it sped away. Golden confessed to her own involvement in the crimes and implicated defendant as the gunman. Her confession, coupled with specific, independently corroborated details concerning the crimes and the gunman, constituted sufficient indicia of reliability to provide the police with probable cause to arrest defendant. See People v. James (1987), 118 Ill. 2d 214, 222, 113 Ill. Dec. 86, 514 N.E.2d 998.

Defendant's argument that, given the time lapse between Golden's statement and his arrest, the police could have obtained an arrest warrant is unpersuasive. The evidence established that Golden completed her statement at approximately 10 p.m., and that the team of officers which was thereafter assembled left Area 6 headquarters shortly after midnight. The officers clearly acted without delay in initiating efforts to apprehend defendant following receipt of information from Golden concerning defendant and his possible whereabouts. (See Jones, 184 Ill. App. 3d at 422 (no unjustified delay by police where arrest was made 27 hours after crime and four hours after police learned of defendant's involvement).) Additionally, Smith had been released from custody after being questioned the previous afternoon. Thus, there existed a reasonable possibility that she knew defendant's whereabouts and might alert him that Golden had been taken into custody for interrogation. (See Cobb, 97 Ill. 2d 465, 74, 74 Ill. Dec. 1, 455 N.E.2d 31.) It was not unreasonable for the police to believe that swift action to apprehend defendant was necessary.

Further, the police were not in possession of defendant's surname or address because Golden claimed she did not have that information. They had only Golden's statement that the person they were seeking was named Eddie, and that she could show them where he was staying. Thus, the officers lacked sufficient information to obtain a warrant naming defendant and authorizing an arrest at his home. And, in fact, Golden's initial identification of the house on Wolcott Avenue as defendant's residence proved to be incorrect. It was only after the police arrived at the Wolcott location that they received additional information which led them to an address on Honore Avenue. Two detectives remained at the Wolcott residence while four others immediately proceeded to Williams' house on Honore Avenue, two blocks away. Given these circumstances, the police were justified in taking immediate action to apprehend defendant and were not required to risk defendant's flight and disappearance in the time needed to obtain a warrant.

Finally, irrespective of whether there was actual or apparent consent given for the police to enter the house, the entry was not forcible; there was no damage to any part of the building or injury to any of the occupants. That the officers entered with their guns drawn is not unreasonable since the crime was a violent, calculated murder for money, committed with a gun they had not yet recovered. The officers were justified in believing defendant was dangerous and, possibly, armed.

In sum, upon a review of the totality of the evidence, we agree with the trial court that the police had probable cause to arrest defendant and that exigent circumstances were present to justify making the arrest without a warrant. The trial court did not err in denying defendant's motions to quash his arrest and suppress his subsequent custodial statements.

Trial Issues

Defendant contends that the prosecutor's opening statement misrepresented the strength of the State's case and thereby denied him a fair trial. Specifically, he argues that the prosecutor misled the jury to believe that the McDonalds' younger daughter, Lakeya, had identified defendant before trial and would identify him in court as the shooter when, in fact, at no time did she identify defendant.

The portion of the opening statement about which defendant complains concerned the moments immediately after the shooting. The prosecutor stated:

"He [defendant] runs up to the door, peers inside. Inside is LaChina and Lou. The girls are jumping up and down. Dad, dad. Mommy's been shot. There's lights on that door. They look out the door. It's a glass door, they look at the man. They see him in the face. It's Eddie Williams. They can tell he's six foot tall, has his hair brushed back into a pony tail, slight build, gray jacket, blue jeans, t-shirt and a slight mustache."

Contrary to defendant's assertion, the prosecutor did not say that Lakeya had made a pretrial identification of defendant or "promise evidence it [the State] didn't deliver." The prosecutor's remarks were merely a compilation of what Louia and his daughters would testify that they noticed about the man who shot Valerie, and the girls' immediate reaction to the shooting. Further, the prosecutor's remarks were consistent with Lakeya's testimony that after hearing a loud noise she saw a man whose hair was in a ponytail, come up to the glass door and look inside. The remarks were also consistent with Louia's testimony that Lakeya said "he shot mama." Had defense counsel felt that the jury was misled by the prosecutor's opening remarks into believing that Lakeya had previously identified defendant, defense counsel had the opportunity to cross-examine Lakeya on that point.

Additionally, there is nothing in the remarks even suggesting that Lakeya would identify defendant from the witness stand; and the prosecutor clarified in subsequent statements that only Louia and LaChina viewed and identified defendant in a lineup. These facts clearly distinguish this case from People v. Weinger (1981), 101 Ill. App. 3d 857, 57 Ill. Dec. 244, 428 N.E.2d 924, which defendant cites as analagous. In Weinger, the court ruled that the prosecutor's affirmative statements regarding evidence that was never produced improperly created the erroneous impression that there existed a critical piece of evidence placing defendant at the scene of the crime. The court held that the prosecutor's statements, in conjunction with more than 20 other instances of prosecutorial misconduct, caused such prejudice as to deny the defendant a fair trial. We do not believe the prosecutor's remarks in the present case misrepresented the evidence and promised nonexistent evidence so as to strengthen the State's case, or that they could have had that effect. The prosecutor's opening statement was a fair overview of what the evidence would show. See People v. Griffin (1992), 148 Ill. 2d 45, 55, 170 Ill. Dec. 250, 592 N.E.2d 930.

We next consider defendant's contention that he was denied a fair trial by the prosecutor's deliberate introduction at trial and use in closing argument of evidence of the good characters of Valerie and Louia. He maintains that such evidence served only to prejudice him in the eyes of the jury. People v. Bernette (1964), 30 Ill. 2d 359, 371, 197 N.E.2d 436.

Regarding Valerie, defendant argues that it was improper to elicit from LaChina and Lakeya that they and Valerie were returning home from church services immediately prior to the shooting. Defense counsel did not object to this evidence at trial or in his post-trial motion and, in fact, made references to it in his closing argument. Thus defendant cannot now complain of itsadmission. ( People v. Peeples (1993), 155 Ill. 2d 422, 475, 186 Ill. Dec. 341, 616 N.E.2d 294.) Further, references to a victim's personal traits which are only incidental to the presentation of the State's case do not constitute prejudicial error. ( People v. Williams (1991), 147 Ill. 2d 173, 229, 167 Ill. Dec. 853, 588 N.E.2d 983.) The evidence that Louia had driven Valerie and her daughters back from church was merely foundational in that it explained the events immediately preceding the shooting, including why the McDonald family was together in their car at that time of the evening. This prefatory evidence was neither presented nor argued as being material to the State's case, and we find no prejudice to defendant as a result of its introduction.

With respect to Louia, defendant argues that it was improper for the State to introduce testimony that Louia had provided support for his and Smith's young son since the child's birth. Defendant asserts that the evidence was calculated to prejudice the jury against him by improperly depicting Louia as a man of good character.

Once again, defendant failed to object to this testimony at trial or in his post-trial motion and has therefore waived any impropriety in its introduction. ( Peeples, 155 Ill. 2d at 475.) Moreover, there was extensive testimony and argument at trial concerning Louia's extramarital relationship with Smith, including Louia's admission that he had continued his involvement with Smith subsequent to her arrest for the murder of his wife. Thus, we do not believe that the evidence that Louia contributed to the financial support of his son served to persuade the jury that Louia was a man of high moral character. Indeed, the very fact that Louia fathered a child in the course of an adulterous relationship reflected unfavorably on his character. Further, evidence that Louia was the father of Smith's child bore on the underlying motive for the conspiracy to murderValerie. Finally, considering that defense counsel argued that Louia had conspired with Smith to have Valerie murdered because of his relationship with Smith, defendant can hardly be heard to complain of the State's introduction of incidental evidence regarding Louia's payment of child support for their son.

Defendant correlatively contends that the prosecutor's cross-examination of Evelyn Miller concerning defendant's employment and financial status and what, if any, monetary contributions he made toward the rent for her apartment was irrelevant and prejudicial. He argues that this line of questioning was designed only to portray him as a person without steady employment and of bad character. Defendant acknowledges the absence of any objections to this line of questioning but asserts that the prosecutor's examination rose to the level of plain error. We cannot agree.

Questions such as those asked of Miller may be improper where they have no relevance to the crime charged. (See, e.g., People v. Redmond (1972), 50 Ill. 2d 313, 315-16, 278 N.E.2d 766 (inquiries as to whether the defendant was "lazy and shiftless" were objectionable as concerning traits irrelevant to the crime charged -- a spontaneous shooting).) In this case, however, the State's theory was that the offense was a premeditated murder-for-hire and that defendant committed it solely for financial gain. Thus, inquiries into defendant's lack of income and assets were relevant to establish a financial motive for defendant's agreement to commit the murder.

Defendant next contends that he is entitled to a new trial because the trial court committed reversible error in denying his pretrial motion to bar the State from impeaching him with evidence that he was convicted of the voluntary manslaughter of James Fortner in 1983. Defendant asserts that, in violation of the rule announced in People v. Montgomery (1971), 47 Ill. 2d 510, 268 N.E.2d 695,the trial court not only failed to weigh the prejudicial effect against the probative value of the evidence but, in fact, admitted it for the very purpose that prior convictions may not be admitted, i.e., to show defendant's propensity for violent criminal behavior.

Initially, we address the State's assertion, in the nature of a waiver argument, that defendant cannot now complain that about the introduction of his manslaughter conviction because he used the conviction as substantive evidence of his innocence. The State points out that on direct examination of defendant concerning his custodial interrogation by the police, defendant testified:

"I said that [the shooter] couldn't be me. I said, I just come home from the penitentiary, you know, for a manslaughter charge. I said, it would have to be stupid of me to do something like that."

We also note that defense counsel elicited from defendant at the outset of his testimony that defendant had pleaded guilty to and was then convicted of voluntary manslaughter in 1983. Defendant testified that he received a sentence of 10 years, but was paroled in March 1987.

The rule that a party cannot object on appeal to evidence which was introduced by that party does not apply where a motion to exclude the evidence was presented and denied. As this court explained in People v. Spates (1979), 77 Ill. 2d 193, 198-200, 32 Ill. Dec. 333, 395 N.E.2d 563, it is not inconsistent for a defendant to request the exclusion of evidence and, subsequent to the court's denial of that request, to disclose the evidence himself in the hope of lessening its impact upon the jury. Disclosure of evidence by a defendant in anticipation of the State's court-approved revelation of it is a matter of strategy designed to reduce the prejudicial effect of the evidence on the defendant's credibility.

Once the trial court ruled in the present case thatthe State could impeach defendant with his prior conviction of voluntary manslaughter, defendant was entitled to attempt to minimize the damage of the evidence not only by introducing it himself, but also by turning it to whatever advantage might be made of it. In that regard, it is apparent from the record that defense counsel's strategy in his examination of defendant concerning the manslaughter conviction was to raise the inferences that: defendant is a person who, when guilty of wrongdoing, does not deny his guilt; and having been out of prison for only three months, defendant would not jeopardize his newly regained freedom by agreeing with near strangers to commit a murder for a mere $400. Defendant's employment of that strategy at trial does not preclude a challenge on appeal of the correctness of the trial court's adverse ruling on his exclusionary motion.

We turn then to the merits of defendant's contention. In light of defendant's arguments, we believe that a review of the origin and rationale of the Montgomery rule is appropriate. At issue in Montgomery was whether a 21-year-old conviction of robbery was admissible to impeach the defendant's credibility at his trial for the unlawful sale of narcotics. The court first recognized the fundamental evidentiary principle that only facts having logical, probative value to the issues at trial are admissible. The court determined that the defendant's prior robbery conviction was not probative of any matter relating to defendant's guilt, and that it was relevant only if one assumed that a person convicted of robbery 21 years earlier is more likely than someone without such a conviction to testify falsely in the present. The Montgomery court discounted that assumption as having no factual or psychological support. On the other hand, the court stated, the prejudicial effect of such evidence is "unmistakable." ( Montgomery, 47 Ill. 2d 510, 268 N.E.2d 695.) Thecourt agreed with the observation of the trial Judge that, if the evidence is close, a jury is likely to convict the defendant on his past record rather than on the evidence at trial. The Montgomery court recognized that the customary safeguard against such danger was the giving of the instruction that a prior conviction may be considered only as it bears upon the credibility of and weight to be given a defendant's testimony. The court noted, however, the growing skepticism among legal scholars of the effectiveness of that instruction.

The Montgomery court then repudiated what had been the prevailing view, that a trial Judge is obliged to admit past-conviction evidence, however irrelevant and prejudicial, merely because the prosecution chooses to offer it. The court reasoned that because the Illinois statute relating to witnesses provided that a prior conviction "may" be shown to impeach credibility (Ill. Rev. Stat. 1967, ch. 38, par. 155-1), the admissibility of prior-crimes evidence should be a matter within the sound discretion of the trial Judge.

In this regard, the court took notice of a proposed Federal rule, a revised version of which was later adopted as Federal Rule of Evidence 609 (Fed. R. Evid. 609), concerning impeachment by evidence of prior convictions. The rule provided that for the purpose of attacking the credibility of a witness, evidence of a prior conviction is admissible only if the crime was punishable by death or imprisonment in excess of one year, or involved dishonesty or false statement regardless of the punishment unless, in either case, the Judge determines that the probative value of the evidence is substantially outweighed by the danger of unfair prejudice. Montgomery, 47 Ill. 2d at 516.

To explain the genesis and the rationale of proposed Rule 609, the Montgomery court quoted from the advisory committee's comments, which in turn cited thecases of Luck v. United States (D.C. Cir. 1965), 121 U.S. App. D.C. 151, 348 F.2d 763, and Gordon v. United States (D.C. Cir. 1967), 127 U.S. App. D.C. 343, 383 F.2d 936. Interpreting a statute virtually identical to Illinois' statute, Luck determined that the permissive rather than mandatory language of the statute afforded the trial Judge in a particular case the discretion to admit or exclude evidence of past convictions for purposes of impeachment. The Gordon court clarified and refined the application of Luck.

Writing for the Gordon court, then Circuit Judge Warren Burger reasoned that while some prior convictions can have genuine probative value on the issue of credibility, others, such as those which are remote in time and those which have no direct bearing on veracity, should be excluded. The Gordon court then announced certain guidelines for its district courts to follow in exercising their discretionary power on the admission or exclusion of prior conviction evidence. The court stated:

"We must look to the legitimate purpose of impeachment which is, of course, not to show that the accused who takes the stand is a 'bad' person but rather to show background facts which bear directly on whether jurors ought to believe him rather than other and conflicting witnesses. In common human experience, acts of deceit, fraud, cheating, or stealing, for example, are universally regarded as conduct which reflects adversely on a man's honesty and integrity. Acts of violence on the other hand, which may result from a short temper, a combative nature, extreme provocation, or other causes, generally have little or no direct bearing on honesty and veracity. A 'rule of thumb' thus should be that convictions which rest on dishonest conduct relate to credibility whereas those of violent or assaultive crimes generally do not." Gordon, 383 F.2d at 940.

The Gordon court also recognized that "a special and more difficult problem arises when the prior conviction is for the same or substantially the same conduct for which the accused is on trial. As to this problem, the court stated:

"Where multiple convictions of various kinds can be shown, strong reasons arise for excluding those which are for the same crime because of the inevitable pressure on lay jurors to believe that 'if he did it before he probably did so this time.' As a general guide, those convictions which are for the same crime should be admitted sparingly * * *." Gordon, 383 F.2d at 940.

The advisory committee comments to proposed Rule 609 cited with approval various factors suggested in Luck and Gordon as ones to be considered by trial Judges in exercising their discretion, including: the nature of the prior crime, the recency or remoteness of its commission, the age and circumstances of the defendant, the extent of his criminal record, whether the crime was similar to the one charged, and the extent to which it is more important to the search for truth in a particular case for the jury to hear the defendant's story than to know of a prior conviction. The committee's comments noted that the most significant feature of Rule 609 is the requirement that evidence of a prior conviction be excluded if the trial Judge determines that its probative value is outweighed by the danger of unfair prejudice.

In its Conclusion, the Montgomery court adopted proposed Rule 609 as the rule to be applied in this State. Under Montgomery, the trial court must consider factors relative to the particular case before it to ensure that the danger of undue prejudice from allowing evidence of a prior conviction does not substantially outweigh the probative value of the evidence on the issue of the defendant's testimonial credibility. The Montgomery decision was a clear departure from previous law under which evidence of prior convictions was admissible almost without exception.

We have herein examined the origin and rationale of the Montgomery rule because a review of case law since Montgomery reveals a regression toward allowingthe State to introduce evidence of virtually all types of felony convictions for the purported reason of impeaching a testifying defendant. (See generally People v. Kunze (1990), 193 Ill. App. 3d 708, 728-36, 140 Ill. Dec. 648, 550 N.E.2d 284 (Steigmann, J., specially Concurring); Spector, Impeachment by Past Conviction: What Hath Montgomery Wrought?, 10 Loy. U. Chi. L.J. 339 (1979).) When presented with arguments that certain felonies have no direct relation to credibility, some courts employ the rationale that a felony of any type evinces a disrespect for societal order and thus adversely affects the defendant's veracity; or, stated another way, that prior felonious conduct establishes a Disposition to place self-interest ahead of the interest of society, and may suggest a willingness to do so again on the witness stand. See 10 Loy. U. Chi. L.J. at 348-51.

In our view, the increasingly mechanical application of these premises does not comport with the principles expressed in Montgomery, or in the authorities on which the Montgomery court relied in adopting Rule 609 as the rule to be applied in this State. Arguably, all criminal conduct, from the most serious felony to misdemeanors such as reckless or disorderly conduct, criminal trespass, resisting a peace officer, and numerous others, evinces a disrespect for society. The Montgomery rule does not, however, allow for the admission of evidence of any and all prior crimes. The focus of Montgomery was on crimes which bear upon the defendant's truthfulness as a witness.

Evidence of past crimes which do not relate to testimonial credibility may be admitted if they are relevant for some proper purpose other than impeachment. It is a fundamental tenet of our criminal Justice system, however, that the introduction of evidence of other crimes to show or suggest a propensity to commit crime is an improper purpose and is prohibited. (E.g., Michelson v. United States (1948), 335 U.S. 469, 475-76, 93 L. Ed. 168, 173-74, 69 S. Ct. 213, 218-19; People v. Lindgren (1980), 79 Ill. 2d 129, 137, 37 Ill. Dec. 348, 402 N.E.2d 238; People v. Pruitt (1988), 165 Ill. App. 3d 947, 951-53, 117 Ill. Dec. 516, 520 N.E.2d 867, People v. Wright (1977), 51 Ill. App. 3d 461, 462-63, 9 Ill. Dec. 547, 366 N.E.2d 1058.) This is so because such evidence tends to persuade the jury that, on the basis of his past conduct, defendant is a probable perpetrator of the crime ( Michelson, 335 U.S. at 475-76, 93 L. Ed. at 173-74, 69 S. Ct. at 218-19), or to influence the jurors to convict simply because they feel he is a bad person deserving of punishment ( Lindgren, 79 Ill. 2d at 137).

In the case at bar, defendant sought to prevent the State from using his prior voluntary manslaughter conviction as impeachment evidence. The prosecutor's entire argument in support of admission of the evidence was that "defendant's criminal history is relevant. As ...

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