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01/19/95 PEOPLE STATE ILLINOIS v. CINQUE LEWIS

January 19, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE
v.
CINQUE LEWIS, APPELLANT.



The Honorable Justice Freeman delivered the opinion of the court. Justice Harrison, dissenting.

The opinion of the court was delivered by: Freeman

JUSTICE FREEMAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Cinque Lewis, was convicted of murder (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(2)) and armed robbery (Ill. Rev. Stat. 1985, ch. 38, par. 18-2(a)). Thereafter, the same jury found defendant eligible for the death penalty and, further, that there were no mitigating facts sufficient to preclude death. Defendant was sentenced to death on the murder conviction and to a term of 30 years' imprisonment for the armed robbery conviction.

Defendant appealed directly to this court (Ill. Const. 1970, art. VI, ยง 4(b); Ill. Rev. Stat. 1991, ch. 38, par. 9-1(i); 134 Ill. 2d R. 603), and sentence has been stayed pending our review (134 Ill. 2d Rules 603, 609(a)). We affirm defendant's convictions and sentence for armed robbery; vacate his death sentence; and remand for a new death sentencing hearing.

Defendant asserts numerous errors at every phase of the proceedings. Rather than list them here, we will state each as it is considered in the opinion.

FACTS

The following evidence was adduced at trial. Brunell Donald, age 15, testified that on November 5, 1985, she lived with her mother, Yvonne Donald, and younger sister, Quiana, in an apartment at 4848 North Winthrop Avenue in Chicago. Brunell was then 10 years old and in the fifth grade. On the afternoon of November 5, she was watching television when someone knocked on the door. Brunell asked and was given permission by her mother to answer. She went to the door, asked who was there, and heard a reply, "C.Q."

Brunell had seen C.Q. in the lobby of the apartment building on prior occasions. She had also heard his voice about 5 or 10 times before, once in her home, and most recently, on the morning of November 5, in the lobby of her apartment building. On that particular morning, Brunell had conversed with C.Q. concerning her mother.

Upon ascertaining C.Q.'s identity, Brunell asked her mother if she wanted her to open the door. Her mother responded affirmatively, reached into her back pants pocket and pulled out a key. Brunell took the key, unlocked the door and opened it. C.Q. was there. Brunell identified defendant in court as the person known to her as C.Q.

Once inside the apartment, defendant went into the living room and sat on the couch next to Yvonne Donald. Quiana, the younger child, lay sleeping next to Yvonne. Brunell continued watching television while defendant and Yvonne talked. Moments later Yvonne told Brunell to take the television and go into the "back room" (one of the bedrooms in the apartment). Brunell complied, leaving the door to the "back room" open.

Brunell continued watching television in the "back room." Upon hearing her mother scream, Brunell ran into the hallway, where she saw "C.Q. over [her] mother stabbing her." As Brunell stood screaming, "C.Q. turn[ed] around and face[d] [her] and told [her] to stop." Brunell stopped screaming and defendant, again, started stabbing Yvonne. When Brunell started screaming again, defendant then told her to go to her room or he would kill both her and her mother. Brunell estimated her distance from defendant and her mother at the time to be about 25 feet.

Defendant turned back to Yvonne, "rolled her up and *** took the key out of her back pocket." He then went to the door and, with the knife and the key in his right hand, attempted to unlock the door. Unsuccessful in his attempt, he summoned for Brunell to open the door and handed her the key.

Brunell unlocked the door, leaving the key in the lock. Defendant then took the key, "turn[ed] it again," pulled it out of the lock and ran out of the apartment. Defendant took the key with him.

After defendant left, Brunell went over to her mother, and then telephoned her cousin, Tonya Chapman, who also lived in the building. After talking to Chapman, Brunell called the police.

When the police arrived Brunell gave them a description of defendant. She was able to describe defendant's height by pointing to an officer whom she perceived to be of comparable height to defendant. She did likewise in describing defendant's weight. Brunell further described for the officers what defendant was wearing, and told them his nickname and that he had a dark complexion. According to Brunell, on the day of the murder, defendant was wearing "a black long coat, blue jeans, black shoes, a white, kind of light shirt and dark glasses" and was carrying a cane. Additionally, defendant had a scar on the right side of his face "and it met his mouth."

Two days later, while at the home of her aunt, Eddie Cathey, Brunell again spoke with police officers. At that time, the officers showed her several photographs and asked if she recognized any of the persons pictured as the person who had stabbed her mother. Brunell chose defendant's picture.

In 1988, Brunell "picked out C.Q." in a police lineup.

On cross-examination, Brunell testified that she told police that her mother's assailant was about 29 or 30 years old. She also told the investigating officers at the crime scene, and the detectives at the police station at a later date, that her mother's assailant had a scar on his face. She denied telling police that the offender had a slight or skinny build; "all I knew [was] that I pointed to the police officer that looked his weight." Further, she did not recall telling the police that the assailant walked with a limp.

Brunell also testified that she told the officers at the scene that she had seen defendant that morning. However, she did not tell police, until 1988, about her conversation with defendant on the morning of the murder. Neither did she tell them that she had seen defendant on several prior occasions.

Chicago police officers Stephen Stukel and James Gildea arrived at the Donalds' apartment at 5:05 p.m. and 6 p.m., respectively. Officer Stukel noticed that the deadbolt lock on the apartment door was in the locked position. The bolt was down, but the door was open. lighting conditions in the apartment at that time were good; it was daylight and there was a light turned on in the hallway of the apartment.

Two children were in the apartment. Brunell, the older child, appeared calm and Stukel attempted to obtain a description of the offender from her. Brunell gave police a general description of the offender, which facts, on the police report, reflected "male black" and"scars unknown." Because Brunell did not understand numerical weights and heights, Stukel had her give height and weight descriptions by comparing the weight and height of police officers present during the investigation. Brunell additionally gave Stukel the name "C.Q." as the assailant and a "basic clothing description."

Gildea's testimony was substantially the same as Stukel's. On cross-examination, Gildea testified that in his November 5, 1985, supplemental report he described the offender as a black male, 29 to 30 years old, slender build, who walks with a slight limp. Nothing in his report indicated a scar. On redirect examination, Gildea testified that he did not recall whether he had specifically asked Brunell whether the assailant had scars.

Detective Robert Elmore of the Chicago police department testified concerning Brunell's selection of defendant's photograph from a five-picture array two days after the murder. Elmore's interview of Brunell on November 7 also included a description of the offender as a black male, "thin build," "slight limp," without indicating facial scarring.

Elmore also testified that in an interview with Kevin Keith, defendant's roommate, Keith told him that he had sold Yvonne Donald cocaine and that Donald owed Keith $200.

Officer Thomas Reynolds, a crime scene technician, testified that no weapons or fingerprints were recovered from the murder scene.

Dr. Tae An, an assistant medical examiner for Cook County, testified concerning the autopsy performed on Yvonne Donald. It was his testimony that the victim sustained 31 stab wounds and six cutting wounds, and that the cause of death was multiple stab wounds which lacerated internal organs. Over defense counsel's objection, Dr. An further testified to his internal examination of the decedent's genitalia, which revealed that she was five months pregnant.

Kevin Keith, defendant's roommate, testified that he met defendant during the summer of 1985. In early fall of that year, defendant, after being evicted from his apartment, moved in with Keith. Keith recalled that in 1985 defendant had a prominent scar on his face and periodically walked with a cane, although Keith never saw defendant limp.

Keith was acquainted with Yvonne Donald and had visited her apartment on two or three occasions, including once in October 1985 with defendant. He recalled a conversation with defendant in mid-October 1985 in which defendant told Keith that Yvonne Donald owed defendant $200 for cocaine. During that conversation, defendant claimed to have had difficulty collecting the money and said, "I'll kill the b ." Keith denied that Yvonne Donald owed Keith any money.

On November 3, 1985, Keith was arrested for shooting a hole in the wall of his father's home during an argument. Keith remained in the Cook County jail until November 6. On his arrival home from jail, he met defendant, who was on his way out of the apartment. Defendant was carrying a large duffle bag and he indicated to Keith that he was on his way to the laundromat. Although defendant had not spoken of moving out, Keith never saw defendant again. Defendant left his stereo and a few articles of clothing at the apartment.

The next day, when Keith learned that Yvonne Donald had been killed, he made an anonymous telephone call to the police. He told the police dispatcher that he thought he knew who had killed a certain individual. Keith withheld his identity from police because he "was afraid that [he] thought [he] knew who had committed the murder and [he] did not know where that person was."

In a second phone call to police, Keith supplied his name and address and informed police that he thought Cinque Lewis had murdered Yvonne Donald.

In his third telephone call to police, Keith asked officers to pick him up at the Argyle El stop because he wanted to give them information. The police responded and transported Keith to the Area 6 police station. While at the station, Keith told detectives that he believed that defendant murdered Yvonne Donald.

On cross-examination, Keith acknowledged that on November 3, 1985, he was arrested for criminal damage to property and disorderly conduct. He further testified that he had used cocaine, but denied addiction, and that he had never been hospitalized for cocaine dependency. Keith stopped using cocaine in October 1985, and was not using cocaine either on November 3, the day of his disorderly conduct arrest, or on the day he made the three phone calls to police. Keith did not recall, however, whether he had stopped using cocaine before or after hearing defendant make the threat on the decedent's life.

Keith stated that although he had used cocaine and had had some problems with it, he got help for the problem. Following his November 3 arrest, he was given the option of remaining in jail or being evaluated at Lutheran General Hospital for cocaine addiction. After being evaluated, he saw Dr. Sellers, beginning on January 16, 1986, for a bi-polar affect disorder, for which Dr. Sellers prescribed Lithium.

Keith saw Yvonne Donald ingest cocaine and did so with her "maybe once." Contrary to Detective Elmore's testimony, Keith stated that he neither told Elmore that he had sold cocaine to the deceased nor that she owed him $200.

On redirect, Keith testified that although he was diagnosed as a manic depressive, he saw Dr. Sellers for less than a year on a limited number of occasions. His only symptoms were mood swings, which Keith described as "where you would be very, very happy for awhile and then you would be very, very down for awhile." Specifically questioned about symptoms in October and November of 1985, Keith testified that he did not suffer any blackouts or memory loss. Keith was never required to have prolonged psychiatric treatment and he has never been institutionalized for psychiatric care.

Sergeant Paul Carroll of the Chicago police department also testified. According to Carroll, on October 21, 1987, he submitted defendant's fingerprints to the Federal Bureau of Investigation in order to locate any records of defendant in other jurisdictions within the country. The FBI informed Carroll that the fingerprints matched those of a person named Louis James Kirk, who was in custody in California. At Carroll's request, California authorities sent him a photograph of Kirk. Noting a facial scar in both pictures, Carroll determined that the man depicted in the California photograph was the same man as defendant. Extradition proceedings were commenced, and in June 1988, defendant was returned to Chicago from California.

Defendant presented no witnesses at the guilt phase of trial. Following the close of the evidence, the jury returned guilty verdicts on both the armed robbery and the murder charge.

The same jury found defendant eligible for the death penalty based on the presence of two statutory aggravating factors. (See Ill. Rev. Stat. 1985, ch. 38, pars. 9-1(b)(3), (b)(6).) Finding no mitigation sufficient to preclude death, defendant was sentenced to death on the murder conviction and to a term of 30 years in prison on the robbery conviction.

Defendant raises in excess of 25 issues on appeal. We have categorized his claimed errors based upon the stage of the proceedings in which the claimed error occurred.

JURY SELECTION

Defendant asserts that the trial court's refusal to "reverse-Witherspoon" or "life-qualify" prospective jurors constituted a denial of his right to due process. See Morgan v. Illinois (1992), 504 U.S. , 119 L. Ed. 2d 492, 112 S. Ct. 2222; Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.

Prior to trial, defendant tendered several questions to the court designed to bring before the venire a "reverse Witherspoon" inquiry. (See Morgan, 504 U.S. , 119 L. Ed. 2d 492, 112 S. Ct. 2222.) The questions were intended to discover and to cull from the venire those potential jurors who would automatically vote to impose the death penalty. The State, in turn, asked that the jury be "death-qualified" such that any juror who might automatically oppose death could be excused for cause. (See Witherspoon, 391 U.S. 510, 20 L. Ed. 2d 776, 88 S. Ct. 1770.) The court initially reserved ruling on both parties' requests.

In a later ruling on defendant's motion to "life-qualify" the jury, the court expressed its intention to select the jury in its "usual fashion" and to ask both parties' tendered questions "at some point if [the court] felt they were appropriate." The court stated:

" initially I'm going to ask if someone indicates that they have some difficulty with the imposition of a death penalty, I will ask them is your opposition to the extent as such that you would automatically vote against a sentence of death for any person regardless of the facts of the case and other questions I deem appropriate."

During voir dire, the court questioned each potential juror concerning his or her scruples against imposing death. However, the court asked only one juror a "life-qualifying" question. That juror was ultimately excused for cause by the State.

The State does not complain concerning defendant's entitlement to the "reverse-Witherspoon" inquiry. Indeed, that such a right is available to capital defendants is no longer subject to question. (See People v. Johnson (1994), 159 Ill. 2d 97, 130-35, 201 Ill. Dec. 53, 636 N.E.2d 485; People v. Cloutier (1993), 156 Ill. 2d 483, 497-500, 190 Ill. Dec. 744, 622 N.E.2d 774; People v. Smith (1992), 152 Ill. 2d 229, 273-74, 178 Ill. Dec. 335, 604 N.E.2d 858.) Additionally, although at the time of defendant's trial he had no right to a "reverse-Witherspoon" inquiry, Morgan, which was decided during the pendency of defendant's case, applies retroactively to vest defendant with such right. (See People v. Brisbon (1985), 106 Ill. 2d 342, 359-60, 88 Ill. Dec. 87, 478 N.E.2d 402; Cloutier, 156 Ill. 2d at 497-98.) Further, the State makes no suggestion that the substance of defendant's tendered questions are inadequate to "life-qualify" the jury. In that regard, we note their adequacy for that purpose. See Cloutier, 156 Ill. 2d at 499.

The State does argue, however, that the trial court never refused to "life-qualify" the jury. In the State's view, the court merely exercised its discretion in not doing so. The State then urges waiver for defendant's failure to continue to press the issue after the court stated its decision to take defendant's questions under advisement.

We reject the State's argument as disingenuous. The practical effect of the court's "exercise of discretion" is that defendant was denied the right to "life-qualify" the jury, pure and simple. The court's final ruling on the matter was that it would ask the questions if it deemed them appropriate. It apparently never deemed them so. However, Morgan requires that a defendant, upon his request, be afforded the opportunity to inquire into prospective jurors' opinions in support of the death penalty. (Morgan, 504 U.S. at , 119 L. Ed. 2d at 503-06, 112 S. Ct. at 2230-32.) Furthermore, defendant was not required to persist in his demand once the court had announced its decision to proceed in its "usual fashion." We do not find waiver.

Defendant, upon his request, was entitled to a "reverse Witherspoon" inquiry. His request having been denied, his death sentence must be vacated and the cause remanded for a new sentencing hearing. See Johnson, 159 Ill. 2d 97, 201 Ill. Dec. 53, 636 N.E.2d 485; Cloutier, 156 Ill. 2d 483, 190 Ill. Dec. 744, 622 N.E.2d 774; Smith, 152 Ill. 2d 229, 178 Ill. Dec. 335, 604 N.E.2d 858.

GUILT PHASE

Defendant alleges in excess of 11 errors at the guilt phase of trial, the presence of any one, he maintains, entitles him to a new trial.

He initially contends that he was denied a fair trial. In that regard, he first urges reversible error in the trial court's denial of his request for a continuance. Defendant maintains that the continuance was necessitated by the State's late disclosure of psychiatric records of one of the State's key witnesses, Kevin Keith. Denial of the continuance deprived defendant of his right to effective cross-examination and due process. Defendant makes no contention that the State failed during discovery to timely disclose Kevin Keith as a witness.

The record reveals that trial in this matter was scheduled to commence on March 5, 1991. Prior to proceeding with the trial, defendant advised the court that on the preceding day, March 4, 1991, the State learned from Keith and disclosed to defendant that Keith had been hospitalized and had received psychiatric treatment in mid-December 1985. Defendant advised the court that, in light of this evidence, he could not be ready to proceed with trial until March 25, 1991.

The State acknowledged the existence of medical records which reported Keith's 28- to 30-day hospitalization for substance abuse and a diagnosis of him as manic depressive. Further, the State offered that Keith would be willing to testify at trial concerning the hospitalization.

The trial court ordered the medical records produced without ruling upon defendant's motion for continuance.

The following day, the State tendered Keith's medical records. The medical records have not been made a part of this record; however, the trial court noted that the records consisted of notes from Keith's treating physician, Dr. Sellers, two letters from him to a circuit court social worker, dated February 15 and December 9, 1986, and three pathology specimen consultation reports on urine specimens received April 14, 1986, June 30, 1986, and December 3, 1986.

Defendant informed the court that he had received the reports on that morning and that he was not ready to proceed with trial. Defendant asserted that he needed to have a psychiatrist read the reports and to consult with the psychiatrist in order to effectively prepare cross-examination of Keith.

In response, the State offered that Dr. Sellers was available for consultation on that date and could be made available to defendant. Additionally, the State noted that it had drafted a subpoena compelling the doctor's appearance in court on the morning of March 7.

Concerning the medical records, the court stated:

"They are not that long. Basically, it would take a person maybe five minutes to read the whole set of reports here. Basically, Dr. Sellers has maybe a page of handwritten notes that includes his entire report. The relevance of it is a screening sheet that's mostly typewritten. There is some written information in there, but it won't take a person very long to read any of this. Most of it is self-explanatory."

The court acknowledged that defendant was entitled to consult with a doctor of his choice concerning the records. Further, the court allowed that the medical reports could be presented to the jury. However, the court did not see "any real necessity" to delay the proceedings. In so concluding, the court noted that the jury had not yet been picked and defendant, therefore, had time to submit the reports to a doctor of his choice. The court stated, ...


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