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182 Ill.2d 114

April 16, 1998

182 Ill.2d 114


The opinion of the court was delivered by: Justice Miller

Agenda 3

November 1997.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. DAVID HARRIS, Appellant.

delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, the defendant, David Harris, was convicted of first degree murder and attempted armed robbery. The defendant waived a jury for purposes of a capital sentencing hearing, and, after a hearing, the trial Judge sentenced the defendant to death for the murder conviction. The defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons stated below, we affirm the judgment of the circuit court.

The evidence in this case is largely undisputed and may be summarized briefly; other evidence will be reviewed as it becomes relevant. At trial, Bernice Chase, the widow of the victim, Clifford Chase, testified that she and her husband watched a movie on the evening of June 7, 1993. Afterwards, Mr. Chase left the house around 8:40 p.m. to return the rented videotape. Mrs. Chase said that her husband would sometimes stop to buy milk at the Chatham Food Center, where he was killed.

Theresa Barnes, 16 years old at the time of the occurrence, testified that she was at the Chatham Food Center around 9 p.m. on June 7, 1993; the store was located at 79th and Calumet Streets. While she was using a pay telephone outside the store, she heard the sound of a gunshot. Barnes looked up and saw someone holding a gun, and she then heard another shot. The shot was fired at a car. Barnes then saw a person inside the car slump over, and the car started to roll toward where she was standing. The person who fired the shot got in the back seat of a Mercedes, which then drove off. Barnes identified the defendant as the gunman. Barnes estimated that she was standing about 20 to 25 feet away from the car when the shots were fired, and she testified that she got a good look at the gunman. On June 9, 1993, police officers showed Barnes a brochure of various Mercedes models, and Barnes selected one that matched the car she had seen. About a week later, on June 15, Barnes viewed a lineup and identified the defendant in the lineup at the person who had fired the shots.

On cross-examination, Barnes acknowledged that she had provided different officers with somewhat different descriptions of the gunman. She told the first officer on the scene that the gunman was a black male, 5 feet 11 inches, weighing 170 pounds. Later, she told a different officer that the shooter was a black male, 5 feet 10 inches to 6 feet, weighing 150 to 160 pounds, and 17 to 18 years old. Barnes testified further that the defendant had bushy hair, and that he was the only person in the police lineup with bushy hair. Barnes also said that the defendant had a wide nose and wide lips. Although Barnes told investigating officers that the shooter wore a blue terry cloth jacket with a hood, with pink and yellow accents, and an Aladdin genie on the back, at trial she did not recall seeing a figure or emblem on the back of the jacket.

Theodore Traylor, who was with the defendant when the offenses were committed, also testified on behalf of the State at trial. Traylor said that on June 7, 1993, around 8:30 p.m., he was standing at 67th and Ada Streets with Antoine Moore. At that time, some of Moore's friends drove up in a grey Mercedes. In the car were the defendant, Howard McClinton, and Demetrius Daniels. Traylor had seen the three previously. After they talked to Moore, Moore told Traylor to get in the car and they would take him home. Traylor lived at 79th and Woodlawn, which he said was a "couple" miles away. McClinton was driving, and Moore sat in the front seat; Traylor, Daniels, and the defendant sat in the back, with Traylor in the middle. According to Traylor, the four others talked about a movie they had seen, "Menace to Society," which was about carjacking; Traylor had not seen the movie. After 15 or 20 minutes they reached 79th and Calumet Streets. There, McClinton, the driver, saw some girls to whom he wanted to talk. McClinton pulled into a parking lot, but the girls did not want to talk to him. Then, McClinton said, "There go a jack move there." According to Traylor, McClinton drove toward an old man who was leaving a grocery store. The man got in his car, and McClinton pulled the Mercedes near the man's car. Traylor testified that McClinton handed Moore a gun and said, "Jack him." Moore got out of the Mercedes and tapped on the window of the victim's car, but the man would not open the door; he instead turned the ignition on. Moore told the man to get out of the car and tapped on the window with the gun. Moore then got back in the Mercedes and said to shoot the victim. The defendant jumped out of the car, pulled a gun from under his shirt, and shot the victim twice. The defendant then jumped back into the car, and the Mercedes drove off.

Traylor testified that he then asked the others to take him home. They were laughing about the shooting. Traylor said that he had not known that they would try to take a car at gunpoint. They drove Traylor to Woodlawn, where he was then staying. Traylor said that he saw Moore two or three days later, when Moore came to his house. Traylor turned himself in on June 17, when he learned that the police were looking for him. Traylor said that he told the authorities what had happened and later signed a handwritten statement describing the offenses.

The parties stipulated that an evidence technician would testify that bullets were recovered from the front seat and the back floor of the victim's car. The parties also stipulated that a firearms expert would testify that he concluded from his examination of the bullets that they had been fired from the same weapon, a .38 Special revolver.

At trial, the prosecution also presented testimony detailing the defendant's inculpatory statements to authorities. Detective Herman Cross, assigned to Area 2 violent crimes, testified that early in the morning of June 12, 1993, he learned that the Mercedes involved in the crimes had been stopped. The investigation eventually led Cross to Moore, Daniels, McClinton, and the defendant. Cross found the defendant on June 15, 1993, and he and his partner, Bernatek, transported defendant to Area 2 headquarters. There, they arranged a lineup, at which Theresa Barnes identified the defendant as the gunman. Cross and Bernatek then gave the defendant Miranda warnings and, after the defendant agreed to waive those rights, questioned him about the case. In a brief statement, the defendant said that he and Antoine Moore got out of a silver Mercedes, walked up to the victim's car, with Moore on the passenger's side and the defendant on the driver's side. The defendant pointed a gun at the car window and someone called out, "Bust him, bust him." The defendant then fired two shots.

On cross-examination, Detective Cross explained that a report about the lineup and photographs of the lineup participants had been lost and could not be found. Cross said that the five other participants in the lineup were comparable to the defendant in height, weight, and complexion, and Cross also said that two others had bushy hair similar to the defendant's. Cross testified that the police did not recover a jacket matching the description provided by Theresa Barnes.

Further evidence regarding the defendant's inculpatory statements was provided by Peggy Chiampas, an assistant State's Attorney in Cook County who took a formal statement from the defendant. Chiampas testified that she was summoned to Area 2 headquarters on June 15, 1993. She spoke to Detectives Cross and Bernatek and reviewed police reports about the case. She first questioned the defendant around 8 o'clock that night. After waiving Miranda rights, the defendant told Chiampas about the offenses. He then agreed to repeat the statement in the presence of a court reporter. After the statement was transcribed, Chiampas reviewed it with the defendant, who made several corrections. The statement was then initialed by the defendant and Chiampas, as well as by Detective Bernatek and Chiampas' supervisor, who were also present during the statement.

In the statement, the defendant said that on June 7, 1993, around 6 p.m., he was home when four persons came over: Howard McClinton, Demetrius Daniels, Antoine Moore, and Theodore Traylor. The defendant took his gun with him, a .38, and all five then drove to the area of 68th and Ada, in a Mercedes. McClinton was driving, Moore was in the front seat, and the three others were in the back seat. McClinton also had a gun with him. With the exception of Traylor, they talked about a movie they had seen, "Menace to Society," which was about carjacking. They stayed at 68th and Ada for about two hours. Then, all five got back in the car and drove down Calumet Street. Moore talked about the movie again, and as they crossed a street, Moore said, "Let's jack that mark in the lot." McClinton thought that the person looked young and might have a gun; he believed that older persons were less likely to be armed and therefore made better targets. By this time they had driven into a parking lot, and there Moore got of the car, with a gun in his hand. According to the defendant, Moore ran up to a car, which was occupied by a man, and tried to open the door. The door would not open, so Moore told the man to get out. Without replying, the man tried to back up his car. Moore ducked away and said, "Bust him," which the defendant said meant to shoot him. The defendant jumped out of the back seat and shot the victim twice. The first shot shattered the car window; the second shot hit the driver. The defendant then heard his friends yelling at him, and he returned to the Mercedes. Later that night, Moore was laughing and joking about the offenses; according to the defendant, he told Moore that it was wrong to tell him to shoot the victim. The next day, Moore, McClinton, and Daniels came over to the defendant's house. Moore said that he would get rid of the gun used by the defendant in the offenses, and the defendant gave it to him.

The parties also stipulated that Dr. Barry Lifschultz, an assistant medical examiner for Cook County, if called as a witness would testify that he performed an autopsy on the victim on June 8, 1993. The autopsy revealed that the cause of death was a gunshot wound to the head.

The only evidence presented by the defense was testimony by Charles Moore, deputy chief investigator for the Cook County public defender's office. Moore stated that he took four photographs of the defendant on June 17, 1993, two days after he gave his statements in this case. Moore took the photographs while the defendant was in the lockup area of a courtroom. The photographs depict the defendant's face and head. These photographs had been shown to Assistant State's Attorney Chiampas and Detective Cross during cross-examination; both witnesses testified that the photographs revealed only one injury, to the defendant's lip.

In rebuttal to the preceding evidence, the prosecution presented, through a stipulation, the statement of Officer Hughes concerning the lockup area for Area 2. On June 16, 1993, around 1:15 a.m., Detective Cross returned the defendant to the lockup area, so that he could be transferred back to the Cook County jail. Hughes, if called as a witness, would have testified that he performed a visual examination of the defendant and did not observe any injuries on him at that time. Hughes also asked the defendant a series of questions about his condition, and would have testified that the defendant did not report any pains or injuries.

At the Conclusion of the evidence, the jury returned verdicts finding the defendant guilty of first degree murder and attempted armed robbery. The cause was then continued for a capital sentencing hearing, which was held about a month after the Conclusion of the trial. Before jury selection for trial, the defendant had waived his right to a jury for any capital sentencing hearing, and the hearing was therefore conducted before the trial Judge alone. At the first stage of the hearing, the State introduced a verified copy of the defendant's birth certificate, which showed that he had attained the age of 18 at the time of his commission of the present offenses. The State also introduced copies of the verdicts returned by the jury in this case, showing the defendant's convictions for first degree murder and attempted armed robbery. The trial Judge found the defendant eligible for the death penalty because of the defendant's commission of murder in the course of another felony. See 720 ILCS 5/9-1(b)(6) (West 1994).

The parties then presented evidence in aggravation and mitigation. In aggravation, the State first introduced victim impact testimony from the victim's widow, Bernice Chase, and the victim's two daughters, Nona Ocloo and Olivia Chase.

The State also presented evidence detailing prior offenses committed by the defendant. Edwina Harrison described a carjacking committed by the defendant on June 5, 1993, just two days before the offenses involved here. Harrison testified that she was driving home from work around 3:10 that morning when she pulled off the road because a friend driving behind her had flashed his lights and pulled over. The friend got in Harrison's car. Immediately after that, two young men pulled up; one of the men, whom Harrison identified in court as the defendant, got out of the passenger's side of the car, holding what appeared to be an automatic rifle or machine gun. The defendant pointed the gun at Harrison and told her to get out of her vehicle. Harrison and her friend got out of the car, and Harrison thought that the defendant was going to kill them. The defendant backed away from them and drove off in her car. Harrison testified further that she viewed a lineup on June 11, 1993, and identified the defendant as the person who had taken her car.

Detective Michael McDermott, of the Chicago police department, also testified at the sentencing hearing. McDermott stated that he investigated a carjacking committed by the defendant on June 3, 1993. According to McDermott, the victim of the carjacking, Kirschmar Norman, arrived home from work around 1:50 in the morning. As Norman was getting out of his car, he saw a person approach from a nearby van. The person was carrying a Tech 9 mm machine pistol, which he pointed at Norman. The person told Norman to put his money and keys on the ground, and Norman complied. The person then picked those items up and got in Norman's car. The van from which the person had appeared pulled away and was involved in an accident. The driver of the van ran over to Norman's car and got in with the first person, and they then drove off. Norman viewed a lineup in December 1993 and identified the defendant as the person who had taken his car.

The State also presented evidence of two drug offenses committed by the defendant. On one occasion, on March 5, 1992, a plainclothes police officer saw the defendant engaged in what appeared to be a drug transaction. As the officer approached, the defendant turned, walked away, and let go of three bags, which were later found to contain cocaine. The defendant later pleaded guilty in this case and received a period of section 1410 probation. On another occasion, on May 22, 1992, an undercover officer saw the defendant, who was sitting at a table, drop a napkin that contained five small plastic bags. The contents of the bags were tested and found to contain cocaine.

Further evidence in aggravation came in the form of testimony relating the defendant's misconduct while in jail awaiting trial in the present case. Deputy Sheriff Alonzo King testified that on November 6, 1993, the defendant was found in an unauthorized area and refused to be included in the inmate count. The defendant received an oral reprimand for these infractions. Deputy James Brown testified that on May 11, 1994, during a search for weapons, two six-inch homemade knives were find inside the mattress of the defendant's cell. The defendant received 20 days in isolation as a result. On April 9, 1995, Deputy Brown found the defendant on the wrong tier of cells; when Brown asked the defendant to explain his presence there, the defendant swore at the deputy. The defendant received 10 days in isolation for the infractions.

Deputy Robert Adorjan testified that on August 17, 1994, he was performing a routine cell check when he found a piece of metal nine inches long and one inch wide among the defendant's belongings. It was sharpened at one end and had strips of cloth for a handle. For this infraction the defendant was given 10 days in isolation.

Lieutenant Ramon Torres testified that on September 14, 1994, he received a report of a fight. He found the defendant with a shank in his hand. Another inmate said that he had been jumped by the defendant and others. The defendant was given 29 days in isolation-the maximum penalty-for these violations.

Deputy Donnie Booker testified that on May 28, 1995, he was assigned to help quell a riot after a jail inmate had been murdered. As Booker was searching cells, he found a homemade knife, about two feet long, in the defendant's mattress. The defendant received 29 days in isolation as a consequence.

Peggy Chiampas, the assistant State's Attorney who had taken the defendant's formal statement, also testified at the defendant's sentencing hearing. Chiampas said that throughout her interrogation the defendant never exhibited any remorse for the offenses and seemed "cool, calm, and collected." Chiampas also read into the record two pages of the defendant's statement that had been omitted from evidence at trial. In this portion of the statement, the defendant said that he and the four others with him in the car that night were members of a street gang, the Black Disciples. The defendant held the title of assistant regent, and he was to discipline gang members who broke gang rules. On cross-examination, Chiampas said that the defendant, in reviewing the statement he had given to the court reporter, added the comment that Antoine Moore was laughing and joking after the murder, and that the defendant replied that it was wrong for Moore to tell him to shoot the victim.

The defendant did not present any testimony at the hearing, but counsel did submit 17 letters from family members and friends of the defendant. These persons wrote favorably about the defendant. Counsel also presented, by way of stipulation, testimony from an officer who investigated the carjacking of Edwina Harrison. The officer would have testified, if called as a witness, that Harrison described the offender as being 28 years old and 5 feet 6 inches tall.

At the Conclusion of the hearing, the trial Judge found that there were no mitigating circumstances sufficient to preclude imposition of the death penalty, and the Judge therefore sentenced the defendant to death for the first degree murder of Clifford Chase. The Judge did not impose any sentence on the defendant's separate conviction for attempted armed robbery.

I.

A.

The defendant raises on appeal a number of challenges to his convictions and death sentence. We will first address the issues arising from the guilt phase of the proceedings, and we will next consider the issues involving the capital sentencing hearing.

The defendant first argues that he was not proved guilty of the offense of attempted armed robbery. The indictment in this case alleged that the defendant took a substantial step toward the commission of armed robbery by ordering the victim from the car and shooting him. The defendant correctly observes that the prosecution failed to present any evidence that the defendant ordered the victim from the car, and the defendant therefore argues that he was not proved guilty of the offense. The defendant notes that, although Moore told the victim to exit the car, the defendant was not tried on an accountability theory.

The defendant does not contend that the indictment is defective, or that there was a fatal variance between the language of the indictment and the evidence offered at trial. Indeed, it appears that the allegation in the indictment that the defendant ordered the victim from the car may be regarded as mere surplusage. See People v. Coleman, 49 Ill. 2d 565, 571 (1971).

In evaluating a challenge to the sufficiency of evidence, a reviewing court must consider the evidence most favorably to the prosecution. See People v. Young, 128 Ill. 2d 1, 48-50 (1989); People v. Collins, 106 Ill. 2d 237, 261 (1985), quoting Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789 (1979). We believe that the evidence in the present case was sufficient to sustain the defendant's conviction for attempted armed robbery. According to the defendant's statements and the testimony of Theodore Traylor, the occupants of the vehicle, with the exception of Traylor, were discussing carjackings while they were driving around just before the victim's murder. The driver, Howard McClinton, expressed the view that older persons were less likely to be armed than younger persons, and that theory apparently motivated their selection of the victim in this case. After McClinton drove into the parking lot, Antoine Moore got out of the Mercedes and tried to open the door of the victim's car. When the victim's door did not open, Moore ordered the victim(from his vehicle. When the victim refused to comply, Moore got back in the Mercedes. At that point the defendant got out of the car and fired a shot at the victim's window, shattering it. The defendant next fired a shot at the victim, striking him. Viewed in a manner most favorable to the prosecution, the evidence presented at trial was sufficient to establish the defendant's guilt for the offense of attempted armed robbery. The guilty parties had discussed carjacking and had selected a victim for that end. By firing a shot at the victim's car window, the defendant took a substantial step toward the planned offense of taking the victim's car.

The defendant makes the related contention that his convictions for first degree murder and attempted armed robbery were improperly based on the same physical act, the shooting of the victim by the defendant. Citing People v. King, 66 Ill. 2d 551 (1977), the defendant contends that multiple convictions may not be based on the same act. What the defendant overlooks, however, is that he fired two shots at the victim: the first shot shattered the car window but did not strkke the victim, and the second shot struck the victim in the head, killing him. While the defendant's conviction for first degree murder must be based on the second, fatal shot, his conviction for attempted armed robbery may be based on the first shot, as our preceding Discussion makes clear. Thus, unlike the conduct in People v. Johnson, 154 Ill. 2d 356, 370-72 (1993), which the defendant cites, discrete physical acts underlie each offense here. The defendant's separatg convictions for murder and attempted armed robbery are therefore proper in this case. People v. Rodriguez, 169 Ill. 2d 183, 188-89 (1996).

The defendant's conviction for attempted armed robbery formed the basis for the trial Judge's subsequent determination, under section 9-1(b)(6) of the Criminal Code of 1961 (720 ILCS 5/9-1(b)(6) (West 1994)), that the defendant was eligible for the death penalty. In a final argument involving the conviction for attempted armed robbery, the defendant contends that the conviction may not serve as a predicate for his eligibility under that statutory aggravating circumstance because doing so could result in an improper double enhancement of the offense of attempted robbery. As we have just determined, however, the convictions for attempted armed robbery and first degree murder were based on separate acts. Accordingly, the use of the offense of attempted armed robbery to establish the defendant's eligibility for the death penalty could not produce an improper double enhancement.

B.

The defendant next contends that the trial court erred in permitting the State to introduce evidence that implied that the car occupied by the defendant and his friends at the time of the offenses had previously been stolen. The defendant also argues that trial counsel was ineffective for failing to seek to bar introduction of this evidence.

At trial, the State presented evidence regarding the recovery of the Mercedes used in the murder. Detective William Egan of the Chicago police department testified that on June 9, 1993, after receiving information from another officer, he went to Evergreen Park, where he spoke to a woman named Delores Barnes. Delores Barnes and Theresa Barnes are not related. Egan then spoke to Theresa Barnes, showing her a brochure of Mercedes Benz models. Following those conversations, Detective Egan had a broadcast issued for the license plate and model of Delores Barnes' car. On June 12, 1993, Officer John Graham of the Chicago police department went to the vicinity of 69th and Loomis Streets in response to a report that the car being sought was possibly located there. Officer Graham found the car in that area and stopped the vehicle. It held seven occupants, six of whom were juveniles. The defendant was not in the car on that occasion.

The parties stipulated that an evidence technician would testify that on June 12, 1993, he went to the location where the Mercedes had been recovered and saw red stains on the driver's seat. He also took a number of fingerprint and palmprint impressions from the vehicle. The parties further stipulated that none of the fingerprints taken from the car when it was recovered matched those of the defendant, McClinton, Moore, or Daniels. The palmprints were also negative.

Although defense counsel raised this issue prior to trial, the Judge did not then rule on whether the evidence was admissible, preferring to wait until the testimony was offered at trial. During trial, however, defense counsel did not object to introduction of the evidence, and therefore the defendant has waived the objection. Recognizing counsel's procedural default, the defendant argues that introduction of the ...


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