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The People of the State of Illinois v. Lamar Wilmington

February 7, 2013


The opinion of the court was delivered by: Justice Karmeier

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Thomas, Garman, and Theis concurred in the judgment and opinion.

Justice Burke dissented, with opinion, joined by Justice Freeman.


¶ 1 Following a jury trial in the circuit court of Cook County, defendant, Lamar Wilmington, was convicted of first degree murder and concealment of a homicidal death. He was sentenced to consecutive prison terms of 50 and 5 years, respectively. Defendant appealed, arguing that he was denied a fair trial insofar as: (1) the circuit court did not ascertain that he consented to his counsel's tender of a jury instruction on second degree murder; and (2) the circuit court did not fully comply with the voir dire requirements of Illinois Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)). The appellate court rejected defendant's first argument, concluding that the trial court was not required to ascertain whether defendant agreed to his counsel's tender of the pertinent instruction; however, the appellate court found that the circuit court's questioning of potential jurors did not fully comply with Rule 431(b), and that error necessitated reversal and remand for a new trial. 394 Ill. App. 3d 567. This court subsequently issued a supervisory order directing the appellate court to vacate its judgment and reconsider in light of our decision in People v. Thompson, 238 Ill. 2d 598 (2010) (holding, given the facts there extant, that the trial court's omissions in Rule 431(b) questioning did not qualify as structural, second-prong plain error, which would require automatic reversal). On remand, the appellate court determined that the trial court's Rule 431(b) omissions did not warrant reversal under either prong of plain-error analysis-as the evidence was not closely balanced and there was no evidence that defendant was tried by a biased jury. With respect to defendant's instructional issue, the appellate panel on remand took a position different from that of the original appellate panel, holding that the trial court erred when it failed to inquire whether defendant consented to the tender of a second degree murder instruction, but the error did not rise to the level of plain error. 2011 IL App (1st) 072518-B. We allowed the defendant's petition for leave to appeal (Ill. S. Ct. R. 315 (eff. Feb. 26, 2010)), and now affirm the judgment of the appellate court, though we do not accept its reasoning in toto.


¶ 3 The core facts that follow are taken from the transcript of defendant's trial. Additional facts pertinent to the issues will be set forth, as necessary, in the analysis of each issue. We note, prior to trial, a motion to quash defendant's arrest and suppress evidence-including his confession-was denied by the circuit court.

¶ 4 On March 4, 2004, the body of Guan McWilliams was found in a garbage can at 7446 South Eberhart in Chicago. An autopsy revealed that McWilliams had been shot twice in the top of the head.

¶ 5 Approximately one week later, defendant appeared at the Third

District police station and stated he had information concerning a person who had been killed in the vicinity of 74th Street and Eberhart. Defendant told detectives he had been at a party and had overheard a man identified as "Dollar" say that he had killed a "gay" man and had thrown him in the garbage. Acting upon that information, police interviewed Dollar and eliminated him as a suspect.

¶ 6 On June 14, 2004, defendant again appeared at the police station and, on that occasion, reported that his head had been grazed by a bullet. After investigating defendant's complaint, Detective Gerald Hamilton advised defendant of his Miranda rights, and informed defendant that he had questioned Dollar and had ruled him out as a suspect. According to Hamilton, defendant appeared visibly shaken and then admitted he had lied about Dollar.

¶ 7 Detective Robert Myers testified that he and other officers spoke with defendant on June 15 after advising him of his Miranda rights. Thereafter, they went with defendant to look for two witnesses named Ram and Stennis. Unable to locate those individuals, they proceeded to defendant's home at 7318 South Eberhart. Earlier that morning, defendant had consented to a search of his residence. Defendant showed the detectives his bedroom in the basement of the residence, where McWilliams had allegedly been shot. Defendant told the officers that the condition of the room had changed since the night of the murder. Drywall had been put in, a rug was put down on the concrete floor, and some additional furniture had been placed inside.

¶ 8 Detective Myers testified that defendant was returned to the Area

2 station after the search, where he remained for the next two days, except for two trips to a police facility at 1819 West Pershing. During that time, the detectives continued the investigation, looking for other witnesses.

¶ 9 Assistant State's Attorney George Canellis took defendant's handwritten statement on June 17, with Detective Myers present. In the statement, defendant said that he met McWilliams at the Jeffery Pub's "gay night" in January 2003. He and McWilliams had oral and anal sex three or four times over the next year. Defendant said no one knew he had "gay sex," including members of his gang, the Black Disciples, who did not like homosexuals. Defendant stated, on March 3, 2004, McWilliams called him and asked for $200. Defendant told McWilliams he did not have $200, but he encouraged McWilliams to come over anyway. When McWilliams arrived, no one else was at defendant's residence. Defendant admitted to Canellis that he and the victim engaged in consensual sex acts, but he did not elaborate any further on this subject in his statement.

¶ 10 After the sexual activity, McWilliams asked for $200 and told defendant he would be charging for sex. Defendant and McWilliams argued, and McWilliams threatened to tell the police that defendant had raped him. McWilliams also told defendant that he had AIDS. Defendant stated that McWilliams then produced a dark automatic gun, but defendant was able to get the gun away from McWilliams because defendant was bigger and stronger. The argument continued, defendant calling McWilliams a "little bitch." McWilliams threatened to tell people in the neighborhood that they were having sex. Defendant told Canellis he did not want people in the neighborhood to know he had sex with McWilliams. Defendant stated, while he held the gun, McWilliams, whom defendant described as naked and unarmed, ran at him. Defendant believed that he fired about four shots, striking McWilliams in the top of the head. Defendant said McWilliams fell to the floor, bleeding, and he appeared to be dead.

¶ 11 Defendant stated he then put underwear and a shirt on

McWilliams, hid the gun, and dragged McWilliams' body outside onto the sidewalk. Defendant went to get help from a fellow gang member named Ramsey. Defendant told Ramsey he killed McWilliams when a drug deal went bad. Defendant stated that Ramsey came back to the house with him and told him to put the body in a garbage can. Defendant got a garbage can nearby, picked up McWilliams' body, and threw it into the can. He and Ramsey then wheeled the can about a block away and left it there. Defendant said he used bleach to clean the floor, and he threw out the shell casings and the rest of McWilliams' clothes. He gave the gun to another fellow gang member.

¶ 12 Defendant told Canellis he had initially implicated Dollar because he and Dollar had fought over a girl. He told Canellis when he went to the police station on June 14, to report the incident in which a bullet had grazed his head, he also talked to the police about McWilliams' murder. Defendant said he initially implicated Ramsey in the killing because he was frightened. Defendant told Canellis, at the time of his statement, that he was telling the truth because he wanted to clear his conscience.

¶ 13 After Canellis took down the statement, he and defendant began to review it. They read through the Miranda warnings on the first page, and Canellis then asked defendant to sign underneath the warnings. Defendant refused to sign any part of the statement, but he did agree to sign a Polaroid photograph of himself taken by Canellis at the time of the interview.

¶ 14 Stipulations were entered of record indicating, in essence, that no inculpatory evidence was obtained from defendant's residence, and no fingerprints suitable for comparison were obtained from the garbage can in which McWilliams' body was found. Further, the garbage can in which the body was discovered had been assigned to a vacant building which shared a common alley with defendant's residence. Finally, the articles of clothing found on McWilliams' body included a T-shirt, boxer shorts, a shirt, a sweatshirt, jeans, socks, and a nylon cap known as a "do-rag."

¶ 15 Dr. Nancy Jones, the medical examiner, testified to the angles by which two bullets entered and traveled through McWilliams' skull. Jones said she found no evidence of close-range firing, i.e., discharge of the weapon between 18 to 24 inches from the body. She did not take any rectal or oral swabs and did not see any apparent semen. Dr. Jones indicated she found blunt trauma injuries on McWilliams' body consisting of large abrasions or scratches and some bruising on the back that occurred around the time of death. Some of the abrasions were consistent with McWilliams' body having been dragged on the sidewalk after he was shot; the bruises were consistent with the body having been dropped on the sidewalk after the shooting. Jones testified that McWilliams' blood-alcohol level was twice the legal limit.

¶ 16 Dr. Robert Hanlon, a clinical neuropsychologist, testified on behalf of defendant. Hanlon placed defendant's mental functioning in the range of mild mental retardation. He stated that an intelligence quotient (IQ) below 70 is indicative of mental retardation, and he acknowledged that defendant, with a full-scale IQ of 67, is "really on the high end of being mildly mentally retarded." Hanlon opined that defendant reads at a first-grade level. Hanlon also testified, based on defendant's medical records, that defendant has a seizure disorder, which, Hanlon suggested, would have made it unlikely that he could have committed the crime without suffering a seizure. Hanlon, however, admitted that the State's version of events was "certainly possible." Moreover, Hanlon admitted that defendant's history of seizures was largely "self-reported."

ΒΆ 17 In rebuttal, the State called Alesia Hines, a paramedic with Cermak Health Services. Hines testified that she questioned defendant about the date of his last seizure, and he told her that his last seizure had been in 1995. The State also called Dr. Dawna Gutzmann, a staff psychiatrist with Forensic Clinical Services, who had interviewed defendant several times. Defendant told her that he had a seizure in 2002, and he then starting having seizures frequently in the year leading up to his arrest. Gutzmann concluded that there was some evidence of malingering. Defendant had reported to another doctor that he was having seizures in the courtroom, that he would sometimes have none for a month, but then ...

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