Court of Appeals of Illinois, First District, Fifth Division
Rehearing denied November 1, 2013
Defendant’s conviction for first-degree murder was affirmed where there was a sufficient foundation for the admission of his bloodstained pants and boots, his public defender was not ineffective in failing to introduce evidence to challenge the chain of custody of clothing exhibits or in failing to object to the State’s latent fingerprint analysis, the trial court did not err in barring defendant from showing a still frame from a video recording of him in an interrogation room in order to impeach the testimony of a police officer, and the threats defendant made shortly before the offense to two young men who were staying at the house where it occurred were properly admitted to show defendant’s anger and jealousy that led to the killing.
Appeal from the Circuit Court of Cook County, No. 07-CR-1512; the Hon. Arthur F. Hill, Jr., Judge, presiding.
Michael J. Pelletier, Alan D. Goldberg, and Philip D. Payne, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Yvette Loizon, and Lori M. Rosen, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Palmer concurred in the judgment and opinion.
GORDON PRESIDING JUSTICE
¶ 1 Following a jury trial, defendant Herbert Morris was convicted and sentenced to 55 years in the Illinois Department of Corrections for the first-degree murder of Clinton Cavin, who was found dead hours after engaging in an argument with defendant on the morning of November 15, 2006. At trial, witnesses testified that defendant's then-girlfriend, Sharon Smith, left her home early that morning to drive to Iowa, and before she left, she asked Cavin, who lived in the basement, to watch her house while she was gone. This request angered defendant, who frequently spent time at Sharon's house. Defendant then slapped Sharon and demanded that Cavin leave, and defendant later threatened to cut the throats of Sharon's teenage son, Abel Smith, and his friend, Harold Jackson, who also lived in the house.
¶ 2 Later that morning, Harold and his friend, William Alston, observed defendant leave the house and return 15 minutes later with a knife. They locked the front door and left the house through the side door to walk to a nearby gas station, and when they returned two minutes later, they observed defendant down the street walking away from the house. Inside, they observed a bloody shovel leaning against the wall, and then discovered Cavin dead in the basement. William called the police, and defendant was arrested at his parents' house.
¶ 3 Upon his arrest, the police observed bloodstains on defendant's clothing and boots, and forensic scientists later tested samples of the bloodstains and determined that they matched Cavin's DNA profile. The blood recovered from the shovel also matched Cavin's DNA profile, and a palm print recovered from the handle of the shovel matched defendant's prints. An expert in forensic pathology examined Cavin's autopsy files and opined that Cavin's death was a homicide, having died as a result of blunt-force trauma to the head.
¶ 4 On this direct appeal, defendant claims, first, that his conviction should be reversed and remanded for a new trial because defendant was deprived of his right to due process and a fair trial by three related chain-of-custody errors: (1) the trial court admitted defendant's bloodstained pants and boots into evidence despite the State's failure to establish a chain of custody; (2) that the assistant public defender provided ineffective assistance of counsel at trial by not introducing defendant's hospital belongings list into evidence to show that defendant's boots were not seized at that time; and (3) the trial court prohibited the defense from presenting a still shot from a videotape of an unidentified officer seizing the boots in an interrogation room at the police station. Second, defendant claims that the trial court committed reversible error when it allowed the State to present testimony that defendant had made threatening remarks to Abel and Harold the morning of the homicide. Third, defendant claims that his trial counsel was ineffective for not objecting to the State's fingerprint analysis. Despite being represented by counsel on appeal, defendant has also filed a pro se supplemental appellate brief raising numerous additional claims of ineffective assistance of counsel and trial court errors at the suppression hearing and at trial. For the following reasons, we affirm.
¶ 5 BACKGROUND
¶ 6 I. Pretrial Proceedings
¶ 7 Prior to trial, defendant was represented by the public defender. On October 7, 2008, the defense filed a motion to quash arrest and suppress evidence due to a lack of probable cause. A suppression hearing was held on March 30, 2009, and the trial court heard testimony from defendant's mother, Beverly Morris, and two arresting police officers, Daniel O'Connor and Deronis Cooper. Beverly testified that, on November 15, 2006, one officer knocked on her door and asked about her son, while another officer pushed past her and entered her house without her consent and without a search or arrest warrant. The officers then went upstairs and arrested defendant. Officers O'Connor and Cooper both testified that they had received a flash message that described defendant as a murder suspect and that he lived at his parents' house, and that Beverly had given them permission to enter her home. After arguments, the trial court denied defendant's motion, finding: (1) that defendant's mother consented to the search of her house prior to defendant's arrest; (2) that the arresting officers had probable cause to arrest defendant based on the information they had at the time; and (3) that the arresting officers were justified in searching the home without a warrant due to exigent circumstances.
¶ 8 At the next hearing, on June 10, 2009, defendant informed the trial court that he wanted to proceed pro se, and the trial court ordered a behavioral clinical examination, in which a doctor opined that defendant was fit to represent himself. After a 30-day continuance, the trial court found defendant fit to stand trial, admonished defendant of his rights to self-representation, and allowed the assistant public defender to withdraw.
¶ 9 As a pro se litigant, defendant attempted to file a second motion to suppress evidence on January 28, 2010. In his motion, defendant argued that, after he was arrested in his parents' home, the police should have obtained a search warrant from a magistrate judge prior to seizing two knives in the house along with defendant's clothing. Defendant further argued that the assistant public defender was ineffective for failing to make this argument at the prior suppression hearing. The trial court advised defendant that he could not litigate the issue a second time because the trial court already ruled on the merits of defendant's motion to quash arrest and suppress evidence. In response, defendant explained that the public defender "provided ineffective assistance of counsel" because she "suppressed" evidence that showed that she counseled the police officers to perjure themselves at defendant's suppression hearing. The trial court declined to consider defendant's pro se motion, explaining that his allegations were appellate issues and that defendant could raise those issues on appeal.
¶ 10 Afterward, defendant requested counsel, and the assistant public defender was reappointed on March 3, 2010. Despite being represented by counsel, defendant filed a pro se motion in limine concerning ineffective assistance of this same counsel at the suppression hearing. The trial court advised defendant that he may not file a motion when he is represented by an attorney, and defendant requested to proceed pro se a second time. The trial court again admonished the defendant and again excused the same assistant public defender. Defendant then argued a pro se motion in limine, claiming that the police did not have probable cause to enter his parents' home and arrest him, and that the assistant public defender was ineffective because she "suppressed" the arrest report and did not call the officer who issued the flash message to testify at the suppression hearing. Following arguments, the trial court denied defendant's pro se motion, finding that the trial court had already ruled on the probable cause issue in defendant's motion to quash arrest and suppress evidence. Defendant noted for the record that he disagreed with the trial court's ruling.
¶ 11 At the next court date, on May 27, 2010, defendant filed a pro se "Motion in Limine Regarding Knowing Use of False or Perjured Testimony Constituting a Denial of Due Process in Response to Court Order Whether Pro-Se Defendant is Ready for Trial." Defendant explained that he had uncovered new evidence that the assistant State's attorney violated defendant's constitutional due process rights when she knowingly presented false testimony from Officer Cooper at the suppression hearing. Also, defendant's pro se motion argues that the assistant public defender provided ineffective assistance of counsel because she continued to ask Cooper misleading questions, despite knowing that he had testified falsely. The case was continued so that defendant could file an answer to discovery, and at the next court appearance, defendant requested counsel.
¶ 12 On June 30, 2010, the trial court reappointed the same assistant public defender a third time. Defendant objected to the appointment and informed the trial court that he had a case pending against this assistant public defender in federal court. The trial court asked defendant about the nature of the federal case, and defendant explained that he had sued this assistant public defender for "fabrication of statements in a sworn affidavit." Specifically, defendant alleged that, at the suppression hearing, his counsel fabricated the evidence in "the complaint that was signed by the officer that made the 911 call" because the officer that wrote the complaint was not called to testify. The assistant public defender explained that defendant may have confused the arrest report with the general offense case report, which were prepared by different police officers. The arresting officer testified at the suppression hearing that he was not aware of certain facts that were reported in the general offense case report, which contained more detailed information about defendant's arrest. The assistant public defender explained that defendant's May 27, 2010, pro se motion also pointed to the arresting officer's general progress report, which contained information that the officer had learned only after defendant's arrest. The trial court then asked the assistant public defender if she had written the arrest report or any of the police reports in defendant's case, and she answered that she had not. Defendant then argued that, at the suppression hearing, the assistant public defender claimed that evidence was in the arrest report that is not there, to which his counsel responded that she merely impeached the officer by omission when she elicited testimony from the officer that he did not state something in his police report. The trial court stated that it had just "conducted what we'll term a Krankel, which is usually posttrial, but call this a 'mini-Krankel' hearing, " and it found that the assistant public defender would remain on defendant's case, despite his pending action against her in federal court.
¶ 13 On September 14, 2010, defendant attempted to file a pro se motion pursuant to Illinois Supreme Court Rule 415 (eff. Oct. 1, 1971). Defendant attached to his pro se motion a written request to the clerk of the circuit court of Cook County, Illinois, requesting a copy of his arrest report. The trial court struck defendant's pro se filing, finding that only his attorney may file documents. Defendant then requested a third time to proceed pro se, and the trial court denied this third request.
¶ 14 At a later proceeding, on November 5, 2010, defendant attempted to file an additional pro se motion for substitution of judge for cause and to again reconsider the denial of his motion to quash arrest and suppress evidence. Defendant's pro se motion repeated his arguments that the arresting officers lacked probable cause and that the assistant public defender provided ineffective assistance of counsel, though defendant did not address his substitution of judge claim in the body of his motion. Defendant's counsel informed the trial court that she did not intend to file defendant's motion on his behalf. The trial court subsequently bifurcated the pro se motion and denied defendant's request for substitution of judge.
¶ 15 On November 29, 2010, defense counsel filed a motion in limine to bar evidence of other crimes and bad acts, including evidence: (1) that defendant slapped his girlfriend the night before the murder; and (2) that defendant threatened Harold Jackson and Abel Smith the next morning that he would cut their throats. The trial court denied defendant's motion, finding that these incidents described a "continuing course of conduct, which the jury could see, leads up to and includes the murder of Mr. Clinton Cavin."
¶ 16 A jury was selected on February 28, 2011, and the trial began the next day.
¶ 17 II. Trial
¶ 18 At trial, the State argued in its opening statement that, on November 15, 2006, defendant beat Clinton Cavin to death with a shovel after Cavin refused defendant's demand to leave Sharon Smith's home. The State presented 15 witnesses, including two arresting police officers, forensic examiners that handled the evidence in the case, and defendant's then-girlfriend, Sharon Smith, and her three sons. Defendant exercised his right not to call witnesses or testify at trial.
¶ 19 A. Sharon Smith's Testimony
¶ 20 Sharon Smith testified that, in November 2006, she lived in Chicago, Illinois, in a house owned by Maurice Simmons, the father of one of her three sons. Sharon slept in the downstairs bedroom, while her sons, Christopher Simmons, Abel Smith, and Dezell Smith, occupied the bedrooms on the second floor. The victim, Clinton Cavin, lived in the basement. The front door of the house opened into the living room, and a back door accessed the basement. Sharon's boyfriend of five years, defendant, lived in the house off and on, as well as three of Abel's friends, William Alston, Walter Alston, and Harold Jackson. At the time, Abel was 17 years old and went to school, while his friends Harold and William were 19 and 20 years old, did not attend school, and were unemployed. Defendant occasionally used various tools to do maintenance work around the house.
¶ 21 Sharon testified that, on November 14, 2006, she hosted a party at the house to celebrate her birthday, in which her friend Renee Tate, Kenny Marshall, defendant, Maurice, and Maurice's friend Nakita Marshall attended. During the party, which continued past midnight, Sharon and Renee smoked crack cocaine in her bedroom, while defendant, Cavin, Kenny, Nakita, and Maurice drank alcohol and smoked crack cocaine in the basement. Sharon's three sons and their friends, William, Walter, and Harold, stayed upstairs in their bedrooms during the party.
¶ 22 Sharon testified that, at 2 a.m., she prepared to leave the party with Kenny and Renee to drive to Iowa to attend an 11:30 a.m. public housing appointment. Sharon went into the basement and asked Cavin to watch the house while she was in Iowa. After her conversation with Cavin, defendant, who had been drinking and smoking crack cocaine, slapped Sharon across the face. Sharon cried, ran back upstairs, and told her son Abel that defendant slapped her. She then went outside, and defendant acted upset that she was leaving for Iowa. Sharon then asked defendant to accompany her to Iowa, and defendant went inside the house to get his coat. Sharon waited for defendant but he never came back out, so she, Kenny, and Renee left without him. Sharon did not return to her home until 7:30 p.m. the next day.
¶ 23 On cross-examination, Sharon admitted that, when she returned home from Iowa, she told detectives that she had left at 5 a.m., and not 2 a.m. as she had just testified.
¶ 24 B. Maurice Simmons' Testimony
¶ 25 Maurice Simmons testified that, on November 14, 2006, he left work at 10:30 p.m. and attended Sharon's birthday party. Maurice smoked crack with the adults in the basement and on the first floor, while the minors stayed in the upstairs bedrooms. Shortly before 2 a.m. the next morning, Maurice and Nakita observed defendant arguing in the basement with Cavin because defendant wanted Cavin to leave the house. The argument was a "small, little thing, " and Maurice thought it was "no big deal." Sharon then left for Iowa at 2:30 a.m., and Maurice and Nakita went to sleep in Sharon's bedroom and awoke at 7 a.m. to send the kids off to school. At that time, Maurice observed defendant in the house without blood on his clothes. Maurice went back to sleep and was awakened at noon by Harold and William, who told him that Cavin was dead in the basement. Maurice then went down into the basement and observed Cavin's body. Maurice then left the house and used a neighbor's telephone to call 911, and the dispatcher told him that someone had already called and the police were on their way. Maurice identified defendant in court.
¶ 26 On cross-examination, Maurice testified that he did not remember if he left work at either 10:30 p.m. or 1 a.m. the next morning, and that it took him 30 minutes to drive from his job to Sharon's party. The defense asked Maurice whether he told the police that he observed Sharon leave at 5 a.m., and he testified that he did not remember saying that to the police. Maurice also testified that he did not speak with Abel at any point that morning.
¶ 27 C. Christopher Simmons' Testimony
¶ 28 Christopher Simmons testified that, at the time of trial, he was 21 years old. On November 14, 2006, he lived with his mother and he never left the house during her birthday party. Christopher observed defendant at the party drinking and "having fun." Christopher went to sleep shortly after midnight, and he awoke at 1:30 a.m. to use the downstairs bathroom. Christopher observed defendant downstairs but he did not speak to defendant before he went back to bed because defendant "looked kind of mad." Christopher then went back upstairs to sleep, and he and Abel left for school the next morning. Christopher also identified defendant in court.
¶ 29 D. Renee Tate's Testimony
¶ 30 Renee Tate testified that she and Sharon celebrated their birthdays together on November 15, 2006, at Sharon's residence. Renee planned on accompanying Sharon and Kenny on a short trip to Iowa. Before they left, Sharon asked defendant to join them and he went inside the house to retrieve his jacket, but he never came back outside, so they left without him. Renee did not remember what time they left, and she did not learn of Cavin's death until she returned to Chicago. Renee also identified defendant in court.
¶ 31 On cross-examination Renee testified that, though she did not remember when they left for Iowa, she arrived at the party at 12:30 a.m. and stayed for two hours. When asked if she had told the police that they left the party at 4:30 a.m., she stated, "If that's what I told him, that's what ...