Court of Appeals of Illinois, First District, Fifth Division
As Corrected May 29, 2015.
Rehearing denied April 2, 2015.
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[Copyrighted Material Omitted]
Appeal from the Circuit Court of Cook County. No. 06 CR 28303. Honorable Steven J. Goebel, Judge Presiding.
Defendant's conviction for first degree murder was upheld over his contentions that the trial court failed to give a jury instruction on self-defense on the ground that no defense witnesses testified that defendant shot the victim, that the trial court erred in allowing the State to present evidence and closing argument that defendant was hiding from the police and that the trial court applied the wrong legal standard in evaluating defendant's claims of ineffective assistance of counsel, since defendant did not raise the issue of self-defense in his trial and with respect to the claims of ineffective assistance of counsel, defendant had an opportunity to present each of the issues raised in his pro se motion during a Krankel inquiry and the trial court found no ineffective assistance of counsel and defendant failed to show this finding was manifestly erroneous.
For Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, S. Emily Hartman, Assistant Appellate Defender, Office of the State Appellate Defender.
For Appellee: Anita Alvarez, State's Attorney, County of Cook, Alan J. Spellberg, Kathleen Warnick, Yvette Loizon, Assistant State's Attorney.
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Palmer and Justice McBride concurred in the judgment and opinion.
[¶1] Following a jury trial in the circuit court of Cook County, defendant Andre Lewis was found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2006)) and was sentenced to 60 years in prison. On appeal, defendant contends the trial court erred in: (1) refusing a jury instruction on self-defense on the ground that no defense witnesses testified that defendant shot the victim; (2) allowing the State to introduce evidence and present closing argument that defendant was hiding from the police; and (3) applying the wrong legal standard in assessing posttrial claims of ineffective assistance of counsel. For the following reasons, we affirm the judgment of the circuit court.
[¶3] Pretrial Proceedings
[¶4] On December 19, 2006, defendant was charged by indictment with first degree murder, arising out of the May 14, 2006, shooting death of Darryl Simms. On April 5, 2007, the State filed a motion for pretrial discovery, requesting in part written notice of any defense, affirmative or nonaffirmative, which defendant intended to assert at any hearing or at trial. On May 28, 2009, defendant filed an answer to the State's motion for pretrial discovery, in which defendant denied each and every allegation of the charges and stated he would rely on the State's inability to prove him guilty beyond a reasonable doubt.
The answer does not indicate that defendant intended to raise any affirmative defense to the charges against him. On December 2, 2009, private defense counsel moved to withdraw from representing defendant, citing an irreconcilable conflict regarding trial strategy. On December 10, 2009, an assistant public defender entered her appearance on behalf of defendant.
[¶5] On February 16, 2012, defendant, through two assistant public defenders, filed a supplemental answer to the State's motion for pretrial discovery, in which defendant not only denied the charges, but also stated he " may or may not assert the defense of self-defense." On the same date, despite defendant being represented by counsel, the trial court also heard defendant's pro se " motion for ineffective assistance of counsel." During the hearing, defendant asserted he had been unable to have a conversation with the investigator working on his defense and did not know whether the investigator or counsel had interviewed the witnesses defendant sought to present at trial. One of the public defenders representing defendant informed the trial court she had spoken to witnesses identified by defendant, although the public defender's office was attempting to locate one of the witnesses who had since moved. In addition, there were two witnesses the public defender's office had been unable to locate. A second public defender denied that defendant was unable to converse with counsel or the defense investigator, noting that she, her colleague, and the defense investigator visited defendant at the correctional facility on February 15, 2012, but defendant refused to speak to them. Defendant responded that the meeting with the investigator was untimely because he had requested to speak with the investigator for over one year. The trial court observed that defendant raised similar complaints of insufficient investigation against his prior, private representation when his case was previously set for trial. The trial court did not expressly deny the motion, but observed that the prior and current defense counsel were very good attorneys, instructed defendant to consult with counsel and continued the case by agreement to February 21, 2012.
[¶7] The trial in this case ultimately commenced on March 20, 2012. Defendant remained represented by the aforementioned two public defenders.
[¶8] Michael Bush (Bush) testified he considered Simms his brother, because Simms had been with his sister for 12 years. On May 14, 2006, Bush and Simms, while shopping for Mother's Day gifts, visited a strip mall at 3900 West Madison Street. Vendors sold a variety of goods in the mall parking lot. During the past seven years, Bush also sold goods at this location.
[¶9] Bush testified that a young man then approached him in the parking lot and inquired whether Bush was selling shoes. Bush replied that he was not selling shoes, but informed him Simms had some shoes in the trunk of his automobile. The young man purchased some shoes from Simms. According to Bush, during the sale another automobile stopped next to Simms and the individuals in the vehicle also purchased some shoes from Simms.
[¶10] Bush also testified that when he and Simms first arrived at the parking lot, he had noticed a man he knew as " Renegade" conducting business at the same location. Bush identified defendant in court
as " Renegade." Bush further testified that defendant drove a maroon Chevrolet Lumina, which was parked in the mall lot, with the front end of the automobile facing in a direction to drive straight out from the lot.
[¶11] After Simms had sold several pairs of shoes, Bush heard defendant telling Simms he should not be selling shoes. Defendant was standing near his Lumina during this conversation. Bush, who was approximately 10 feet away from Simms, testified he turned toward defendant and said, " [G]o on with that man. Ain't nobody here for that. This is Mother's Day." Defendant acknowledged Bush's comment and walked away westward, in the direction of the Lumina. According to Bush, Simms never approached defendant and did not lift his shirt to display a handgun because Simms was not armed with a weapon.
[¶12] After the conversation between defendant and Simms, Bush testified that he and a young man were walking westward in the parking lot when Simms passed them, conversing on his cell phone. Bush did not observe a truck pull up near Simms and did not see him remove a weapon from the truck at that time. Bush, however, did observe defendant close the door of the Lumina and approach Simms, who was " coming out of his coat." Bush thought Simms may have wanted to fight. Bush testified that he grabbed Simms and said, " [M]an, this ain't no nothing."
[¶13] According to Bush, he observed defendant " come out of his pocket and start shooting" Simms with a small, black revolver. Defendant was approximately five feet away from Simms. Defendant fired his weapon three or four times and did not fire at Bush. Simms attempted to run away from defendant, but fell over. According to Bush, defendant then jumped into his Lumina and sped eastward out of the parking lot.
[¶14] Bush testified that he went up to Simms, whose eyes were rolling backward in his head. Bush reached into Simms' pocket to remove his keys with the intent to use his automobile, but a man said, " [N]o, don't go. That's your brother. They're going to take his stuff." Bush remained at the scene of the shooting and spoke to the police and paramedics who later arrived at the scene. On May 15, 2006, Bush had further conversations with the police and identified a photograph of defendant as the man who shot Simms. On May 17, 2006, Bush went to the Area 4 police headquarters and again identified defendant from a photographic array as the shooter. On November 16, 2006, Bush also identified defendant in a lineup at Area 4 police headquarters as the individual who shot Simms.
[¶15] Clarence Barnes (Barnes) testified he was at the strip mall in question at approximately 1 p.m. on May 14, 2006. Barnes went to the mall with two female friends, who purchased shoes from Simms. Defendant asked Barnes whether he purchased shoes from Simms and, if so, the cost and size of the shoes. Barnes responded that he had purchased shoes and inquired whether defendant was also selling shoes because he and his friends wanted to purchase additional pairs of shoes. Defendant replied, " [D]on't worry about it" and walked away. According to Barnes, defendant had " hostility in his voice about the situation."
[¶16] Barnes decided to leave the lot, due to a fear of theft. As Barnes returned to his truck, he noticed Simms and defendant were arguing. While Barnes engaged in a
conversation with someone else, he heard gunfire. Barnes ducked and could not observe who was firing. Barnes had not observed either Simms or defendant with a handgun. Barnes, however, saw Simms lying on the ground, with Bush standing over him. Barnes testified he did not see Bush searching Simms' pockets. On May 19, 2006, Barnes went to the Area 4 police headquarters and identified a photograph of defendant from an array of photographs as the individual standing over Simms.
[¶17] Tawanda Evans (Evans) testified that in May 2006, she lived on the eighteenth floor of an apartment building right behind the strip mall and had an unobstructed view of the parking lot. At approximately 1:30 p.m. on May 14, 2006, she was in her apartment, viewing the parking lot from her window while speaking with her daughter on her cell phone. Evans observed Simms and a man she could not identify in a conversation. Evans then watched as Simms turned around and the other man walked toward Simms, raised his hand and shot Simms. Evans heard three gunshots and observed Simms fall to the ground. According to Evans, the shooter drove " some sort of red" vehicle around Simms to exit the parking lot. Evans did not see Simms with a handgun. Evans also testified there were no other people standing in the area when the shooting occurred, but after the shooting a man jumped a fence and commenced searching Simms' pockets. Evans telephoned 911 to report the shooting, but she was unable to identify the shooter to the police.
[¶18] James Rogers (Rogers), who was working as a security guard at a store in the strip mall that day, testified he heard several gunshots and ran out of the store, proceeding down an aisle of the parking lot. Rogers observed " a hand sticking out with a weapon in it, but just the hand." According to Rogers, he could not exactly identify the weapon, " [b]ut it looked like it could be a revolver." Rogers described the weapon as " dark in color, possibly blue steel or black." He also observed a man fall backwards and this individual was not holding a handgun. The person with the weapon was wearing a black hood, but Rogers could not observe the shooter's face because his view was obstructed by the vehicles in the parking lot. Rogers further observed the shooter drive past Simms in a maroon or burgundy Lumina or a vehicle of a similar model which had been parked on the west end of the parking lot. Another man ran up to the body, screaming, " I can't believe he shot my brother." Rogers did not observe a handgun in the possession of this individual. Rogers testified the man commenced searching the victim's pockets. Rogers advised the same individual not to move and to stay there with the body while Rogers telephoned the police.
[¶19] Chicago police officer Warnecke testified she was a few blocks away from the strip mall when she received a radio call of a " man shot" shortly after 1:30 p.m. on May 14, 2006. Officer Warnecke arrived at the scene within a few minutes. According to Officer Warnecke, Bush was distraught and crying. Officer Warnecke searched both Simms and Bush and found no weapons. The officer then secured the scene. Bush identified defendant as " Renegade" to Officer Warnecke, who was unable to locate defendant in the parking lot.
[¶20] Chicago police officer Gary Powell testified that in May 2006, he worked a foot patrol, which included the strip mall at 3900 West Madison Street. Officer Powell was familiar with defendant because he knew defendant sold shoes in the parking lot at least three or four times per week. After the shooting, however, Officer Powell never saw defendant return to the parking lot again.
[¶21] Chicago police detective Adrian Garcia testified he was assigned to investigate the shooting in May 2006. Detective Garcia testified he prepared the photographic array, showed the photograph, and arranged the lineup in which Bush identified defendant as the shooter.
[¶22] Chicago police sergeant Peter Devine responded to a homicide assignment at 3900 West Madison Street at approximately 1:35 p.m. on May 14, 2006. Sergeant Devine received information regarding the suspect and his vehicle. Sergeant Devine commenced a search for defendant and a red Chevy Lumina by proceeding to an address in Forest Park, but neither defendant nor his wife, Sharina Clark Lewis (Sharina) was there. Sergeant Devine also issued an investigative alert indicating defendant was wanted for an interview, as well as a " leads message" regarding defendant and the vehicle. Sergeant Devine ...