People v. Lewis

• Decision Date: 31 July 1979
• Docket Number: No. 78-33,78-33
• Citation: People v. Lewis, 393 N.E.2d 1098, 75 Ill.App.3d 259, 30 Ill. Dec. 751 (Ill. App. 1979)
• Parties: , 30 Ill.Dec. 751 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie C. LEWIS, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 1098

393 N.E.2d 1098

75 Ill.App.3d 259, 30 Ill.Dec. 751

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Willie C. LEWIS, Defendant-Appellant.

No. 78-33.

Appellate Court of Illinois, First District, Second Division.

July 31, 1979.

Rehearing Denied Sept. 4, 1979.

Ralph Ruebner, Deputy State Appellate Defender, and Patricia Unsinn, Asst. State Appellate Defender, Chicago, for defendant-appellant.

Bernard Carey, State's Atty. of Cook County, Chicago (Marcia B. Orr and Iris E. Sholder, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

PERLIN, Justice:

After a jury trial defendant, Willie C. Lewis, was found guilty of murder (Ill.Rev.Stat.1975, ch. 38, par. 9-1), two counts of attempt murder (Ill.Rev.Stat.1975, ch. 38, par. 8-4), delivery of less than 30 grams of a controlled substance, namely heroin (Ill.Rev.Stat.1975, ch. 561/2, par. 1401(b)), attempt delivery of less than 30 grams of heroin (Ill.Rev.Stat.1975, ch. 38, par. 8-4), possession of less than 30 grams of heroin (Ill.Rev.Stat.1975, ch. 561/2, par. 1402(b)), and possession of a stolen vehicle (Ill.Rev.Stat.1975, ch. 951/2, par. 4-103(a)). Judgment was entered on each verdict except the attempt delivery and possession of heroin findings. Defendant was sentenced to concurrent prison terms of 500 to 1000 years for murder, 50 to 100 years for each attempt murder, 5 to 15 years for delivery of heroin, and 1 to 3 years for possession of a stolen vehicle.

Defendant appeals presenting the following issues for review: (1) whether a warrantless search of defendant's house conducted after defendant had been arrested and removed from the premises was unlawful thereby requiring all evidence seized to be suppressed; (2) whether statements made by defendant to police were made voluntarily or were induced by the physical injuries defendant received at the time of his arrest; (3) whether the State sustained its burden of proving that defendant was advised of his rights under Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, and that he knowingly and intelligently waived his rights; (4) whether defendant was found guilty beyond a reasonable doubt of attempt murder and murder; (5) whether defendant was denied his right to confront witnesses against him when he was not permitted to impeach their testimony with proof of prior inconsistent statements made by the witnesses; (6) whether the trial court erred in refusing to admit into evidence a prior consistent statement made by defendant to police; (7) whether the giving of attempt murder instructions subsequently held to be erroneous in People v. Harris (1978), 72 Ill.2d 16, 17 Ill.Dec. 838, 377 N.E.2d 28, constituted plain error; (8) whether defendant was denied a fair trial when the trial court inadvertently read to the jury an instruction that had been submitted by the State but then withdrawn; (9) whether evidence of the criminal background and former drug addiction of a State's witness is admissible on direct examination; (10) whether the prosecutor improperly questioned defendant regarding the veracity of witnesses for the State; and (11) whether comments by the prosecutor during closing argument were improper and prejudicial to defendant.

We affirm.

On the evening of September 13, 1976 police officers James Duigan, James McKeon and Patrick Crowley were conducting a narcotics surveillance of a house at 6243 South Aberdeen, Chicago, Illinois. At approximately 8 p. m. officer Duigan observed a man, identified as Jessie Hayes, go to the back door of the house and attempt to trade a stereo for a quantity of heroin. A voice inside stated that he would only give a lesser amount than requested and Hayes replied that he would have to check with his partners. Hayes left and when he came to the alley behind the house the officers stopped him and told him to make the trade. The officers remained in the alley behind a gate which was approximately 10 to 12 feet from the back door. The back door had a burglar gate and a porch approximately three feet by three feet with three stairs which led up to the back door. A porch light and lights in the alley were illuminated. Hayes went to the back door and told the person who answered (identified in court as defendant Willie C. Lewis) that he wanted to trade. As defendant opened the burglar gate, the officers came into the yard and yelled "halt, police officers." Defendant denied that he heard anyone yell "police" and testified that he only saw Hayes and one other person with a gun pointed at him. Crowley reached the stairs first and as he did defendant fired several shots, one of which hit Crowley. Defendant then backed into the house and closed the door. Several other officers arrived at the house and defendant was arrested inside the house along with a woman, Bernadette Markham. At the time defendant was arrested he sustained physical injuries requiring 13 sutures to his head. Police conducted a search of the premises at the time of the arrest and seized two weapons that were in plain view. A second search was conducted by other police officers approximately two hours after the arrest and several packets of controlled substance and paraphernalia were observed in plain view and seized. Defendant was charged by indictments with the murder of Patrick Crowley; the attempt murders of James Duigan and James McKeon; delivery, attempt delivery and possession of heroin; and possession of a stolen vehicle.

Prior to trial defendant filed a motion to suppress physical evidence recovered during the two searches on the basis that no warrant was obtained, no consent to search was given, and the second search was not incident to the arrest. The following evidence was adduced at the hearing on the motion:

Defendant testified that on September 13, 1976, he was with his common-law wife, Bernadette, at 6243 Aberdeen. Defendant lived in the two-story house part of the time and he also lived with Bernadette at 6730 South Shore Drive. The first floor of the house at 6243 Aberdeen had a kitchen, dining room, living room and two bedrooms, one of which had a trap door to the basement. The second floor had three bedrooms and a bathroom. When a man came to the back door and tried to sell a stereo, defendant saw a second man enter the yard and point a gun at defendant from a distance of four or five feet. Defendant saw no one else enter the yard and did not hear anyone yell "police." Defendant stood right inside the kitchen door and fired three or four shots toward the gun pointed at him from a .41 caliber revolver which he owned. Defendant then closed the door and laid the gun down. He was standing in the dining room on the first floor when he heard someone say "Get some help over here, this is the police." Two police officers came through the back door with their guns drawn and told defendant he was under arrest and to lie down on the floor. One officer was black and in uniform and the other was white and in plain clothes. Defendant could not recognize either officer or recall their height, weight, age or hair color. Defendant told the officers that someone was upstairs and that he did not shoot any police officer. Defendant testified that Jimmy Jones and Herman Everett were in the house on the night in question, that he heard them upstairs 10 to 15 minutes before police arrived and he did not see them leave.

Defendant testified further that as he began to lie on the floor, the white officer struck him on the head with a gun. Several officers then came in and began kicking defendant and the next thing he knew he was in a police car. Defendant did not resist arrest or struggle and his physical condition prior to the incident was good. After the beating, defendant's right, front tooth was broken, and he had cuts below both eyes and on his head. The cuts on the head required nine stitches. The police did not show defendant a search warrant and defendant gave no one permission to search the house.

Police officer Milton Battle testified that on September 13, 1976, at approximately 8 p. m. he entered the house at 6243 Aberdeen through the back door and he observed defendant and a woman. Battle told defendant to step out with his hands up, which he did, and then he told defendant to lie on the floor. Battle then entered a bedroom on the first floor because the woman said there was a gun on the bed and he found a .41 Smith and Wesson revolver in plain view on the bed. There were no lights on in the room but Battle had a flashlight lit. Battle did not observe any other persons or any packets of narcotics in the room.

Police officers John Herr, Thomas Manion, Gerald Dahlberg and John Howe testified that on September 13, 1976 they entered the premises at 6243 Aberdeen approximately 10 p. m. with their guns drawn to assist the crime lab in locating evidence and firearms and to search for a second offender who may have been in the building. Herr entered the bedroom on the first floor and observed on the floor a clear plastic bag containing a brown powder suspected to be heroin. Herr recovered the heroin and inventoried it. Herr then searched with his gun drawn, the closets, crawl spaces and places where a man could hide but he found no additional persons. Herr prepared a report on the night of the incident but the report does not indicate where in the bedroom the packet was found. Manion testified that while he was looking in the hallway for a firearm he shined his flashlight into a heating duct and observed two clear packets of a tan powder suspected to be heroin. One packet was small and the other was large and contained several small packets. Manion recovered the items and inventoried them. Dahlberg entered the kitchen area and observed in plain view some bottles on the sink. One bottle contained pink pills believed to be a controlled substance. Dahlberg recovered the bottles and inventoried them. Dahlberg also recovered some money from the...