People v. Smith, No. 66001

• Court: Supreme Court of Illinois
• Writing for the Court: RYAN
• Citation: 152 Ill.Dec. 218,141 Ill.2d 40,565 N.E.2d 900
• Docket Number: No. 66001
• Decision Date: 21 November 1990
• Parties: , 152 Ill.Dec. 218 The PEOPLE of the State of Illinois, Appellee, v. Steven SMITH, Appellant.

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565 N.E.2d 900 141 Ill.2d 40, 152 Ill.Dec. 218 The PEOPLE of the State of Illinois, Appellee,
v.
Steven SMITH, Appellant. No. 66001. Supreme Court of Illinois. Nov. 21, 1990.
Rehearing Denied Feb. 4, 1991.

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[141 Ill.2d 46] [152 Ill.Dec. 219] Randolph N. Stone, Public Defender, Chicago (Ronald P. Alwin, Asst. Public Defender, of counsel), for appellant.

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[152 Ill.Dec. 220] Neil F. Hartigan, Atty. Gen., Springfield, and Cecil A. Partee and Jack O'Malley, State's Attys., Chicago (Terence M. Madsen, Asst. Atty. Gen., Chicago, and Renee G. Goldfarb, Asst. State's Atty., and Jean T. McGuire, Sp. Asst. State's Atty., of counsel), for the People.

Justice RYAN delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, Steven Smith, was convicted of the murder of Virdeen Willis, Jr. The State, seeking the death penalty, moved for a separate sentencing hearing. Defendant waived his right to a jury for the sentencing phase of the proceedings. The trial court found the existence of a statutory aggravating factor (Ill.Rev.Stat.1985, ch. 38, par. 9-1(b)(3)) and determined that defendant was eligible for the death penalty. At the end of the bifurcated sentencing hearing, the trial court found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the court sentenced defendant to death. The sentence was stayed (107 Ill.2d R. 609(a)), pending direct appeal to this court [141 Ill.2d 47] (107 Ill.2d R. 603). We reverse defendant's conviction of murder and remand this cause to the circuit court of Cook County for a new trial.

Before this court, defendant raises numerous issues concerning both the trial and sentencing proceedings below. Defendant initially argues that it was reversible error for the trial court to admit evidence of the victim's attitude toward and treatment of gang-related activity and of the victim's altercation with a gang leader. Defendant next asserts that he was unfairly prejudiced by certain remarks of the prosecutor during opening statement and closing argument. Defendant further asserts that it was reversible error for the prosecutor to suggest, in closing argument, that several of the State's witnesses had been threatened and forced to leave Chicago. Defendant argues that the cumulative effect of the evidence of gang-related activity and of the prosecutor's argument to the jury deprived defendant of due process. Defendant further posits that a prison incident report admitted into evidence was improperly admitted under the business records exception to the rule against hearsay. Defendant raises numerous other issues arising from both his trial and sentencing hearing, but our disposition of this case obviates the need to address those issues.

At the time of the murder, the victim, Virdeen Willis, Jr., was an assistant warden at Pontiac Correctional Center in Pontiac, Illinois. On the evening of June 30, 1985, Willis and his friend, Robbin Howland, drove to Chicago. They went into the Shamrock Lounge, a bar owned by Willis' cousin Maggie. Willis parked his car in a vacant lot next to the lounge.

Hasan Ali was tending bar at the Shamrock Lounge that evening. Willis and Howland were sitting at the bar. Ali testified that he noticed three men enter the bar and sit at a table behind Willis and Howland. He later identified the men as defendant, Herbert Stevens and Robert [141 Ill.2d 48] Spade. Defendant was wearing a black leather jacket, black pants, black shoes and a black cap with a short beak that evening. Ali testified that Stevens and Spade were also wearing dark clothing. Ali testified that as they sat at the table, defendant, Stevens and Spade were all facing Willis "like they was looking directly at him." Ali further stated that he picked up a .38-caliber revolver, which he kept behind the bar, and put it in his pocket because he thought they were there to rob the place.

Meanwhile, Rhonda Carraway was walking near the Shamrock Lounge on her way to a friend's house. As she was walking, she met Treadis Murray, whom she knew from the neighborhood. She stated that Murray was a friend or "associate" of hers. She testified that Murray was known as "King Treadis" or "Chief Treadis," and was the leader of the King Cobra street gang. Rhonda Carraway testified that she had once been in an apartment in the neighborhood where Murray, defendant, and Stevens were present. A statue of a black cobra was on the mantle piece. Carraway stated that she had a conversation with Murray, and then entered the Shamrock Lounge and told Stevens that Murray

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[152 Ill.Dec. 221] wanted Stevens to come outside. Stevens and Carraway then left the lounge. Carraway walked upstairs to her girlfriend's home, while Stevens walked toward Murray. Carraway testified that when she got upstairs, she walked out onto her girlfriend's balcony, looked down, and saw that Stevens and Murray were gone.

Hasan Ali testified that he observed a woman enter the bar and summon one of the men seated at the table with defendant. The man and the woman then left the bar. The man later returned, accompanied by some other men. Some time later, the men, including defendant, left the lounge while Willis and Howland were still seated at the bar. Shortly after 9 p.m., Willis and Howland got up [141 Ill.2d 49] to leave the lounge. They paused for a time while Willis spoke to his cousin, and then Willis, Howland and cousin Maggie left the lounge.

Outside the lounge, Willis and Maggie walked ahead of Howland toward Willis' car. Willis walked to the driver's side of the car, which was facing the street. Howland paused at the corner of the lounge while Willis and Maggie talked. Howland said that she looked back toward the lounge and saw the silhouette of a man with a gun about five feet from Willis. His arm was pointed straight out past her in the direction of Willis and Maggie. Howland stated that she then heard a pop or a crack, and saw smoke come up in front of her face. The gunman then moved toward Willis, who was lying on the ground. The gunman was in a crouched position with the gun extended in his hand. Howland testified that he was waving the gun back and forth. She stated that she then ran back to the Shamrock Lounge and told Hasan Ali to call the police. She testified that the gunman was dressed in black and was wearing a hat, but that she did not see his face.

Debra Carraway, Rhonda Carraway's sister, testified that she and a man named Pervis Bell parked across the street from the Shamrock Lounge between 9 and 9:30 p.m. on June 30, 1985. Bell went into the Shamrock Lounge while Debra Carraway remained in the car. Subsequently, Debra Carraway got out of the car, stepping into a puddle of water. She testified that while she stood shaking the water from her feet, she saw two women and a man walk out of the Shamrock Lounge. She stated that they walked toward a car parked in the vacant lot next to the lounge. The man walked to the driver's door of the car. She said that she then saw another man walk up behind them, approximately three seconds after them. She testified that the other man was defendant, whom she knew from the neighborhood and who had [141 Ill.2d 50] dated her sister a few years earlier. She stated that defendant had a gun in his hand. She said that defendant walked up to the man standing by the car and shot him. She heard the shot and saw smoke. She indicated that defendant then turned and looked both ways while moving his hand back and forth. She stated that at one point after the shooting, defendant was facing in her direction, toward the street. She testified that she saw defendant for approximately two seconds before the shot was fired, and for a second or two thereafter. Defendant then ran through the vacant lot toward an alley.

Debra Carraway testified that she then saw one of the women who was with the victim run back to the Shamrock Lounge. Carraway stated that she then ran to a bar near the Shamrock Lounge to try to find her sister. She stated that she did not find her sister, so she ran back to Bell's car and begged Bell to drive her to her mother's house. Bell complied. Debra Carraway did not speak to the police that night. Three days later, she went to the police station and related to the police what she had observed on June 30 concerning the shooting. At that time, she identified defendant in a photograph array.

Paramedics from the Chicago fire department arrived at the scene of the shooting shortly before 10 p.m. A paramedic testified that Willis was lying motionless in the vacant lot, with an apparent gunshot wound to the neck. He had no pulse and was not breathing. The paramedic stated that a crowd of perhaps 70 people had gathered in the lot. The paramedics took Willis to a hospital, where he was pronounced

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[152 Ill.Dec. 222] dead. An autopsy revealed that Willis died of a gunshot wound that entered the upper left area of his neck and lodged in his spine.

Rhonda Carraway testified that at the time of the shooting she had fallen asleep in her girlfriend's home, overlooking the vacant lot. Her girlfriend awakened [141 Ill.2d 51] Rhonda Carraway. Rhonda looked out the window and saw an ambulance and some people gathered in the lot. She went downstairs to the lot. The ambulance and the people then left. She stated that after the ambulance had left, she noticed that defendant's van, which she had seen parked in the lot earlier, was gone. Chicago police interviewed Rhonda Carraway on July 1, 1985. She told the police that she had been at the Shamrock Lounge on June 30. She further identified photographs of defendant, Herbert Stevens, and Robert Spade.

Chicago police arrested defendant on July 4, 1985. At the time of the arrest, defendant was on a bicycle talking to Treadis Murray, who was sitting in a car parked in a lot in the neighborhood where the shooting occurred....