People v. Starks

• Decision Date: 26 April 1988
• Docket Number: No. 85-1582,85-1582
• Citation: 169 Ill.App.3d 588,120 Ill.Dec. 72,523 N.E.2d 983
• Parties: , 120 Ill.Dec. 72 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kent STARKS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 983

523 N.E.2d 983

169 Ill.App.3d 588, 120 Ill.Dec. 72

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kent STARKS, Defendant-Appellant.

No. 85-1582.

Appellate Court of Illinois,

First District, Second Division.

April 26, 1988.

Steven Clark, Deputy Defender, Office of the State Appellate Defender's Office, Alan D. Goldberg, Asst. Appellate Defender, Chicago, for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Thomas V. Gainer, Jr., Bonnie Meyer Sloan, Stephen M. Sutera, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice STAMOS delivered the opinion of the court:

Defendant, Kent Starks, appeals from his conviction at a jury trial and sentence to concurrent terms of 40 years' and 10 years' imprisonment for murder (Ill.Rev.Stat.1979, ch. 38, par. 9-1) and attempt to On appeal, defendant contends that:

[120 Ill.Dec. 73] commit armed robbery (Ill.Rev.Stat.1979, ch. 38, par. 8-4). This was defendant's second trial; his earlier one was the subject of our opinion in People v. Starks (1983), 116 Ill.App.3d 384, 71 Ill.Dec. 931, 451 N.E.2d 1298, appeal denied (1983), 96 Ill.2d 548.

(1) The trial judge failed to ask three requested voir dire questions deemed essential to selection of a fair and impartial jury in People v. Zehr (1984), 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062.

(2) The State's closing argument denied him a fair trial and the right not to have his failure to testify commented on.

(3) Comments by the trial judge chilled his right to testify in his own behalf.

(4) The Cook County public defender had a conflict of interest in representing both him and a prosecution witness against whom charges were pending.

(5) The judge erred in refusing defendant's "innocent hypothesis" instruction.

(6) Imposition of a 40-year sentence was an abuse of discretion.

(7) The judge erred in considering defendant's supposed lack of remorse in sentencing.

(8) The judge erred in sentencing defendant without a proper presentence report or relevant information, and counsel was incompetent for not adducing evidence in mitigation.

We reverse on the basis of defendant's first contention regarding the voir dire.

FACTS

Defendant was arrested on December 25, 1980, indicted by a grand jury, and at his first trial convicted by a jury of the murder and attempt to commit armed robbery of John Lipinski. He was sentenced to concurrent terms of 40 years' and 10 years' imprisonment respectively. We later reversed his convictions in People v. Starks (1983), 116 Ill.App.3d 384, 71 Ill.Dec. 931, 451 N.E.2d 1298, appeal denied (1983), 96 Ill.2d 548. Upon remand, his case was assigned to a new trial judge.

Prior to jury selection for his new trial on April 11, 1985, defense counsel submitted eight questions for use during voir dire, including three that are at issue in the present case. The questions and the trial judge's responses to their submission are set forth hereinafter.

Jury selection proceeded. The trial judge's pertinent statements and questions to the venire are likewise set forth hereinafter.

At trial, which began on April 12, 1985, Mark Jones, an acquaintance of defendant, testified that he, Mario Godsey, and defendant were walking northward from the intersection of Parkside Avenue and Division Street in Chicago on the evening of July 21, 1980, after purchasing some wine when they encountered a male pedestrian walking toward them. Jones testified that when they observed the same man a few minutes later walking on his return trip past them on the other side of the street, defendant said he needed some money; ran across the street toward the man; told the man, "Stickup, don't run"; and then ran after the man and shot him in the back after the man began to run. Jones testified that defendant then approached the fallen man and began to search him and that, when defendant rejoined Jones and Godsey later, defendant said that he had shot the man because he had run despite being warned, although defendant added that he had obtained no money from the man.

Police Officer Johnace Lewis then testified to having found the victim's body and that it had no identification on it but that $12 in a shirt pocket and a gold chain were on the body when she found it. She added that, when found, the body was lying on its back.

Dr. Edmund Donoghue of the Cook County medical examiner's office testified that the victim died of a gunshot wound to the left buttocks that involved the bowel and heart. Donoghue also testified that the victim's chin showed abrasions consistent with falling onto a hard surface and that, after receiving such a wound and Mario Godsey, a neighbor of defendant, then testified. His account of the wine purchase, walk along Parkside Avenue, and encounter with the victim generally paralleled Jones's. He also stated that, at the time of his testimony, he was in jail awaiting sentencing on an automobile theft charge; that he had made an arrangement that if he would testify in defendant's case the State would recommend a two-year sentence on his theft charge; and that the judge in his theft case had told him that he was eligible for an extended 10-year term of imprisonment.

[120 Ill.Dec. 74] falling on his face, a person could have turned himself over.

Assistant State's Attorney Michael Markovitz testified as to a statement that he said defendant had given him. In the statement attributed to defendant, he was quoted as having told of seizing a gun from Jones to prevent Jones from using it in robbing the victim, whereupon as defendant approached the victim, who was across the street, the gun somehow discharged after someone yelled from a nearby porch. Assistant State's Attorney Chris Cronson then testified as to defendant' having signed the statement.

Defendant did not testify and called only one witness, the owner of a store equivocally identified by Jones as the place where the wine had been bought. The store owner testified that he never sold liquor although there was a liquor store three or four doors from his establishment.

At an instructions conference, defense counsel tendered an "innocent hypothesis" instruction, which was refused. Thereupon, counsel made their closing arguments, and after being instructed on the law, the jury found defendant guilty.

Sentencing took place on May 9, 1985. After defendant's motion for a new trial was denied, this appeal followed.

OPINION

I. Voir Dire

Defendant contends that, by failing to ask three supplemental questions that the defense had submitted for voir dire of the potential jurors, the trial court committed reversible error. In support, defendant cites People v. Zehr (1984), 103 Ill.2d 472, 83 Ill.Dec. 128, 469 N.E.2d 1062. The State responds that defendant waived this ground for review by failing to object at trial or to raise it in his posttrial motion and that in any event the trial court fully complied with the Zehr requirements.

The three questions at issue were:

"1. If at the close of all the evidence and after you have heard arguments of counsel you believe that the state has failed to prove the defendant guilty beyond a reasonable doubt, would you have any hesitation whatsoever in returning a verdict of not guilty?

2. If the defendant, KENT STARKS, decides not to testify in his own behalf, would you hold it against him?

3. Do you understand that the defendant is presumed innocent and does not have to offer any evidence in his own behalf, but must be proven guilty beyond a reasonable doubt by the state?"

As to the first question, the trial judge stated: "Number 1 I always ask." As to the second and third questions, the judge stated: "I instruct them as far as Number 2 is concerned. I instruct them as to Number 3." After the judge's responses as to five other questions that the defense had tendered, this exchange occurred:

"MR. CONNORS [defense counsel]: You are not going to ask Number 6 and 7, but you are going to ask Numbers--

THE COURT: Everything else. Everything else basically I ask.

MR. CONNORS: Would you ask some questions similar to 6 and 7?

THE COURT: I always ask questions about what clubs, organizations they belong to, what newspapers and magazines they read.

MR. CONNORS: I think that is about it right now."

Shortly thereafter, this dialogue between defense counsel and the trial judge occurred:

"[MR. CONNORS, defense counsel:] Secondly, I would like to file with the Court my request for supplemental voir dire questions, and to have these questions.

THE COURT: We have already--

MR. CONNORS: I want to keep it part of the record in this case.

THE COURT: Sure."

During his preliminary remarks to the assembly of sworn prospective jurors, the trial judge advised them that they must follow the law as he stated it to them, that the defendant is presumed innocent until or unless the State proves him guilty beyond a reasonable doubt, that the defendant need not prove anything, and that the burden is on the State to prove him guilty beyond a reasonable doubt. The judge then asked the prospective jurors whether

"anything about the nature of the charges here, the defendant is charged with the offense of attempted armed robbery and murder, is there anything about that that starts any juror out one way or another, or you feel you could not give both sides a fair trial? It is not whether you like the armed robbery or murder. None of us do. But merely because the charges are as I have stated, does that start off anyone one way or the other in that you could not give both sides a fair trial? Anybody? Nobody."

Thereafter, as 32 prospective jurors were examined individually by the trial judge, he asked only five of them any questions that even touched on the subject matter of the three tendered voir dire questions now at issue. Of the five prospective jurors, only two were impaneled.

When one prospective juror acknowledged that he had previously been a juror in a civil case, the...