People v. Walker

Decision Date18 May 1992
Docket NumberNo. 1-90-2068,1-90-2068
Citation230 Ill.App.3d 292,171 Ill.Dec. 679,594 N.E.2d 1199
Parties, 171 Ill.Dec. 679 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. David WALKER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Michael J. Pelletier, Deputy Defender, Office of the State Appellate Defender, Chicago (Patricia Unsinn, Asst. Appellate Defender, of counsel), for defendant-appellant.

Jack O'Malley, Cook County State's Atty., Chicago (Renee Goldfarb, Gael O'Brien, Jeanne Libert, Asst. State's Attys., of counsel), for plaintiff-appellee.

Presiding Justice BUCKLEY delivered the opinion of the court:

After a jury trial, defendant David Walker was convicted of first-degree murder (Ill.Rev.Stat.1987, ch. 38, par. 9-1) and sentenced to 55 years imprisonment. Defendant appeals his conviction and sentence alleging the following reversible errors: (1) the trial court failed to exercise its discretion in denying the jury's request for transcripts of the trial testimony; (2) the trial court abused its discretion in limiting defendant's cross-examination of a key State's witness; (3) prosecutorial comments during closing argument impermissibly shifted the burden of proof to defendant; (4) the indictment against defendant should have been dismissed for failure to conduct a preliminary hearing where the initial charge was not brought by indictment of a grand jury; and (5) his sentence should be vacated and the cause remanded for resentencing where the trial court improperly considered as aggravating evidence a statement defendant made which was allegedly taken in violation of his Miranda rights. We affirm.

Chicago Police officer Robert Finn testified that on July 27, 1988, at about 12:35 p.m., he was in the driver's seat of his squad car at the southwest corner of Washington and Pine Streets taking an unrelated battery report from Nina Hodges, who was seated in the rear seat. Chicago Police officer Timothy Lynn was seated in the passenger seat. Finn observed a van approaching in his rear or side view mirror. As the van came adjacent to the squad car, he heard the sound of three or four gunshots. Finn saw only a driver but could not make him out clearly. Finn put the vehicle in gear and followed the van from a distance of one or two car lengths. There was no other traffic and Finn could see both sides of the van as he followed it. The van's rear windows were dirty. The van was travelling 20 to 25 miles per hour and it may have increased its speed 5 or 10 miles per hour when it passed the squad car.

After following the van about one-half block, the van attempted to turn right into an alley, but it "sideswiped" a parked car, struck a fence, and came to rest against a building. Finn could see the driver's door at the point the van struck the building. After the van came to rest, Finn parked his vehicle at a right angle about eight feet behind the van. Finn observed no one in the alley next to where the van came to a halt. The area was well lit.

Finn crossed the front of his car and approached the passenger side of the van while Officer Lynn went to the driver's side. He could see the driver's door when he exited his vehicle and did not see it open. Finn observed defendant sitting in the driver's seat; he saw no one else in the van. Defendant was then removed from the van. No more than one minute had elapsed between the time the van passed the squad car and defendant's arrest.

Finn conducted a protective search of the van. Finn smelled gunpowder and observed the lifeless body of a person behind the driver's seat. The body was partially on the floor and partially on a bench seat behind the driver's compartment. The cause of death would later be shown to be four gunshot wounds to the chest area. Finn also found a revolver in the rear of the van. Other officers transported defendant away from the scene and to a hospital for treatment of head injuries.

The testimony of Officer Lynn and Hodges substantially corroborated Finn's testimony. Both testified that they observed no one exit the van at any time.

An evidence technician processed the scene. No fingerprints were found at the scene or on the gun. The gun contained five expended cartridges and one live cartridge. No gunshot residue test was performed on defendant. A firearms expert later testified that the four bullets removed from the victim were fired from the gun found in the van. The State made no connection between ownership of the gun and defendant.

Defendant presented no evidence and instead relied on the State's inability to disprove beyond a reasonable doubt that another person shot the deceased in the van and escaped without being observed by any witness. The jury found defendant guilty of murder, and this appeal followed.

Defendant first contends that the trial court failed to exercise its discretion in denying the jury's request for transcripts of the trial testimony. Defendant alleges the court's action was prejudicial in that the jury's review of certain testimony, if allowed, may have affected the verdict.

During deliberations, the jury sent a note to the court inquiring, "Is it possible to read transcripts of any written testimony?" The court answered:

"I am going to answer that: 'There are no transcripts of any of the witnesses' testimony available at this time. Nor for the conceivable--'There are no transcripts of any witnesses' testimony available. Please continue your deliberation.' "

Defense counsel, although present, answered in the negative to the court's specific inquiry as to whether he had any objection to the court's answer. Defendant's post-trial motion does not cite this matter as error.

The parties in this case have directed this court to numerous cases which have varying degrees of relevancy to the facts of this case. While the parties agree that, generally, a trial court has discretion to grant or refuse jury requests for evidence (People v. Pierce (1974), 56 Ill.2d 361, 308 N.E.2d 577; People v. Bryant (1988), 176 Ill.App.3d 809, 126 Ill.Dec. 222, 531 N.E.2d 849), which discretion will not be disturbed on review absent a showing of abuse thereof (Pierce, 56 Ill.2d 361, 308 N.E.2d 577), the parties dispute the application of the law beyond these general propositions. We accordingly undertake a brief review of the cases to determine the applicable law.

Defendant places heavy reliance on a line of cases holding that it is error for a court to deny a jury request for evidence in the mistaken belief that it has no discretion to grant the request. (People v. Autman (1974), 58 Ill.2d 171, 317 N.E.2d 570; People v. Queen (1974), 56 Ill.2d 560, 310 N.E.2d 166; People v. Tansil (1985), 137 Ill.App.3d 498, 92 Ill.Dec. 314, 484 N.E.2d 1169.) These cases are typified by the jury making either a general or specific request to review evidence, and a court response which, on its face, indicates that the court erroneously believed that is had no discretion to allow the jury to see evidence during deliberations. For example, in Autman, the court responded, "No. It is not permissible to read or play back testimony." (Autman, 58 Ill.2d at 176, 317 N.E.2d at 572.) Appellate courts have interpreted responses of this nature as indicating a trial court's mistaken belief that it had no discretion whatsoever to submit evidence to the jury. Where the denial of the jury's request cannot be classified as harmless, reversal is required. Compare Autman, 58 Ill.2d 171, 317 N.E.2d 570, Queen, 56 Ill.2d 560, 310 N.E.2d 166 (testimony sought found to be critical to issue of guilt), with Pierce, 56 Ill.2d 361, 308 N.E.2d 577 (Testimony sought was unequivocally incriminating and damaging to defendant).

We believe that defendant misplaces his reliance on the above cases to support his assertion that, in this case, the court's response was similarly defective. Clearly, the court's response was not an affirmative statement that the jury was prohibited from reviewing trial transcripts as occurred in Autman, Queen and Tansil. These cases are, therefore, distinguishable.

Defendant next places heavy reliance on a set of cases which recognize error where the court fails to determine, before responding negatively, the specific evidence or testimony desired by a jury making a general request. These courts rationalize that such a failure signals a trial court's erroneous belief that it lacked discretion to grant the jury's request. (See People v. Bryant (1988), 176 Ill.App.3d 809, 126 Ill.Dec. 222, 531 N.E.2d 849; Tansil, 137 Ill.App.3d 498, 92 Ill.Dec. 314, 484 N.E.2d 1169; People v. Jackson (1975), 26 Ill.App.3d 618, 325 N.E.2d 450.) Absent other affirmative proof demonstrating that the court was aware of its discretion (Bryant, 176 Ill.App.3d at 813, 126 Ill.Dec. at 225, 531 N.E.2d at 852), these cases conclude that reversible error has occurred as the unknown nature of the evidence sought may have influenced the finding of guilt.

We find defendant's reliance on this second category of cases to be well placed. Here, the jury sent a general request to review trial testimony, and the court failed to inquire what evidence the jury desired. As was the case in Bryant, Tansil and Jackson, the court's failure here to inquire before responding signals its belief that it had no discretion in the matter.

Notwithstanding the possible applicability of the second category of cases to this case, we believe that yet a third set of cases is worth discussing. These cases hold that where defendant acquiesces in the court's response, and then fails to raise the matter in his post-trial motion, waiver occurs. (See People v. Perry (1989), 183 Ill.App.3d 534, 132 Ill.Dec. 639, 540 N.E.2d 379; People v. Boyd (1980), 88 Ill.App.3d 825, 43 Ill.Dec. 798, 410 N.E.2d 931; People v. Whitley (1977), 49 Ill.App.3d 493, 7 Ill.Dec. 350, 364 N.E.2d 511; People v. Virgin (1973), 9 Ill.App.3d 902, 293 N.E.2d 349.) In these cases, defendant was present and...

To continue reading

Request your trial
2 cases
  • People v. Blalock
    • United States
    • United States Appellate Court of Illinois
    • January 22, 1993
    ... ...         On February 18, 1988, the police discovered the bodies of Santos Escobedo and Domingo Garcia, Jr., in an apartment building in Zion, Illinois. Defendant, Theodore Knox, Oscar Parham, Ronald Walker and Daniel Blalock, Jr., were charged, inter alia, with first-degree murder ...         The evidence adduced at trial showed that the killings resulted from a drug deal gone awry. Defendant was "The Godfather" of a drug dealing "family" comprised of him, Blalock, Jr., Knox, Parham, and ... ...
  • Rokeby-Johnson v. Derek Bryant Ins. Brokers, Ltd.
    • United States
    • United States Appellate Court of Illinois
    • May 18, 1992

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT