People v. Winfield

• Decision Date: 31 March 1983
• Docket Number: No. 81-2585,81-2585
• Citation: 69 Ill.Dec. 594,447 N.E.2d 1029,113 Ill.App.3d 818
• Parties: , 69 Ill.Dec. 594 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth WINFIELD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1029

447 N.E.2d 1029

113 Ill.App.3d 818, 69 Ill.Dec. 594

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth WINFIELD, Defendant-Appellant.

No. 81-2585.

Appellate Court of Illinois,

First District, Fifth Division.

March 31, 1983.

[69 Ill.Dec. 598] Jeffrey E. Schiller, Francis M. Pawlak and Jan Feldman, of Altheimer & Gray, Chicago, for defendant-appellant (pro bono)

Richard M. Daley, State's Atty., Chicago, for plaintiff-appellee; Steven Clark, State Appellate Defender, Michael E. Shabat, Marie Quinlivan and Kip R. Owen, Asst. State's Attys., Chicago, of counsel.

SULLIVAN, Justice:

Following a jury trial, defendant was convicted and sentenced to concurrent terms of 75 years on each of two counts of murder, 50 years for armed robbery, and 30 years for attempted armed robbery. He contends on appeal that (1) he was denied his statutory right to a speedy trial; (2) he was not proved guilty beyond a reasonable doubt; (3) the trial court erred in (a) not permitting cross-examination of a key State's witness as to criminal charges pending against her, (b) failing to instruct the jury that the testimony of a narcotics addict is to be scrutinized with caution, and (c) refusing to either admit the evidence deposition of a defense witness or issue a bench warrant to compel her appearance at trial; and (4) he was denied a fair trial by (a) admission of a statement by him not disclosed pursuant to discovery and (b) the prosecutor's inflammatory closing arguments.

The State was required by statute to try defendant on or before September 4, 1981. (Ill.Rev.Stat.1981, ch. 38, par. 103-5(a).) On September 3, 1981, a hearing was held on the State's motion to extend that term on the ground that a material witness could not be located. (Ill.Rev.Stat.1981, ch. 38, par. 103-5(c).) Officer Hood testified that Linda Cousins, an eyewitness to the crimes charged, had contacted him several times, the last time being a telephone call on August 24, 1981, in which she was told that a final conference with the State's Attorney would be set for the following day. Cousins left a telephone number where she could be reached, but when he called to notify her of the time and place for the meeting, he was told she was not staying there. He obtained the name and address listed by the telephone company for that number but was unable to make contact with her despite almost daily calls and visits to that number and address. He went to Cousins's last known residence, where her boyfriend said that he had last seen her approximately two weeks before the hearing and promised to look for her. Subsequent contacts with the boyfriend disclosing that she had been seen in the area within the week before the hearing prompted him (Hood) to look for her in the neighborhood, and he also asked other officers to look for her. Cousins finally called his office the night before the hearing, but he was off duty and did not receive her message until that morning. When he called the telephone number she left, the person answering said that she was not there but that he would tell her to contact the police. Hood admitted that his last contact with Cousins prior to her August 24 call had been in May 1981; that he Investigator Ayala testified that he was assigned to serve Cousins with a subpoena on August 25, 1981, and when he went to her last known address, he found that she had moved. He obtained several other possible addresses and telephone numbers, and when a call to one number revealed that she was expected to return there, he delivered a subpoena to that address. He gave other subpoenas and pictures of Cousins to police officers in the area where she normally resided and asked them to look for her. He acknowledged that he had not searched hospitals or tried to locate members of her family; that he did not inquire whether she had been arrested recently; and that he had made no personal attempts to find her since August 28, explaining that he was no longer assigned to the case as of that date and he did not know if other officers were assigned.

[69 Ill.Dec. 599] did not ask Cousins for her address or attempt to arrange a meeting when she called on August 24; that when he went to the apartment building address listed for the telephone number Cousins gave, he did not look for her in other apartments or talk to other residents; that he had not yet ascertained the name and address listed for the telephone number he called that morning; and that he had not contacted the Public Aid office in his attempt to locate her.

The trial court granted a 14-day extension, and trial commenced on September 15, 1981, 11 days after the statutorily prescribed 120-day period had expired.

At trial, Ossie Moore testified that on September 28, 1980, he lived at the Tivoli Hotel and had known another resident, Linda Cousins, for approximately two weeks. On one occasion he had accompanied Cousins to provide protection while she worked as a prostitute, and on the night in question he visited Cousins at her apartment where she showed him an unloaded .38 caliber gun. When defendant and Denise Bradley, another prostitute, arrived at the apartment a short time later, they had a few drinks and Cousins showed them the gun. Defendant loaded it and suggested they use it to rob the women's "tricks," a plan which he and Cousins rejected. Defendant took the gun with him when they left the apartment during the early morning hours of September 29, and after borrowing a car he (Moore) drove them to 47th and Calumet. After he parked the car in a restaurant lot nearby, Cousins and Bradley got out and walked to the corner. Later, a car stopped next to the women and, after a short conversation with the two male occupants, Cousins got into the car and the passenger alighted. The driver then pulled into the parking lot and drove behind the restaurant, and Bradley and the passenger began walking toward 46th and Calumet. Defendant got out of the car to follow them and, after noticing that the gun was no longer in the car, he (Moore) heard a shot from the direction of 46th and Calumet. Shortly thereafter, Bradley returned alone to the car and defendant then walked behind the restaurant where he (Moore) saw defendant pointing a gun through the window on the passenger's side of the car in which Cousins was seated. Defendant then fired the gun, and the car moved forward crashing into a fence. Cousins got out of that car and ran toward his car, while defendant leaned into the victim's car from the passenger side. Defendant then returned to his car and said he had to shoot both men because they would not cooperate, and also said, "I don't leave no witness when I do something like that, what I did, and therefore any one of you say anything about this here to anyone, I'm going to kill you all, too." He received no money for any of the events which occurred that night and first contacted the police on November 11, 1980, when he learned that a homicide detective was looking for him. He did not go to the police immediately because he was afraid of defendant. During the time he knew Cousins, she injected "T's and Blues" two or three times a day.

Linda Cousins testified that at the time of the murders she and her cousin, Debra Bradley, were prostitutes sharing an apartment with defendant at the Tivoli Hotel. She had known Moore for two to four weeks, and he accompanied her once to Police personnel testified that the bullets recovered at the scene and from the victims were fired from the same gun, which was either a .38 special or a .357 magnum; that Cousins contacted them about Debra Bradley's murder on October 20, 1980, but did not mention the two September 29 murders; that they contacted Cousins and Moore in early November for questioning about those murders; and that in her statements at that time Cousins stated that prior to the murders defendant and Moore had discussed robbing "tricks."

                [69 Ill.Dec. 600] protect her while she worked.  On the night in question defendant suggested using her gun to rob the women's dates, but she and Moore refused to do so.  When they arrived at the restaurant, all four of them got out of the car, and she and Bradley walked to the corner where they stopped a car and arranged a date.  She accompanied the driver behind the restaurant, [113 Ill.App.3d 823] had sexual relations with him, and received $15.  While she was talking to the driver, defendant approached the car from the passenger side, pointed the gun at the driver, and told him not to move.  When the driver turned on the ignition, defendant shot him, and the car rolled forward crashing into a fence.  She and defendant returned to Moore's car where she told defendant that he should not have shot the man as he had no more money, and defendant replied that the other man was also dead and that "he wasn't going back to the penitentiary for anybody, and in the event this was told, he was going to kill everybody."   She acknowledged that she had carried the gun occasionally when she went out, had used "T's and Blues" since 1978, and before that had used heroin and methadone for approximately two years, but on the day in question she did not use drugs until they returned to her apartment.  She did not talk to the police after the shootings until November 9, 1980, because of defendant's threat, although she had contacted them before then when Debra Bradley was murdered
                

Valerie Davis, a defense witness, testified that she heard a car crash in the vacant lot adjacent to her apartment between 5 and 5:30 a.m. on September 29, 1980, and when she looked out the window she observed a car, which she later identified as the victim's, with a man standing on the driver's side and a woman standing on the passenger's side. Those two people stood beside the car talking for 10 to 15 minutes and then walked toward Calumet Street. She identified those individuals in lineups two days after the murder, and she knew the woman as...