People v. Lewis

JUSTICE HARRISON, dissenting:

The majority holds that any error in denying defendant a continuance to obtain an independent expert opinion on the psychiatric records of State’s witness Kevin Keith was harmless beyond a reasonable doubt, and that the erroneous admission of evidence of the victim’s pregnancy "did not substantially compromise defendant’s right to a fair and impartial trial.” (165 Ill. 2d at 333.) I believe that these errors require the reversal of defendant’s murder conviction and entitle him to a new trial. I therefore dissent.

Defendant alleges that his continuance request should have been granted after newly discovered medical records of State’s witness Keith were disclosed the day of trial. In People v. Lott (1977), 66 Ill. 2d 290 , this court stated: "There is no mechanical test, statutory or other, for determining the point at which the denial of a continuance in order to accelerate the judicial proceedings violates the substantive right of the accused to properly defend.” (Lott, 66 Ill. 2d at 297 .) However, this court has long recognized that a refusal to grant a continuance which results in depriving the accused of a reasonable time to prepare his defense constitutes reversible error. (Lott, 66 Ill. 2d at 296-97 , citing People v. Blumenfeld (1928), 330 Ill. 474 .) While resolution of whether there has been an abuse of discretion in denying a motion for continuance based upon defense counsel’s lack of preparation is dependent upon the particular facts and circumstances of each case, it has been held that such a determination is to be considered in light of the diligence shown on the part of the defendant as well as the extent such a denial hindered the defendant in preparing his defense and prejudiced his rights. See People v. Jefferson (1976), 35 Ill. App. 3d 424, 426 .

Applying these legal tenets to the case at bar, the record clearly establishes that the trial court did not exercise sound discretion in refusing to grant a continuanee. Defense counsel’s conduct in requesting a continuance on the day he became aware of the State’s new discovery material, the day before trial was set to begin, unequivocally exemplified his due diligence. Moreover, because defense counsel did not receive Keith’s medical reports until the day of trial, it is evident that the trial court’s refusal to grant a continuance precluded a comprehensive analysis by defense counsel of the contents of such reports, which hindered defendant in the defense of his case. Defendant was forced to trial despite his counsel’s repeated statements that he was unable to proceed without assistance in interpreting the records. I fail to see how defense counsel could have been expected to find an expert, interview prospective witnesses and prepare to cross-examine Keith on the information contained in the records, and at the same time effectively participate in the voir dire examination of the jurors, present his opening statement and perform the numerous other functions necessary to insure adequate representation by counsel. See Jefferson, 35 Ill. App. 3d at 426-27 .

The majority states that in a capital murder case, "every reasonable opportunity should be given the defendant to investigate witnesses against him and to prepare his defense.” (165 Ill. 2d at 326.) However, the majority then proceeds to sidestep the question of whether defendant was denied this substantial right in favor of a harmless error analysis. Even if the evidence presented at trial herein were overwhelming, which it is not, "[t]he rule that a judgment will not be reversed where the evidence clearly establishes the defendant’s guilt does not justify the total disregard of the rights of a prisoner on trial for an alleged crime.” People v. Stanko (1949), 402 Ill. 558, 562 .

In People v. Cobb (1983), 97 Ill. 2d 465 , this court held that the trial court, in an armed robbery and murder case in which the death penalty was sought, abused its discretion in refusing to allow the defense a continuance in order to lay a foundation to impeach the principal prosecution witness. The evidence the defense sought a continuance to obtain would have directly contradicted the testimony given by the State’s witness at trial. The Cobb court noted that without this key witness’ testimony, the prosecution would be left with "only some circumstantial evidence and the vague equivocal testimony of the [other identification witness].” (Cobb, 97 Ill. 2d at 478 .) The court therefore found reversible error in the trial court’s refusal to allow the defense "a reasonable opportunity” to locate the necessary witness. Cobb, 97 Ill. 2d at 478-79, 481 .

Here, as in Cobb, defendant was prejudiced by the trial court’s erroneous refusal to grant a continuance. The majority agrees that Keith was a key State’s witness whose accusations led to defendant’s arrest, and who provided uniquely damaging evidence of his flight, threat against the victim, and motive to commit murder. The records on Keith which defense counsel requested a continuance to investigate included multiple diagnoses of manic-depression, a bi-polar affect disorder, hyperactivity, cocaine abuse, and "elevated mood paranoia.” Evidence of mental illness bears not just upon the witness’ general truthfulness, but also upon the reliability of specific testimony. (See People v. Phipps (1981), 98 Ill. App. 3d 413, 416 .) Given the potentially deleterious effect of these conditions on Keith’s "powers of discernment, memory, and description” (Phipps, 98 Ill. App. 3d at 416 ), the trial court should have granted a continuance for counsel to interview witnesses necessitated by the untimely disclosures and to prepare to cross-examine Keith on the vital issue of his credibility. Therefore, under Cobb, where the impeaching testimony would have seriously damaged the State’s case against defendant, the denial of a continuance was reversible error.

The majority further holds that the erroneous admission of evidence of the victim’s pregnancy at the time of her death, "though irrelevant and prejudicial, did not substantially compromise defendant’s right to a fair and impartial trial.” (165 Ill. 2d at 333.) I vehemently disagree. The majority correctly states the applicable rule, announced in People v. Bernette (1964), 30 Ill. 2d 359 , and more recently in People v. Hope (1986), 116 Ill. 2d 265 , that where testimony in a capital case respecting the decedent’s family is not elicited incidentally, but is presented in such a manner as to cause the jury to believe it is material, its admission is highly prejudicial and constitutes reversible error unless an objection thereto is sustained and the jury instructed to disregard such evidence. (Hope, 116 Ill. 2d at 277-78 ; Bernette, 30 Ill. 2d at 371 .) Here, the majority agrees that the evidence concerning decedent’s unborn child was not brought to the jury’s attention incidentally. Rather, it was elicited through questions to the pathologist and presented so as to permit the jury to believe it material. The majority further admits that the trial court’s overruling of defendant’s objection to this testimony, "tended to amplify its materiality,” in the mind of the jury. (165 Ill. 2d at 333.) Despite this apparent finding that the criteria set forth in Bernette and Hope have been met in the instant case, the majority nevertheless concludes that "measured against the conduct in Bernette and Hope,” the manner in which the evidence here was presented did not "unduly focus[ ] the jury’s attention on the materiality of this evidence.” (165 Ill. 2d at 333.) This holding is contrary to both the spirit and intent of the established precedent.

"A defendant’s guilt must be established by legal and competent evidence, uninfluenced by bias or prejudice raised by irrelevant evidence ***.” (Bernette, 30 Ill. 2d at 371 .) It is for this reason that this court has consistently condemned the admission of irrelevant evidence concerning a decedent’s personal traits or familial relationships. (See 165 Ill. 2d at 330.) In the case at bar, the effect of the disclosure of Yvonne Donald’s pregnancy served only to arouse the jurors’ sympathy for a victim attacked in this condition, and their vengeance and outrage against defendant for the additional loss of the life of the unborn child.

Although the testimony here was not presented by a member of the victim’s family as in Bernette and Hope, its presentation as part of the pathologist’s autopsy findings not only gave the jury the erroneous impression that such information was relevant, but also provided the jury with more descriptive details than could a family member. Thus, unlike the majority, I find no quantitative distinction between a widow’s emotional testimony about a decedent’s family and the physician’s vivid description of the five-month-old female fetus being carried by decedent herein. Both types of testimony were highly prejudicial and were elicited by the prosecution to deprive the defendants of a fair trial by precluding an unimpassioned determination of their guilt or innocence. As this court stated in Hope, "[t]he only purpose these questions could serve is to prejudice the defendant in the eyes of the jury, 'and to arouse in them anger, hate and passion.’ ” Hope, 116 Ill. 2d at 278 , quoting People v. Dukes (1957), 12 Ill. 2d 334, 340 .

Further, I object to the majority’s suggestion that such impermissible evidence may be freely elicited by the prosecution during direct examination if the error is "not further exacerbated” by its mention during opening or closing argument. (165 Ill. 2d at 333.) This court, in Bernette, stated two separate and distinct rules: (1) that reversible error occurs when the prosecution elicits irrelevant and prejudicial testimony concerning the decedent’s family so as to cause the jury to believe it material, and (2) that jury argument dwelling on the decedent’s family or seeking to relate a defendant’s punishment to the existence of family is inflammatory and improper. (Bernette, 30 Ill. 2d at 371 .) Ignoring a breach of the first rule because it was not compounded by a breach of the second runs the risk of deteriorating this important procedural safeguard. Such an obvious attempt to unfairly influence the jury as occurred herein cannot be condoned and should have constituted reversible error.

For the foregoing reasons, I respectfully dissent.