People v. Lewis

366 N.E.2d 446, 51 Ill. App. 3d 109, 9 Ill. Dec. 189, 1977 Ill. App. LEXIS 3088
CourtAppellate Court of Illinois
DecidedJuly 20, 1977
Docket60381
StatusPublished
Cited by25 cases

This text of 366 N.E.2d 446 (People v. Lewis) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Lewis, 366 N.E.2d 446, 51 Ill. App. 3d 109, 9 Ill. Dec. 189, 1977 Ill. App. LEXIS 3088 (Ill. Ct. App. 1977).

Opinion

Mr. JUSTICE JIGANTI

delivered the opinion of the court:

Defendant Connie Lewis was indicted and tried for the murder of Robert Broussard. A jury returned a verdict of guilty of voluntary manslaughter and defendant was sentenced to five to 20 years. Defendant appeals contending that the prosecutor’s use of defendant’s post-arrest silence on cross-examination of defendant and direct examination of other witnesses, violated defendant’s right to due process of law; the trial court errorieously instructed the jury on voluntary manslaughter; since the evidence was entirely circumstantial, the trial judge improperly refused to give the second paragraph of IPI Criminal No. 3.02; the trial judge admitted evidence of a dying declaration without having first received the foundation evidence; the trial judge erroneously admitted hearsay testimony as a spontaneous declaration; defendant was denied the right to complete the impeachment of two State witnesses by introducing their prior inconsistent statements; the trial judge allowed the prosecution to introduce evidence of defendant’s prior convictions, but denied defendant the right to impeach John Flores through the use of John Flores’ prior convictions; the court received incompetent evidence on the cause of death issue; and the State failed to prove defendant guilty beyond a reasonable doubt.

Defendant testified that on October 12,1972, he was in Jazzbo’s Tavern at 83rd and Burley in Chicago from approximately 10:30 p.m. until 1:50 a.m. on October 13; that he then went home to 8308 South Burley where he had been living with Barbara Olmos in a second-floor apartment for about six months. When he arrived Olmos, John Flores, and Robert Broussard, the decedent, were already in the apartment and decedent had already been wounded.

Barbara Olmos and John Flores testified that defendant was present when Broussard was stabbed. The testimony of Olmos and Flores was essentially the same. Flores arrived at the apartment about 1:45 a.m. on the 13th. Broussard admitted Flores to the apartment where Olmos and defendant were quarreling in the bedroom. Flores heard a “thump up against the wall” and went into the bedroom where he saw the defendant choking Olmos. He separated them and hit the defendant knocking him down. Broussard, who had followed Flores to the bedroom, then challenged defendant to pick on someone besides a woman. Defendant arose and hit Broussard in the chest knocking him across the room. Broussard became angry and wanted to fight. Olmos asked Flores to tell them to go outside if they wanted to fight. Olmos, Flores and Broussard left the bedroom and entered the kitchen. Defendant then came out of the bedroom and began “slashing” at Broussard with a butcher knife. It is unclear whether he obtained the knife from the bedroom drawer where Olmos testified she sometimes kept kitchen knives, or from the kitchen table. Both Olmos and Flores agree, however, that as defendant approached Broussard with the knife, Broussard picked up a kitchen chair and attempted to evade defendant by backing into the living room with the chair between him and defendant. The witnesses testified that they heard noises from the living room but neither of them actually saw defendant stab Broussard. They did see defendant come out of the living room with the knife in his hand. Broussard then came out of the living room clutching his chest, fell to his knees and said to Flores, “John, he stabbed me in my heart.” Defendant then came into the kitchen after Flores with the knife but Flores managed to disarm him.

Defendant denied he was present when the stabbing took place but regarding what happened after that, the testimony of defendant and the other witnesses is essentially the same. Flores went to Broussard, examined the wound and told Olmos to hold a towel to the wound until he and defendant went for an ambulance since there was no phone in the apartment. It is not clear whether Flores or defendant handed Olmos the towel.

Flores and defendant went downstairs and called the police. A few minutes later Flores flagged down a police patrol car. He told the police officer whose name he later learned was Officer Robert Ellman, that there was a man in the apartment upstairs who had been stabbed. Ellman, Flores and defendant went up to the apartment and Ellman called on the two-way radio he carried for a squadrol to take Broussard to the hospital. When Ellman asked what had happened he received no reply from any of the persons present. The three men then carried Broussard downstairs and laid him on the grass near the squad car. Olmos followed a few minutes later and yelled, “You stabbed him, Connie,” and called the defendant obscene names. She then went back upstairs. At that time the squadrol and another police car arrived and Officer Willis Zalalis, at Ellman’s direction, put defendant under arrest. Flores went with Broussard in the squadrol to the hospital where Broussard was pronounced dead.

Officer Robert M. Marek who had arrived with Zalalis accompanied Officer Ellman upstairs to talk to Olmos who was described as crying and hysterical. Olmos said nothing but when asked where the knife was, took the knife from the kitchen sink and gave it to the police officers. Ellman and Marek then went downstairs where Marek advised defendant, who had been standing near the squad car with Zalalis of his rights under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Marek and Zalalis, the arresting officers then transported defendant to the police station without questioning him at the scene.

Defendant’s first argument on appeal is that under Doyle v. Ohio, 426 U.S. 610, 49 L. Ed. 2d 91, 96 S. Ct. 2240 (1976), the prosecutor’s use of defendant’s post-arrest silence to impeach defendant’s exculpatory story told for the first time at trial and the prosecutor’s comments in closing argument violate due process. In the instant case defendant testified on direct examination that he was at Jazzbo’s and not at the apartment when the stabbing took place. On cross-examination the prosecutor asked the defendant why, upon being arrested, he did not tell the officers that he did not stab Broussard; that he had not been in the apartment when the stabbing took place; that he had been down the block at a tavern where he was known by the bartender. No specific objection was made to this line of testimony regarding defendant’s right to remain silent after having been given his constitutional rights.

In Doyle two defendants, Doyle and Wood, were arrested for selling marijuana and were given their rights under Miranda after which defendant Wood apparently opted to remain silent and did not respond to the questions of arresting officers while Doyle asked only “What is this all about?” During trial defendants testified that they thought they were being framed by a police informant. This explanation characterized by the Supreme Court as “exculpatory” and “not implausible,” had never been given to arresting officers, police or prosecutors until trial. On cross-examination the prosecutors repeatedly asked defendants if they had told the arresting officers what had happened, offered any explanation or protested their innocence.

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Cite This Page — Counsel Stack

Bluebook (online)
366 N.E.2d 446, 51 Ill. App. 3d 109, 9 Ill. Dec. 189, 1977 Ill. App. LEXIS 3088, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-lewis-illappct-1977.