People v. Lewis

609 N.E.2d 673, 240 Ill. App. 3d 463, 182 Ill. Dec. 139, 1992 Ill. App. LEXIS 1705
Appellate Court of Illinois·Decided October 23, 1992·No. 1-86-1955·Published·Cited by 45 cases

Opinion

PRESIDING JUSTICE McNULTY

delivered the opinion of the court:

Following a jury trial, defendant Ervin Lewis was found guilty of two counts of murder and sentenced to natural life imprisonment. Defendant appeals, contending that he received ineffective assistance of counsel and that he was improperly sentenced on four counts of murder where there were only two deaths.

Clara Dodds, defendant’s sister, testified that in 1985 she lived in a third-floor apartment at 6945 North Ashland Avenue, Chicago, Illinois. Venus Handley lived in a second-floor apartment in the same building. Clara testified that in the evening of April 18, 1985, defendant and Lovie Johnson arrived at the building and began arguing with Venus. Venus told defendant to get away from her door and then slammed the door and locked it. Approximately 10 minutes later, a police officer arrived. Venus told the officer that it was she who called the police and the officer went with Venus to her apartment.

Clara testified that defendant and Lovie entered Clara’s apartment an hour-and-a half later and defendant immediately went into the washroom and asked Clara for a pair of pants. Clara said that defendant had a butcher knife. Clara went into the bathroom and saw defendant’s pants in a bucket she used to wash her clothes. Defendant told her that if she said anything he “would kill all the motherf- — s.”

Clara testified that on April 19, 1985, she entered Venus’ apartment with defendant and Lovie, and saw Venus’ body. Defendant told Clara to take Venus’ turntable and tape recorder and Clara complied.

Clara further testified that on April 20, 1985, she was at home with her husband, Buddha Cookbey, defendant and Lovie when her brother-in-law, Nimrod, came by the apartment. Clara testified that defendant asked Nimrod to take a walk with him, but when the men reached the kitchen door, defendant began stabbing Nimrod, kicked Nimrod down the stairs and carried his body into Venus’ apartment. Defendant then mopped up the blood from the kitchen floor.

Buddha Cookbey next testified that when he woke up on April 20, 1985, he saw defendant, Lovie and Clara mopping something up from the kitchen floor. Buddha testified that later that day, he went to his grandmother-in-law’s house with defendant. Once there, defendant started hitting Buddha. Buddha was bleeding heavily and ran to the doctor. The police were called and defendant was arrested.

Lovie Johnson testified next that at the time of defendant’s trial, she was an inmate at the Dwight Correctional Facility, serving two concurrent four-year sentences for burglary. She also admitted that on four previous occasions, she had been convicted of misdemeanor theft. Lovie testified that on April 12, 1985, she went with defendant to Nimrod’s apartment. Defendant and Nimrod left the apartment for a few minutes and when Nimrod returned, he told Lovie to go downstairs and get defendant because defendant was involved in a fight. Lovie found defendant lying on the floor and the building manager told them to get out of the building. The manager then hit Lovie with a stick. Lovie stated that the next thing she remembered was lying in Nimrod’s bed, and Nimrod was putting a towel over her eyes. Lovie spent two days in the hospital. Lovie later discussed the incident with defendant and defendant said, “I’m going to f— [Nimrod] up about that.”

Lovie stated that on April 18, 1985, she observed defendant arguing with Venus. Defendant went upstairs when the police arrived but returned to Venus’ apartment when the police left. Defendant and Lovie entered Venus’ apartment and defendant told Lovie to look out the window for the police. Defendant stabbed Venus repeatedly and then ordered Lovie to help him drag Venus’ body into the bedroom, put Venus in bed, and throw some clothes over her. Lovie complied. Defendant and Lovie then went to Clara’s apartment and defendant told Lovie not to tell anybody what had just happened. Lovie, nonetheless, told Clara that defendant had killed Venus. Soon thereafter, defendant told Clara and Lovie that “he killed the bitch.”

Lovie testified that on April 19, 1985, she went with defendant and Clara to Venus’ apartment. Defendant took Venus’ stereo and passed it to Lovie, and Lovie passed it to Clara, who put it in her closet.

Lovie testified that on April 20, 1985, she was in Clara’s apartment with defendant, when defendant asked Nimrod to accompany him to the kitchen. Lovie saw defendant stab Nimrod repeatedly, kick Nimrod down the stairs and drag him into Venus’ bedroom. Lovie then complied with defendant’s order that Lovie throw some clothes over Nimrod’s body. Later that day, Lovie observed defendant hit Buddha in the head with an ashtray.

Defendant contends that he was denied his constitutional right to effective assistance of counsel where trial counsel: (1) failed to ask the court to instruct the jury on accomplice witness testimony; (2) based his defense on an exculpatory pretrial statement by defendant that was not introduced at trial; (3) failed to move for a severance; and (4) pursued a defense theory which left the jury with no choice but to convict defendant. In order to succeed in a claim of ineffective assistance of counsel, defendant must show that counsel’s performance was deficient and that counsel’s deficient performance prejudiced the defense. (Strickland v. Washington (1984), 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052; People v. Albanese (1984), 104 Ill. 2d 504, 473 N.E.2d 1246.) Our review of the record here indeed reveals that defense counsel’s performance was deficient and that certainly the cumulative effect of counsel’s deficiencies denied defendant a fair trial.

Defendant first alleges that trial counsel was ineffective because he failed to ask the trial court to submit to the jury an instruction on accomplice witness testimony. The accomplice witness instruction (Illinois Pattern Jury Instructions, Criminal, No. 3.17 (2d ed. 1981)) states:

“When a witness says he was involved in the commission of a crime with the defendant, the testimony of that witness is subject to suspicion and should be considered by you with caution. It should be carefully examined in light of the other evidence in the case.”

The accomplice "witness instruction is to apprise the jury that the testimony of an accomplice is fraught with serious weakness such as the promise of leniency or immunity and malice toward the accused. (People v. Wilson (1977), 66 Ill. 2d 346, 362 N.E.2d 291.) The test for determining whether a witness is an accomplice for the purposes of the accomplice witness instruction is whether the witness could have been indicted for the offense in question either as a principal or under a theory of accountability. (People v. Cobb (1983), 97 Ill. 2d 465, 455 N.E.2d 31.) If this test is satisfied, the defendant is entitled to an accomplice instruction even if the witness denies involvement in the crime. People v. Howard (1991), 209 Ill. App. 3d 159,

People v. Lewis, 609 N.E.2d 673, 240 Ill. App. 3d 463, 182 Ill. Dec. 139, 1992 Ill. App. LEXIS 1705 (Ill. Ct. App. 1992).

609 N.E.2d 673 (People v. Lewis) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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