{ "id": 5137380, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERVIN LEWIS, Defendant-Appellant", "name_abbreviation": "People v. Lewis", "decision_date": "1992-10-23", "docket_number": "No. 1-86-1955", "first_page": "463", "last_page": "470", "citations": [ { "type": "official", "cite": "240 Ill. App. 3d 463" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "473 N.E.2d 880", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "105 Ill. 2d 103", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3141650 ], "opinion_index": 0, "case_paths": [ "/ill-2d/105/0103-01" ] }, { "cite": "568 N.E.2d 157", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 314", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2543196 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0314-01" ] }, { "cite": "543 N.E.2d 1290", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "129 Ill. 2d 233", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5566993 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/129/0233-01" ] }, { "cite": "819 F.2d 798", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1710233 ], "opinion_index": 0, "case_paths": [ "/f2d/819/0798-01" ] }, { "cite": "525 N.E.2d 233", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "170 Ill. App. 3d 815", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3586037 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/170/0815-01" ] }, { "cite": "595 N.E.2d 1261", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "231 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5202682 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/231/0510-01" ] }, { "cite": "319 N.E.2d 255", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "23 Ill. App. 3d 394", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2506989 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/23/0394-01" ] }, { "cite": "343 N.E.2d 63", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "35 Ill. App. 3d 991", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5306081 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/ill-app-3d/35/0991-01" ] }, { "cite": "544 N.E.2d 1208", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "188 Ill. App. 3d 865", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2692620 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/188/0865-01" ] }, { "cite": "858 F.2d 16", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 10523925 ], "opinion_index": 0, "case_paths": [ "/f2d/858/0016-01" ] }, { "cite": "586 N.E.2d 1384", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "224 Ill. App. 3d 1065", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5251318 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/224/1065-01" ] }, { "cite": "526 N.E.2d 502", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 256", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5080105 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0256-01" ] }, { "cite": "556 N.E.2d 640", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "198 Ill. App. 3d 915", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2476609 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/198/0915-01" ] }, { "cite": "499 N.E.2d 499", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "148 Ill. App. 3d 678", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3644548 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/148/0678-01" ] }, { "cite": "516 N.E.2d 372", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "162 Ill. App. 3d 990", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3508515 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/162/0990-01" ] }, { "cite": "549 N.E.2d 700", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "192 Ill. App. 3d 874", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2507775 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/192/0874-01" ] }, { "cite": "568 N.E.2d 56", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "209 Ill. App. 3d 159", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2543029 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/209/0159-01" ] }, { "cite": "455 N.E.2d 31", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1991, "opinion_index": 0 }, { "cite": "97 Ill. 2d 465", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5515728 ], "year": 1991, "opinion_index": 0, "case_paths": [ "/ill-2d/97/0465-01" ] }, { "cite": "362 N.E.2d 291", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "66 Ill. 2d 346", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5464792 ], "opinion_index": 0, "case_paths": [ "/ill-2d/66/0346-01" ] }, { "cite": "473 N.E.2d 1246", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill. 2d 504", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3147214 ], "opinion_index": 0, "case_paths": [ "/ill-2d/104/0504-01" ] }, { "cite": "466 U.S. 668", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 6204802 ], "weight": 3, "year": 1984, "opinion_index": 0, "case_paths": [ "/us/466/0668-01" ] } ], "analysis": { "cardinality": 800, "char_count": 16599, "ocr_confidence": 0.768, "pagerank": { "raw": 1.746989064960126e-07, "percentile": 0.7079109631488167 }, "sha256": "bfd7d202a4bd16dcedad1201b51310d985b2eed2745634247aba4d67ff030835", "simhash": "1:9b3068e4b3b735d7", "word_count": 2678 }, "last_updated": "2023-07-14T17:58:37.771033+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERVIN LEWIS, Defendant-Appellant." ], "opinions": [ { "text": "PRESIDING JUSTICE McNULTY\ndelivered the opinion of the court:\nFollowing 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.\nClara Dodds, defendant\u2019s 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.\nClara testified that defendant and Lovie entered Clara\u2019s 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\u2019s pants in a bucket she used to wash her clothes. Defendant told her that if she said anything he \u201cwould kill all the motherf- \u2014 s.\u201d\nClara testified that on April 19, 1985, she entered Venus\u2019 apartment with defendant and Lovie, and saw Venus\u2019 body. Defendant told Clara to take Venus\u2019 turntable and tape recorder and Clara complied.\nClara 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\u2019 apartment. Defendant then mopped up the blood from the kitchen floor.\nBuddha 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\u2019s 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.\nLovie Johnson testified next that at the time of defendant\u2019s 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\u2019s 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\u2019s 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, \u201cI\u2019m going to f\u2014 [Nimrod] up about that.\u201d\nLovie stated that on April 18, 1985, she observed defendant arguing with Venus. Defendant went upstairs when the police arrived but returned to Venus\u2019 apartment when the police left. Defendant and Lovie entered Venus\u2019 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\u2019 body into the bedroom, put Venus in bed, and throw some clothes over her. Lovie complied. Defendant and Lovie then went to Clara\u2019s 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 \u201che killed the bitch.\u201d\nLovie testified that on April 19, 1985, she went with defendant and Clara to Venus\u2019 apartment. Defendant took Venus\u2019 stereo and passed it to Lovie, and Lovie passed it to Clara, who put it in her closet.\nLovie testified that on April 20, 1985, she was in Clara\u2019s 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\u2019 bedroom. Lovie then complied with defendant\u2019s order that Lovie throw some clothes over Nimrod\u2019s body. Later that day, Lovie observed defendant hit Buddha in the head with an ashtray.\nDefendant 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\u2019s performance was deficient and that counsel\u2019s 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\u2019s performance was deficient and that certainly the cumulative effect of counsel\u2019s deficiencies denied defendant a fair trial.\nDefendant 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:\n\u201cWhen 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.\u201d\nThe 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, 568 N.E.2d 56.\nApplying these principles to the evidence presented here, we find sufficient evidence to establish that Lovie Johnson was an accomplice to the murder of Venus Handley. Lovie Johnson admitted that she observed the murder of Venus. Lovie accompanied defendant to Venus\u2019 apartment, remained there after being apprised of defendant\u2019s criminal intent, watched for police, observed defendant repeatedly stab Venus and did not attempt to prevent defendant from stabbing Venus. Lovie also helped hide Venus\u2019 body and take some of Venus\u2019 property. Although Lovie testified that defendant told her not to tell anyone about the murder, Lovie did not testify that this admonition was accompanied by any threat of violence against her and Lovie never testified that she feared defendant. Lovie did not go to the police until after defendant\u2019s arrest when she herself was being sought by authorities. These circumstances clearly provide probable cause to indict Lovie for Venus\u2019 murder. See People v. Montes (1989), 192 Ill. App. 3d 874, 549 N.E.2d 700 (acting as a lookout is an act aiding and abetting the commission of an offense); People v. Carreon (1987), 162 Ill. App. 3d 990, 516 N.E.2d 372) (presence at scene, sharing in proceeds and the failure to call the police are significant factors in determining that an accomplice instruction was necessary); People v. Grabbe (1986), 148 Ill. App. 3d 678, 499 N.E.2d 499 (after the fact aid is indicative of alleged accomplice\u2019s intent prior to the offense).\nTrial counsel\u2019s failure to tender an accomplice witness instruction was certainly not due to trial strategy and would not have been inconsistent with any theory of defense since defense counsel contended throughout trial that Lovie participated in the murders and therefore was not a credible witness. We nonetheless find that while defense counsel should have tendered the accomplice witness instruction, this error, alone, would not require reversal since the jury was instructed that in determining the credibility of witnesses, they should consider any interest, bias or prejudice the witness might have.\nDefendant\u2019s next argument is that his trial counsel was ineffective in basing his defense on evidence which he could not and did not produce to the jury. In his opening statement, defense counsel told the jury that defendant gave a pretrial statement in which defendant admitted stabbing Nimrod Cookbey but claimed that Lovie Johnson also stabbed Nimrod. Trial counsel then told the jury that it would have to determine whether it was defendant or Lovie who produced the fatal blow that killed Nimrod. Trial counsel also noted that in that statement, defendant denied stabbing Venus Handley. The State never offered defendant\u2019s pretrial statement into evidence and when defense counsel attempted to introduce the statement, the trial court ruled it inadmissible. Nevertheless, in closing argument, trial counsel again referred to defendant\u2019s pretrial statement and the court sustained the prosecution\u2019s objection.\nIt is well settled that a defendant\u2019s post-arrest, custodial statement offered in his own favor is not an admission and is subject to objection on hearsay grounds. (People v. Hudson (1990), 198 Ill. App. 3d 915, 556 N.E.2d 640; People v. Berry (1988), 172 Ill. App. 3d 256, 526 N.E.2d 502.) Not disputing that defense counsel was incompetent in promising the jury that he would introduce defendant\u2019s pretrial statement into evidence, the State argues that defendant was not prejudiced by trial counsel\u2019s deficient performance. We are not persuaded by the State\u2019s argument since the promise to produce such significant exonerating evidence and the failure to fulfill such promise is highly prejudicial. People v. Ortiz (1992), 224 Ill. App. 3d 1065, 586 N.E.2d 1384 (where defense counsel suggested to the jury during opening statements that there was another suspect in the case other than defendant but defense counsel never introduced such evidence, defense counsel\u2019s conduct was deficient and prejudiced the defendant); Anderson v. Butler (1st Cir. 1988), 858 F.2d 16 (where defense counsel stated in his opening argument that he would call a psychiatrist and a psychologist who would testify in support of defendant\u2019s claim of mental impairment but counsel failed to present such evidence, the court found that counsel\u2019s failure to produce the promised testimony was prejudicial and constituted ineffective assistance of counsel).\nDefendant\u2019s next allegation of ineffective assistance of counsel involves trial counsel\u2019s failure to move to sever the two charges of murder. Joinder of prosecutions is permitted when the charges are based on the same act or on two or more acts which are part of the same basic transaction. (Ill. Rev. Stat. 1987, ch. 38, par. 114 \u2014 7.) Factors to consider in determining whether offenses are part of the same transaction include: their proximity in time and location, the identity of evidence to be presented, similarities in the acts, and whether there was a common method of operation by the perpetrator. People v. Stevens (1989), 188 Ill. App. 3d 865, 544 N.E.2d 1208.\nOur review of the record here leaves no doubt that defense counsel should have filed a motion to sever the two murder charges. According to the evidence, there were different motives for the murders of Venus and Nimrod, and the murders occurred at different locations and on different days. That the victims\u2019 bodies were discovered in the same location, and there were common witnesses to the two murders, does not lead to the conclusion that the murders were part of the same comprehensive transaction. See People v. Jeffries (1976), 35 Ill. App. 3d 991, 343 N.E.2d 63; People v. Bricker (1974), 23 Ill. App. 3d 394, 319 N.E.2d 255.\nWe can conceive of no legitimate trial strategy in defense of counsel\u2019s failure to move for a severance. Instead, we are struck by the distinct disadvantage defendant suffered from the joint trial. Defendant's trial counsel raised markedly different defenses to the two murder charges, denying defendant had any involvement in Venus\u2019 murder while admitting that defendant stabbed Nimrod, but claiming that Lovie struck the fatal blow, and that the murder was justified. Certainly, counsel\u2019s task of convincing the jury of each of these theories was made more difficult by having to simultaneously argue that a completely distinct theory applied to the other murder. Also, we cannot underestimate the impact the cumulative evidence regarding the two murders must have had on the jury. (People v. Melgoza (1992), 231 Ill. App. 3d 510, 595 N.E.2d 1261, is distinguishable since that was a bench trial.) Accordingly, there is no doubt that defendant was prejudiced by defense counsel\u2019s failure to move to sever the charges.\nDefendant\u2019s last allegation of ineffectiveness on the part of his trial counsel concerns defense counsel\u2019s pursuing a theory of defense which left the jury no choice but to convict defendant of murdering Nimrod Cookbey. In his opening statement, counsel told the jurors that defendant\u2019s pretrial statement indicated that Lovie Johnson had also stabbed Cookbey and that the jurors would have to decide whether it was Johnson or Lewis who inflicted the fatal blow. As we previously noted, defendant\u2019s pretrial statement was inadmissible at trial. Furthermore, even if defendant\u2019s statement had been admitted at trial, this theory of defense would have failed since one need not inflict the fatal wound in order to be guilty of murder. See People v. Watts (1988), 170 Ill. App. 3d 815, 525 N.E.2d 233.\nIn closing argument, defense counsel switched to an equally unsuccessful theory of defense when he told the jury: \u201cYou got an easy job on Nimrod. If it was justified, you turn him loose, if it wasn\u2019t, you convict him.\u201d The problem with this theory of defense was that the jury was not given an instruction that would have permitted them to find defendant guilty of a lesser offense based on justification since they were instructed on neither self-defense nor on voluntary manslaughter. (See United States ex rel. Barnard v. Lane (7th Cir. 1987), 819 F.2d 798 (in light of defendant\u2019s testimony, and the fact that the jury was not instructed on justification or voluntary manslaughter, the jury had no choice but to convict defendant of murder).) Defense counsel never asked for an instruction on self-defense or voluntary manslaughter and certainly the evidence provided no basis for a finding of either self-defense or voluntary manslaughter. Accordingly, defendant was prejudiced by defense counsel\u2019s deficient performance, which left the jury with no choice but to find defendant guilty of murder. See People v. Chandler (1989), 129 Ill. 2d 233, 543 N.E.2d 1290; People v. Torres (1991), 209 Ill. App. 3d 314, 568 N.E.2d 157.\nLastly, we note that since only two deaths occurred, defendant may be convicted of only two counts of murder. People v. Mack (1984), 105 Ill. 2d 103, 473 N.E.2d 880.\nAccordingly, for the reasons set forth above, defendant\u2019s murder convictions are reversed and this case is remanded for a new trial.\nReversed and remanded.\nLORENZ and GORDON, JJ., concur.", "type": "majority", "author": "PRESIDING JUSTICE McNULTY" } ], "attorneys": [ "Michael J. Pelletier and Karen Daniel, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.", "Jack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. ERVIN LEWIS, Defendant-Appellant.\nFirst District (5th Division)\nNo. 1 \u2014 86\u20141955\nOpinion filed October 23, 1992.\nMichael J. Pelletier and Karen Daniel, both of State Appellate Defender\u2019s Office, of Chicago, for appellant.\nJack O\u2019Malley, State\u2019s Attorney, of Chicago (Renee Goldfarb and David Stabrawa, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0463-01", "first_page_order": 481, "last_page_order": 488 }