Dеfendant, Anthony Enis, was charged by indictment in the circuit
The victim in this case, Melinda Entrata, was a complainant in a criminal sexual assault case against defendant. The sexual assault case was scheduled for trial on August 17, 1987. However, Entrata was found dead in the hallway of her apartment building on the morning of August 10, 1987. She had been shot in the head four times. At defendant’s trial for Entrata’s murder, the State attempted to establish that defendant had the motive to murder hеr and that he had been identified as the gunman beyond a reasonable doubt. In his defense, defendant claimed that he was the victim of mistaken identification. He also claimed that he did not rape Entrata and that the sexual assault case was not strong. Therefore, he did not have the motive to murder Entrata.
Facts
The State presented extensive evidence during the trial, including the testimony of seven persons who were near the scene of the murder. John Twardy lived in the same apartment complex as Entrata but in a different building, although it was nearby and on the same street as her building. On August 10, 1987, at 6:45 a.m., Twardy was looking out his bedroom window when he saw a man running. The man jumped over a hedge, dropped something, stopped to pick it up, and then continued running. At that point he lost track of the man. A few seconds later he saw a maroon car with a front hubcap missing pull out of the parking lot. The following day police officers took Twardy to defendant’s residence and showed him a maroon car that belonged to the woman with whom defendant lived. Twardy stated the car looked the same as the one he had seen and it was
Joseph O’Neal also lived on the same street as Entrata, and he testified that at 6:45 a.m. he too saw a man jogging while carrying what appeared to be a lunch box. The man jumped over some bushes, dropped the lunch box, stopped to pick it up and then continued jogging. He could not recall giving an officer a physical description of the man or saying that he saw him enter a red-colored vehicle, although an officer testified that O’Neal did provide such information.
David Dudzinski testified that at 6:50 a.m. on August 10, 1987, he was backing out of his parking spot near Entrata’s building when a car sped past him. On August 17, the police showed him the car belonging to defendant’s girlfriend, and he stated that it was similar in size and color to the one he had seen earlier. At trial, he was shown a photo of the car but testified he was not positive that it was the same car as the one he had seen on August 10.
Sylvia Barrett testified that at 6:40 a.m. on August 10, she was a passenger in a van driving near Entrata’s apartment building. Barrett saw a man sitting on the pavement in front of the bumper of a parked car. The man was watching people leaving the building in which Entrata lived. The man was wearing a dark-blue mechanic’s suit or jump suit and had on sunglasses. Barrett watched the man for about three to five minutes and stated that she was able to see the left, right and front of the man’s face. In court, she identified defendant as the man she was watching on August 10, 1987. She further testified that on August 12, 1987, she picked the defendant’s photograph out of a number of photographs that officers showed her. Also, Barrett was shown on February 16, 1988, a photograph of a live lineup and she again identified the defendant as the man she had seen
Clara Burk’s testimony placed the defendant near Entrata’s building on two separate occasions. Burk testified that on August 8, at 9:30 p.m., she was driving through the building’s parking lot when a man stepped in front of her car. She stopped her car and the man walked past. She described the person as a black male between 5 feet 8 inches and 5 feet 9 inches who was wearing white sunglasses. In court, she identified the defendant as that person. Burk further testified that on the morning of August 10, she was driving in the same area and saw a man sitting in a half crouch between a car and a van. The man was wearing sunglasses and was carrying what appeared to be a lunch box. She identified the defendant as that man. Burk then testified that on that morning, she noticed a woman in a white uniform exiting an apartment building. When the woman saw the man, she ran back into the building and the man followed her. As Burk continued on she heard three gunshots. On August 11, 1987, police officers showed Burk a single photo of the defendant and she identified the person as the man she had seen in the parking lot. On cross-examination, she stated that she was unsure if the man wore sunglasses on August 10.
Dan Thacker testified that at approximately 6:30 a.m., August 10, 1987, he saw, from his apartment window, a woman in a white dress run across the parking lot toward the building. He then saw a man follow her. The man was in his early 20s, black, about 5 feet 10 inches or 5 feet 11 inches, and slender, had short hair, and was wearing dark clothes, white sunglasses, and white gloves, and сarrying a lunch box. Later, he saw the man exit the building. The police showed Thacker a number of photos and he picked out the defendant’s
The last eyewitness for the State was Richard Hanson, who testified that on August 10, at approximately 6:40 a.m., he was waiting for his car pool to pick him up when he saw a man running. The man was black and about 6 feet tall, had a medium build and short hair, and was wearing dark clothing, white gloves and white sunglasses. Hanson testified that the man jumped over a row of hedges and dropped a silver metal box he was carrying. Hanson saw a small gun fall from the box. The man stopped, put the gun in the box and continued running. Hanson’s car pool arrived and he left. At trial, he identified the defendant as the man he saw running. On August 11, 1987, the police showed Hanson a photo of defendant and he identified the person in the photo as the man he had seen running. Later that day, he viewed a live lineup and again identified the defendant. On cross-examination, he stated that he could not be absolutely certain of his identification because the man was wearing sunglasses.
The State also presented the testimony of numerous police officers involved in the murder investigation. At 8 a.m., August 10, 1987, four officers went to defendant’s apartment; however, he was not there. Officer Rocking-ham and his partner went to the rear of the house and saw defendant’s girlfriend’s parked car, a maroon Oldsmobile. The hood of the car was warm as if it had just been used, the windows were down and there was no dew on the car, although a nearby car had dew on it. Later, Officer Davis checked the car and determined
The State also presented testimony from a former assistant State’s Attorney, who testified that Entrata had been the complainant in a criminal sexual assault case which he had handled and that the defendant in that case was Anthony Enis. The case was scheduled for trial on August 17, 1987, but the charges were dropped after Entrata was murdered.
The defense presented the following evidence. The first witness was Michael Melius, former chief public defender of Lake County, who had represented defendant in the sexual assault case. He testified that he had explained to defendant the possible sentences he could receive if found guilty and that defendant had a good case. Melius stated that there had been a preliminary hearing on the sexual assault case and that Officer Moore testified as to statements Entrata had made to him. After the preliminary hearing, the trial judge found there was probable cause to pursue the charges. Also, the judge apparently indicated that if it had been a trial, he would have found defendant not guilty, although he noted that he had been unable to judge the credibility of Entrata since she did not testify. Defendant’s bond was then reduced from a $100,000 cash bond to a $20,000 recognizance bond. On cross-examination, Melius testified that he believed he told defendant that the outcome of his case would depend largely on the credibility of Entrata. He also testified that he provided defendant with the discovery from the case and that they reviewed it.
On redirect and recross examinations, Melius testified about numerous statements Entrata made, which were contained in the police reports that were part of the discovery in the sexual assault case. Upon questioning from the defense counsel, Melius pointed out inconsistencies in the statements regarding where the assault occurred,
Defendant testified on his own behalf. He stated that he knew Entrata from work and that they had seen each other socially about five times over a two-month period. He said they had a close relationship and he had written her poetry, but that Entrata ended the relationship because she was several years older than he and felt uncomfortable with the age difference. The last time they had gone out was April 28, 1987. Defendant met Entrata some time before midnight and they went for a drive. After a while, they pulled the car over to the side of the road and had sexual intercourse, after which Entrata apparently became upset. However, she later calmed down and defendant drove her home. Eight days later he was arrested for sexual assault.
Defendant testified that on August 10, 1987, he awoke at 7 a.m. and his girlfriend was upset because she could not find a bracelet. In order to calm her down, thе two took a motorcycle ride and stopped for breakfast. At 10 a.m., when he returned home, the police took him into custody. On cross-examination, defendant stated that he had worked at a Jiffy Lube and had worn a dark-blue mechanic’s uniform, that he owned a pair of
Defendant also presented testimony which allegedly contests the validity of the eyewitness identification. Annette Glover testified that on August 10, 1987, she saw a black man in his 20s with short hair and wearing dark clothing, white sunglasses and white gloves sitting in the apartment building’s parking lot. Later that morning, the police showed her some photographs, but Glover could not make an identification. The following day she viewed a live lineup, but was again unable to make a positive identification. On cross-examination, she stated that the man had put his hands up to each side of his face, but when she drove past him she could see the front of his face.
Officer Marquez testified that on August 10, he had shown five photographs, one of which was of the defendant, to Dan Thacker, who had testified for the State, but that Thacker could not make an identification.
Officer Tessman testified that at 6:40 a.m. on August 11, 1987, he spoke with Burk. He stated that she was in a hurry and that when he showed her a photograph of defendant, she stated that she had seen him earlier in the week. She did not mention at that time that she had seen a woman chased into a building or had heard gunshots. She did state that she would talk to him again later, and on August 14, she met with the police. On cross-examination, Officer Tessman stated that the conversation on the 11th was brief and that Burk had to go to work. Joseph Caliendo, an investigator with the Lake
Officer Stevenson testifiеd that he interviewed defendant’s landlord, R.C. Burton, who told Stevenson that at 6:30 a.m. on August 10, 1987, a maroon car was parked behind defendant’s apartment. The maroon car belonged to defendant’s girlfriend-roommate, Diane Gonzalez. Steven Jones, a police department evidence technician, processed the maroon car and did not find defendant’s fingerprints or any bloodstains.
David R. Kumes, a forensic scientist, examined certain of defendant’s clothing. He was unable to match any bloodstains to that of the victim. Kimes also did not detect on the clothing any gunpowder. However, on cross-examination, he stated that he did not necessarily expect there to be gunpowder residue on the clothing of a person who had shot a gun, and that variables such as the size of the gun and whether the shooter had worn gloves were important. Kimes also did not detect on the clothing any carpet fibers from the maroon car, although he was unable to conclude that the person who owned the clothing was never in the car.
After the defendant rested, the State presented evidence in rebuttal. Through the testimony- of Officer Stevenson, the State admitted into evidence copies of the police reports concerning the criminal sexual assault case, although the defense objected that the reports were improper rebuttal evidence. Officer Stevenson testified that he found the reports in defendant’s apartment. The court concluded that they rebutted defendant’s claim that he had no motive to murder Entrata and instructed the jury to consider the records only in connection with establishing motive, not guilt or innocence.
Officer Schriner testified that the distance between defendant’s apartment and Entrata’s is approximately five to six miles and that it takes approximately 11 minutes to drive it. Last, Officer Marquez testified that he interviewed Annette Glover on August 10, 1987, and she told him that she had seen a man in the parking lot at 6:40 a.m., who was in his 20s and approximately 5 feet 10 inches.
Following deliberation, the jury returned with a general verdict finding defendant guilty of first degree murder.
On appeal, defendant makes two arguments regarding alleged errors that occurred during this innocence-guilt phase of his trial. First, he contends that the trial court ruled improperly on various motions in limine and, as a result, he was denied a fair trial and his fifth amendment and fourteenth amendment due process right to present a defense. The second issue concerns the propriety of the prosecutor’s cross-examination of the defendant. Although we reverse and remand based on the second issue, we address" the first issue because these motions likely will arise again on retrial.
Motions In Limine
Prior to trial, the court granted the State’s motion in limine to preclude the defense from introducing the testimony of Kathleen Jackson. During arguments on the motion, the defense argued that Jackson’s testimony would have shown that someone other than defendant matched the description of the offender and was near
The prosecutor stated that Jackson would testify that at between 6:15 a.m. and 6:20 a.m. on August 10, 1987, a black male entered an elevator with her at the Cinnamon Lake Tower apartment building. She told the police the man was about 5 feet 8 inches and was wearing a purple sweater, black pants and white-framed sunglasses. The prosecutor stated that Jackson told him that the man was about 6 feet and very thin, had ear-length hair which was in a “Jheri-Curl,” and he was wearing a flowered shirt, a jacket, dark pants and white sunglasses. She would testify that the man left the elevator at the'third floor. Jackson was shown photos of the defendant but indicated that he was not the person she had seen. She did identify for the police a photo of Calvin Adams as the person she saw. Adams resided on the third floor of the building. The prosecutor contended that Jackson was later shown a photograph of Adams in Puerto Rico, where she had since moved, and she was not certain that was the man she had seen.
The prosecutor argued that this testimony was significantly different from the other descriptions. First, it was 15 to 20 minutes earlier than the other identifications. Second, the other witnesses saw the person near the Fox Crest apartments, and not the Cinnamon Lake Tower apartments, although the buildings are near each other. Third, the other physical descriptions included testimony that the defendant had a medium build and a short natural hairstyle. Fourth, Jackson did not see any metal box or white gloves. It, therefore, appeared that perhaps the man she had seen was a resident of the Cinnamon Lake Tower building. Moreover, Jackson had
An accused may attempt to prove that someone else committed the crime with which he is charged, but that right is not without limitations. (People v. Ward (1984),
The similarities between this identified person and defendant are that they are both black males and approximately six feet tall, and each had white sunglasses. However, the person the other witnesses saw was outside a different apartment building and it is likely that the person Jackson saw was merely returning to his apartment. Moreover, the physical build of the person the other witnesses saw was different and no one testified that he had “Jeri-Curl” hair or that it was ear-length. Jackson’s testimony also concerned a different time frame and she did not see a metal box or white
The trial court also granted the State’s motions in limine to exclude a card sent anonymously to Entrata two weeks prior to her alleged sexual assault. The card contained the hand-printed message, “May all your dreams come true,” underneath which was drawn a question mark. Also excluded was the testimony of a handwriting expert who would have testified that the writing on the envelope did not match the defendant’s writing. The defendant argues that the evidence supports his claim that someone else was responsible for thе murder, contending that because the letter was sent anonymously and contains a mysterious and somewhat ominous message, it tends to show that whoever sent the letter “might have been stalking Entrata from a distance and might have been harassing her.”
As stated above, a trial court may reject offered evidence on the grounds of irrelevancy if it has little probative value due to its remoteness, uncertainty, or speculative nature. (Ward,
Defendant next contends that the trial court erred in grаnting two of the State’s motions in limine which precluded the defense from introducing evidence that allegedly shows that the conduct of the Waukegan police department may have tainted the State’s witnesses and contributed to the mistaken identification of defendant. The first motion precluded introduction of a Chicago police department general order that photographic lineups should be conducted with more than one photograph. At trial, the defense argued that by showing Burk and Hanson only one photograph of defendant, the police possibly tainted future identifications; however, defendant was unable to bolster the argument with evidence of the Chicago police department general order. The trial court ruled the evidence was not relevant and that to allow it in would mean that the State could bring in evidence of numerous other police departments that do not have such a general order. We agree that there is insufficient probative value between the Chicago police department’s photographic identificаtion procedure and the alleged mistaken identification of defendant. The ruling did not preclude defendant from arguing that the identifications were faulty. (See Simmons v. United States (1968),
Defendant also argues that the trial court erred in granting the State’s motion in limine to preclude the defense from presenting evidence that between the time of the filing of the sexual assault charge and the murder Entrata did not complain that defendant harassed or stalked her. Defendant argues that this evidence was relevant to show thаt he was not attempting to harass Entrata into dropping the rape charges and, thus, supports the defense theory that he did not have a motive to murder her. Again, whatever conclusions can be drawn from this type of evidence are too speculative. First, the State does not claim he stalked or harassed her prior to the murder. Second, the fact there was no complaint may
Next, the trial court granted the State’s motion in limine to preclude the testimony of an expert witness, Dr. Solomon Fulero, who would have testified regarding the reliability of eyewitness testimony. The trial court held that the testimony would amount only to speculation. In an offer of proof, the defense claimed that Dr. Fulero would testify that eyеwitness testimony has a powerful impact on jurors, even if it has been discredited on cross-examination. Expert testimony, however, makes jurors more skeptical about eyewitness testimony and it helps the jurors distinguish between accurate and inaccurate identification testimony. His testimony was based on a number of studies and experiments regarding the impact of eyewitness testimony on juries. Dr. Fulero’s testimony detailed four areas where jurors hold a number of misconceptions about the identification process. First, jurors believe that the more confident a witness appears to be while testifying, the more likely he or she is to be accurate in the identification. Dr. Fulero contends the relationship between confidence and accuracy is insignificant. Second, jurors believe that the higher the stress level at the time of the identification the more accurate the memory. “Stress” may include the level of fright involved in the situation. According to Dr. Fulero, the higher the stress level the less accurate the memory. Third, jurors believe that when a weapon is present, the identification is usually better. Allegedly, the reverse is true. Last, according to Dr. Fulero jurors give too much weight to time estimates. Dr. Fulero added that there
The State contends that because the trustworthiness of eyewitness observations is not generally beyond the common knowledge and experience of the average juror, it is not a proper subject for expert testimony, and that this State’s appellate court has consistently excluded such testimony. (See People v. Clark (1984),
In recent years, various circuits of the Federal courts have addressed the admissibility of eyewitness expert testimony. (See Comment, Misperception in the Circuits: A Survey and Analysis of the Use of Expert Testimony to Reveal the Inherent Unreliability of Eyewitness Identifications, 15 Ohio N.U.L. Rev. 661 (1988) (reviewing the Federal appellate opinions on the subject).) The district judges in the Federal courts also have broad discretion in determining the reliability of expert testimony and in balancing its probative value against its prejudicial effect. (United States v. Blade (8th Cir. 1987),
In Illinois, generally, an individual will be permitted to testify as an expert if his experience and qualifications afford him knowledge which is not common to lay persons and where such testimony will aid the trier of fact in reaching its conclusion. (Peоple v. Jordan (1984),
We caution against the overuse of expert testimony. Such testimony, in this case concerning the unreliability of eyewitness testimony, could well lead to the use of expert testimony concerning the unreliability of other types of testimony and, eventually, to the use of experts tо testify as to the unreliability of expert testimony. So-called experts can usually be obtained to support most any position. The determination of a lawsuit should not depend upon which side can present the most or the most convincing expert witnesses. We are concerned with the reliability of eyewitness expert testimony (see United States v. Christophe (9th Cir. 1987),
A trial judge is given broad discretion when determining the admissibility of an expert witness, and when considering the reliability of the expert testimony, the judge should balance its probative value against its prejudicial effect. In the exercise of his discretion, the trial judge should also carefully consider the necessity and relevance of the expert testimony in light of the facts in the case before him prior to admitting it for the jury’s consideration. In this case, we conclude that based on the offer of proof it was proper for the trial judge to exclude the expert testimony.
Last, defendant argues that the improper preclusion of relevant evidence cannot be considered harmless error because it was so damaging to the defense case and the evidence was closely balanced. We have reviewed each ruling and have determined that each was proper or at least not an abuse of discretion. We have not held that the rulings were improper but that the error, if any, was harmless. We therefore find no prejudicial overall impact to defendant’s case.
Cross-Examination of Defendant
The next issue raised is the propriety of the prosecutor’s cross-examination of defendant. Defendant testified on direct examination that he had a good relationship with Entrata and that their sexual encounter at the end of April was consensual. During cross-examination, the prosecutor asked defendant a number of questions relating to whether he knew why Entrata told police and a friend she had been sexually assaulted. The State claims the questions were meant to show that defendant was lying about his relationship with Entrata, that he had
Early in the cross-examination of defendant, the prosecutor asked if defendant knew what had happened that would cause Entrata to suddenly want to charge him with rape. Defendant replied that he was unable to answer that, apparently because he did not know the answer. He was then asked if he knew why she would tell the police and her friends that she had rebuffed his advances. He stated, “No.” Defendant did not object to these questions at trial, nor does he contend in this appeal that they were objectionable.
Later in the cross-examination, however, the prosecutor asked defendant about specific statements Entrata had made to Officer Winston. Defendant was asked if he knew why, if he and Entrata had a close relationship, she would tell the officer that a man wearing a mask, gloves and leather jacket grabbed her in her apartment building parking lot. Defendant said he did not know why she would say that. He was then asked if he knew why she would say the man held her mouth and said he would kill her if she yelled. He repeated his answer. The prosecutor began to ask a question, but the defense counsel objected and a side-bar discussion was held. Defense counsel argued that the State could not bring in facts about the rape through this type of questioning, but, instead, Officers Winston and Moore should be called to testify. The prosecutor argued that he was impeaching defendant’s credibility and laying a foundation to rebut his statements that there was a сlose relationship
When the cross-examination resumed, the prosecutor asked if defendant knew why Entrata would tell Officer Winston that the man pushed her to her car and grabbed her keys after she threw them under the ear. He testified he did not know why she would say that. The State began another question but the judge sustained an objection that it called for speculation. Defendant was then asked if he knew why she would say that after the sexual assault the offender told her repeatedly he would kill her if she told anyone. Defendant repeated his answer. As the prosecutor began to ask a question, defense counsel objected and asked whether Officer Winston was going to testify. A side-bar conference was then held. Defense counsel argued that the officer should have been called earlier to lay foundation for the questions and that defendant has a confrontation right to cross-examine the officer. The defense also argued that the questions were assuming facts not in evidence. The prosecutor argued that he could not lay foundation to rebut defendant’s testimony during the State’s case in chief and that Officer Winston would be called. The objections were overruled.
The prosecutor then asked defendant why Entrata would make certain statements about the sexual assault to a friend, Moselle Williams. Defendant was first asked if he knew why, if he had a consensual sexual encounter with her, within 24 hours of the act would Entrata tell her friend she had been raped. He said he did not know the answer to that. Defendant was then asked if he knew why, if he had a consensual encounter, Entrata would tell her friend that as she returned home from work at night a man wearing a mask and gloves ran up to her. He said he did not know why she would say that.
On redirect, defendant’s counsel asked defendant if he had read the police reports on the sexual assault charge, to which he replied he had. He then was asked a number of questions relating the statements Entrata made about the sexual assault that were apparently contradictory or that would shed doubt on whether she had been raped.
Defendant claims that the prosecutor’s questioning was improper because it required him to speculate about Entrata’s motives and thought process. The State first argues that the contention these questions callеd for speculation has been waived and points out that, during the cross-examination, only one defense objection was based on the grounds that the question required defendant to speculate about Entrata’s motive and thought process, and the objection was sustained. The other objections were either that the officers or the friend should be called to testify, that the questions assumed facts not in evidence, that there was a lack of foundation, or that defendant was denied his right to confrontation. The
We have held that an objection based upon a specified ground waives all grounds not specified, and a ground of objection not presented at trial will not be considered on review. (People v. Stewart (1984),
The State next claims that during the direct examination defendant said he and the victim had a good relationship and had engaged in a consensual sexual encounter. The State argues that this testimony allowed it to question the defendant about the sexual assault and that the questions were intended to reveal that defendant was lying about his relationship with Entrata and that he had motive to murder her. Generally, a witness may only testify as to facts which are within his personal
The first two questions, wherein defendant was askеd if he had any knowledge of why Entrata would tell the police and a friend that she had been sexually assaulted, are likely in the proper form because they ask generally if defendant has personal knowledge which would explain Entrata’s behavior. It is possible that he did have such information. But when defendant denied committing the sexual assault and said that these specific facts were not within his personal knowledge, it was improper to continue to question about the numerous specifics that the prosecutor asked.
Although the questions were not proper, we have held that improper cross-examination is not reversible error if it can be considered harmless. (See J.L. Simmons,
The damaging and likely prejudicial effect of the prosecutor’s questions is obvious. Defendant was the most important witness in this case. The questions brought out alleged facts that Entrata was accosted by a masked man, physically forced into an automobile, raped, and continually threatened. Afterwards, according to the prosecutor’s questions, she was emotionally distraught and recounted details of the episode to a friend and the police. Also, she went to a doctor for
A number of factors compounded the error in this case. First, during the defense’s redirect examination, counsel was forced to delve into the merits of the sexual assault charge. Defense counsel, in order to rehabilitate defendant in the minds of the jurors, asked numerous questions about the charge which were designed to show that the allegations and evidence of sexual assault were weak, that Entrata made inconsistent statements, and that, therefore, defendant may have been found not guilty of the charge. Again, many of these questions were beyond the personal knowledge of defendant and may have been improper. However, because the State had explored the matter, the trial judge apparently felt the questions were proper.
For these reasons, we find that not only was the questioning improper but it was also not harmless error. Of course, questions about the rape may be allowed during the cross-examination. The questions, however, should not require testimony beyond defendant’s personal knowledge, nor should rebuttal consist only of the police reports. There are other ways to present this type of evidence, but not in the manner the State did so at the trial.
We therefore reverse the trial court and remand this cause to the circuit court of Lake County for a new trial on the murder charge.
Reversed and remanded.