delivered the opinion of the court:
Defendant, Anton Johnson, was tried by a jury and found guilty of murdering John O’Neal. (Ill. Rev. Stat. 1985, ch. 38, pars. 9— 1(a)(1), (a)(2).) He was sentenced to a term of 30 years’ imprisonment. On appeal, he contends that: (1) the State failed to rebut the prima facie case of discrimination, and instead, proffered reasons that were merely a pretext for excluding prospective black jurors on account of their race; (2) he was denied a fair trial due to the prosecutor’s irrelevant and prejudicial insinuations that he was a member of a gang and as a result was motivated to kill; (3) he was denied a fair trial resulting from prosecutorial misconduct and overreaching; and (4) he was denied a fair trial because the trial court refused to submit his proffered eyewitness identification instructions to the jury.
THE VOIR DIRE
On July 27, 1987, the trial court conducted a voir dire examination of prospective jurors. The record on appeal discloses that of the 25 venire members who were reached for voir dire, four were black. However, the record does not indicate either the number or the racial composition of those venire members in the array who had not reached the voir dire stage. During the voir dire, the State peremptorily challenged five prospective jurors. Of those five, three were black and two were white. Defendant, who is black, exercised peremptory challenges to excuse four prospective jurors. Of those four, three were not black, while the race of the fourth is not reflected in the record. Twelve jurors and two alternates were selected. Of the selected jurors, one was black while the remaining 11 were not black, although the record does reflect that at least two were Hispanic. The trial court itself discharged two venire members.
The three black venire members excused by the State were Shirley McGee, James Norwood, and David Neely, and they possessed the following characteristics:
(1) Shirley McGee lived with her son on West Wallon in Chicago, was single and had never been married. She had been unemployed for approximately one year. She had been burglarized three years before. She had no prior jury service. Her landlord was a sergeant in the Chicago police department.
(2) James Norwood was married and had lived on South Ash-land in Chicago for five years and had never served on a jury. He worked as a paint filler in a manufacturing company. He personally knew no one who worked in the law enforcement or in any law-related field, and neither he nor any members of his immediate family had been victims of crime.
(3) David Neely was single and had lived at 6200 South Saint Lawrence in Chicago for five years. Prior to living there, he had lived at 5700 South Bishop for 10 years. He graduated from Chicago State University, which is located on 95th and King Drive. For two years, he had been a fifth-grade teacher at the Saint Alberts School located on 90th and Harper in Chicago. He never before served on a jury, knew no one who worked in law enforcement or in any law-related field, and neither he nor any members of his immediate family had been victims of crime. (Neely was initially accepted by the State as a juror; however, after the defense excused three other jurors, the State excused Neely.)
Before the voir dire examination had been completed, defense counsel objected to the jury selection on the ground that the State had exercised peremptory challenges to exclude blacks from the jury. Defense counsel specifically referred to one of the peremptorily challenged black prospective jurors, David Neely, and compared him to one of the accepted white jurors, Peggy Sutorious. (In regard to Su-torious, voir dire questioning revealed that she had lived in North Lake, Illinois, for 25 years; lived with her parents; had never been married; taught math for three years in District 88, and prior to that taught in Districts 83 and 87 in Berkley and Franklin Park. Sutorious’ father worked as a salesman at Marshal Fields in Oak Brook; and her mother was a secretary for The Baseball School of USA.)
Without explicitly articulating whether or not a prima facie case of racial discrimination in juror exclusion had been established, the trial judge then asked the State to respond to the defense counsel’s objection. The State pointed out that of the five prospective jurors peremptorily challenged by the State, two were white, and the trial court asked why the State had excluded Neely. The assistant State’s Attorney explained he felt that Neely “would be more inclined to lean toward the Defense than to the State” because he lived, taught and had gone to college in the inner city.
The trial judge then inquired about the remaining two prospective jurors peremptorily challenged by the State. Before giving the State an opportunity to respond, the trial judge remarked, “One was a woman who apparently had an illegitimate child, Miss McGee.” Defense counsel countered that McGee was “single, employed and worked as a phone operator.” The trial judge then initially concluded, “I can’t see any systematic exclusion, there are two Latinos on the Jury who are minorities but there is one other Juror, one black, I can’t see systematic exclusion.” Yet, despite his conclusion that there was no “systematic exclusion,” the trial judge then asked the prosecutor why the State had peremptorily challenged Norwood. He replied:
“I don’t believe he was attentive during the questioning, he appeared to be disinterested, he appeared to be sleeping when other people were being questioned.”
The trial judge then remarked, “Well, he didn’t bother me because he was rather quiet there, I don’t know about him.” The trial judge then denied defendant’s motion, noted that the sworn panel contained three “minority” jurors, and the case proceeded to trial.
THE TRIAL
The pertinent testimony adduced at trial is as follows. Flora O’Neal, the victim’s mother, testified that the victim, John O’Neal, had lived with her at 9215 South Woodlawn in Chicago, prior to his death on September 13,1986.
Tony Rice, the victim’s friend, testified that he lived at 4101 South Federal in Chicago. Shortly after 6 p.m. on September 13, 1986, he was in front of a food store on 43rd and State Streets with his brother, John Rice, and his friends, Tony Pierce, Sammy Jones, and the victim. Together they walked northbound towards the intersection of 42nd and State Streets.
Suddenly defendant appeared from behind a field house, 25 feet away, and began shooting at the group. Tony shouted a warning, then he and all his companions ran. As Tony ran, he fell behind an automobile, and he watched with an unobstructed view as the defendant continued shooting. Defendant then ran behind the field house. Tony discovered that the victim had been shot. Tony told the police on the night of the shooting that he had previously seen defendant three or four times “in the neighborhood,” although he did not know defendant’s name.
Tony further testified that at approximately 10 p.m. on the following day, while he and Sammy Jones were riding around the neighborhood with two police officers, he spotted the defendant and pointed him out.
On cross-examination, Tony testified that immediately after the incident he described the defendant to Officers Argenbright and Scan-nell. He told both officers that the defendant had a light mustache, shoulder-length hair and “he had his hair slick back into the wave.” Tony added on redirect that he told the police that defendant wore blue jeans and a gray jacket; he had “slick hair and a wave,” i.e., “processed” hair which was shoulder-length; he was thin, brown skinned, and about 5 feet 9 inches tall. Tony denied telling the police there were three offenders, or that the offenders wore their hats to the right side.
John Rice, the victim’s friend, testified that he also lived at 4101 South Federal Street, as had the victim. John Rice testified for the State on-direct examination that he was familiar with street gangs called the “Cobra Stones” (Stones) and the “Black Gangster Disciples” (Disciples), admitting to having once been a member of the Stones. He stated that the Stones, who controlled the building where he lived, and the Disciples, who controlled the building next to his, at 4037 South Federal, were rival gangs and at war. He stated that the Disciples controlled the park area from which the defendant had emerged when he began shooting.
John further testified that while he walked with his brother and the victim on State Street, he saw defendant pull out a gun, heard him shout something, and saw him fire approximately six shots. John had previously seen defendant “a few times around the neighborhood.” John described defendant to the police as being 5 feet 9 inches tall, 150 to 160 pounds, wearing a gray jacket and blue jeans, with shoulder-length hair “slick back.” He identified the defendant in a lineup the night after the shooting. Previously, John had been convicted of aggravated battery in 1981 and armed robbery in 1982.
On cross-examination, John denied telling the police there had been more than one offender.
Sammy Jones, along with the two Rice brothers and the victim, lived at 4101 South Federal. Jones testified to essentially the same events as Tony except that he did “[n]ot exactly” see the shooter. When he heard the first shot, he ran. On cross-examination, he initially testified that he informed the police officers that a group of three individuals fired those shots. He later testified that he did not specify a precise number of individuals. “I couldn’t see how many it was, I didn’t see.”
Detective William Murphy of the Chicago police department testified that on the evening of September 14, 1986, he drove Tony and Sammy around the neighborhood to look for the offender and any witnesses. At approximately 11:30 p.m., Tony saw the defendant at the park located at 4200 South State Street and identified him as the offender. Defendant was placed under arrest. John later identified defendant in a lineup. The police telephoned Pierce, who reported that he would not be able to identify the shooter.
After the State rested its case, several witnesses testified on behalf of the defendant. James Scannell, who had been a Chicago police officer for one year, testified that he was the first to arrive at the scene. He interviewed Tony Rice, John Rice, Sammy Jones, and other witnesses. He did not see Pierce. The victim’s companions told Scan-nell that the shots were fired by only one individual. Scannell, however, acknowledged that his police report seemed to indicate that the shots had been fired by three offenders, who all wore their hats to the right. The police report did not note the names of any witnesses who might have reported more than one offender.
William Henderson, a friend of the defendant, testified for the defense that he lived in apartment 1309 at 4037 South Federal Street and that Fred Khaton lived next door in apartment 1308. William stated that from 1 p.m., when he first saw defendant, until 11:15 p.m. on September 13, 1986, he was in and out of Fred’s apartment. Defendant, Fred and Tessie Khaton were in the apartment during the entire period. When William heard a gunshot, he and defendant were on the couch watching television. They stepped out onto the porch and saw people running towards a garage. William’s mother, Fannie, and his cousin George Henderson were already on the porch. William denied telling the police that he and defendant were already on the porch when the shots were fired.
William testified that he and defendant never left the building. When William left at 11:15 p.m., defendant was still at Fred’s apartment. William denied telling the police that Fred left at 5 or 6 p.m.; he actually left at 8 p.m. William denied telling the police that he and defendant left the building at 2 p.m.
On cross-examination, William testified that he did not know if Disciples ran his building, or any gang ran any of the nearby buildings, although he had heard of the Disciples. When asked if he had heard of the Cobra Stones, William replied, “I’m in no gang.” He was unsure if the Stones and Disciples were enemies. “I guess they are. I don’t know.”
Herman Jackson, a tow truck driver, testified for the defense that on September 13, 1986, he brought an automobile to a repair shop at 42nd and State Streets. At about 4 or 4:30 p.m., he heard five or six shots and saw two men running across the street. One of them said he had been shot. A dozen people were on the other side of the street. Jackson also saw another man who was “kind of husky” and with short hair running west toward the railroad tracks. Jackson did not see the shooter.
Edith Scanlan, who lived in apartment 1510 at 4037 South Federal Street, testified that at about 6:45 p.m. on September 13, 1986, she was looking out her window at the porch outside of apartment 1308, two floors below, because she was going to ask either her son or defendant to go to the store. She could see the defendant, who was not wearing a shirt, standing on the porch in front of apartment 1308. She then heard a single gunshot and asked the defendant if he had heard it. She also asked defendant to see if her son was in Fred’s apartment. Defendant went in to check and was gone “a few minutes.” He then returned to the porch. “Then we heard a couple of more shots ring out.” At that point, Fannie Henderson and Tessie Khaton joined defendant on the porch. She did not see William or Fred on the porch.
Fannie Mae Henderson, William’s mother, testified that she lived at 4037 South Federal in apartment 1309. After 7 p.m. on September 13, 1986, she saw defendant standing with her son on the porch. She heard no shots. On September 12, defendant had slept overnight at her house and thus was there in the morning on September 13. Defendant was with her son ail day.
The defendant testified on direct examination that at 5 p.m. on September 13, 1986, he was in Fred’s apartment with William, Fred and Tessie. Shortly after 6 p.m., and while still in that apartment, he heard a gunshot. He went out on the porch and saw police cars and an ambulance on 42nd and State Streets. He stayed on the porch with William, and Fred went back inside. He denied either being in the park between 6 and 7 p.m. or firing any shots.
At the time of his arrest, the defendant had long hair which was slicked back. He was 5 feet 9 inches tall and weighed 145 pounds. He wore a black leather jacket and grey pants on September 13, 1986.
On cross-examination, the State inquired as follows:
“[PROSECUTOR]: Mr. Johnson, do you belong to any gangs?
A. No.
Q. You do not belong to a gang?
A. No.
Q. You are not a member of the Black Gangster Disciple[s]?
A. No.
[DEFENSE COUNSEL]: Objection, Judge. He’s asked and answered.
THE COURT: That answer is no.
[PROSECUTOR]: Do you affiliate with any people that are Black Gangster Disciples?
A. Yes.
[DEFENSE COUNSEL]: Objection, Judge.
THE COURT: Overruled.
[DEFENSE COUNSEL]: What difference does that make?
THE COURT: Overruled.
[DEFENDANT]: Yes.”
The State continued asking questions concerning defendant’s knowledge of gang activity in the area of Chicago where the shooting occurred. Defense counsel’s repeated objections were overruled.
Defendant denied that he initially informed the police officers that he was with his girl friend for the entire day and that he changed his version of his whereabouts when the police officers told him that they were going to verify his statements with his girl friend. Instead, he said that he informed the officers that he had been waiting for his girl friend all day at his grandmother’s and Uncle Fred’s apartment at 4307 South Federal. He told the police officers that he had spent the night at William Henderson’s apartment, and on the morning of the shooting, he was at his grandmother’s apartment.
Defendant stated that when he heard the shots, he was watching television with William. Defendant, William and Fred went out onto the porch. George was already there. He heard several more shots. Scanlon asked him to see if her son was at Fred’s, and he did so. Defendant later added that Fannie was on the porch; then added that some of Fred’s friends were there; and then added that his cousin Calvin was on the porch, too.
Fred left the apartment after the shots were heard and went to see his girl friend. From her house, he telephoned to say he had discovered someone was shot. Defendant left the building briefly at 8 p.m. to go to the store. He later left the building before 11 p.m. to go home.
Defendant testified that he had seen Tony Rice in the building at 4101 South Federal but he did not know him, or the victim, or their companions. He had never had problems with Tony Rice. He did not know why John Rice would identify him in a lineup.
Detective Murphy was then recalled by the State to testify in rebuttal. He stated that defendant initially told him that he had spent the day with his girl friend on September 13, 1986. When he asked the defendant for his girl friend’s telephone number and address, defendant then responded that he was at his grandmother’s apartment on that day and not at his girl friend’s place. Defendant told him that he and William were on the porch at about 7 p.m. talking about females when they heard shots. At that point, Fred came out and told him that a boy had been shot. Defendant also told Murphy that he first left the building at 8 p.m to go to a drug store. Defendant left his grandmother’s apartment at approximately 10 p.m. on that day.
Murphy further testified that on September 15, 1986, he spoke to William Henderson, who told him that at 2 p.m. on September 13, he and the defendant left Fred’s apartment to meet with their girl friends. They were with their girl friends for a couple of hours and then returned to the apartment. Fred left between 5 and 6 p.m., and they did not hear from him again until about 8 p.m. when he called them and told them that a boy had been shot. According to Murphy, William also stated that he and defendant were sitting on the porch watching a basketball game being played below them in the park, and talking about women, when they heard the gunshots.
Defendant then called Detective McGuire to testify. McGuire stated that Tony and John Rice told him that the individual who fired the shots wore a gray jacket, dark pants, and had on a light-colored hat. According to McGuire, neither John nor Tony ever told him that they had seen the defendant on a prior occasion. On cross-examination, he testified that John and Tony informed him that the person who fired the shots had slick hair of shoulder length.
The jury found defendant guilty of murder, and he was sentenced to 30 years’ imprisonment. Defendant now appeals his conviction.
Opinion
Defendant first contends that he was denied equal protection when the State violated the rule under Batson v. Kentucky (1986),
Under Batson, defendant must make out a prima facie case by showing that the totality of the relevant facts gives rise to an inference of discriminatory purpose. (Batson,
Once a prima facie case of discrimination has been established, the State bears the burden of coming forward with a neutral explanation for excluding each black venireperson, and the explanation must be related to the particular case to be tried. (Batson,
After the State has presented its race-neutral basis for exercising peremptory challenges against venirepersons, the trial court must determine whether the defendant has established purposeful discrimination. (Batson,
A reviewing court may not make an “independent” review of a trial court’s rejection of a Batson claim. (Hernandez v. New York (1991),
Apparently 3 of the 12 jurors here were minorities, including one black juror. The State exercised three of its five peremptory challenges on blacks. The other two members who were peremptorily challenged by the State were white.
Defendant maintains that he established a prima facie case of racial discrimination in the State’s use of peremptory challenges. He asserts that “[i]n asking the State for race-neutral reasons, the judge implicitly found the existence of a prima facie case.” The State counters that the trial court found that defendant failed to make out a prima facie case when it asked the State to provide reasons for its challenges.
In People v. Hope (1990),
In Hope v. Illinois (1991), _ U.S. _,
The Court in Hernandez held that where the trial court collapsed the Batson procedural steps, such a “departure from the normal course of proceeding need not concern us.” (Hernandez,
In the present case, the trial court made no finding on the question of whether or not defendant had established a prima facie case, but instead asked the State for its explanation. Thus, the issue of whether defendant made a prima facie showing became moot and merged into the question of whether the explanations offered by the State were race-neutral. This brings up defendant’s next contention.
Defendant maintains that the State failed to offer racially neutral reasons for dismissing the black jurors Norwood, McGee and Neely.
Both the trial court and defendant focused mainly on juror Neely. (Defendant’s post-trial motion states that the court erred in overruling defense objections to the State’s use of peremptory challenges, “particularly in the case of Juror Neely.”) The State offered the following explanation to the trial court:
“THE COURT: State, what do you wish to say?
[PROSECUTOR]: Judge, first we have used five peremptory challenges, we have challenged two whites in addition—
THE COURT: No, the sole issue is why you excused the last one.
[PROSECUTOR]: Mr. Neely?
THE COURT: Yes.
[PROSECUTOR]: I just feel he would not be a good Juror for the State, I do not feel that he would be impartial and for my own personal belief I do not feel that he — I feel that he would be more inclined to lean toward the Defense than to the State.
THE COURT: Why?
[PROSECUTOR]: Just because of the fact of where he lives, 62nd South St. Lawrence which, as you know, is in the inner city, he is also teaching at 90th and Harper which again is inside the inner city, he went to Chicago State University, 95th and King Drive and for those reasons I do not feel that he would be a fair and impartial Juror.”
In determining whether discriminatory intent existed, it is significant that Neely was initially accepted by the State. The State accepted a panel of jurors which included Neely. The State tendered the panel to defendant. Defendant then excused three of the jurors. It was only then, after defendant had altered the makeup of the panel, that the State excluded Neely.
“That a prosecutor had peremptory challenges remaining but did not use them to strike a black venireperson can also indicate an absence of an intent to discriminate. The prosecutor accepted and tendered to the defendant a panel containing a black woman. The prosecutor excused the black woman only after the defendant exercised 10 peremptory challenges, which altered the panel gender. The black woman was excused along with two other women in an attempt, the prosecutor says, to change the gender balance of the panel.” People v. Hooper (1989),133 Ill. 2d 469 , 511,552 N.E.2d 684 .
While the State never articulated the reason that defendant’s peremptory challenges altered the panel’s makeup (see People v. Harris (1989),
Defendant argues that the fact that Neely was from the inner city “is merely a euphemistic way of saying that Mr. Neely is black.” Moreover, the scene of the crime was 20 blocks from Neely’s home; 48 blocks from the school where he taught fifth grade; and 53 blocks from his alma mater. Defendant maintains that “[i]f an ‘inner city’ connection, even one miles [sic] from the scene of the crime, were to suffice as a racially neutral explanation for excluding black venireper-sons, then the protections of Batson v. Kentucky would be meaningless.” This disproportionate impact would result because “many black people” live on the south side of Chicago.
Significantly, the United States Supreme Court recently held in Hernandez v. New York that disproportionate intent, not impact, was the key in evaluating the race-neutrality of the prosecutor’s explanation. (Hernandez,
In People v. Baisten (1990),
“[Defendant argues that] by excluding [the juror] because she resides near the scene of the crime, the State impermissibly engaged in ‘a group-based exclusion’ which would effectively eliminate blacks from the jury simply because they live on the South Side of Chicago, a predominantly black neighborhood. We recognize the State’s concern that a juror who lives in close proximity to the area where the offense took place may overhear certain information about the offense during the pendency of the trial and thereby lose his or her objectivity. [Citations.] Although the fact that [the juror] lives approximately Jive miles from [the crime scene] makes the State’s position more tenuous, we cannot say that the trial court’s finding that the prosecutors’ exclusion of [the juror] was not racially motivated is contrary to the evidence.” (Emphasis added.) People v. Baisten,203 Ill. App. 3d at 81 , citing United States v. Andrade (8th Cir. 1986),788 F.2d 521 ; People v. Hooper,133 Ill. 2d at 509-10 .
Thus, under the reasoning of Baisten, the trial court in the present case was not required to conclude from defendant’s assertion of disproportionate impact that the State had a discriminatory purpose in excluding a juror who lived 20 blocks from the scene of the crime and the home of several alibi witnesses.
Moreover, if a juror’s residence in the inner city (where the defendant lived, the crime occurred, and alibi witnesses lived) were found to be a racial classification on its face, then a trial judge could never excuse a juror for cause even if convinced that the juror could not be impartial due to his knowledge of the neighborhood. See Hernandez,
Simply living in a high crime area has often been presented as an explanation for exclusion of a potential juror. One prosecutor stated: “I just asked him to look down my list — and he’s lived here for a long time — and pick out what was [sic] bad addresses, bad in the sense of high crime areas, areas where we probably would not want jurors for the State who perhaps might be sympathetic with the defendant.” Harrell v. State (Ala. 1989),
Other courts have found peremptory challenges race-neutral where the challenges were based on the potential juror’s residence or employment being near the defendant’s or witnesses’ residences, or near the scene of the crime. For example, in People v. Williams (1988),
In Williams, the defendant argued that the State’s geographical explanation was pretextual in that the jurors’ connection with a gang area was an extraneous concern since gang membership was not an issue in the case. The court found the State’s explanation race-neutral, explaining:
“Common life experience teaches us that gang members often protect one another, and consequently the implication that the jurors’ safety might be in question is legitimate in this case. Furthermore, experience with criminal trials teaches that a juror’s daily association in the neighborhood where the crime occurred would be a common reason for a peremptory challenge with or without gang activities in the area.” Williams,177 Ill. App. 3d at 792 .
In People v. Hooper, one potential black juror was stricken because she resided in an area frequented by a gang to which one of the codefendants belonged. The court commented: “Striking a juror because of geographic proximity to the scene of the crime or to the residence of one of the codefendants has been accepted as a race-neutral and legitimate reason for excusing a prospective juror.” People v. Hooper,
In People v. Jones (1990),
In People v. Hope (
The ultimate determinative factor is whether the trial judge chose to believe the prosecutor’s race-neutral explanation. The question of intent to discriminate is a “pure issue of fact, subject to review under a deferential standard.” Hernandez,
“[T]he decisive question will be whether counsel’s race-neutral explanation for a peremptory challenge should be believed. There will seldom be much evidence bearing on that issue, and the best evidence often will be the demeanor of the attorney who exercises the challenge. As with the state of mind of a juror, evaluation of the prosecutor’s state of mind based on demeanor and credibility lies ‘peculiarly within a trial judge’s province.’ ” Hernandez,500 U.S. at _,114 L. Ed. 2d at 409 ,111 S. Ct. at 1869 , quoting Wainwright v. Witt (1985),469 U.S. 412 , 428,83 L. Ed. 2d 841 , 854,105 S. Ct. 844 , 854.
Because there are two permissible views of the evidence here, we cannot find that the trial court’s choice between them is clearly erroneous. (See Hernandez,
Thus, the fact that the prosecutor excluded Neely on the basis that he might be influenced due to the address of his home or school, does not leave us “with the ‘definite and firm conviction that a mistake has been committed.’ ” Hernandez,
In regard to Neely, defendant argued that Neely was similar in most respects to a white juror, Sutorius, who was also a teacher. Defense counsel argued:
“There was nothing unusual brought out, no contact with the law, no prejudice against law enforcement individuals, Mr. Neely is a teacher residing on the far South Side. I believe he is similar to [sic] in most respects to Miss Sutorious who is a teacher, other than his sex and race.”
That argument is hardly persuasive in light of the obvious differences in their residence and place of employment, the factors upon which the State’s challenge to Neely pivoted. The only common characteristic which the record shows to be shared by these two jurors was their general occupation as teachers. Neely lived, and taught fifth grade, in the inner city, not far from the scene of the crime. In contrast, Sutorious lived in North Lake, Illinois, for 25 years, taught in Franklin Park, Berkley and District 88, far from the scene of the crime. Moreover, the State’s rejection of a black venireperson and acceptance of a characteristically similar white member of the venire, even where demonstrated, does not automatically establish with conclusivity that the State’s explanations were pretextual. (People v. Hooper,
Defendant’s arguments concerning the other two jurors, McGee and Norwood, are really contingent upon his argument concerning Neely. “In light of the prosecutor’s specious explanation for excluding Mr. Neely[,] his purported reasons for excluding two other black venirepersons must also be viewed with extreme skepticism.” Since we do not find sufficient cause to reverse the trial court’s acceptance of the State’s reasons for excluding Neely, this bootstrapping argument cannot provide a basis for rejecting the State’s reasons for excluding the other two black jurors.
Moreover, the existence of McGee’s 12-year-old illegitimate child and her one-year unemployment status could reasonably be considered a neutral reason for dismissing a juror. (See United States v. Cartlidge (5th Cir. 1987),
In regard to Norwood, the prosecutor explained: “Judge I don’t believe he was attentive during the questioning, he appeared to be disinterested, he appeared to be sleeping when other people were being questioned.” This is a racially neutral reason. See People v. Harris,
Defendant asserts that the trial judge disputed whether Norwood was inattentive. The court commented: “Well, he didn’t bother me because he was rather quiet there, I don’t know about him.” Nothing in this statement indicates an unwillingness on the part of the trial judge to acquiesce in the State’s reason for discharging Norwood because he was sleeping.
Defendant also contends that the trial court applied the wrong legal standard in denying defendant’s Batson motion, because the judge “noted twice that there were Latinos left on the jury, and noted once that the defense had excused a juror who may have been black” when these facts are not relevant to a Batson challenge. The court remarked, “We have three minorities [on the jury], and one guy, I don’t know whether he was black or not that you excused, [defense counsel].” The record does not indicate the judge predicated his ruling on the reasoning that the presence of minorities on the jury precluded a finding that defendant had established discriminatory intent under Batson. (Cf. People v. Lockhart (1990),
Accordingly, we do not find the trial court’s determination that no Batson violation occurred to be clearly erroneous.
Defendant next contends that he was denied a fair trial by the State’s “repeated, unfounded insinuations that [defendant] was a member of a gang.” He points to the subsequent cross-examination, after defendant denied being a member of a gang, regarding defendant’s knowledge of gang-related activities, and two comments made by the State in closing argument. Defendant has not contended, either here or at trial, that the State did not have some reason to initially raise the issue of gangs. Moreover, neither the trial court nor the defense ever indicated during trial that the mention of gangs, or the attempted development of the issue in cross-examination, was creating undue prejudice to defendant, or outweighing the probative value of the inquiry.
Evidence showing the defendant was a member of a gang or involved in gang-related activity is admissible to provide a motive for an otherwise inexplicable act. (People v. Hairston (1970),
Moreover, where gang affiliation is alleged to be a motive, it must be recognized that, particularly in metropolitan areas, there may be a strong prejudice against street gangs. (People v. Smith,
Here, the State was unable to sufficiently establish gang membership or activity related to the crime charged. Our concern, however, is whether the State’s exploration of the issue on cross-examination was excessive, as urged by defendant.
A defendant who testifies subjects himself to cross-examination, the scope of which rests within the sound discretion of the trial court. (People v. Williams (1977),
Moreover, the limitation on the scope of cross-examination is construed liberally to allow inquiry into whatever tends to explain, qualify, modify, discredit, or destroy the testimony on direct. (People v. Gacho (1988),
We believe that the State had a good-faith basis for exploring on cross-examination of defendant and Henderson the issue of a gang-related motive for the otherwise inexplicable act of defendant shooting randomly into a group of five people. (See People v. Munoz (1984),
With that evidence having been elicited from a witness for the State, we believe that the State could properly explore the issue with defense witnesses. Thus, it was not error for the State to question Henderson and defendant about gangs.
Moreover, although defendant denied being a member of a gang, upon further questioning he did concede facts that would have provided a good-faith basis for further inquiry. Although the evidence did not eventually rise to the level of justifying the conclusion that defendant was a gang member or that the shooting was motivated by gang rivalry, it was not a clear abuse of the trial court’s discretion to permit the State to further explore gang membership in cross-examination of Henderson and defendant.
Defendant admitted he knew “[q]uite a few” Disciples. “I can’t count. It’s a numerous number. It’s a lot of them.” Defendant knew that “mostly” Disciples lived at 4037 South Federal (where defendant claimed he was during the shooting and where his alibi witnesses all lived). He knew that Cobra Stones ran 4101 South Federal (where the victim, the Rices and Jones lived). He had seen John Rice at 4101 South Federal. Defendant knew the Disciples and Stones were at war: “I know they be fighting ***.” He also testified: “You can go in any one of those [buildings] you want but they fight though, you know. *** Like if you’re known over there by the building, you can go in any building you want. Won’t nobody mess with you.” If you do not know anyone in the building, however, “[t]hey will mess with you if you come over there.”
We also find some significance in the fact that the State never mentioned gangs in its opening statement or initial closing argument. Cf. People v. Smith,
Accordingly, we conclude that there was no clear abuse of discretion in permitting the cross-examination of defendant on gang issues. In so finding, we emphasize that any such cross-examination must be terminated when it becomes clear that the State will not be able to elicit sufficient proof to establish a basis from which to infer gang membership. Moreover, even if we were to find that the State’s cross-examination extended beyond that threshold, we would find any error to be harmless in view of the strength of the eyewitness testimony supporting defendant’s conviction, as discussed below in connection with defendant’s next contention concerning prejudicial gang-related remarks made by the prosecutor in closing argument.
Defendant next points to comments made by the State in closing argument. We initially note that it was defense counsel who first raised the issue of gangs during closing argument. In arguing that John Rice had no credibility, counsel stated: “Who are the gangbangers here? John Rice *** said, ‘The building I live in and that all my friends live in is controlled by a street gang.’ ” The defense emphasized: “No one said defendant is in a gang.” The defense continued focusing on the issue, exploring why John Rice identified defendant as the shooter: “According to John Rice, everyone in 4037 is a rival gang member. So he picked anyone in the building as a shooter.” The defense also argued that it was inconsistent for John Rice, an “admitted gang member” to say he had seen defendant in “another gang[’s] building.”
Given that it was defense counsel who focused on these gang-related issues, it might have been proper for the State to make some comment in rebuttal. Defendant points to the State’s closing rebuttal argument, where the prosecutor said:
“What else did he tell you, ladies and gentlemen? That that park at 4200 on South State Street is a Disciple park. And you’ll get this picture back there, ladies and gentlemen, and you’ll get to see the back of the field house as it looks out at State Street and you’ll get to look at something real interesting. All that graffiti on the wall there.
You know what else I find interesting? *** He doesn’t seem to have any problems there. The gang graffiti on the wall. Does that tell you a little something about him? Doesn’t that show you the kind of person he is?”
We agree with defendant that this rebuttal argument was improper. While defense counsel made remarks in his closing argument that would have justified some refutation of how Rice’s past membership in a gang affected his credibility, it did not justify remarks alluding to defendant’s gang membership.
We go on, however, to determine whether or not such error requires reversal.
Here, we can safely conclude that a trial without the error would produce no different result. (See People v. Parmly (1987),
Tony Rice observed defendant begin shooting from a distance of only 25 feet, in daylight. Tony then lay behind a car and, with an unobstructed -view, watched as defendant continued firing the gun. Tony had seen defendant three or four times previously in the neighborhood and recognized him. On the night following the shooting, Tony rode with police officers and identified defendant on the street. He also identified defendant at trial. Tony had no criminal record.
John Rice also observed defendant during the shooting itself and recognized him from the neighborhood. Without speaking with his brother Tony, John identified defendant in a lineup at the police station. John also identified defendant at trial.
Both eyewitnesses described defendant to the police as being 5 feet 9 inches tall, with shoulder-length, slicked back hair, wearing blue jeans and a gray leather jacket. John said defendant weighed 150 to 160 pounds; Tony said he was “thin.” Tony added that defendant had a light moustache. Consistent with these descriptions, defendant described himself as being 5 feet 9 inches tall, weighing 145 pounds, wearing his hair long and slicked back, and having a moustache at the time of the shooting.
This identification testimony was sufficient to support defendant’s conviction.
In his defense, defendant relied on Officer Scannell’s testimony that there were three offenders. However, there was some confusion about that and the jury was not required to place any weight on that testimony. (In fact, the presence of three offenders, all wearing their hats “to the right,” and shouting out something before shooting might have lent some credence to a gang-related motive.) Moreover, even if defendant had been accompanied by two other men, it did not weaken the eyewitness testimony describing defendant as the shooter.
Defendant also relied on Jackson’s testimony that he saw a husky male run from the scene. Jackson, however, testified that he never saw the shooter. Instead, he saw a dozen people on the street, and after hearing shots fired, he looked over and noticed several people running, including a husky male with short hair. Moreover, Jackson’s testimony was undermined by his statement that the shooting occurred at 4 or 4:30 p.m. when it was actually almost 7 p.m.
Defendant relies most strongly on his alibi witnesses. Even disregarding Officer Murphy’s rebuttal testimony, the alibi testimony offered by defendant was seriously undermined by contradictions among the alibi witnesses.
Defendant says he slept at Henderson’s on September 12; went to his grandmother’s next door at 7 a.m., and stayed all day with William Henderson waiting for his girl friend. William Henderson testified to the contrary in regard to the time he spent with defendant. Defendant stated further that at 5 p.m., he was in Fred’s apartment with William, Fred and Tessie, watching television. A little after 6 p.m., he heard a shot and went onto the porch with William and Fred. Scanlon’s testimony contradicted this. Defendant stated on direct that William, George, Fred and Fannie were on the porch. On cross-examination, he first stated that these people, plus Tessie, were on the porch. Then he added that a few of Fred’s friends were on the porch. Finally, he added that his cousin Calvin was also on the porch. Other defense witnesses disagreed on these facts. Contrary to William’s testimony, defendant stated that he left the building before 11 p.m.
Thus, defendant’s alibi evidence regarding whom he was with, where he was, and what he was doing before, during and after the shooting, was replete with contradictions.
We conclude that the evidence in this case strongly supported defendant’s conviction. The trial, even absent the improper closing argument by the State, would not produce a different result.
Defendant next contends that he was denied a right to a fair trial due to “repeated instances of prosecutorial misconduct, coupled with extensive prosecutorial overreaching.” Defendant points to five instances of alleged misconduct and overreaching.
Defendant asserts that it was prejudicial for the prosecutor to inform the jury in opening statement that motive “is something that the People of the State never have to prove.” Defendant’s objection was overruled. This issue was not raised in defendant’s post-trial motion and thus has been waived. (People v. Young (1989),
Defendant next maintains that it was prejudicial for the State to argue in its rebuttal argument that defendant could have subpoenaed Tony Pierce as a witness, and that the State had no reason to call him because he never saw the shooter. The remark in question was invited by defense counsel’s repeated remarks during closing argument suggesting that Pierce described three offenders to the police but was never called by the State as a witness. See People v. Wheeler (1955),
Defendant next argues it was error for the State to use a leading question during redirect examination of Tony Rice regarding the defense of alibi. The State asked: “Mr. Rice, when you saw the defendant come out from behind the field house, that’s not the first time you saw him, is it?” A defense objection, without specification of grounds, was overruled. The State then rephrased the question: “Had you ever seen the defendant before he came out from the side of the field house?” We find no substantial injury to defendant resulted from this single question, particularly in view of the strong eyewitness testimony, and the prosecutor’s immediate withdrawal of, and rephrasing of, the question. See People v. Camden (1980),
Defendant next argues that the State erroneously was permitted to perfect the impeachment of defendant through the testimony of Officer Murphy on purely collateral matters. On rebuttal, Murphy offered testimony contradicting defendant’s testimony regarding how defendant spent the day in the hours leading up to the time of the shooting.
The latitude to be allowed on rebuttal is a matter within the sound discretion of the trial court, and that judgment will not be disturbed on appeal unless there has been a clear abuse of discretion resulting in manifest prejudice to the defendant. (People v. Peter (1973),
In Collins, our supreme court upheld the trial court’s ruling in permitting rebuttal testimony, and rejected defendant’s argument that the impeachment concerned collateral matters. Defendant Collins testified that on November 12, the day of the murders, he was with his girl friend. His girl friend testified similarly. On cross-examination, however, she testified that on November 9 she went to a Kung Fu movie with defendant at a certain theater. In rebuttal, the State called the theater’s manager, who testified that no Kung Fu movie was shown on November 9. The court found no abuse of discretion in permitting this rebuttal testimony. People v. Collins,
People v. Byer recites the same test for defining “collateral” matters and adds McCormick’s broader test:
“Suppose a witness has told a story of a transaction crucial to the controversy. To prove him wrong in some trivial detail of time, place or circumstance is ‘collateral.’ But to prove untrue some fact recited by the witness that if he were really there and saw what he claims to have seen, he could not have been mistaken about, is a convincing kind of impeachment that the courts must make place for, although the contradiction evidence is otherwise inadmissible because it is collateral under the tests mentioned above. To disprove such a fact is to pull out the linchpin of the story. So we may recognize this third type of allowable contradiction, namely, the contradiction of any part of the witness’s account of the background and circumstances of a material transaction, which as a matter of human experience he would not have been mistaken about if his story were true. This test is of necessity a vague one because it must meet an indefinite variety of situations, and consequently in its application a reasonable latitude of discretionary judgment must be accorded to the trial judge.” E. Cleary, McCormick on Evidence §47, at 111-12 (3d ed. 1984), quoted in People v. Byer,75 Ill. App. 3d at 669 .
In the present case, under the rationale of Collins, the extrinsic testimony here was material in so far as it tended to rebut defendant’s alibi defense. The case of People v. Deal (1935),
Similarly, in People v. Mannen (1977),
We therefore conclude that the trial court did not clearly abuse its discretion in permitting Officer Murphy to testify in rebuttal. Moreover, even if the extrinsic impeachment testimony offered by Murphy was not otherwise admissible, we would find any error harmless in view of the overwhelming evidence supporting defendant’s conviction, which we have previously discussed and analyzed.
Defendant next maintains it was improper for the prosecutor, while cross-examining defendant, to insinuate defendant had lied to the police by asking defendant whether he had “told the police officers a third story.” Although the State would have been better served by using a word that carried a less pejorative connotation, we nevertheless hold that no error occurred, particularly where it only amounted to a single word in a lengthy cross-examination, and where the trial court was in the best position to hear the tone of voice and demeanor used by the prosecutor. See People v. Grodkiewicz (1959),
Defendant finally contends that the trial court abused its discretion in refusing to give the jury either defense-tendered instruction on the reliability of eyewitness identification. The first instruction addressed the reliability of eyewitness identification based on United States v. Hodges (7th Cir. 1975),
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.
Judgment affirmed.
Notes
But see Lynn v. Alabama (1989),