THE PEOPLE OF THE STATE OF ILLINOIS, Plаintiff-Appellee, v. JOSEPH RODRIGUEZ, Defendant-Appellant.
No. 83-0056
First District (5th Division)
Opinion filed May 24, 1985.
Supplemental opinion filed on denial of rehearing August 2, 1985.
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Richard M. Daley, State‘s Attorney, of Chicago (Michael E. Shabat, Jeanette Sublett, and John J. Muldoon III, Assistant State‘s Attorneys, of counsel), for the People.
JUSTICE LORENZ delivered the opinion of the court:
Following a jury trial, defendant Joseph Rodriguez was convicted of two counts of murder (
Renaldo Hernandez testified that he had known defendant for years and that he and defendant were members of the Kool Gang. In 1981, a dispute arose between the Kool Gang and another southwest side street gang, the Villalobos. According to Hernandez, his gang believed that Charles Palmer, a member of the Villalobos, had a Kool Gang jersey. Defendant discussed the jersey with Charles Palmer several times during the summer and fall of 1981.
On December 12, 1981, defendant and Hernandez observed Joey and Theresa Palmer walking homeward; they mistook Joey for his brother, Charles. Defendant asked Hernandez if he wanted to kill them, and Hernandez responded that it was up to defendant. Hernandez went home for a gun, which he said he had been holding for defendant. Defendant took the gun and positioned himself in hiding along Joey and Theresa‘s route. As Joey and Theresa passed him, defendant crossed the street, then sneaked up behind the two, raised the gun, and shot Joey in the baсk of the head. Theresa began screaming and defendant shot her twice, turned to run, then shot her a third time. Hernandez testified that he and defendant ran away, separated, and hid.
On cross-examination, Hernandez admitted that he had lied in a previous statement to an assistant State‘s Attorney and in his testimony before the grand jury. After his attorney advised him that he could be sentenced to a term of natural life in prison, Hernandez struck a deal: he would testify against defendant and plead guilty to obstructing justice in exchange for the State‘s Attorney‘s recommendation that he be sentenced to four years’ imprisonment.
Theresa Santana testified that she lived across Halsted Street from the victims, and that she had known defendant for several years. Santana was descending a stairway outside her residence in the evening hours of December 12, 1981, when she saw Joey and Theresa Palmer walking home. She recognized defendant as he crossed Halsted Street toward her, but before she could greet him, he turned and jogged at an angle back across the street. Santana testified that defendant unzipped his jacket, pulled a gun, shot Joey once or twice and shot Theresa two or three timеs. She said that defendant then ran away.
Santana stated that she spoke to the police on the evening of the shooting and gave them a description, but she did not name defend-
Danny O‘Neal Morris testified that he was sitting near a window in his second-floor apartment at about 5:45 p.m. on December 12, 1981, when he heard four gunshots. He looked out the window, which overlooks an alley adjoining Halsted Street, and saw two men run through the alley. Morris said that he did not see the first man‘s face, but the man was 5 foot 8 inches, 160 pounds, with a medium complexion, an “afro” hairstyle and a brown jacket. He described the second man as a 5 feet 6 inches Latino, 135 pounds, with black hair parted in the middle, a black leather jacket, and a gun. Morris testified that he saw the second man‘s face for a few seconds, and he positively identified defendant as that man. Over defendant‘s objection, Morris identified defendant in a lineup photograph as well as in open court, although he had not attended the lineup nor made any pretrial identification.
The victims’ mother testified that she heard shots and went downstairs to discover her daughter, bleeding аnd motionless, and her son, still conscious, not knowing what had happened. Charles Palmer, the victims’ brother, substantially corroborated Hernandez’ testimony concerning the dispute between the gangs. In addition, police officers described various stages of the investigation, and a pathologist opined that the victims died from bullet wounds.
Private investigator Robert Beseth testified for the defense. He said that on December 19, 1981, he spoke with Theresa Santana at her home. She told him that she did not initially identify defendant for three reasons: his hairstyle was not the same as she remembered, he did not havе bags under his eyes as she remembered, and she was afraid. Beseth stated that he wrote a report of the interview immediately afterward, had the report typed two days later and asked Santana to sign it, but she declined, saying that the police and her parents told her not to sign anything.
During closing arguments, Assistant State‘s Attorney Timothy McMahon argued that Theresa Santana was understandably reticent
Following deliberations, the jury returned verdicts of guilty on two counts of murder. The trial court entered judgment on the verdicts and sentenced defendant to natural life in prison. Defendant filed a timely notice of appeal.
OPINION
Defendant first contends that the trial court improperly permitted Danny O‘Neal Morris to identify defendant from a photograph of a lineup which Morris never attended. Because he was conspicuously seated at the defense table, defendant reasons, the identificаtion procedure was so suggestive as to deprive him of a fair trial. Defendant relies upon Moore v. Illinois (1977), 434 U.S. 220, 54 L. Ed. 2d 424, 98 S. Ct. 458, and Foster v. California (1969), 394 U.S. 440, 22 L. Ed. 2d 402, 89 S. Ct. 1127.
Foster involved a series of suggestive pretrial confrontations during which the eyewitness progressed from “not sure” to “convinced” of his identification. (394 U.S. 440, 441-42, 22 L. Ed 2d 402, 405-06, 89 S. Ct. 1127, 1127-28.) The Foster court stated that the suggestiveness of the procedure “made it all but inevitable” that the victim would identify the accused, and held that the procedure was so unreliable as to violate due process. (394 U.S. 440, 443, 22 L. Ed. 2d 402, 407, 89 S. Ct. 1127, 1129.) Recognizing that the reliability of an eyewitness identification is ordinarily a matter for the jury, the Foster court reiterated that such evidence must be excludеd where procedures are so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable mistaken identification. 394 U.S. 440, 442, 22 L. Ed. 2d 402, 406, 89 S. Ct. 1127, 1128. See Simmons v. United States (1968), 390 U.S. 377, 384, 19 L. Ed. 2d 1247, 1253, 88 S. Ct. 967, 971.
Moore involved a one-on-one confrontation between the victim and the accused at a preliminary hearing. The Moore court emphasized the inherent dangers of suggestive pretrial identification procedures:
“‘[T]he first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused‘s fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness-“that‘s the man.“‘” Moore v. Illinois (1977), 434 U.S. 220, 225, 54 L. Ed. 2d 424, 431, 98 S. Ct. 458, 463, quoting United States v. Wade (1967), 388 U.S. 218, 235-36, 18 L. Ed. 2d 1149, 1162-63, 87 S. Ct. 1926, 1936-37.
The court noted that if the accused had been represented by counsel, counsel could have requested a less suggestive lineup, he could have asked the victim to attempt an identification while the accused sat in the audience, and he could have cross-examined the victim to test the identification before it became certain. (434 U.S. 220, 230 n.5, 54 L. Ed. 2d 424, 435 n.5, 98 S. Ct. 458, 465-66 n.5.) The Moore court stated that some or all of the suggestiveness could have been avoided and held that the preliminary hearing showup procedure violated the accused‘s right to counsel. 434 U.S. 220, 230-31, 54 L. Ed. 2d 424, 435-36, 98 S. Ct. 458, 465-66.
Foster and Moore reveal the flaw in defendant‘s argument: the rationale for suppressing an identification tainted by extrajudicial suggestiveness simply does not apply here. Suppression seeks to avoid the risk that a suggestive pretrial identification will result in a mistaken or deceptively certain identification at trial. Danny O‘Neal Morris attempted no pretrial identification, and so the risk is minimal that his identification in court was influenced by extrajudicial suggestiveness. It is true that Morris identified defendant under suggestive circumstances at trial, but it does not follow that defendant was denied due process.
In People v. Finch (1970), 47 Ill. 2d 425, 266 N.E.2d 97, cert. denied (1971), 404 U.S. 836, 30 L. Ed. 2d 68, 92 S. Ct. 122, the defendant argued that he was denied due process when a witness identified him for the first time at trial while he was seated at the counsel table. The Finch court rejected this argument, partly because the defendant failed to object and partly because the witness had an independent basis for the identification. (47 Ill. 2d 425, 430-31.) In People ex rel. Blassick v. Callahan (1972), 50 Ill. 2d 330, 279 N.E.2d 1, our supreme
In our view, suggestiveness at trial, absent the taint of extrajudicial suggestiveness, does not offend due process because the trial itself affords the defendant adequate protection. The defendant receives the full benefit of a trial by jury, under the guidance of an impartial judge, with representation by counsel and witnesses subject to oath and cross-examination. We stress cross-examination, “the greatest legal engine ever invented for the discovery of truth.” (V Wigmore, Evidence sec. 1367 (Chadbourne rev. 1974).) Where a witness first identifies the defendant at trial, defense counsel may test the perceptions, memory and bias of the witness, contemporaneously exposing weaknesses and adding perspective in order to lessen the hazards of undue weight or mistake. (Cf. Moore v. Illinois (1977), 434 U.S. 220, 230 n.5, 54 L. Ed. 2d 424, 435 n.5, 98 S. Ct. 458, 465-66 n.5.) We emphasize, too, that the jury is capable of observing and weighing the suggestiveness of an in-court identification, if that idеntification is unaffected by extrajudicial suggestiveness. (See IV Wigmore, Evidence sec. 1130 (Chadbourne rev. 1972) (in-court identification has “little testimonial force“).) As Mr. Justice Black commented:
“[T]he jury is the sole tribunal to weigh and determine facts. That means that the jury must, if we keep faith with the Constitution, be allowed to hear eyewitnesses and decide for itself whether it can recognize the truth and whether they are telling the truth. It means that the jury must be allowed to decide for itself whether the darkness of the night, the weakness of a witness’ eyesight, or any other factor impaired the witness’ ability to make an accurаte identification. To take that power away from the jury is to rob it of the responsibility to perform the precise functions the Founders most wanted it to perform.” Foster v. California (1969), 394 U.S. 440, 447, 22 L. Ed. 2d 402, 409, 89 S. Ct. 1127, 1131 (Black, J., dissenting).
In this case, Morris saw the face of the person who carried
Defendant next contends that improper comments by the prosecutors deprived him of a fair trial. He argues that their remarks concerning Theresa Santana‘s relocation under a witness protection program violated a motion in limine. Defendant argues further that the prosecutor cast aspersions on defense counsel and misstated Hernandez’ culpability. The State argues generally that the comments were waived, proper or harmless.
In general, matters in evidence and reasonable inferences therefrom are proper subjects of comment to the jury. (People v. Warmack (1980), 83 Ill. 2d 112, 125-26, 413 N.E.2d 1254; People v. Hairston (1970), 46 Ill. 2d 348, 375, 263 N.E.2d 840, cert. denied (1971), 402 U.S. 972, 29 L. Ed. 2d 136, 91 S. Ct. 1658.) A reviewing court should assess arguments of counsel in the context of the whole trial, and should sustain a conviction unless it appears that improper comment substantially prejudiced the accused. See People v. Baptist (1979), 76 Ill. 2d 19, 28-29, 389 N.E.2d 1200; People v. Tate (1970), 45 Ill. 2d 540, 545-46, 259 N.E.2d 791, cert. denied (1971), 401 U.S. 941, 28 L. Ed. 2d 222, 91 S. Ct. 944.
The record reveals that Assistant State‘s Attorney McMahon first referred to “protection” for Santana, and that defense counsel properly argued that no evidence supported this remark. Assistant State‘s Attorney Brian Telander‘s rebuttal argument contained the following colloquy:
“MR. TELANDER [assistant State‘s Attorney]: [D]id Theresa Santana say she wanted protection? As long as he [defense counsel] brought it up, I‘ll tell you. Three weeks after this, we had to move her to Texas.
MR. KULL [defense counsel]: Objection, objection.
THE COURT: That‘s not the evidence, that‘s not the evidence. Overruled, proceed.
MR. TELANDER: For three weeks she sat in her house.
THE COURT: Excuse me, where she is at now has nothing to do with the case, ladies and gentlemen of the jury.
* * *
MR. TELANDER: I think it‘s asking a lot to have her come back now and have her pick her life and that‘s it, adios, out of Chicago. How much can you ask of her?
MR. KULL: Objection.
THE COURT: Overruled.
* * *
MR. TELANDER: Do you think she enjoyed testifying against gang members? Do you think she enjoyed not going to school and leaving town? You know that‘s not true.”
The prosecutors’ remarks in rebuttal were improper, inflammatory and not based on evidenсe. Because the prosecutor first raised the protection issue, and because defense counsel‘s responsive remark was proper, we reject the State‘s argument that the comments in rebuttal were invited. We conclude that the trial court erred in overruling defendant‘s objections to these clearly improper remarks.
We find, however, that these comments were not a material factor in defendant‘s conviction, and so do not warrant reversal. The evidence of defendant‘s guilt, considered in toto, was overwhelming. The only issue in the case was identification. Twо independent eyewitnesses, both familiar with defendant, identified him as the shooter. A third witness heard shots and immediately thereafter saw a man, identified as defendant, running away from the scene with a gun in his hand. The State produced evidence of motive which was corroborated by members of rival gangs. By contrast, the improper remarks by the prosecutors bolstered the credibility of one witness, and did so only tangentially. The primary impact of the remarks was to indicate that Theresa Santana was afraid of defendant and his gang, an inference supported by the evidence. Further, although the triаl judge overruled defendant‘s objections, he admonished the jury that the prosecutors’ comments were irrelevant and unsupported in the evidence. We conclude, therefore, that these remarks did not prejudice
We find further that the prosecutors improperly cast aspersions on defense counsel and misstated law in order to minimize the impact of the plea bargain with Hernandez. (See People v. Brown (1983), 113 Ill. App. 3d 625, 447 N.E.2d 1011; People v. Monroe (1981), 95 Ill. App. 3d 807, 420 N.E.2d 544.) However, these comments were fleeting and oblique, and in view of the strength of the evidence, we do not believe that they affected the jury‘s deliberations. Defendant complаins of other comments, but we deem any error to have been waived by defendant‘s failure to object contemporaneously and his failure to specify such comments in his post-trial motion. (See People v. Carlson (1980), 79 Ill. 2d 564, 576-78, 404 N.E.2d 233.) In view of the number of objectionable remarks made by the prosecutors in this case, we feel compelled to remind Assistant State‘s Attorneys McMahon and Telander that their duty to protect the rights of the people of Illinois includes a duty to safeguard the rights of criminal defendants. See People v. Lyles (1985), 106 Ill. 2d 373, 411-12.
Finally, defendant contends that the imposition of a natural life sentence upon a 16 year оld violates the United States and Illinois constitutions. He maintains that
In People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, our supreme court held that the mandatory natural life sentencing provision violated neither the separation of powers doctrine, nor the objective of restoring offenders to useful citizenship. Taylor is dispositive of the like claims of the instant defendant. Further, because one of the defendants who was sentenced to natural life imprisonment in Taylor was 16 years old at the time of the crime (102 Ill. 2d 201, 204), we consider Taylor to be at least persuasive authority for the rejection of defendant‘s argument here, that his youth requires special consideration.
With respect to due process, defendant asserts that this natural life sentence contradicts the express intent of the legislature to exempt minors from enhanced criminal penalties. He points to the ex-
Statutes are presumed constitutional, and the burden of showing invalidity is on the party challenging the statute. (People v. La Pointe (1981), 88 Ill. 2d 482, 499, 431 N.E.2d 344.) The legislature is empowered to classify offenses and prescribe penalties, and such power will be nullified by a court only if the statute violatеs a constitutionally assured right. People ex rel. Carey v. Bentivenga (1981), 83 Ill. 2d 537, 542, 416 N.E.2d 259.
We see no inconsistency in a legislative scheme which subjects minors to natural life imprisonment but mercifully exempts them from the death penalty, for “the penalty of death is qualitatively different from a sentence of imprisonment, however long.” (Woodson v. North Carolina (1976), 428 U.S. 280, 305, 49 L. Ed. 2d 944, 961, 96 S. Ct. 2978, 2991.) The cases relied upon by defendant, People v. Wisslead (1983), 94 Ill. 2d 190, 446 N.E.2d 512 and People v. Wagner (1982), 89 Ill. 2d 308, 433 N.E.2d 267, are easily distinguished: both cases invalidated statutory schemes which imposed more serious punishment for less serious criminal conduct. The plain meaning of section 5-8-1(a)(1)(c) is that, regardless of age, a defendant found guilty of murdering more than one victim must be sentenced to a term of natural life in prison. (
We find defendant‘s argument concerning cruel and unusual punishment be meritless. Drawing an analogy between the death penalty and natural life in prison, defendant argues that the preclusion of evidence in mitigation renders section 5-8-1(a)(1)(c) violative of the eighth amendment. Our supreme court implicitly rejected this analogy in People v. Taylor (1984), 102 Ill. 2d 201, 464 N.E.2d 1059, by reversing that portion of the appellate court decision which depended upon it. (See People v. Taylor (1983), 115 Ill. App. 3d 621,
For the foregoing reasons, the judgment of the circuit court of Cook County is affirmed. Pursuant to People v. Agnew (1985), 105 Ill. 2d 275, 473 N.E.2d 1319, the State‘s Attorney‘s fee request is hereby granted, and a fee of $75 is assessed against defendant.
Affirmed.
MEJDA, P.J., and SULLIVAN, J., concur.
SUPPLEMENTAL OPINION ON DENIAL OF REHEARING
JUSTICE LORENZ delivered the opinion of the court:
Defendant asserts that this court has overlooked a number of facts and arguments in affirming his conviction. We considered all of the arguments of the pаrties and the entire record in this case, as we are duty bound to do in every case. Yet, in the interests of justice and finality, we address these alleged oversights.
In his petition for rehearing, defendant states that this court “failed to note that Morris was shown [the lineup] photo immediately before identifying Rodriguez as the shooter.” (Emphasis in original.) On the contrary, this court noted, “At trial, Morris identified defendant from a photograph of a lineup, and after asking defendant to remove his eyeglasses, identified him at counsel table.” (Emphasis added.) We believe that our statement is the more accurate one. Moreover, we agreed with defendant that the identification was suggestive, but held that in these cirсumstances, defendant was not denied due process. Defendant argues that Foster and Moore require reversal, but we adhere to our analysis of these cases.
Defendant maintains that our reliance on People ex rel. Blassick v. Callahan (1972), 50 Ill. 2d 330, 279 N.E.2d 1, is misplaced, because Blassick addressed the contention that the accused could avoid in-court identification, whereas defendant in the present case made no such argument. This distinction is not borne out by the record, which reveals that defense counsel made precisely this argument at trial:
“What I‘m going to ask the court to do is preclude. I see no reason and I see it to be highly prejudicial at this point in time if they ask him ‘Do you see anywhere in court the fellоw you saw running through here?’ or ‘Does that look like the guy you identified?’ Because there has been no identification procedure here. He‘s sitting with me here next to the counsel table. He‘s obviously the Defendant. I don‘t know if he‘s seen other photos or not at this time. And they should be precluded from asking that question *** .”
After the assistant State‘s Attorney suggested that Morris be shown a lineup photo, defense counsel reiterated:
“The motion is still that he should be precluded because an identification at this point is highly suggestive and overwhelmingly prejudicial.”
This same argument was rejected in Blassick, and our opinion on the issue covers defendant‘s рosition at trial as well as his new argument in this court.
Defendant argues strenuously that this court “completely failed to address or mention four other examples of improper comments by the prosecutor.” Not true. This court stated, “Defendant complains of other comments, but we deem any error to have been waived by defendant‘s failure to object contemporaneously and his failure to specify such comments in his post-trial motion. [Citation.]” Of the four additional remarks, two were fairly innocent when read in context. Defendant claims that the prosecutor vouched for Morris’ credibility by stating:
“You‘ve also got to believe the State‘s Attorney‘s Office, he doesn‘t want to say it, but you have to believe it that we are in on it, that the police are in on it, that we made Danny Morris come in here and he didn‘t want to and identify him.”
In context, the prosecutor argued that Santana made a positive identification of a person known to her; that she was either lying or telling the truth, but was not mistaken; and that if she was lying, then the State‘s Attorney‘s Office, the police and the other witnesses all participated in the frame-up. It is abundantly clear that the prosecutor was pointing out the implications of the defense theory in the case, and was not vouching for the credibility of any of the witnesses.
Defendant argues that the prosecutor speculated on what he (defendant) would do if acquitted by saying:
“Today is the day it catches up to him for creeping around the gangways and the alleys of our city with a gun, for stalking his victims, for killing two innocent people indiscriminately without
mercy, without concern, whether it‘s a girl or a boy, a young man or an old man, and then for scurrying off into the night to do it again.”
It appears to us that this comment was aimed at defendant‘s conduct at the time of the сrime, and did not amount to a prediction of the consequence of an acquittal.
Defendant also argues that the prosecutor dwelt on the seriousness of the crime when he said, “[T]his case, ladies and gentlemen, is the worse [sic] crime I have ever seen as a prosecutor.” We note that the quoted remark followed a similar comment by defense counsel, to wit: “What happened to those two kids is the most brutal, disgusting, senseless, ugly crime that was ever committed.” We do not condone the prosecutor injecting his personal assessment or professional judgment of the sеverity of a crime into the trial, but we think it is unrealistic to hold the prosecutor to a standard of sterile analysis in response to defense counsel‘s touching show of humanity.
Defendant argues, with some merit, that the prosecutor evoked sympathy on behalf of the victims, their mother, and prosecution witnesses. The prosecutor stated:
“You know, did he [defendant] ask Theresa or Joe, ‘Would you like to live maybe a few more years?’
Did he ask them, you know, ‘would you like someday to grow up and marry and fall in love and have kids?’
Did he think about that when he did it? Did he say, ‘well, maybe you‘d like to have you know, a few more moments of life. Kiss your mother goodbye, say goodbye to your brother.’
Did he care? Don‘t forget, don‘t let the crime get lost in the garbage on the side. You can‘t forget and don‘t forget what he did to that woman.
Three people died that night, and you know it. Her life is over, his mother‘s life is over. She will never bee [sic] the same again. It is over. She will carry this her whole life, and I want you to be angry with him because you should be.”
Although the comment is inflammatory and improper, the main body of our opinion notes that the issue in the case was identification, and the resolution of that issue turned on the credibility of the three identification witnesses. In our view, it is likely that the jury was outraged by the nature of the crime and sympathetic to the victims and their mother long before any of the closing arguments. The jury was instructed to decide the case based on the evidence, and not on the basis of counsel‘s arguments or their individual sympathies. We trust that the jury followed instructions, and we adhere to our opinion that
Finally, defendant states that this court failed to discuss his argument that it makes no sense for the legislature to exempt minors from an еxtended term, but to subject them to natural life imprisonment. It is true that we focused upon the death penalty and mentioned extended-term sentencing only in passing. We take this opportunity to address defendant‘s argument.
An extended-term sentence may be imposed upon an offender if he or she was previously convicted of the same or a more serious felony; if the offense was accompanied by wanton cruelty; if the crime was committed against a relatively helpless person; or if the offense involved multiple sexual assault of the same victim. (
Affirmed.
MEJDA, P.J., and SULLIVAN, J., concur.