*1 statement counsel and the arguments in the taking found the court into all of that consideration Taking [sic].” elocution “multiple factors case” but found mitigation “no factors its discretion when court well within aggravation.” The trial here. discretion find abuse of imposed the We no sentence. trial is affirmed. of the judgment
Accordingly, Affirmed. ' SOUTH, JJ., concur.
HOFFMAN and ILLINOIS, Plaintiff-Appellee, v. OF THE PEOPLE OF THE STATE SMITH, Defendant-Appellant. ANTOINE (4th Division) 1 - 02-1931 No. First District May Opinion Rehearing denied 2005. filed March 2005. *3 THEIS, J., concurring. specially Appellate Algozin, State J. and both of
Michael Pelletier Samuel Office, Chicago, appellant. of for Defender’s (Renee Goldfarb, Devine, Kathryn Attorney, Chicago A. of Richard State’s counsel),
Schierl, Kern, Attorneys, of Amy State’s Watroba Assistant People. QUINN of court: opinion delivered JUSTICE of first charged counts Antoine Smith was with three (West (a)(3) (720 1(a)(1) 2000)), as through ILCS degree murder 5/9 — (West (720 robbery ILCS 18—2 armed attempted well as 5/8 — Citgo gas 2000)), at the station robbery a botched in connection with armed Evanston, During attempted Bay Illinois. on Green Road trial, jury killed. After a cashier, Pappas, was robbery, James degree attempted murder and first defendant was convicted both robbery armed and sentenced to term imprisonment. of natural life (1) appeal, On argues defendant the circuit court erred in denying his call request eyewitness during an suppress his motion (2) witness; testimony identification of that the evidence at trial was (3) support conviction; insufficient to either improperly State used (4) prior codefendant’s evidence; consistent as statement substantive the circuit court misinstructed the how to consider (5) evidence; identification prosecutor testimony elicited irrelevant at trial and improper made and inflammatory during comments clos- (6) ing argument; the circuit court failed to instruct the as to the cruelty”; definition of “wanton the State to prove beyond failed reasonable doubt that murder was committed in brutal and manner, heinous indicative of cruelty; wanton the circuit imposition court’s of a life sentence was For the following excessive. reasons, affirm we defendant’s convictions sentence.
BACKGROUND trial, Before sought suppress the identification testimony eyewitness Dawn Lockhart. Instead of attempting to presence secure Lockhart’s at the suppression hearing through procedures set out the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Proceedings Criminal (725 (West 2000)) (the Act) ILCS Witness Attendance because 220/3 state, Lockhart had moved out one investigators of defendant’s subpoena. tried to her serve with a an emergency State filed mo- quash tion to subpoena, arguing subpoena invalid because defendant failed the procedures to follow under the Act, Witness Attendance and Lockhart’s was not relevant for the issues raised in defendant’s motions. The State noted that Lockhart had moved out state because of her fear of defendant. The quashed subpoena, circuit court but postponed ruling whether produce suppression hearing. the State had to Lockhart for the calling police suppression hearing, After six officers “request defense counsel renewed his to have Lockhart Dawn noting produced.” Though point “[a]t there’s no been identification,” suggestive evidence of the circuit court said that it date, strictly would allow defendant to call Lockhart on the next court *4 limiting however, any questioning, process, to “the identification shown, photographs lineup she she was shown.” date, objection On that next court the State renewed its to calling hearing. the suppression Lockhart Character- izing request “unprecedented,” argued as the State that “ testify sup- civilians do at [generally, law that motions to showing there a prehminary has been unless there press identification of support In lineup procedure.” suggestiveness at is some sort Strong, cited law, the prosecutor proffered statement this (1995), “exactly point.” on N.E.2d 938 finding: objection, sustained the State’s circuit court If the Dawn Lockhart. reason to call this I see no point “At Lockhart, direct and cross examination on testimony of Dawn you from room and rise, give the to, defense, will be removed should suppress reopen the motion to will be allowed photo- and suggestive on identification both identification based of the point I heard on what graphic identification. Based and the have heard on this case days that we several and Evan- RegionalMajor Force] Crimes Task [North officer from movant has failed on, point I think that the and at this ston so be motions will denied.” their burden those sustain reiterated, I evidence to the however, hear “[i]f The court contrary, reopen.” I’ll sister, trial, testified that last Pappas,
At the victim’s Maria Sunday, on Palm time alive was at her house she saw her brother night slept so night murder. She stated that he there before his up gas godfather, Hasapis, Dean open could station for his morning. the next that, April approximately
Dawn Lockhart testified on at work, a.m., driving they at the stopped 6:35 as her mother was her buy cigarettes. a When she Citgo pack station so she could went store, Peering inside the she did see the cashier. behind knees, moving counter, on his cashier’s she saw defendant bent down down, a on the right up hitting lying fist man who was floor. sporadically Lockhart that she had seen defendant testified Street, sometimes, Street, period Dempster” “Howard off Church Though year prior April 1998. she and defendant were of about a him, necessarily say she testi- not friends and she would not hello her testified that she believed recognized fied that she him. She also further to defendant. She dating aunt was a man who was related name, that, though might not have known defendant’s testified she his face” from the streets. she “knew hand, but could something in defendant’s
She stated that she saw noise, hearing and defendant looked not tell it was. After she what though wearing each stated that even defendant was other. She cheekbones, nose, face, eyes, upper could see his nylon across his she her other, she ran outside to they forehead. After looked at each mother’s car. into store, Hispanic couple drive leaving
As she saw she *5 the gas station. After motioning store, them not to enter the she and away. her mother they drove As drove and as she told her mother seen, what she had she noticed running “kitty-corner defendant right [they] driving.” across from where were police She then a saw officer parked on the side the road. After explaining the officer what she seen, had she went home.
Though involved, her get mother told her not to agreed go she to the police department. Evanston station, While at the she looked through books, mug various but she did not photo. see defendant’s She also described the man she artist, had seen to a police sketch but she “fully testified that she did not cooperate making with the of that sketch” or the investigation because “really she didn’t want to be involved with of this.” She “completely testified that she was not candid police” with the because she “wanted them to [her] leave alone.” April 22,
On eight days murder, after the she was asked to a lineup view police department. the Evanston Though she saw lineup, in that she identify testified that she did not him because and she was nervous scared. She stated that when she saw defendant, present she told the officers in the room that she “wanted home,” go that cooperate, she would not and she would not anything.” “tell them She testified that subsequently she saw defendant on the streets of Evanston several times after the murder.
In March Detectives Glenn Cannon and Jim Hutton came to her “get again” home and asked her investigation. involved refused, Though initially she a days few later she to the went Evan- department ston police inexplicably. but left day, The next she returned police to the and station met with Cannon Evanston Police Chief Kaminski, Frank telling them that cooperate. she wanted to After viewing a series of photographs, she identified defendant as man gas she had photo seen station. a She was also shown April 1998, and, lineup again, conducted on identified defendant. Cruz on April Jose Torres testified that at approximately a.m., driving 6:35 he and his wife Bay were down Green Road in Evan- they pulled Citgo gas buy ston when into station to some coffee. store, walking As he was toward the front door of the two women women, a hurry.” came out “in One of the he later learned who was Lockhart, signaled afraid and him not the store. looked to enter later, got The women then into car and drove off. A few seconds shoes, man pants, [Nike] dressed “black black black sweatshirt a hoodie blue ski mask” came out of the store. man Torres testified was between feet inches and 5 inches, husky pounds, feet 8 about 165 to 185 and had build. Torres right gloves and that wearing black the man was testified he it looked like He stated that sweatshirt. tucked inside his hand was hand. right in his something hiding something” “pulling was mask, could however, all Torres wearing ski Because the man across him and then ran looked at eyes. The man was the man’s see inside the Torres went Ashbury Street. When Bay Road toward Green store, the cashier’s a file cabinet inside lying against Pappas found he 911. As phone and called this, pay to a Seeing Torres ran outside area. past the station. driving officer police dialing, he was saw officer, inside the store they both went down the flagging After they Pappas lying. When to the area where open tried to the door it, outside and waited open and the officer went could not Torres *6 the ambulance. lineup April on testified that he conducted
Detective Cannon five Lockhart, lineup the for about viewed 1998. He stated that who violently shaking, crying, sobbing, minutes, nervous, convulsing, was that she repeatedly told him Kaminski’s arm. Lockhart clutching and of there. get “it and that she wanted to out When to be over” wanted evening,” anywhere that they going get “weren’t to he realized that lineup. the he ended to 2000, he Hutton went talk that in March and
Cannon testified investigating they her home. He told her that were still to Lockhart at anything that she Pappas’ murder and asked her if she remembered she not remember previously had them. She told him that did told couple “spending had the last anything She stated that she been new. recently memory” it and that she was years trying of to block from her had having nightmares about what she seen. police later,
A Cannon told that Lockhart was at the few weeks her, had left. station, got the to meet she but time he downstairs Then, 13, 2000, police at station. April he met Lockhart the on she wanted to Pappas him she knew who killed and that She told that defendant from testified that Lockhart identified identify him. Cannon photo array. Citgo gas of and owner the Hasapis, godfather Dean the victim’s his station station, gas Fomond had worked at Bobby testified that register, working clean- duties included the cash since 1995. Fomond’s stock, He that had ing, filling going to the bank. stated Fomond and of in December that gone jail to in but had returned to work year. located in the washroom
Hasapis testified there was safe money day. each Each put where he would earned store $8,000 normally to money, around Monday, someone would take safe, open it to To one $9,000, bring out the safe and a bank. needed both the key. Hasapis combination and a though testified that he Pappas combination, both knew had key. Hasapis stated that Pappas was at his home Sunday, for Palm “special holiday family.” Hasapis [him] [his] Because was on vacation, Pappas offered open Monday the store that morning. Hasapis give Pappas key did not to the safe. (VCR)
Hasapis testified that the videocassette recorder for the security camera had not been working that he told Fomond to murder, it fixed. day have On the replaced. had not been On morning 13, 1998, April Hasapis phone received a call from an employee who told him Pappas had been shot the store. He stated money that no had been taken register from either the cash the safe.
Jimmy that, Tillman testified on April approximately at a.m., house, while walking daughter’s defendant, he saw wear- clothes, ing walking Road, dark Bay away south on Green from the Citgo gas station. His daughter’s house was about five blocks from gas station. Tillman knew defendant and the street crossed him, talk to him. gestured past but continued to walk walk, him. As Tillman continued he looked behind him and saw street, around, defendant cross the turn and head north toward the gas station. He later heard the attempted robbery about and murder and, Citgo station in January he identified defendant as the man he Bay morning saw on Green Road of murder.
Robert Fomond currently living testified that he was in the wit- protection program County jail. part agree- ness at the Cook of an As office, Attorney’s exchange testimony, ment with the State’s for his years Fomond Department serve the Illinois of Correc- *7 attempted robbery, charges tions for armed against but the murder him were dismissed. began working Citgo
Fomond gas testified that he at the station in 1995, and, 1997, got prison job. after he out he returned to that a away they He also moved few houses from defendant and became Hasapis normally opened friends. Fomond stated that on store Mondays key and that he had a to the safe. 10, 1998,
After work on April Fomond to on Twigg’s went bar Chicago. got there, Street in he he Howard When saw defendant stand- money, ing discussing they outside. After how both in need he were gas Initially, sug- and defendant to decided rob the station. defendant a gested they stage robbery,” that “fake where he rob Fomond would way They while on his to the bank. decided to rob the store on instead in it. Monday, money a when the safe would have the most amount of safe the best time Fomond told defendant where the was located and robbery. to commit the buy drugs with the they would them decided two of between his share to be expected
money. testified that he Fomond of them get he “one $2,000. him that would $1,000 Defendant told gun. a took to mean robbery, Fomond which things” to commit the mask and dark cloth- going to wear said that he was Defendant also identify him. one could ing so no work, came at defendant 1998, while Fomond April
On security cameras noticed the Defendant gas station store. into Fomond told working. After they Fomond whether were asked broken, around and defendant looked that the VCR was defendant then left. a.m., Fomond was 7:30 approximately at April
On had oc- told him that a murder Springer, who by Detective awoken he the Evan- went to gas station. Fomond testified curred at He tell about spoke police. to the did not them police ston station and gas rob the station. plan his and defendant’s driving, saw defendant p.m., At while Fomond approximately down, they flagged each other driving opposite in the direction. After go right.” Defendant said told him that “it didn’t down give had it to guy, and—and he got that “he into tussle with him,” took to mean that defendant shot him. which Fomond go nothing he on.” reassured Fomond that “didn’t leave them up investiga- April 14, again picked by police On Fomond was tors, defendant’s involve- but he did not tell them about either his or Instead, during which a separate ment. he told them about a incident “neighborhood had credit card at the station. guy” used stolen the man to use the stolen credit Fomond admitted that had allowed cigarettes in return. card because he received some Fomond, but, up again, 16, 1998, again picked April police On After his or defendant’s involvement. he did not tell them about either and went over to talking police, Fomond called defendant with but police asking questions, were house. He told defendant that the Fomond, “you worry. Defendant also told defendant told him not in defendant’s boy goin’ me old to be there.” While didn’t tell bedroom, gym pair of black Nike shoes. Fomond saw Fomond, 17, 1998, up identified police picked
On who April the stolen credit card. Wallace as the man who had used Mansfield defendant, again told him again That met who night, Fomond worry police. about told police picked up Fomond and Finally, April At that story matching point, out.” him that his “credit card wasn’t police his conversation with defendant Fomond told the about *8 subsequent the murder. Twigg’s meetings their bar and Once Fomond’s direct and concluded, cross-examinations had defense counsel made motion in limine to bar the State from having (ASA Lerner) Assistant State’s Attorney Jonathan Lerner testify the substance of the gave written statement April Fomond to him on 21, 1998. After the circuit court motion, denied defense counsel’s ASA Lerner read Fomond’s written statement to the jury. Over defendant’s objection, the circuit court subsequently go allowed the statement back with the during its deliberations.
After the State rested and the circuit court denied defendant’s mo- verdict, tion for Sergeant a directed James Hutton testified on behalf of that, defendant. according Hutton testified report, to his arrest weighed approximately pounds day on the of his arrest April 21, on 1998.
Officer Christine Bell testified that she interviewed Lockhart at approximately morning 9:30 a.m. on the of the murder. Lockhart the gas described man she wearing saw the station store as black (not sweatshirt-type jacket, regular baggy) hooded pants, dark and a black nylon-type nylon hat on his head. The hat had knot tied on top writing and the band had some on it. The pulled band was over eyes the man’s on part rested lower his nose. Bell stated that Lockhart was unsure kind of wearing what shoes was wearing whether he gloves. was Bell Lockhart told that the man was skinned, dark possibly During cross-examination, black. Bell stated very nervous, that Lockhart breath, could not sit her still or catch crying. and was
Lieutenant Richard Weiner testified that he met with on Lockhart day gave of the murder and description that Lockhart him a gas man she saw inside the station store. She told him that man male, race, “a approximately 5’6”, wearing unknown a dark- pants.” hooded sweatshirt and dark Lockhart said the man awore “do-rag” nylon made of pulled say that was over his head. She did not nylon top upon had a knot it. Based her descrip- tions, generated computer composite suspected Weiner of the of- fender. Lockhart told him that sketch looked the suspect. like
During cross-examination, Weiner stated that because Lockhart features, was unable to describe facial the sketch was “based upon computer-generated upon drawing description based her that, a—the heavy throughout 5-foot-6 build.” Weiner stated process, “quite nervous, agitated, kept wanting get Lockhart was cigarette, up, down, up, up.” have a stand sit stand Charter, Officer Jim an evidence technician with the Lincolnwood police department, assigned testified that he was the murder. While canvassing area, he about one discovered two bloodstains block unable determine Though he was away station. from *9 walking left stains, them was he stated that whoever age of those leading either not find blood trails gas He did toward the station. gas station. to from Police, the Illinois State a scientist with Tracey Reppen, forensic found from the bloodstains samples tested taken testified that she defendant. Charter, Pappas or neither matched Officer but employee Bureau Walczak, Strategies Community Ron a 13, 1998, April ap- that, on department, testified police Evanston Road, he Bay work on Green a.m., driving to 6:23 while proximately 60 yards 50 to on a corner about nervous-looking standing man saw black, light the man as Citgo He described away station. from inches, twenties, early about feet complexion, medium his to dark, and wearing clothing, pants, dark dark pounds, to waist-length jacket. guilty of first arguments, found defendant closing
After found that degree attempted robbery. armed murder behavior, by brutal and heinous accompanied murder was both cruelty, during the commission indicative of wanton committed felony robbeiy. armed attempted sentencing hearing, Stephan Officer During the the State called prior Gershon, as to the of defendant’s conviction who testified facts assault, sister, Pappas, Maria who for criminal sexual and the victim’s grandmother and victim-impact read a letter. Defendant called his argument, court sentenced first in his behalf. After the circuit cousin Defendant filed a imprisonment. to a term natural life defendant timely appeal. notice of
ANALYSIS SUPPRESS I. MOTION TO him argues that the circuit court erred when barred Defendant her calling suppress from as a witness his motions Lockhart mo- the court’s denial of his identification. Defendant does contest pivotal tions, him to call “the most only the court’s refusal to allow made the identifica- person witness to his motion —the actual who particularly tion.” contends that the court’s refusal “was [during suppres- prejudicial police because the officers’ through Lock- process which hearing] vague regarding so sion eventually hart identified” him. a fair and right has a question
There is no
defendant
identification
eyewitness’s
an
impartial hearing to determine whether
suggestive police procedures. product
of undue or
(1970);
Robinson,
231-32,
46 Ill. 2d
N.E.2d 57
Carroll,
(1992).
260
Initially, flatly reject prosecutor’s we the trial statement “[gjenerally, the law is that civilians not testify sup- do at motions to press identification unless there a preliminary has been showing there is suggestiveness some sort of up procedure.” at the line We could find case, elsewhere, no either here in Illinois or support that would such a Moreover, statement. People Strong, (1995), a prosecutor case which the “exactly point,” stated was inapposite. in Strong hold, hint, Nowhere did this court or even
a civilian cannot or testify suppress should not at a motion an *10 until a preliminary showing identification there is suggestiveness. generally See Strong, App. 274 Ill. 3d at 137-38. We note that State has abandoned argument appeal. general exists,
While no
“civilian
bar
testimony”
there is also no
rule that
identifying
testify
an
witness must
during a
mo
to suppress
tion
requirement
identification. Such a
would not
only serve to
rule,
resurrect the now-defunct “material witness”
which
all
mandated that
in procuring
individuals involved
an allegedly
involuntary
during
confession testify
a motion to suppress that confession
(
(1993)
R.D.,
People
122,
v.
143-44,
155 Ill. 2d
During suppress a motion to of the that, upon totality establishing based the burden of sugges unnecessarily identification was so circumstances, pretrial of an unreliable likelihood gave it rise to a substantial tive that 246, 250, Denton, 767 N.E.2d 329 Ill. People v. identification. Ill. 2d (2002), citing Simpson, (1996). then burden, the State must the defendant meets If evidence, of reli show, independent basis convincing clear and an by N.E.2d 991 ability. Coleman, 203 Ill. People v. Garcia, N.E.2d 274 (1990), quoting squarely upon suggestiveness being placed The initial burden call, him, permitted to as a wit- that a defendant should be clear attempt sup- ness, the identification in his person who made potentially as to the testify Who better to press that identification. suggestive procedures police procuring utilized an identifica- identifying tion than the witness herself?
Allowing testimony sup- identification witness’s hearing, pression hearing furthers not the fairness of the but also fullness, complete picture of the presenting its the trial court with through police procedures procuring used in an identification officers, procedures, those employed both the who Robinson, witness, identifying participated in them. See who a full and (stating Ill. 2d at 232 that unless a defendant is afforded hearing, judgment as fair it is difficult to make an informed to whether proceedings). by improper the identification was influenced *11 a say always permit is to must defendant That court witness(es). may There where it is identifying to call the be situations for impracticable, unnecessary, either or otherwise unreasonable the reason, compelling a Absent a identifying appear witness to as witness. however, a to normally the allow defendant call circuit should need not identifying suppression hearing. the witness a We barring discretion in decide here whether circuit court abused its real to exercise given opportunity Lockhart because it was never that discretion. in At- utilizing procedures set forth the Witness
Instead of
presence
Act,
attempted
by
tendance
defendant
to
Lockhart’s
secure
subpoena
investigators
one of his
her out of state with
having
serve
that was issued in
subpoena,
Illinois. That
once removed from the
Illinois,
boundaries of
was insufficient
compel
presence:
to
Lockhart’s
“Generally, power
subpoena
state has no
to
witnesses over
jurisdiction. Thus,
which it has no
right
the constitutional
of
compulsory process, which
subpoena witnesses,
includes the
of
is
applicable to the
only
process.
states but extends
to
In
in-state
absence of an
compact,compulsoryprocess
interstate
cannot extend
beyond
territory
state,
require
and a state court cannot
of,
the attendance of a
who
witness
is a nonresident
and is absent
(2000).
from, the state.” 81 Am.
2d
§
Jur. Witnesses 15
People
See also
Folenga,
Furthermore, trial, Lockhart testified at and defendant does not appeal unduly claim here on that the circuit court limited his cross- Rosenborgh, 21 Ill. App. (holding examination her. See 3d at 686 that the circuit court’s decision to call to allow the defendant one pretrial hearing witness at the “was at most harmless error because all” presenting of the witnesses defendant was barred from testified at trial). nothing points Lockhart’s trial suggestive product police indicate her identification would machinations. note, however, properly do that had defendant followed the
We *12 court would Act, circuit the Attendance procedures in the Witness her to call request defendant’s rejecting in its discretion abused have certainly relevant to testimony above, her As stated as a witness. of defendant generalized fear and her suggestiveness, the issue of her presence to bar a sufficient reason would not have been offering the Simply her identification. suppress motion to defendant’s to should suppress, opportunity reopen motion defendant an the error. it, not have cured would Lockhart’s trial warrant testify witness identifying sum, preferable In it is while identification, suppress motion to that witness’s during a defendant’s forth employ procedures the set properly because defendant failed Act, did not abuse its in the circuit court the Witness Attendance pres- compel Lockhart’s denying request discretion hearing. his suppression ence at OF THE EVIDENCE
II. SUFFICIENCY the at trial was insufficient argues Defendant next evidence attempted armed degree for first murder and sustain his convictions that Lockhart’s identification robbery. Specifically, defendant contends carry did accomplice testimony Fomond’s not was unreliable an “absolute conviction its truth.” sufficiency challenge to the of the evidence
When we review trial, whether, viewing question the after the evidence relevant light the trier of fact could prosecution, most favorable to rational beyond a found the essential elements of the crime reasonable have People Morgan, doubt. v.
(1999). regardless of reviewing apply A this standard should whether the evidence is direct or circumstantial and should questions that of the finder of fact on judgment its substitute credibility of witnesses. involving weight the of the evidence or the (1992). 1, 17, Sutherland, 155 Ill. 2d 610 N.E.2d A. Identification Lockhart’s unreli identification was Defendant contends that Lockhart’s (1) the opportunity did have a sufficient view able because she (2) April station, the identify in the failed to man she (3) murder, nine lineup days conducted after (4) defendant, and her did not resemble computer-generated sketch years after the subsequent identification of defendant occurred two suggestive police procedures. crime result support a convic- An be deemed sufficient identification will not vague People Rodriguez, tion if it is or doubtful. reliability of an evaluating In factors, which include
identification, has to the Neil Illinois ascribed (1) opportunity the victim had to view criminal at the time of (2) crime; (3) attention; degree witness’s the accuracy of prior criminal; witness’s description of the certainty the level of demonstrated confrontation; victim at the identification length of time between crime and the identification. Slim, (1989), 127 Ill. 2d citing Neil v. Big- *13 gers, 401, 411, 375, 409 U.S. 34 L. Ed. 2d 93 S. Ct. 382
Though may appear that at least four out of the five Neil factors (1) weigh against finding reliable, i.e., Lockhart’s identification she (3) had a only few seconds suspect; to observe the she did a give not description detailed the suspect of and computer- vouched for a generated (4) sketch nothing defendant; that looked like she did not (5) identify 22, 1998, during April the and lineup; she identi- years fied defendant murder, two after it is the clear from the record these deficiencies were due not inability to Lockhart’s but, rather, adequately observe being the offender to her a recalcitrant cooperate witness who police refused to with investigation. Each officer who dealt with Lockhart course of the investigation agitated state, testified to her using emotional such “nervous,” terms as “convulsing,” “violently shaking,” “crying,” and “sobbing” to describe her demeanor. Lockhart herself testified that she cooperate investigation did not in the because she feared for her safety safety Evans, family. and the of her v. 80 Ill. (1979) 452, 444, 399 (stating “delay making N.E.2d 1333 that a an of weight identification out fear has been held to affect the of the identification”). pick witness’ Lockhart testified that her failure to 22, 1998, defendant out the April lineup was not out of an inability but, rather, fear, justified not, do so out or might of what hap- pen not, to her if she did. It is that she could it is that she would identify defendant.
Moreover, knew, of, Lockhart testified that she least knew and previously that, had seen though defendant. She testified he even wearing face, recognized a nylon over his she him as someone she Zarate, had occasionally seen on the streets of Evanston. See (1994) (stating prior a acquaintance strengthens with accused witness’s identification Thus, testimony). despite discrepancies her less-than- between defendant, as forthright description suspect of the and well as two- year identification, delay the murder and her eventual between jurors her group rational could have found identification reliable. Accomplice Testimony B. Fomond’s testimony argues that Fomond’s was unreliable (1) his deal with falsely due to testify he had motive because and defendant’s police as his repeatedly lied to the State, Fomond murder, and robbery attempted armed in the involvement testimony was uncorroborated. weaknesses” accomplice has “inherent of an
Though testimony (1998)), our N.E.2d 809 Brown, 185 Ill. 2d (People accomplice recognized that uncorroborated long has supreme court because it satisfactory for conviction testimony basis can establish is, therefore, province in the “goes weight of the evidence Wilson, jury (People or court” (1977)). State, “deal” with the Here, aware of Fomond’s was well com- police finally Fomond had told the before well as the “stories” his and these “stories” did not relate to ing clean. note that We station; his and confessed to to rob the once plan defendant’s of that involvement, he did not from the details waver instructed, Moreover, Illinois Pat- properly via confession. 1992) (hereinafter (3d Instructions, Criminal, Jury tern No. 3.17 ed. testimony 3d), carefully IPI Criminal it was examine Fomond’s Finally, testimony was at “suspicion” “caution.” Fomond’s man- Tillman’s in both the partially least corroborated *14 and robbery ner dress defendant wear the the said would just fact that defendant a few blocks the station was within Because a robbery the and murder occurred. attempted before armed reliable, testimony jury found there was rational could have Fomond’s degree to convictions for first support sufficient evidence robbery. attempted murder and armed
III. PRIOR CONSISTENT STATEMENT allowing in argues next that the circuit court erred the prior statement as substantive State use Fomond’s consistent argue not there was no to admit evidence. Defendant does that basis statement; only the Fomond’s statement as the State used entirety it read it in its because allowed to substantive evidence was evidence, jury during into jury, it and send it back with enter its deliberations. argument by fail- State counters defendant waived used for properly make was
ing specific objection, a statement and, used as only, erroneously even if it was purposes rehabilitative evidence, “specifically because the instructed substantive purpose” for a limited prior consistent statement consider Fomond’s overwhelming, guilt the evidence of defendant’s because not prejudiced. defendant was
A prior witness’s consistent statement is admissible to rebut a or charge inference that he was motivated to lie that his fabrication, was of recent long so as he the prior made statement before either the motive alleged arose or the fabrication was made. Lambert, App. 288 Ill. Here, above, noted as not argue does that the circuit court allowing erred in prior evidence of Fomond’s consistent statement. He argues placed it, instead emphasis State too much thereby rule, Illinois, violating common-láw in followed that “where admis- allowed, prior sion permitted is solely consistent statement is for purposes rehabilitative not Lambert, as substantive evidence.” App. 288 Ill. 3d at 457.
Initially, we note that “the has changed common-law rule been jurisdictions adopted most that have the Federal Rules of Evidence.” Lambert, 288 Ill. 459. Specifically, at Rule Federal of Evidence 801(d)(1)(B) excludes such from statements the definition of hearsay. 801(d)(1)(B). See Fed. R. Evid. According to advisory committee rule, divergence notes for that from common law was driven fairness, both out opened reasons “once the opponent has by door attacking credibility, the witness’s permit is unfair to party bolster its witness presenting additional consistent “ evidence,” practical belief that ‘the in all probability would ignore limiting anyway, misunderstand or so instruction there ” Lambert, is good giving no reason for one.’ Ill. 3d at 459- 60, quoting Weinstein, Evidence, Rules, J. U.S. 801—188 801— (1996); Lambert, (Doyle, J., see also at 464 dissenting) (“In view, my debate characterizing over the statements as either rehabilitative, facts, substantive or present the context of the merely tempest legal practical a lexical teapot having little or no trial”). on the bearing According outcome of the to both the advisory Doyle, committee and merely labeling prior Justice consistent state- ment “For Purposes Only” guid- Rehabilitative little to no offers ance to jurors.
However, supreme recently our discussed the common-law limiting prior rule the use of a witness’s consistent statement and did Walker, signal any from it. See desire deviate *15 Thus, 2d continue adhere 812 339 we to to it. if, arguendo, prior
Even the State’s use of Fomond’s statement rule, First, did that has defendant violate defendant waived issue. objected using that specifically improperly never that the State was Cuadrado, 214 Ill. People statement as substantive evidence. See v. 2d (2005) 79, (stating objection a all “specific 89 that waives other the counsel utilize Second, only did defense unspecified grounds”). Fomond, defendant his of cross-examination prior statement limiting See be a instruction. jury given that the requested never 168-69, N.E.2d 336 108, 2d Edwards, v. 144 Ill. People the purpose, for one only (stating competent evidence is that when purpose limited to the to have it entitled instructions party other ask fails to of the evidence opponent but if the proper; it is which ishe legitimate sphere, confining the evidence its for an instruction have). Thus, defendant he objection may deemed to have waived prior challenge the use of Fomond’s his State’s has waived the Walker, (stating Ill. that 2d at 345 consistent statement. See limit- objections or to submit appropriate failure to raise “defendant’s to a reversal might present procedural barriers ing instructions prior upon improper the use a [the] defendant’s convictions” based Curtis, Ill. evidence); People as consistent statement substantive his the had waived (finding 3d 323-24 App. admitted). prior improperly argument that a consistent statement was Walker, Ill. upon relies (2004), (2002), affd, 211 Ill. 2d N.E.2d 268 Lambert, 675, to support argument improperly that the State used Fomond’s statement however, no cases, question evidence. In there was substantive those prior consistent statement was used as substantive evidence. (where it Walker, 211 trial court that prosecutor Ill. at 345 told prior admit consistent statement as substantive evidence could truth”); Lambert, jury “tells argued statement “ warning ‘may be (despite 3d at 453 the trial court’s case,” putting prior error’ offered prosecutor reversible into evidence). consistent statement as substantive Here, stated, during instruction prosecutor explicitly conference, introducing “as substan- she was not the statement presence evidence.” While this not made in the tive statement was jury, supports the that it did not intend argument State’s prior utilize Fomond’s consistent statement contravention of said, determining prior rule. That being common-law whether utilized, upon the focus should be properly consistent statement was potential jury, expressly effect stated intent of its prosecutor offering the statement. rule, may prior
Under consistent statement the common-law the witness’s argument serve to rebut the defense that either or the had a “motive recent fabrication witness testify falsely.” By allowing the inform the State statement, prior alleged made to the fabrica- prior witness’s consistent *16 92 alleged arose,
tion or before the motive the State can diffuse that argument. argue, however, The State cannot that what the is witness saying at trial is true because “he it According said before.” to this “ ” rule, ‘mere repetition Lambert, not imply veracity.’ does 288 Ill. App. 458, States, 3d quoting Coltrane v. United 418 F.2d (D.C. 1969). Thus, the prior only consistent statement can dissipate the “recent lie” or to testify falsely” “motive cloud that the defense placed counsel has over the head during witness’s cross-examination. case, In importance this due to the of testimony Fomond’s emphasis placed upon State’s case ment, the State prior his state- only reading in it verbatim the jury, sending but then jury back to any limiting instruction, without there was a risk here jury could improperly upon have relied it as substantive evidence, believing before, that implicated because Fomond have telling must been the truth witness stand. This risk is heightened where, despite contrary, the State’s contention to the there limiting was no concerning jury instruction how the was to consider (IPI prior 3.11, Fomond’s consistent statement Criminal 3d No. which concerns prior statements, given). inconsistent was
Therefore, because Illinois continues adhere the common-law limiting rule of prior the use a witness’s consistent statement for only, purposes following rehabilitative we recommend that the instruc- tion given be when the seeks State to admit such statement: Jury, prior [witness’s
“Members of name] statement of has purpose rebutting charge been admitted the limited [testimony a [his/her] fabrication] recent or [he/she] [had testify falsely]. a motive to may may It be considered itas or may upon believability not bear of [witness’s name]. It cannot by you proof be considered independent that the defendant com- alleged.” mitted the crime similarly
A
worded instruction was
approval
reviewed
(1993).
Antczak,
People
v.
Ill.
IV IDENTIFICATION INSTRUCTION
Gonzalez,
that,
argues
People
Defendant next
under
(2001),
improperly
the circuit court
modi
by
placing
fied IPI Criminal 3d No. 3.15
word “or”
between
determining
reliability
each
could
factor the
consider when
however,
this court’s decision
We,
adhere to
Lockhart’s identification.
(2003),
N.E.2d 181
Ill.
Tisley,
disjunctive
3d No. 3.15 with
IPI Criminal
“giving
which found
Moreover,
failing
object to this instruc-
language error.”
issue in
including
this
instructions conference
tion
has
this issue.
motions, defendant
waived
posttrial
error.
plain
the issue as
to consider
urges
proving
analysis,
he bears the burden
plain
Under
error
Ill. 2d
Crespo,
prejudicial.
error was
identification
While Lockhart’s
*17
case,
say,
upon
certainly important to the State’s
we cannot
based
trial,
his
including
testimony concerning
other evidence at
Fomond’s
gas
plans
carry
robbery
out an
station
and defendant’s
armed
store,
testimony
defendant within a few
placing
as Tillman’s
well
occurred,
the murder
just
blocks of the
station
before
“or” in the
prejudiced by including
has
that he
defendant
shown
was
747;
Tisley,
Ill.
given.
People Furdge,
341
3d at
instruction
See
(2002);
Ill.
Mer-
V. PROSECUTORIAL MISCONDUCT
argues
prosecution
next
elicited inflamma
tory testimony
improper
and made
remarks
its clos
numerous
ing
arguments.
and rebuttal
defendant contends that
Specifically,
(1)
jury,
evidentiary basis, that
prosecutor
told the
without
both
defendant;
“ir
Lockhart and
were afraid of
elicited
Fomond
relevant,
prejudicial,
inflammatory testimony
and
about”
victim
not
godfather;
argued
his
facts that
based
from sister
were
presented at trial or reasonable inferences therefrom.
upon evidence
here,
Initially,
complains
of the 26 comments that defendant
(a
objected
concerning
comment
theoretical
one comment was
victim). Therefore,
has
dialogue
defendant and the
between
argument
unobjected-to
as to
comments.
waived his
aside,
testimony
reject
argument that the
Waiver
we
are
improper
prejudicial.
either
or
Prosecutors
comments were
closing
argument.
great deal of
and rebuttal
permitted a
latitude
(2004).
Evans,
People v.
209 Ill. 2d
argu-
Complained-of
upon
statements must be construed based
whole,
can
the defense counsel’s
ments as a
and counsel
comment on
Evans,
characterization
evidence or case.
A. Witness’s Fear of Defendant Defendant contends that the State “improperly suggested to the identify that Dawn Lockhart line-up [him] failed to at a and for years two after the offense because she was afraid of [him].” argument Defendant’s contrary to the notwithstanding, certainly it is a reasonable inference testimony from Lockhart’s that the reason she did identify years defendant until two after the murder was out of a fear her family’s and her When safety. why asked she did not cooperate stated, investigation, she “I tired of them was com- ing, asking questions. family. me I have a I have to live there. I was tired it. I wanted over with.” explicitly While Lockhart did not defendant, state that she feared argument the State’s ap- propriately upon based a reasonable inference from her testimony at Notably, trial. argued the State never or insinuated that defendant had actually ever her. threatened
Moreover, Fomond’s he currently living in the witness protection program County jail prejudicial. of the Cook was not The did why protection State not delve into was in the witness program. merely response question statement was to a about currently living. Moreover, indication, where he was there was no *18 inference, or put insinuation that was fear of defendant him which there nor was any placement there discussion that in the witness protection program part was of the deal he out worked with the State exchange in error, testimony. his Even if this statement was it was harmless. Testimony
B. and Sunday Palm Life Photo argues Defendant next improper that the State elicited and ir- background relevant Specifically, information about the victim. complains testimony defendant that the victim’s sister and the godfather concerning the that murder Monday fact the occurred on the following Sunday, photo Palm as life of the in as well the victim his uniform, inflammatory and military prejudicial. was both Sunday” testimony explained jury why “Palm to the the The why agreed open victim weekend and he up was Evanston that Monday morning, something the Fomond gas station on that that Furthermore, normally was done the station owner. testified uniform, the military in his photo depicts the the victim though life or military background service out, his it did not mention points State this not shown how during has point the trial. Defendant unduly photo prejudicial. here do not complains of testimony and evidence in the cases testimony elicited clearly inflammatory the approach (see Hope, argument his upon support relies (1986) repeated references (finding Blue, Ill. 2d improper); children wife and small victim’s (2000) age of concerning victim’s (testimony building length and child, family together, fact had lived in same purpose no than father had been married served other of time victim’s jury)). inflame Facts Evidence C. Not the details of argues prosecutor next that the “recited Specifically, which were not included the evidence.” offense (1) an prosecutor improperly the concocted defendant contends that victim, the told imaginary dialogue between defendant and extinguisher, fire jury that defendant beat victim with a struggled during alive the course of argued that the victim “to remain of, however, All of complains the offense.” the statements defendant trial. upon are based reasonable inferences from evidence admitted at prosecutor cannot Defendant cites no case that holds that speculate as to what said and his assailant dur- between victim Moreover, ing physical crime. evidence in the commission of a struggle gas station store demonstrates there was a violent assailant, i.e., between the victim and his the “bashed-in” bathroom door, area, also disarray etc. The evidence cashier’s extinguisher the fire established victim’s blood was on injuries had trauma that the victim suffered numerous blunt evidence, head, chest, prosecutor could upon and back. Based reasonably extinguisher fire to inflict those argue that the was used injuries. trauma
Finally, the fact that the victim suffered numerous blunt head, back, front, plus gunshot wound to injuries on his back, by during idly victim did not sit the attack. indicates Thus, struggled to remain alive Pappas comments that State’s upon based reasonable robbery properly the course were inferences from evidence. FAILURE ON “WANTON CRUELTY”
VI.
TO INSTRUCT
*19
first
murder is 60
Normally,
degree
the maximum sentence for
8—1(a)(1)(a) (West 2000);
Swift,
v.
years.
People
730 ILCS 5/5 —
378, 392,
If, however,
2d
“[I]f have found guilty the defendant of the offense first murder, degree you must then decide or whether not the murder accompanied by exceptionally brutal heinous behavior added.) cruelty.” (Emphasis indicative of wanton jury was then instructed as to the “brutal” definitions both “heinous,” cruelty.” argues but “wanton circuit court when failed erred to instruct the as to defini- and, cruelty” thus, tion of “wanton he should receive a new sentenc- ing hearing.
Initially,
approved
special
we note that courts
have
use
interrogatories to determine whether
factors
aggravating
warranting
proven beyond
an extended sentence were
doubt. In
reasonable
O’Quinn,
339 Ill.
In approved special interrogatory the court that submitted to brutal or question of whether the murder committed behavior, cruelty. Noting of wanton that the terms heinous indicative “heinous,” “brutal,” cruelty” were not elements first “wanton indictment, them the *20 included murder, the State even where degree fac- of this the determination submitting “[i]n that the court reasoned in Ap- Court’s directive Supreme followed jury, the State tor to constitu- to defendant’s prejudice no whatsoever There was prendi. Ill. 3d at 203. Jett, 341 rights.” tional 435, Forcum,
Likewise,
in
following special inter-
(2003),
approved the use of
the court
“
that
a reasonable doubt
beyond
proven
‘Has the State
rogatory:
behavior
brutal or heinous
by exceptionally
offense was committed
”
cruelty?’
indicative of wanton
jury
that the
any indication
was there
In neither Jett nor Forcum
“heinous,”
“brutal,”
or “wanton
as to the definition of
was instructed
such
failure to include
any indication that the
cruelty.” Nor was there
defining
IPI
Moreover,
are no
instructions
error.
there
definitions was
requir-
there
case
“brutal,” “heinous,”
cruelty,” nor is
or “wanton
of those
definitions of each
jury
instructed as to the
ing that the
be
factor.
aggravating
that
charged
the defendant is
terms when
Nielson,
299,
However, object to this definitional because defendant failed to omission, instruction, or include this issue tender a remedial motion, prejudice. plain analysis, prove error he must posttrial under a (stating People Hopp, 209 Ill. to the level of jury instruction rises that “the erroneous omission of creates a serious risk plain error when the omission did not they defendant because jurors incorrectly convicted the law, threaten the fairness applicable severely so as to understand the trial”). jurors risk that the of the find that there was no serious We exception- aggravating factor of incorrectly found the existence of ally brutal behavior, or heinous indicative of wanton cruelty. Consequently, we hold that it plain was not error for the circuit court to have failed to instruct the jury as to the definition of “wanton cruelty” where there was IPI term, no instruction defining no case mandating definition, be instructed as to its and the defendant did not ask that be so instructed. (see
Furthermore, explained below Part VII 98), there overwhelming evidence in this case that Pappas’ murder accompanied by exceptionally behavior, brutal or heinous Thus, indicative cruelty. of wanton the circuit court’s failure to instruct the jury as to the cruelty definition of wanton plain was not error. VII. SUFFICIENCY OF EVIDENCE OF BRUTAL OR HEINOUS
BEHAVIOR, INDICATIVE OF WANTON CRUELTY argues Defendant next that because there was no evidence “of prolonged pain, torture, premeditation,” the State failed to prove *21 beyond a reasonable doubt that the murder accompanied by exceptionally behavior, brutal or heinous indicative of cruelty. wanton
“Brutal” behavior is
grossly ruthless,
behavior that is
devoid of
mercy
compassion;
or
Nielson,
cruel and cold-blooded.
When
and heinousness of a
the trier
of fact must evaluate all
surrounding
of the facts
People
offense.
v.
Hartzol,
631, 651,
222 Ill. App. 3d
Defendant, relying
Lucas,
399, 445-46,
132 Ill. 2d
(1989),
N.E.2d 1003
argues that the State failed to meet its burden
torture, or
pain,
“prolonged
evidence of
there was no
because
contention,
is not
such evidence
Despite premeditation.”
heinous, indicative
or
considered brutal
necessary for a murder to be
Lucas,
upon
relies
passage
In
that defendant
cruelty.
of wanton
has
in which this court
merely
“[c]ases
noted that
supreme
involved
generally
have
present
heinous behavior to be
found brutal or
added.) Lucas,
(Emphasis
pain,
premeditation.”
torture or
prolonged
Thus,
course,
always.
does not mean
Generally,
Furthermore, Lucas, that the murder supreme court found by qualify of a intoxicated father did not as brutal seven-month-old and heinous because the victim’s death resulted from suffocation inflicted his immediately and occurred almost after the defendant injuries could injuries indicating there was evidence single and that no evidence have been inflicted blow conclusive prolonged, or tortur- premeditated, indicated the victim’s death was Lewis, ous.
(2002),
Lucas,
Here,
citing
Pappas
severely
VIII. EXCESSIVE SENTENCE finally argues that the circuit court abused its discre- sentencing imprisonment by failing tion in him to life consider mitigating presented Though evidence in his behalf. the circuit court evidence, mitigating presumed did not recite the it is that the court People Zarka-Nevling, considered it. See (1999) (stating mitigating that where factors are *22 them).
present, the appellate presumes court the trial court considered Moreover, mitigating weight are not entitled to more than the factors 649, 652, People Pippen, App. seriousness of the offense. v. 324 Ill. 3d During sentencing, the circuit court noted: heinous, Jury
“The found indicative that this case was brutal robbery, felony at- cruelty. of wanton The armed the forcible rather, [robbery], during committed the course tempt armed it was eligible eligible You extended term. Youare of murder. are for an you sentencing for natural life and what I’m to.” that’s case, separate In the instant the circuit court had two bases murder was impose finding a sentence of natural life: a that the 100
committed in a brutal or heinous manner cruelty, indicative of wanton murder was committed felony. the course of a (2002) (“We People Hopkins, 26, v. 201 Ill. 2d 40 observe that when any statutory enhancing aggravating proved beyond factor is to exist *** doubt[,] original reasonable sentencing range increases accord- 5—3.2(b)(2) ing statutory scheme”); to the see also 730 ILCS 5/5 — (West 2000) (the may impose court an extended-term sentence under upon any section 5—8—2 offender where “a defendant is convicted of any felony and the court accompanied by finds the offense was exceptionally brutal or heinous behavior indicative of wanton 8—1(a)(1)(b) (West 2000) cruelty”); 730 (stating ILCS 5/5 — circuit may impose court a natural life sentence if the trier of fact beyond determines a reasonable doubt that the murder was either ac- companied by exceptionally brutal or heinous behavior indicative of cruelty wanton or any aggravating of the 1(b) (West 2000)) factors listed in section 1(b) (720 Moreover, ILCS present). are 9— 5/9— imposed sentence statutory range. was within the We find that the circuit did imposing not abuse its discretion in sentence natural life.
Affirmed.
GREIMAN, J., concurs. THEIS, specially concurring: JUSTICE I case, concur with the result reached majority but disagree analysis issues, because I its I specially on three concur. First, I disagree majority’s argu- with the treatment of defendant’s concerning ment identification instruction. In that witness discussion, majority support holding cites to one case to its that the version of IPI Criminal 3d No. 3.15 used in this case was not and, so, doing ignores contrary authority. erroneous wealth repeatedly This court has held that the use of the word “or” between each of the five factors the could consider when determin- ing reliability identification in IPI Criminal 3d No. of witness’ 913, 920, Briones, Ill. People App. 3.15 was error. See v. 352 3d 816 (2004); Carrero, 1, 11, 1120, App. v. 345 Ill. 3d 801 People N.E.2d 530, 546, 1084, (2003); Smith, People App. v. 341 Ill. 3d N.E.2d 108, 367, (2003); Saraceno, People v. 341 Ill. (2003); Brookins, 113-16, People 1243-46 791 N.E.2d (2002); Mercado, 1076, 1083, App. 3d 777 N.E.2d 333 in. (2002); 645-46 777 N.E.2d (2002); Furdge,
101 639-41, 198, Gonzalez, 629, 207-08 Ill. 3d 761 N.E.2d People 326 (2001). Waters, also (2002).1 many 1194, fact that defendant cites Despite
N.E.2d brief, majority distinguish, his fails to even of these cases in these cases and holds acknowledge, Tisley disagrees them. While with disjunctive language IPI giving Criminal 3d No. 3.15 and, in erroneous, holding Tisley this in was not no case has followed fact, rejected by panel one of this holding this has been criticized and Carrero, at at 1092- court Carrero. 93.
Additionally, Supreme I note that the Court Committee on Illinois Jury jury Pattern Instructions in Criminal Cases amended this instruc- tion in 2003 and removed the bracketed word “or” between the fac- tors. The Committee Note now instructs trial courts not to use “or” or “and” more than one factor is used. Il- between factors where Instructions, Criminal, 3.15, Jury linois Pattern No. Committee Note (4th 2003). Supp. ed.
I agree
progeny
with Gonzalez and its
hold that the use
would
of IPI Criminal 3d No. 3.15 with the bracketed word “or” in this case
However,
constituted
I agree
majority
error.
with the
that defendant
waived this issue
objecting
including
to this instruction or
this
posttrial
issue
motion. Although the law is unsettled as to which
(see
plain
appropriate
error test is
in this situation
177 Ill. 2d R.
451(c) (addressing
jury
when “substantial defects” in
instructions can
waiver);
despite
Carter,
be addressed
People v.
213 Ill. 2d
(finding
N.E.2d
plain
error doctrine allows a
reviewing
affecting
court to address defects
rights
substantial
if the
closely
evidence
requires);
balanced or if fundamental fairness so
Crespo, 203 Ill.
at 1124 (applying
the federal
test)),
plain error
I would find that based on the
presented
evidence
case,
this
this error
plain
does not rise to the level of
under
error
Thus, although
of these tests.
I
jury
would find that the
instruction
erroneous,
given
agree
I
majority
with the
that the issue is waived.
I
Additionally,
argument
must comment on defendant’s
State improperly
prior
used Fomond’s
consistent statement as substan-
conference,
tive
During
jury
evidence.
instruction
the assistant
Attorney
introducing
State’s
assured the trial court that she was not
However,
the statement “as substantive evidence.”
she in fact did use
substantively
statement
when she admitted the statement
into
currently pending
Supreme
1 Thisissue is
in the Illinois
Court.
(November
2002)
Herron,
(unpublished
Supreme
No. 1 - 01-3889
under
23),
allowed,
appeal
Court Rule
However, offered, despite the fact that the State and the trial instruction, gave, the I find this issue to be waived incorrect did not offer his instruction and in where defense counsel own fact, IPI 3.11. agreed with the State to tender Criminal No. I
Additionally, prosecutor must address one comment made in closing arguments. majority specifically never addresses this comment, finding nearly alleged improper all comments were object majority them. The also waived when defendant failed to improper. not complained-of finds that all of the comments were However, blatantly improper, I because I find that this comment was it here. must mention failed closing argument, addressing
In while the fact that Lockhart murder, years prosecutor identify defendant until two after the argued: station], somebody in[to walked and she saw
“[Lockhart] Smith, knew, (indicating) Antoine right that man there she And she knew that he somebodyshe knew from the Evanston area. knew her as well. So, talking one-way here. She we are not about identification you eyes They straight looked at each other.
told their met. could do is overwrought with fear. The best she But she was so statements, something, description, give police] some some [the case, and she knew the offender because she knew that she he knew her as well. knew him, recognized Antoine, recognized and he and she She lookedat added.) (Emphasis ran out.”
her and she clearly based they are improper because These comments were Johnson, 208 Ill. 2d in this case. upon the evidence respect subject, to this Lockhart With at defendant and he looked at her. solely testified that she looked him, never testified that defendant recognized While she Lockhart recognized her or that he knew her. Because these comments were evidence, disagree I find majority based on the would However, they improper. ultimately agree majority I with the were that such comments were waived. I
Accordingly, majority affirming concur with the result of the this case. ILLINOIS,
THE Plaintiff-Appellee, PEOPLE OF THE STATE OF CARINI, Defendant-Appellant. WILLIAM (5th Division) First District No. 1 - 02-3574 Opinion April filed Rehearing May denied 2005. 2005.