delivered the opinion of the court:
The defendant, Marvin Williams, was charged by indictment with four counts of first-degree murder (720 ILCS 5/9 — 1(a)(3) (West 1998)) in connection with the shooting deaths of Justin Levingston and Adrienne Austin. The indictment alleged that the defendant shot the two victims on March 18, 1997, during the commission of a home invasion (counts I and II) or, in the alternative, during the commission of an attempted armed robbery (counts III and IV). Following a jury trial, the defendant was convicted of two counts of first-degree murder. The trial court sentenced him to a term of natural life imprisonment, without parole. The defendant appeals, contending that (1) an eyewitness voice identification of the defendant, stemming from an observation at a pretrial hearing, should not have been admitted at trial, (2) the State improperly elicited testimony from a codefendant for whom the State had agreed to provide protection in prison in exchange for his testimony, and (3) certain comments by the prosecutor during closing argument were improper and denied defendant a fair trial.
Prior to trial, the defendant filed a motion seeking to exclude voice identification testimony from Lovenia Hinton. At a hearing on that motion held outside the presence of the jury, Hinton testified that she went to the Winnebago County courthouse on June 13, 1997, because she had been informed by her brother that the defendant had a court appearance scheduled and she wanted to see the defendant. She had heard that the defendant was the one who had shot her nephew and sister-in-law. Prior to coming to court on June 13, Hinton had not had any contact with the State’s Attorney’s office. Hinton entered the courtroom on June 13 and sat in the back row next to her brother and mother. The defendant’s case was called, and Hinton knew that the defendant would be coming into the courtroom. Hinton was bent over, had her head down, and was looking at the floor when she heard a voice say, “Why do I have to be shackled like this[?]” At that point, Hinton raised her head, looked at her mother, and told her that that was the voice she had heard on the night her house was broken into when her nephew and sister-in-law were shot. She explained that, on the night of the murders, she was underneath the kitchen table with her head down when she heard a voice from 9 or 10 feet away say, “Who else is in the house, who else is in the house[?]” At the hearing on the motion to suppress the identification, Hinton identified the defendant in court as the
The trial court denied the defendant’s motion to exclude the voice identification. Thereafter, Hinton testified before the jury that on March 17, 1997, she lived with Justin Levingston, Adrienne Austin, and four-year-old Luckia Austin, at 1438 North Church, in Rockford, Illinois. That night, she fell asleep on the living room couch watching television. Around 2 a.m., she heard noises coming from the porch outside. She then heard voices outside and the door being kicked in. She heard a total of two kicks on the door. She then heard voices saying, “This is the police.” A gunman then pointed a long-barreled gun at her face and grabbed her by her head. The man told her not to look and asked her where “their shit” was located. She then looked to the right and saw two men hitting Adrienne. The man who was holding a gun to her then took her into the kitchen and indicated that she should look at the wall. He again asked about the “shit” and then asked where “the Mexican” was. Hinton thought he was referring to Justin, who was light-skinned, so she pointed upstairs. He then told Hinton that the only reason they were there was that “he stole their reefer.” The man then put Hinton down on the floor, with her face to the floor. She was on her knees, underneath the table. He told her not to move, look, or say anything. Shortly after that, she heard a gunshot, then another gunshot, and then she heard Adrienne say, “Oh, my God.” At that time, the man who had brought Hinton into the kitchen was rubbing her back and telling her that it was going to be all right. She then heard another gunshot. Luckia then ran toward the kitchen, and the man told Hinton to grab the child, hold her, and keep her quiet. Hinton complied with that order. She then heard footsteps coming down the steps. From about 9 or 10 feet away she then heard a voice saying, “Who else is in the house, who else is in the house[?]” After that, it was quiet for a moment and then she heard the same voice say, “We up, this GD, we up.” Thereafter, she heard footsteps going out the door and a car speeding off.
Hinton further testified that after the car drove off she grabbed Luckia and hid in the basement for a while. She then went upstairs and found Levingston lying on the stair landing, dead. She found Adrienne in a bedroom crouched down on the floor. Adrienne was struggling to breathe, with blood running from her shoulder. Hinton eventually called 911, and a tape recording of her call was played for the jury.
Hinton stated that she told the 911 operator on the night in question that five black men had come into her house. However, she told the police when they arrived on the scene that she saw two suspects making a lot of noise but there may have been more. Hinton acknowledged that at codefendant Emmitt Wright’s trial she had testified that there were three or four men. However, she stated that she now believed that there were at least four men involved. She heard two of them go upstairs, and one remained with her in the kitchen. She stated that she believed all the men were black because of their voices, and she knew that the man who held her in the kitchen was black because she saw him. She explained, however, that she could not see his face.
Hinton also testified that she went to the courthouse on June 13, 1997, because she wanted to see what Marvin Williams looked like and she had heard that he had done the shooting at her house. The defendant walked out in handcuffs and shackles when his case was called. When the subject of the blood discovered on the
Lemual Conley testified that he had known the defendant for more than two years and that he knew him quite well from “hanging out” with him. On the night of March 17, 1997, Conley and the defendant hung out together at the Fairgrounds housing project and then went to the Salvation Army to play basketball. Conley and the defendant eventually left there with Emmitt Wright and Antonio Trammell in Wright’s car and went to buy liquor. After stopping at the liquor store, they went to a house where they drank, talked, and played video games. Someone mentioned a person who had 30 pounds of marijuana at his house, and they all agreed that they should just go there and take it. Wright drove the four of them to a house on Church Street. They parked across the street and walked to a house on the corner. Conley carried a .22-caliber handgun, and the defendant carried a .38-caliber handgun. Trammell and Wright were unarmed.
Conley further testified that the four of them went up to the door of the house and Wright knocked on the door and then kicked it twice. It opened on the second kick. They then entered the living room of the house and Conley yelled, “police.” He saw two women, one on each couch. He grabbed one of the women by the arm and asked her where the “shit” was. She pointed upstairs. Conley then took her into the kitchen and told her to look at the wall and not at him. The defendant and Wright had taken the other woman upstairs. Conley could hear commotion coming from upstairs, and after two or three minutes he heard a shot. Shortly after that, he heard another shot. Then he heard more commotion from upstairs. A little girl then came into the kitchen area and Conley pushed her toward the woman in the kitchen, who was now kneeling down. Conley rubbed the woman’s back, telling her to be cool and everything would “be straight.” He did this to keep her from panicking. Then, Conley heard two more shots and more commotion from upstairs. At that point, Conley went toward the living room and saw Trammel there. Conley then proceeded to go up the steps. He stepped past Levingston, who was lying on the stairwell. Conley went into one of the upstairs bedrooms and saw the defendant standing in the room, alone. Conley then went back downstairs and into the kitchen and again told the woman to be cool. Conley then heard two more gunshots, about 10 seconds apart. The defendant then came down the stairs and into the kitchen near where Conley was standing. The defendant pointed his gun at the woman who was kneeling down in the kitchen and said, “Fitting to get her.” At that moment, Conley pushed the defendant’s arm out of the way, stood between the defendant and the woman, and told the defendant that that was not the reason they came. They then exited the house through the front door and left in Wright’s car. As they were leaving the house, Conley yelled, “G.D., we up.” Wright eventually dropped Conley and the defendant off at the Fairgrounds housing project, at 957 Acorn, which was the home of Angela Williams, the defendant’s sister. Conley threw his gun into a box in a closet at Angela’s house. That night he stayed at 963 Acorn, a few houses down. Conley stated that he had a “relationship” with Angela at the time.
Conley admitted that whén he was first questioned by the police following the incident he denied involvement and claimed that he spent the night at Angela Williams’ house. Conley acknowledged that he
Conley also testified that he had an agreement with the State that, in exchange for his truthful testimony in this case, he would be allowed to plead guilty to home invasion, armed violence, and attempted armed robbery. The sentencing range would be from 15 to 45 years in prison, and the sentence to be imposed within that range would be left to the trial court’s discretion. The State also agreed to dismiss an unrelated armed robbery charge and to provide whatever protection it could, if necessary, while the defendant was incarcerated in the Department of Corrections. Conley acknowledged that he had been convicted of felony theft in 1996.
Sixteen-year-old Antonio Trammell testified that after playing basketball at the Salvation Army on March 17, 1997, the defendant said that he knew a “guy who got somebody for 40 pounds of marijuana,” and the defendant asked if Trammell, Conley, and Wright wanted to go there. The four of them drank beer and cognac, and the defendant again talked about getting the marijuana. During the ride to the house on Church Street, they all agreed to go into the house and take marijuana and money. After parking, Trammell put on a ski mask. Upon reaching the house, Wright kicked the door in and they ran inside. Conley hollered, “Police, get down,” and then ran over to a woman and hit her in the face with his gun. Trammell heard another woman scream about her baby. Conley directed a woman into the kitchen. The defendant and Wright then went upstairs, while Trammell stayed in the hallway. Trammell then heard the defendant’s voice, which was coming from upstairs, ask someone where “the shit” was. Trammell then heard a shot and a man in pain. The defendant again asked where “the shit” was, and then there was another shot. A woman said, “Oh, no, my son,” and the defendant asked, “Bitch, where’s the shit at[?]” The woman answered that she did not know, and the defendant accused her of playing with him. Trammell then heard another shot.
Trammell further testified that after he heard the three shots mentioned above he heard something tumble down the stairs. Trammell then saw Levingston on the stairwell, with blood around his chest and face. Trammell then heard the defendant say, “Oh, you faking,” and then Trammell heard another gunshot. At that point, Trammell went into the kitchen and saw Conley emptying a can onto a table. Trammell asked Conley where the other woman was, and Conley told him that she was underneath the table. Trammell then went to the front door of the house and saw Wright pulling a car up to the front of the house. Trammell then ran and got into the car. All four of them eventually got into the car and they drove away. They dropped off the defendant and Conley at the Fairgrounds housing project.
When he was arrested on March 27, 1997, Trammell denied any knowledge of the incident. Later, he told the police that he was there but did not do any shooting. Trammell admitted that he wrote his mother a letter telling her that his attorney had told him that they would have to make it seem as though he did not know that there was going to be a robbery or that he ran out before any shots were fired. Trammell explained, however, that he was merely trying to inform his mother about what his attorney had told him about accountability. Trammel acknowledged that his record contained an adjudication of delinquency in 1995 for a drug offense.
Rockford police officer Mike Triplett testified that sometime after 2:30 p.m. on March 20, 1997, he was in the 700 block of Lee Street in Rockford, Illinois, looking
Other evidence presented at trial revealed that the police seized a loaded .22-caliber revolver from a box located on the table in Angela Williams’ kitchen. The bullets that killed Austin and Levingston were fired from either a .38- or .357-caliber weapon. The shots fired at the house that night could not have come from the .22-caliber handgun found at Angela’s house. The DNA evidence indicated that human bloodstains were found on the shoes worn by the defendant at the time of his arrest. Those stains were consistent with the blood profile of Levingston. For one of the bloodstains found on the defendant’s shoe, the expected frequency was 1 in 940,000 blacks, 1 in 54,000,000 Caucasians, and 1 in 6,800,000 Hispanics. The evidence also indicated that a stain found on Conley’s shoe matched Levingston’s blood profile.
Twenty-six-year-old Martinez Mineau testified that he was a friend of the defendant and had known him for six or seven years. Mineau claimed that he had known Trammel since 1996. Mineau stated that Mineau was at his father’s house on the morning of March 18, 1997, when Trammell came over. According to Mineau, Trammell told him at that time that Trammell had gone on a robbery and “some *** got popped off.” Trammell told him that Conley and a man named “Red” were responsible, Mineau also claimed that Trammell told him that they had been at the house of someone named “E.” They then went to “a Mexican guy’s” house and kicked the door in, and Trammell told Conley to “get them on the couch.” Trammell and Red then ran upstairs. Trammell beat “the Mexican’.’ and asked for the “shit.” When “the Mexican” refused to cooperate and played stupid, Trammell shot him, and the man fell downstairs. Meanwhile, Red was yelling at a woman in the other room. Mineau further claimed that Trammell told him that he was drunk and that Trammell “snapped” and shot the woman. They then ran downstairs and Red said, “We up,” and they all left the house. According to Mineau, Trammell never mentioned the defendant or Emmitt Wright. Trammell said that he drove “E’s” car that night and asked Mineau what to do. Mineau told him to give the car back.
Mineau testified on cross-examination that he met Emmitt Wright for the first time on March 18, 1998. At the time, Mineau and Wright were incarcerated in the same tier of the county jail. Two days after meeting Wright, Mineau reduced to writing for the first time the pertinent facts that Mineau claimed Trammell told him one year earlier on March 18, 1997, about the home invasion and shootings in question. Mineau denied that he had collaborated with Wright to put together the statement. Mineau admitted that he had two prior convictions of aggravated battery and one prior conviction of unlawful use of a weapon by a felon.
Antonio Trammell was recalled as a defense witness. Trammell testified that he was not a close friend of Mineau and he
Marketa Gulley, the defendant’s aunt, testified that she had a confrontation with Conley late in February or early in March of 1997. The defendant stepped in and words were exchanged between the defendant and Conley. Gulley denied that she had been convicted of deceptive practices in 1988. However, the parties stipulated before the jury that Gulley was in fact convicted of deceptive practices in 1988. Conley was recalled as a witness and denied that he had gotten into an altercation with either the defendant or his aunt.
The defendant testified that he spent the afternoon and evening of March 17, 1997, at his sister Angela’s house at 957 Acorn. Conley, Deron Hill, Angela, and Angela’s children were also there. Around 10 p.m. he left Angela’s and went to the apartment of Tamara Miller, which was about 5 or 10 minutes away. According to the defendant, Miller was home with her two-year-old son. The defendant said that he stayed all night at Miller’s apartment. He woke up at 11:30 a.m. and ate breakfast. Later that day, he returned to Angela’s house around 1:30 p.m., where he saw Conley, Hill, Angela, a couple of Angela’s girlfriends, and some children. Nothing was said about the shooting at that time.
The defendant further testified that Conley was dating Angela, but she was also seeing a man named “Red.” According to the defendant, Conley did not know that Red was seeing Angela. The defendant did not know Red’s real name, where he worked, or with whom he associated. The defendant stated that the defendant stayed at Angela’s house three or four nights per week and that he kept most of his clothes there. He had 18 or 19 pairs of tennis shoes, mostly Filas or Nikes. According to the defendant, he ran into Red on March 18. Red asked him if he could borrow a pair of his tennis shoes. The defendant indicated that he could but told Red to bring them back. The defendant claimed that at the time of the crime Red was wearing the shoes that the police eventually seized from the defendant at the time of the defendant’s arrest. The defendant said that he was not wearing any shoes at the time of his arrest. He asked the officer if he could put on some shoes. The defendant put on the pair of shoes that Red had been wearing. The defendant claimed that he wore size 14, while the shoes he put on after he was arrested by the police were size 13.
The defendant also testified that following his arrest he told the police that he and Conley were at Angela’s house because he thought that they were asking him about an unrelated armed robbery. However, the defendant later testified that he told the police that he and Conley had been at Angela’s house on the night of the murders and that the defendant had stayed there all night. The defendant said that in March he and Conley got into a physical fight in connection with the defendant’s aunt. Conley cut the defendant’s lip and said to the defendant, “I’m gonna fuck you up.” The defendant admitted that he was housed in the same jail cell for a day and half with Martinez Mineau in July 1997. The defendant said he did not talk to Mineau about his testimony in this case or about his testimony in codefendant Wright’s case. The defendant denied that he and Mineau concocted Mineau’s story while they shared a jail cell together for a day and a half.
Rockford police officer Bruce Scott testified that on March 20, 1997, he gave the defendant his Miranda warnings and the defendant waived his rights by signing a waiver form. Scott then told the defendant that he wanted to talk about the murders on Church Street. The defendant told Scott that he spent the night at Angela Williams’ house and that he went to bed around midnight. Scott said that he tried to show the defendant a statement from Angela, but the defendant did not
On appeal, the defendant first argues that the trial court erred in allowing the State to introduce the voice identification testimony of Hinton. The defendant characterizes the circumstances under which the identification was made as a “lineup” and contends the identification was impermissibly suggestive and violated his right to due process. The defendant also claims that his right to the effective assistance of counsel at a postindictment lineup was violated given that his counsel was unaware of Hinton’s presence in the courtroom at the time she recognized the defendant’s voice.
Generally, a trial court’s ruling on a motion to suppress identification evidence is subject to reversal only if it is manifestly erroneous. People v. Wardlow,
Only where a pretrial encounter resulting in an identification is “unnecessarily suggestive” or “impermissibly suggestive” so as to produce “a very substantial likelihood of irreparable misidentification” is evidence of that and any subsequent identification excluded by law under the due process clause of the fourteenth amendment. Moore,
Here, Hinton went to the courtroom on June 13, 1997, for the purpose of viewing the defendant. Nothing in the record indicates that she went with the intention of
Additionally, we find that the identification testimony in this case satisfied the due process factors for assessing reliability applied in cases involving suggestive showups. In the present case, the witness had an ample opportunity to hear the perpetrator’s voice at the time of the crime, and she even recalled some of the exact words he used during the commission of the crime. The witness was paying a great deal of attention to the words spoken by the perpetrator because she knew that her life hung in the balance based on his words. Finally, the witness was certain that the defendant’s voice was the same voice that she had heard on the night of the murders. The fact that there was a three-month lapse between the crime and the identification did not outweigh the other factors supporting the conclusion that there was no substantial likelihood of misidentification.
In Neil, the Supreme Court found that a showup was not impermissibly suggestive even though a seven-month lapse occurred between the crime and the confrontation. Neil,
The defendant also argues that he was denied his right to the effective assistance of counsel at a postindictment lineup. See, e.g., United States v. Wade,
The defendant next argues that reversible error occurred when the prosecutor elicited testimony from Conley that the State had agreed to provide protection for Conley while in prison, if necessary. The defendant notes that it is improper for a prosecutor to ask questions that imply that a defendant made threats against a witness without any basis in fact to support such an implication. See People v.
Initially, we note that the defendant failed to object to the complained-of question and testimony at trial. Accordingly, he has waived the issue on review. See People v. Enoch,
A prosecutor is allowed to set forth the terms of a plea agreement because it aids the jury in its task of evaluating the credibility of a witness. See People v. Garcia,
The cases cited by the defendant in support of his argument are distinguishable. Those cases involved prosecutorial comments or questioning that implied that a defendant made threats against a witness, when the record revealed that such implication was groundless. See People v. London,
Lastly, the defendant argues that the prosecutor’s comments during closing argument amounted to reversible error. Specifically, the defendant contends that the prosecutor engaged in name calling, placed the integrity of his office behind the credibility of the State’s witnesses, and made comments regarding missing witnesses.
A prosecutor is allowed a great deal of latitude in making closing remarks. People v. Cloutier,
With respect to the only issue properly preserved for review in this case, we note that the complained-of comment was made during the prosecutor’s rebuttal argument in response to the defendant’s argument that Trammell and Conley were testifying merely to get themselves a deal in exchange for portraying the defendant as the murderer. The prosecutor’s comments were also based on the evidence and upon the defendant’s nickname of “Big Dog.” The prosecutor responded in rebuttal as follows:
“But make no mistake about it, ladies and gentlemen. As we said they are robbers; they are thieves. But make no mistake about it. Antonio Trammell is Little Tony. Lemual is Boobie. Emmitt Wright is E. But this defendant, this defendant is not just dog. He is top dog. He is Big Dog, king of the criminals that he hangs out with who don’t work at the Fairgrounds Housing projects.”
At that point, defense counsel objected “to king of criminals.” The trial court sustained the objection and admonished the jury to disregard the remark. The prosecutor continued his argument, stating:
“He calls the shots. He makes the big move. He takes his lesser friends from simple armed robbery and home invasion to murder.”
Considering the context of the complained-of remark, we find that the comment was invited by the defendant’s argument and was based on the evidence presented in the case. We further find
We have carefully examined the remaining claims of prosecutorial misconduct in the context of the entire record, and we conclude that the remarks made by the prosecutor were either not improper or, even if improper, not substantially prejudicial to the defendant.
For.the foregoing reasons, the judgment of the circuit court of Winnebago County is affirmed.
Affirmed.
BOWMAN, EJ., and GEIGER, J, concur.