People v. Clay ( 2008 )

FIRST DIVISION
February 19, 2008
No. 1-06-0450
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ROOSEVELT CLAY, ) Honorable
) James B. Linn,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Nearly thirty-three years have passed since the murders of a
doctor and two of his patients, committed in the course of a
kidnapping. Defendant Roosevelt Clay has twice been tried for
and convicted of these murders. In this appeal, the defendant
seeks a third trial. While we are troubled by some of the issues
he raises, we conclude the overwhelming weight of the evidence
requires us to affirm his convictions and sentences for murder
and kidnapping.
A jury convicted the defendant of three counts of murder.
He was sentenced to concurrent indeterminate terms of 60 to 120
years in prison. On appeal, defendant contends the trial court
erred in allowing the State to impeach defendant’s trial
testimony with his prior murder conviction. Defendant also
contends he received ineffective assistance of trial counsel, in
1-06-0450
violation of his Sixth Amendment rights.
Because prejudice to the defendant is a central issue raised
by his ineffective assistance claim, we find it necessary to set
out the relevant facts in some detail.
FACTS
Defendant was convicted in 1988 for the 1975 murders of Dr.
Lawrence Gluckman and two of Dr. Gluckman’s patients, Minnie and
Tressie Harris. In 2004, defendant filed a post-conviction
petition, alleging newly discovered evidence disclosed that Frank
Love, a key witness for the prosecution, had lied about his
motive for testifying at defendant’s trial. The trial court
granted defendant’s post-conviction petition and ordered a new
trial. The second trial took place in December of 2005.
Prior to re-trial, defense counsel filed a motion in limine
to bar the State from impeaching defendant’s testimony with his
1989 murder conviction in Wisconsin. The trial court denied the
motion, finding the prejudicial impact of the conviction was
outweighed by its probative value.
At the second trial in 2005, the evidence established that
at around 6:20 p.m. on April 25, 1975, Chicago police found the
bodies of Dr. Lawrence Gluckman and two of his patients, Minnie
and Tressie Harris, in Dr. Gluckman’s car. The car was parked in
the middle of an alley at 10526 S. Lowe in Chicago. Dr.
-2-
1-06-0450
Gluckman’s body was found in the trunk, and the women’s bodies
were found partially covered with green plastic garbage bags in
the back seat. The rear window of the car was shattered. An
autopsy indicated Dr. Gluckman sustained a blunt force trauma to
the head and died of a heart attack. Minnie and Tressie Harris
both died as a result of gunshot wounds to the head.
The parties stipulated that Dr. Gluckman, Minnie Harris, and
Tressie Harris left Dr. Gluckman’s clinic at Warren and Western
at around 4 p.m. on April 25. Three phone calls were made to Dr.
Gluckman’s wife between 6:30 and 7:20 that evening, each
demanding $100,000 be paid or Dr. Gluckman would be killed.
On April 27, 1975, Detective Anthony Katalinic arrested
Frank Love after Delores Townsend named him in a statement.
According to Detective Katalinic, Love implicated six people in
the kidnapping and murders: Roosevelt Clay, David Clay, Harold
Smith, Matthew Williams, Michael Wilson, and Willie Carter. When
Detective Katalinic went to Annie Clay’s--defendant’s mother’s--
home, he was given permission to search the garage. He recovered
glass shards from the floor and green plastic bags similar to the
type found covering the victim’s bodies in Dr. Gluckman’s car.
Detective Katalinic testified that Franklin Scott identified
defendant in a lineup as being one of the people he saw standing
behind Dr. Gluckman’s clinic on the afternoon of the abduction.
-3-
1-06-0450
The prior testimony of a deceased witness, Frank Scott, was
published to the jury. Scott testified that he owned a
restaurant directly behind Dr. Gluckman’s clinic. At around 3:30
p.m. on April 25, 1975, Scott saw seven or eight men talking in
the alley behind Dr. Gluckman’s clinic. The men were standing
near a car that had its trunk hood open. Scott identified
defendant and Harold Smith in court as two of the men he saw in
the alley.
Scott Jennings testified that, in 1983, he worked as an FBI
agent in the Chicago office. On June 13, 1983, Jennings met
defendant in the Cook County Jail after defendant told him he had
information regarding a murder. After being advised of his
Miranda rights, defendant signed a waiver of his rights and gave
an oral statement regarding his involvement in a triple murder in
1975. Jennings testified he told defendant he could be
prosecuted for the murders, and that no threats or promises were
made to induce defendant to confess. Jennings denied telling
defendant to “beef up” the story and make himself an eyewitness
because hearsay “wasn’t good enough.” Jennings contacted
Detective Katalinic and arranged for him to interview defendant.
Detective Katalinic testified defendant gave him details
during his confession that he was not able to get from anyone
else questioned, including Love and Scott. Defendant told
-4-
1-06-0450
Detective Katalinic that sometime in April 1975 he went to his
brother David’s house and walked in on a meeting. His brother,
Willie Carter, Frank Love, Matthew Williams, and Michael Wilson
were discussing a plan to kidnap Dr. Gluckman. Defendant
insisted on being included in the plan. Defendant told Detective
Katalinic that he brought the gun and drove to the clinic in a
separate car. When Dr. Gluckman came out of the back door of the
clinic with two women, defendant gave the gun to Smith. They
both approached the doctor with the gun drawn. They ordered Dr.
Gluckman to get into the trunk of his car. When Dr. Gluckman
refused because he had a bad heart, Smith and Carter picked him
up and put him in the trunk. After Williams forced the two women
into the car, Williams drove the car to defendant’s aunt’s house.
Defendant told Detective Katalinic that when he discovered
Dr. Gluckman was dead, he and Carter went into the house to talk
to David Clay and Wilson. They decided to shoot the two women.
When defendant and Carter got into the car with the two women,
Carter asked, “Which one of you bitches wanna die first?” Carter
then shot the women. Williams and defendant abandoned Dr.
Gluckman’s car at 106th and Lowe. When Williams got into
defendant’s car, defendant noticed Williams was wearing Dr.
Gluckman’s gold ring and gold watch with an orange face. After
defendant told Williams to get rid of the jewelry because it
-5-
1-06-0450
could link them to the murders, he drove Williams to a gas
station where Williams left the jewelry in a bathroom.
Defendant told Detective Katalinic that everyone involved in the
kidnapping, except for Love, was a Vicelord. Defendant said some
Vicelords visited Love at jail after he was arrested. They
threatened to kill him if he cooperated with the police. Dr.
Gluckman’s daughter testified Dr. Gluckman was wearing a gold
watch when he went to work on April 25, 1975.
Frank Love testified he became Dr. Gluckman’s patient in
1974 or early 1975. Love became a friend of Delores Townsend,
Dr. Gluckman’s office manager. Five days before the murders,
Townsend called Love and asked him if he knew anyone who would
kidnap Dr. Gluckman for ransom. Love contacted David Clay, a
leader of the Vicelord gang, because he knew David Clay had
previously kidnapped a drug dealer. David Clay said he was
interested and helped plan the kidnapping.
When Love and David Clay met at a pool hall on April 25,
1975, David told Love the kidnapping was in progress. When they
drove by Dr. Gluckman’s clinic, Love saw defendant and Michael
Wilson waiting behind the clinic in the alley. Love and David
Clay arrived at defendant’s aunt’s house later that day.
Defendant told them Dr. Gluckman was dead and the two girls were
still in the car. Love then left with David Clay and Wilson to
-6-
1-06-0450
pick up Townsend because she had the phone numbers for the
Gluckman family.
Following his arrest, Love gave a statement implicating
defendant and David Clay. While Love was at Cook County Jail
awaiting trial, defendant and David Clay were transferred to the
same tier. Love testified defendant and David Clay told Love to
“keep his mouth shut and do the time, take the weight.” Love did
not testify against either defendant or David Clay in the 1970s.
In 1988, however, Love testified against defendant at his first
trial. Shortly after defendant was sentenced, the prosecutor
appeared before the parole board to support Love’s parole
request. Love testified he had hoped he would be released from
prison after testifying against defendant, but denied being
promised anything in exchange for his testimony.
Alan Pollikoff testified he represented defendant on April
30, 1975, and was present when Franklin Scott identified
defendant in a lineup. Pollikoff testified that after Scott
identified defendant and a second man, Scott said “[t]hose two
are the ones that most closely resemble the ones.”
Defendant testified. He denied any involvement in the
kidnapping or murders. In 1983, defendant had contacted the FBI
after he was arrested for two armed robberies and was put in
touch with Agent Jennings. He offered to provide Jennings with
-7-
1-06-0450
information about Mike Switek, a leading mob figure. In exchange
for help in the armed robbery cases, defendant agreed to wear a
wire when he went to repay Switek for a cocaine debt.
Defendant contacted Jennings again after he was convicted of
armed robbery. According to defendant, Jennings said he would
try to get defendant out of jail because he wanted more
information on Switek. Because defendant was in State custody,
Jennings told him he had to “give the State something.”
Defendant told Jennings he had information regarding a murder.
When Jennings said he needed “eyewitness stuff,” defendant lied
and said he was present when the murder occurred. Jennings and
another agent came to the jail to interview him. Defendant gave
them information about Dr. Gluckman’s kidnapping that he had
learned from various sources–-including the media, Love, Willie
Carter, Fast Black, and Michael Wilson. Defendant testified he
and Love had talked a lot about the offense while they were in
jail together. Defendant said that when he gave his statement to
Detective Katalinic, he included things he had heard from others
and things he had made up.
In rebuttal, the State presented a certified copy of
defendant’s 1989 murder conviction in Wisconsin. The trial court
instructed the jury that “[e]vidence of a defendant’s previous
conviction may be considered by you only as it may affect his
-8-
1-06-0450
believability as a witness and must not be considered by you as
evidence of his guilt for the offense for which he is charged.”
Defendant was found guilty of three counts of murder and
sentenced to concurrent 60 to 120-year prison terms.
DECISION
I. Prior Murder Conviction
Defendant contends the trial court erred in allowing the
State to impeach his testimony with a prior murder conviction in
Wisconsin. Defendant contends the prior conviction’s unfair
prejudicial effect far outweighed any probative value it may have
had regarding defendant’s credibility.
In People v. Montgomery, 47 Ill. 2d 510, 515, 268 N.E.2d 695(1971), our supreme court provided trial courts with discretion
to allow impeachment of a witness’ testimonial credibility by
admitting a prior conviction. In Illinois, a prior conviction
may be used to impeach a defendant where: (1) the prior
conviction was for a crime punishable by death or imprisonment in
excess of one year, or a crime involving dishonesty or false
statement; (2) the witness’ conviction or release from
confinement, whichever date is later, occurred less than 10 years
from the date of trial; and (3) the danger of unfair prejudice
does not substantially outweigh the probative value of the
conviction. Montgomery, 47 Ill. 2d at 518; People v. Cox, 195
-9-
1-06-0450
Ill. 2d 378, 383, 748 N.E.2d 166 (2001). In performing the
balancing test, courts consider:
“ ‘the nature of the prior crimes, *** the
length of the criminal record, the age and
circumstances of the defendant, and, above
all, the extent to which it is more important
to the search for truth in a particular case
for the jury to hear the defendant’s story
than to know of a prior conviction.’ ”
Montgomery, 47 Ill. 2d at 518, quoting Fed.
R. Evid. 609 advisory committee notes.
The trial court uses its discretion when conducting the
balancing test to determine whether a witness’ prior conviction
is admissible for impeachment. Cox, 195 Ill. 2d at 383; People
v. Phillips, 371 Ill. App. 3d 948, 949, 864 N.E.2d 823 (2007).
Absent an abuse of discretion, we will not reverse a trial
court’s determination. People v. Reid, 179 Ill. 2d 297, 313, 688
N.E.2d 1156 (1997). However, the failure to conduct a
“meaningful” balancing test violates Montgomery and requires
reversal. People v. McGee, 286 Ill. App. 3d 786, 793, 676 N.E.2d
1341 (1997). An earlier conviction has probative value if it can
aid in destroying a defendant’s credibility. People v.
McKibbibs, 96 Ill. 2d 176, 188, 449 N.E.2d 821 (1983); People v.
-10-
1-06-0450
Barner, 374 Ill. App. 3d 963, 971, 871 N.E.2d 849 (2007).
The fact that the past and present offenses are of the same
or similar nature does not bar their admissibility as
impeachment. Barner, 374 Ill. App. 3d at 971. However,
“[c]onvictions for the same crime for which the defendant is on
trial should be admitted sparingly.” Cox, 195 Ill. 2d at 384,
citing People v. Williams, 161 Ill. 2d 1, 38, 641 N.E.2d 296(1994).
In this case, defense counsel filed a motion in limine to
bar the State from impeaching defendant’s testimony with his 1989
murder conviction in Wisconsin. Denying the motion, the trial
court held:
“if [defendant] does want to testify, which
he surely has the right to do, he brings his
baggage on himself, and it is part of who he
is, and the jury has a right to know who he
is, and I find this problem extremely
probative, by far more probative than
prejudicial. *** He is a convicted murderer,
and that is a fact. If he wants to testify,
the jury will know about that up front.”
In response to the trial court’s ruling, defense counsel
noted the conviction should be probative “as to whether defendant
-11-
1-06-0450
is a liar, not whether he is a killer.” The trial court agreed,
noting: “The jury will be instructed to only consider that
information as it may impact his credibility and not to consider
it as evidence for the charge for which he is accused.” The
trial court denied defendant’s motion to reconsider its ruling.
In People v. Williams, 173 Ill. 2d 48, 82-83, 670 N.E.2d 638(1996), the supreme court held admissible the defendant’s prior
conviction for aggravated battery to impeach his credibility at
his trial for attempt murder, murder, and aggravated battery with
a firearm. The court found a review of the transcript showed the
judge was fully aware of the Montgomery standard and the
balancing test it requires. Williams, 173 Ill. 2d at 83.
Although the trial judge did not expressly state he was balancing
the opposing interests, the court held there was no reason to
suppose he disregarded the familiar, well-established Montgomery
standard in determining the impeachment was proper. Williams,
173 Ill. 2d at 83. The supreme court also noted its prior
decisions regarding the Montgomery standard should not be
construed as leaving only convictions for offenses involving
dishonesty or false statement as eligible grounds for
impeachment. Williams, 173 Ill. 2d at 82-83, citing Williams,
161 Ill. 2d at 39.
Here, as in Williams, we find the trial court did not abuse
-12-
1-06-0450
its discretion in admitting defendant’s prior murder conviction
for the purpose of impeaching his credibility. Contrary to
defendant’s contentions, nothing in the record suggests the trial
court failed to properly weigh the probative value of the
impeachment against its possible prejudicial effect. Defendant
suggests the trial court’s statements that “he brings his baggage
on himself, and “it is part of who he is, and the jury has a
right to know who he is” indicates the trial court found the
prior murder conviction probative of defendant’s murderous
propensity, not his credibility. We might agree if the trial
court had not said the jury would “be instructed to only consider
that information as it may impact his credibility and not to
consider it as evidence for the charge for which he is accused.”
While we recognize the trial court did not specifically
articulate the Montgomery standard when it denied defendant’s
motion in limine, we find the record indicates it did not
disregard the well-established standard in determining
impeachment was proper. See Williams, 173 Ill. 2d at 83. In
denying defendant’s motion to reconsider, the trial court made
clear “the ultimate criteria is one of weighing the prejudicial
value against probative value.” The trial court’s comments go
beyond the comments held sufficient in Williams.
We also recognize that when the conviction was admitted as
-13-
1-06-0450
rebuttal evidence, the trial court instructed the jury that
“[e]vidence of a defendant’s previous conviction may be
considered by you only as it may affect his believability as a
witness and must not be considered by you as evidence of his
guilt for the offense for which he is charged.” We find it
important to note, however, that whether the use of the
instruction under these circumstances actually eliminates the
risk of misuse is a matter open to question. Several studies
indicate “jurors use evidence regarding convictions as an
indicator of guilt rather than to determine the credibility of
statements made by the defendant, despite judicial instructions
to the contrary.” See J. Liberman, Understanding the Limits of
Limiting Instructions, 6 Psychol. Pub. Pol’y & L. 677, 686
(2000); R. Wissler & M. Saks, On the Inefficacy of Limiting
Instructions, 9 Law & Hum. Behav. 37, 47 (1985).
We do not discount defendant’s claim that the prior murder
conviction has little to do with “defendant’s truthfulness as a
witness.” See Cox, 195 Ill. 2d at 384, citing Williams, 161 Ill.
2d at 39. Nor do we minimize the great risk that a murder trial
jury would misuse a prior murder conviction as proof of the
defendant’s propensity to commit that crime. Still, considering
the strength of the State’s case and the binding authority of
Williams, we are unable to say the trial court abused its
-14-
1-06-0450
discretion when it allowed the use of the prior murder conviction
to impeach the defendant’s credibility.
II. Ineffective Assistance of Counsel
Defendant contends he was denied his Sixth Amendment right
to the effective assistance of trial counsel when his trial
attorney: (1) characterized him as a “gangbanger” and a “bad
person” who had committed several unrelated felonies and had ties
to organized crime; (2) failed to utilize prior testimony to
impeach a key witness; (3) elicited inflammatory testimony that
defendant’s family may have tried to firebomb Frank Love’s house
prior to trial; (4) did not move to strike prejudicial testimony
that was volunteered by Love on cross-examination; and (5) failed
to object to two instances of prosecutorial misconduct during
closing argument. Defendant contends his trial counsel’s
deficient performance prejudiced him and resulted in a
fundamentally unfair trial. Each of defendant’s contentions will
be addressed in turn.
In order to prevail on a claim of ineffective assistance of
counsel, a defendant must show his attorney’s actions constituted
errors so serious as to fall below an objective standard of
reasonableness, and that, without those errors, there was a
reasonable probability his trial would have resulted in a
different outcome. People v. Ward, 371 Ill. App. 3d 382, 434,
-15-
1-06-0450
862 N.E.2d 1102 (2007), citing Strickland v. Washington, 466 U.S.
668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98
(1984). Courts “must indulge a strong presumption that counsel’s
conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689, 104 S. Ct at 2065, 80
L. Ed. 2d at 694; People v. Edwards, 195 Ill. 2d 142, 163, 745
N.E.2d 1212 (2001). Mistakes in strategy or tactics alone do not
amount to ineffective assistance of counsel; nor does the fact
that another attorney may have handled things differently. Ward,
371 Ill. App. 3d at 434, citing People v. Palmer, 162 Ill. 2d
465, 476, 643 N.E.2d 797 (1994).
Because a defendant’s failure to satisfy either prong of the
Strickland test will defeat an ineffective assistance claim, we
are not required to “address both components of the inquiry if
the defendant makes an insufficient showing on one.” Strickland,
466 U.S. at 697, 104 S. Ct at 2069, 80 L. Ed. 2d at 699.
Accordingly, we need not determine whether counsel’s performance
was actually deficient if we determine defendant suffered no
prejudice as a result of his counsel’s alleged deficiencies.
Edwards, 195 Ill. 2d at 163, citing Strickland, 466 U.S. at 697,
104 S. Ct. at 2069, 80 L. Ed. 2d at 699.
A. Defense Counsel’s Opening Statements
Defendant contends his trial counsel’s opening statement
-16-
1-06-0450
needlessly informed the jury that defendant was a “gangbanger”
and a “bad guy” who had committed several unrelated felonies and
had ties to organized crime. Defendant contends defense
counsel’s statements cast him in an extremely negative light, and
allowed the State to elicit irrelevant and prejudicial references
to his gang affiliation at trial.
During its opening statement, the State argued the case
involved a botched kidnapping for ransom in which three victims
were murdered. The State did not discuss defendant’s gang
affiliation or prior criminal history. In his opening statement,
defense counsel said:
“My client is a bad guy. I might as well
tell you that up straight because you’re
going to find out. My client probably hasn’t
done six months work, of legitimate work in
his whole life. He’s 50 plus years old.
Hasn’t done it. My client is what police or
you or I *** would call a gangbanger. He’s a
member of a street gang. *** He stole cars,
used dope, probably ran guns. He did all of
the things that gang members do, but he’s not
on trial for being a gang member. He’s on
trial for a very serious crime that he didn’t
-17-
1-06-0450
do.”
We recognize an attorney’s decision to mitigate the impact
of harmful evidence by disclosing it during opening statements
has been deemed proper trial strategy in certain cases. See
People v. Wright, 294 Ill. App. 3d 606, 614-15, 691 N.E.2d 94(1998) (“David’s trial counsel chose to dispute, [by opening the
door to gang-related evidence] in her opening statement, the
issue of David’s possible motive for shooting Smith and Rockett.
This decision fell squarely within the tactical province of an
attorney.”) However, we find defense counsel’s references to
defendant as a “gangbanger” and as a “bad guy *** who did all of
the things that gang members do” crossed the line into
objectively unreasonable prevailing professional norms.
Even if we were to excuse defense counsel’s references to
defendant as a “gangbanger” and a “bad guy” as a matter of trial
strategy, defense counsel being desperately in need of a
strategy, we see no advantage in informing the jury that
defendant “stole cars, used dope, [and] probably ran drugs.”
Accordingly, we find defense counsel’s comments were objectively
unreasonable under Strickland.
However, we find defendant’s claim fails because he is
unable to establish the comments had impact on the outcome of his
trial. The evidence against the defendant was overwhelming.
-18-
1-06-0450
Agent Jennings and Detective Katalinic both testified defendant
confessed his involvement in the 1975 triple murder while in
prison for unrelated armed robbery charges. Frank Scott
identified defendant in court and in a lineup as one of the men
he saw in the alley behind Dr. Gluckman’s clinic on the day of
the kidnapping. An accomplice, Love, testified about defendant’s
role in the crimes. While defendant testified he lied to Agent
Jennings and Detective Katalinic regarding his involvement in the
murders and simply relayed information he had overheard from
Love, Detective Katalinic testified defendant gave specific
details regarding the murders that he was not able to get from
anyone else who was questioned, including Love.
Moreover, defendant’s own testimony mitigated the
prejudicial impact of several of defense counsel’s comments.
Defendant testified at trial that he was cooperating with the FBI
while awaiting trial for armed robbery. According to defendant,
he agreed to wear a wire for the FBI when he went to pay back a
cocaine debt he owed to Mike Switek, “a leading mob figure.”
Defendant admitted that when he saw Switek, he did not give him
the money the FBI had provided. Instead, defendant kept the
money and “smoked it up in dope.” Defendant’s own testimony
established the veracity of several of defense counsel’s
allegedly improper opening comments–-that defendant “used dope,”
-19-
1-06-0450
dealt drugs, and associated with people involved in organized
crime.
Because of the overwhelming evidence of defendant’s guilt in
this case, defendant cannot show a reasonable probability that
the outcome of the case would have been different had defense
counsel not made the references to gang activity and unrelated
crimes in his opening statement. See People v. Williams, 368
Ill. App. 3d 616, 622, 858 N.E.2d 606 (2006).
B. Failure to Impeach Love by Omission
Defendant contends his trial counsel was ineffective for
failing to impeach Love by omission. Defendant contends that
given the importance of Love’s testimony, counsel’s failure to
impeach him was objectively unreasonable and prejudicial to
defendant’s case. See People v. Williams, 329 Ill. App. 3d 846,
769 N.E.2d 518 (2002); People v. Mejia, 247 Ill. App. 3d 55, 65,
617 N.E.2d 799 (1993).
At defendant’s second trial, Love testified David Clay and
defendant approached him in Cook County Jail in 1975 or 1976
while they all were on the same tier. Defendant and David Clay
told Love he “needed to keep [his] mouth shut and do the time,
take the weight” for them. Love testified he initially kept
quiet regarding defendant’s involvement in the murders because he
was scared. Later in his testimony, Love again said defendant
-20-
1-06-0450
and David Clay approached him in jail and intimidated him into
not implicating them in the crime. In defendant’s first trial,
however, Love did not say defendant and David Clay tried to
intimidate him. Defendant contends his trial counsel’s failure
to impeach Love with this alleged omission amounted to
ineffective assistance.
Under the rule for impeachment by omission, it is
permissible to use a witness’ prior silence to discredit his or
her testimony if: “(1) it is shown that the witness had an
opportunity to make a statement, and (2) under the circumstances,
a person normally would have made the statement.” Williams, 329
Ill. App. 3d at 854; People v. Conley, 187 Ill. App. 3d 234, 244,
543 N.E.2d 138 (1989). The decision whether to cross-examine or
impeach a witness is generally a matter of trial strategy that
will not support a claim of ineffective assistance. Williams,
329 Ill. App. 3d at 854.
In this case, nothing in the transcript from defendant’s
first trial indicates Love was specifically questioned about
whether he was intimidated by defendant and David Clay while in
jail. During cross-examination, defense counsel asked: “And
while you were at the County Jail some time during that fall of
1975 you saw [defendant]?” After respondent answered yes and
said he was on the same tier as defendant, defense counsel asked
-21-
1-06-0450
Love whether he told defendant he made a statement implicating
him. Love responded that defendant “knew already.” Neither the
State nor the defense questioned Love regarding whether David
Clay was present, or whether defendant attempted to intimidate
Love from testifying. Contrary to defendant’s contention, we
find nothing in the record of the first trial that concretely
suggests Love had an opportunity to make a statement indicating
David Clay and defendant intimidated him.
Because large portions of Love’s testimony in defendant’s
first and second trial were consistent, impeachment by omission
would have been difficult and potentially counter productive. We
find defense counsel was not ineffective for failing to attempt
to impeach Love by omission.
C. Inflammatory Testimony
Defendant contends defense counsel was ineffective for not
moving to strike Love’s non-responsive and inflammatory testimony
on two occasions during his cross-examination.
Prior to jury selection, the prosecutor disclosed that Frank
Love, a key State witness, had informed the State that his
neighbor’s house had been firebombed with a “Molotov cocktail”
the night before. After the State said there was no evidence
linking defendant to the act, the trial court admonished the
State not to bring it up in its case-in-chief. The trial court
-22-
1-06-0450
also cautioned defense counsel not to “open the door” by cross-
examining Love regarding what benefits he might be receiving by
testifying.
During Love’s cross-examination, however, the following
colloquy occurred:
“Q [defense counsel]. Do you have some animosity
toward Mr. Clay, Roosevelt Clay?
***
A. Well, I’ll tell you this since you asked that
question. A firebomb was thrown in the house next door
to me last night, early morning, and I believe his
family had something to do with that. I believe that.
If somebody is firing to firebomb you and your family,
would you have any animosity?
Q. Do you think Mr. Clay --
A. Yes, I do believe that.
***
Q. Does that incident have anything to
do with your testimony here today?
A. No.
Q. Nothing? It has no effect on it?
A. You asked me did I have animosity. That’s
what you asked me.
-23-
1-06-0450
Q. So you have animosity?
A. I believe that family tried to harm
me and my family this morning.
Q. But you have no evidence of this?
A. I’m just telling you my thoughts.
***
Q. Was it your house that was
firebombed?
A. It was my neighbor.
Q. Your neighbor’s house?
A. I think they got the wrong house.
Q. Oh, I see.
A. Let me just say this since we
talking about this. That’s one of the gang’s
intimidation things that they doing in the
city of Chicago now, firebombing witnesses.”
Defendant contends his trial counsel was ineffective for
failing to move to strike Love’s non-responsive answers regarding
the firebombing incident during trial.
Defendant also contends his trial counsel was ineffective
for failing to move to strike Love’s testimony on cross-
examination that David Clay had tried to intimidate him at
gunpoint.
-24-
1-06-0450
During direct examination, Love testified that he was
contacted by “the Clay family” over the years. The trial court
overruled a defense objection to the testimony but instructed
Love to be more specific. Love said “David Clay and his thug
friends” had come to his house several times, wanting him to sign
an affidavit saying that the information defendant had given in
his statements regarding the triple murders had come from
conversations with Love. On cross-examination, the following
occurred:
“Q [defense counsel]. These--you
testified that you were threatened by David
Clay or you perceived some of David Clay’s
conduct as a threat, is that correct?
A. Anytime someone come to your house
with a pistol.
***
Q. You didn’t say that during direct
examination --
COURT: Objection sustained. He’s only
answering questions. Ask a different
question.”
While we recognize defense counsel did not move to strike
Love’s testimony regarding the firebombing incident, we note he
-25-
1-06-0450
did move for a mistrial following Love’s dismissal as a witness,
noting Love seemed “like he was chomping at the bit to get out
this firebombing of his house.” Denying the motion, the trial
court held that defense counsel had “opened that door” with an
open-ended question, and that “[t]he jury never would have known
about [the firebombing] but for the question you asked.”
Regardless of whether a motion to strike would have been
successful, the jury had heard the testimony. The damage was
done.
Even if we were to assume defense counsel’s actions were
objectively unreasonable, we find there was no reasonable
probability that, but for counsel’s failure to move to strike the
allegedly inflammatory testimony, the result of defendant’s trial
would have been different. While Love indicated he believed
defendant’s family was responsible for the firebombing of his
neighbor’s house, he admitted he had no evidence linking
defendant to the crime. Love had already testified extensively
regarding David Clay’s attempts to intimidate him into not
testifying. Because the evidence adduced against defendant in
this case was overwhelming, we find Love’s volunteered testimony
regarding the gun and the firebombing incident did not effect the
outcome of the trial.
D. Closing Argument
-26-
1-06-0450
Defendant contends trial counsel was ineffective for failing
to object to the prosecutor’s improper closing arguments.
Specifically, defendant contends counsel failed to object
when the prosecutor improperly attacked the credibility of Alan
Pollikoff, a defense witness. Defendant contends the
prosecutor’s arguments amounted to a thinly veiled accusation
that Pollikoff was lying because he was paid money--without
evidence to support the accusation.
Although prosecutors enjoy a wide latitude in closing
arguments (People v. Bakr, 373 Ill. App. 3d 981, 990, 869 N.E.2d
1010 (2007)), a prosecutor’s statement that a witness was lying
is improper if it is not based on evidence (People v. Johnson,
114 Ill. 2d 170, 199, 499 N.E.2d 1355 (1986)). Whether we
consider a prosecutor’s statements reversible error depends on
whether the errors were so fundamental as to deny defendant a
fair trial. People v. Nunn, 357 Ill. App. 3d 625, 638-39, 829
N.E.2d 796 (2005).
During rebuttal closing argument, the prosecutor said:
“Franklin Scott, somebody who had nothing to
do with nothing, identifies Roosevelt Clay.
Now, Mr. Pollikoff, being paid by the
Vicelords, and Mr. Clay, when he viewed the
lineup, he had to come up with something for
-27-
1-06-0450
his client.”
We find the prosecutor’s statements that Pollikoff was
“being paid by the Vicelords” and “had to come up with something
for his client” were not supported by the evidence presented at
trial. It was error to make that argument. Still, we find the
prosecutor’s comments did not deny defendant the right to a fair
trial. As we have noted above, the evidence against the
defendant was overwhelming. The judge also instructed the jury
that “closing arguments are not evidence.” Accordingly, we find
defendant is not able to establish he was prejudiced by defense
counsel’s failure to object to the prosecutor’s statement. See
Nunn, 357 Ill. App. 3d at 639.
Defendant also contends his trial counsel failed to object
when the prosecutor misstated the presumption of innocence.
During rebuttal argument, the prosecutor said:
“[defendant] has had a fair trial,
overwhelming evidence has been amassed
against him, he’s had the full benefits of
his rights, and now the presumption of
innocence is gone. It’s time to make him
responsible for the pain and tragedy that
he’s wreaked on people just because he wanted
to make a fast buck.”
-28-
1-06-0450
Following closing arguments, the trial court instructed the
jury that:
“The defendant is presumed to be innocent of
the charges against him. This presumption
remains with him throughout every state of
the trial and during your deliberations on
your verdict and is not overcome unless from
all the evidence in the case you are
convinced beyond a reasonable doubt that he
is guilty.”
While we agree the statement that defendant’s “presumption
of innocence is gone” was a misstatement of law, we find it did
not affect defendant’s substantial rights. The State made only
one reference to the presumption of innocence, and the trial
court extensively explained the presumption of innocence in its
closing comments to the jury. See Nunn, 357 Ill. App. 3d at 638-
39; People v. Brooks, 345 Ill. App. 3d 945, 952, 803 N.E.2d 626(2004).
We find defendant was not prejudiced by his trial counsel’s
failure to object to the prosecutor’s arguments.
E. Cumulative Effect of Errors
Defendant contends the cumulative effect of defense
counsel’s errors rendered his trial fundamentally unfair. While
-29-
1-06-0450
individual errors may have the cumulative effect of denying a
defendant the right to a fair trial, “no such accumulated error
occurs where none of the separate claims amounts to reversible
error.” People v. Dresher, 364 Ill. App. 3d 847, 863, 847 N.E.2d
662 (2006). Because we find defendant was not prejudiced by any
of his trial counsel’s conduct, we also reject his cumulative
error argument. See Dresher, 364 Ill. App. 3d at 863.
CONCLUSION
We affirm defendant’s convictions and sentences.
Affirmed.
GARCIA, and R. GORDON, JJ., concur.
-30-