People v. Love ( 2007 )

FIRST DIVISION
November 5, 2007
No. 1-06-0446
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
RODNEY LOVE, ) Honorable
) Marjorie C. Laws,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Following a jury trial, defendant Rodney Love was found
guilty of first degree murder and sentenced to a 30-year prison
term. Defendant’s sentence was enhanced an additional 25 years
because a firearm was used to commit the offense. On appeal,
defendant contends: (1) he received ineffective assistance of
trial counsel; (2) he was prejudiced by the prosecutor’s improper
comments; (3) the trial court erred in allowing the State to
present evidence of “Major Case” prints, which created an
inference of significant criminal history; and (4) the trial
court coerced the jury into reaching a verdict. We affirm the
defendant’s conviction and sentence.
FACTS
On August 28, 2002, Lyphus Pouncy stopped his car at a
traffic light at 51st Street and Morgan. A male rode a bicycle
up to the passenger side window and fired two shots into the car,
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killing Pouncy.
On September 7, 2002, Chicago Police Officers Lori Bechina
and Carolyn Keating were conducting on-street interviews
regarding several murders in the area when they saw defendant
remove a black object from his waistband, drop it to the ground,
and run. Officer Bechina chased after him. When Officer Keating
went to where defendant had been standing, she recovered a .45
caliber semi-automatic handgun. After chasing defendant to his
grandmother’s house, Officer Bechina placed him in custody. The
officers recovered a clear plastic sandwich baggie from
defendant’s pocket. The bag held 20 small knotted packets, each
containing a white rock-like substance. The handgun recovered by
Officer Keating was determined to have been used in the victim’s
shooting.
Chris Young, the victim’s cousin, testified at trial that he
could see the 51st Street and Morgan intersection from his third
floor apartment window. At around 3:15 p.m., he was looking out
the window when he saw the victim drive up to the traffic light
in a green car. Young saw a dark-skinned male with braided hair
ride a girl’s bicycle towards the passenger side of the victim’s
car. Young had never seen the person before. Although Young had
an unobstructed view of the person’s face, he could not tell the
person’s height or weight. Young saw the male on the bike pull a
gun from his waistband and fire two shots at the victim. Young
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identified defendant in a lineup as the person who shot the
victim. Young also identified defendant at trial. Young
identified a girl’s bike in a photograph as similar to the bike
he saw defendant riding during the shooting. Young admitted he
saw the bike in the photograph at the police station on the day
he participated in the lineup. The photograph, which was
admitted as People’s Exhibit 18, depicts a purple girl’s bicycle
with white tires. Young was on house arrest for a weapon charge
when he witnessed the murder. Young admitted defendant was the
only individual in the lineup with braided hair.
Ronald Neal, a friend of the defendant, testified he and
defendant sold drugs out of the defendant’s grandmother’s house
on West 51st Street. Defendant was a member of the Black P Stone
gang, which was feuding with the Bar None Stones. In July 2002,
a Bar None gang member shot defendant’s cousin in the foot.
Defendant pointed out the victim to Nash once or twice after his
cousin's shooting, saying “stay away from the Bar Nones.” Neal
said he did not know the victim; however, on cross-examination he
admitted serving time with the victim in the juvenile department
of corrections.
On August 28, 2002, Neal, defendant, and Derek Nash were
hanging out at the defendant’s grandmother’s house playing video
games and selling drugs. Nash, who was the defendant’s cousin,
was dark-skinned and had braided hair. At around 3:15 p.m.,
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defendant told Neal he was leaving to buy drugs. He left the
house on a purple girl’s bicycle with white tires while wearing a
white t-shirt, blue jean shorts, and his hair in braids. Neal
saw the defendant tuck a .45 caliber handgun into his waistband.
A few minutes later Neal heard two gunshots. Defendant returned
a few minutes later sweating and shaking. He brought the bike
into the house. Defendant told Neal he shot the victim. When
Neal said he did not know who defendant meant, defendant said
“the guy in the green car.” Nash was shot and killed later that
evening. Neal identified the bike depicted in People’s Exhibit
18 as the bike he saw defendant riding on August 28.
Forensic scientist Kent Murray testified that he compared
the recovered handgun with two shell casings recovered from the
street where the shooting occurred. He concluded the shells were
fired from the same gun. He could not determine whether the
bullet recovered from the door of the victim’s car had been fired
from defendant’s gun. A bullet core recovered from the victim’s
body was not suitable for comparison.
Defendant denied killing the victim. He testified that on
August 28, 2002, he was at home all day with his grandmother, his
father, his infant daughter, his infant daughter’s mother, and a
friend named Stephanie. Defendant said Nash and Neal came to his
house around 2 p.m. After defendant gave them money to buy
drugs, Neal and Nash left together. Neal came back alone a few
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moments after defendant heard gunshots. Neal told defendant Nash
had shot someone. According to defendant, Nash told him he shot
the victim. Defendant did not go to the police because Nash was
shot and killed later that night.
Defendant testified the handgun recovered by the police
belonged to Neal. According to defendant, he was trying to buy
the handgun from Neal when the police arrived. When Neal saw the
police officers, he placed the gun between defendant’s legs and
let it fall to the ground. Defendant ran because he was afraid
of getting caught with drugs.
The jury found defendant guilty of first degree murder. The
jury also found defendant personally discharged the firearm that
caused the victim’s death. Following a sentencing hearing, the
trial court sentenced defendant to a 30-year prison term for
first degree murder. Defendant was sentenced to an additional
25-year prison term pursuant to the sentencing enhancement.
Defendant appeals.
DECISION
I. Ineffective Assistance
A defendant’s claim for ineffective assistance of counsel
has two components:
"First, the defendant must show that
counsel’s performance was deficient. This
requires showing that counsel made errors so
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serious that counsel was not functioning as
the ‘counsel’ guaranteed the defendant by the
Sixth Amendment. Second, the defendant must
show that the deficient performance
prejudiced the defense. This requires
showing that counsel’s errors were so serious
as to deprive the defendant of a fair trial,
a trial whose result is reliable."
Strickland v. Washington, 466 U.S. 668, 687,
80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).
A finding that one component has not been satisfied is fatal
to defendant’s claim as a whole. Strickland, 466 U.S. at 687, 80
L. Ed. 2d at 693, 104 S. Ct. at 2064. We first address the
prejudice prong. The defendant must show there is a reasonable
probability, that is "a probability sufficient to undermine
confidence in the outcome," (Strickland, 466 U.S. at 693-94, 80
L. Ed. 2d at 698, 104 S. Ct. at 2068), that the result of the
proceeding would have been different, but for defense counsel’s
errors. People v. Stewart, 141 Ill. 2d 107, 118-19, 565 N.E.2d
968 (1990). To prevail on an ineffectiveness claim for failure
to file a motion to suppress, "defendant bears the burden of
showing that the motion would have been granted and that the
trial outcome would have been different if the evidence had been
suppressed." People v. Kelley, 304 Ill. App. 3d 628, 636, 710
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N.E.2d 163 (1999). Providing effective legal assistance does not
require defense counsel to make losing motions. Kelley, 304 Ill.
App. 3d at 636.
In a motion to suppress identification testimony, the
defendant bears the burden of proving a pretrial identification
was impermissibly suggestive. People v. Enis, 163 Ill. 2d 367,
398, 645 N.E.2d 856 (1994). "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 14th amendment." People v. Moore, 266 Ill.
App. 3d 791, 796-97, 640 N.E.2d 1256 (1994), citing Neil v.
Biggers, 409 U.S. 188, 196-97, 34 L. Ed. 2d 401, 93 S. Ct. 375
(1972). Participants in a lineup are not required to be
physically identical. People v. Saunders, 220 Ill. App. 3d 647,
666, 580 N.E.2d 1246 (1991).
Illinois courts have consistently held a lineup is not
impermissibly suggestive simply because the defendant was the
only person in the lineup with braided hair.
In People v. Trass, 136 Ill. App. 3d 455, 483 N.E.2d 567
(1985), the defendant argued he was not proved guilty beyond a
reasonable doubt because the lineup was impermissibly suggestive.
Defendant was the only person in the lineup with braided hair.
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The court found the lineup was not impermissibly suggestive
because the police did not force the defendant to wear his hair
in braids, and the braided hair was not such a distinguishing
characteristic as to make the lineup "grossly suggestive."
Trass, 136 Ill. App. 3d at 463.
In People v. Washington, 182 Ill. App. 3d 168, 175, 537
N.E.2d 1354 (1989), the court upheld the denial of defendant’s
motion to suppress where defendant was the only person in the
lineup with braided hair. The court noted the police did not
force the defendant to wear his hair in braids, and the witnesses
provided accurate descriptions of the defendant beyond his hair.
Washington, 182 Ill. App. 3d at 175. One witness correctly
described the defendant’s height and weight, while another
accurately described defendant’s facial hair. Washington, 182
Ill. App. 3d at 175.
In People v. Hartzol, 222 Ill. App. 3d 631, 642-43, 584
N.E.2d 291 (1991), the court applied the point from Trass and
Washington to say that where the "defendant is not forced to wear
his hair in braids and there are no other significant physical or
racial differences among the participants," the lineup is not
impermissibly suggestive. The court noted defendant’s argument
was especially weak because the witnesses testified the
defendant’s braids were styled differently in the lineup than
they were at the time of the crime. Hartzol, 222 Ill. App. 3d at
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643. The court upheld the trial court’s denial of defendant’s
motion to suppress. Hartzol, 222 Ill. App. 3d at 642-43.
Here, defendant’s lineup is somewhat different from the
lineups in the cases because in Washington and Hartzol the
witnesses provided a description of the criminal that was more
complete and detailed than Young’s. Nevertheless, it is not
reasonably probable that a court would find defendant’s lineup
impermissibly suggestive based on defendant’s hair.
Here, the facts indicate there was not a "substantial
likelihood of irreparable misidentification." There is no
evidence defendant was forced to wear braids at the lineup. All
the participants in the lineup shared a similar skin tone and
wore neutral clothing. Defendant does not claim any significant
physical or racial differences existed, beyond his braided hair.
Additionally, Young was able to see the criminal’s face at the
time of the crime; his identification of the defendant was not
based solely on defendant’s hair.
We have carefully reviewed the photographs of the lineup in
question. We find no evidence of an attempt to focus the
witness’s attention on the defendant. We also note defense
counsel made strategic use of the fact the defendant was the only
one in the lineup with braids. Counsel used it to make the claim
that Nash, not the defendant, was the shooter, since the evidence
showed Nash also was dark-skinned and wore braids. The strategy
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was unsuccessful, but it was sound.
We find the lineup was not impermissibly suggestive. There
is no need to inquire into the admissibility of the in-court
identification of the defendant by Young.
II. Prosecutorial Misconduct
Defendant contends the prosecutor made several improper
comments during rebuttal closing arguments, including shifting
the burden of proof, minimizing the burden of proof, improperly
bolstering the credibility of the forensic witness, arguing
defense counsel tried to mislead the jury, and arguing
defendant’s “flight” during his arrest could be considered
consciousness of guilt. Defendant also contends the prosecution
made an improper comment regarding other crimes evidence during
his cross-examination.
Initially, the State contends any objection to the
prosecutor’s statements during closing argument and cross-
examination was forfeited due to defendant’s failure to properly
raise the issues in his post-trial motion.
“To preserve claimed improper statements during closing
argument for review, a defendant must object to the offending
statements both at trial and in a written post-trial motion.”
People v. Wheeler, 226 Ill. 2d 92, 122, 871 N.E.2d 728 (2007),
citing People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124
(1988). After reviewing defendant’s post-trial motion, we find
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defendant failed to properly preserve several of the
prosecutorial misconduct issues he raises on appeal. Contrary to
the State’s contention, however, we find defendant properly
preserved two of his prosecutorial misconduct issues--whether
defense counsel was accused of trying to mislead the jury and
whether the prosecution made an improper comment regarding other
crimes evidence during his cross-examination.
Defendant contends we should review all of the prosecutorial
misconduct issues under the plain-error doctrine. The plain-
error doctrine allows us to address an unpreserved error when
“either (1) the evidence was closely balanced, regardless of the
seriousness of the error, or (2) the error is serious, regardless
of the closeness of the evidence.” People v. Herron, 215 Ill.
2d 167, 178, 830 N.E.2d 467 (2005). Defendant contends both
theories are applicable here. We disagree.
Here, Young identified defendant as the shooter in a lineup
and at trial. Officer Keating testified she recovered a handgun
defendant dropped to the ground before running from the police;
the gun later was identified as the murder weapon. Neal
testified defendant told him he shot the victim. We find the
evidence was not closely balanced in this case. We also find the
alleged instances of prosecutorial misconduct were not so serious
that they denied defendant a fair trial. We therefore focus our
attention on the statements properly preserved for appeal. See
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Wheeler, 226 Ill. 2d at 122.
Prosecutors are afforded wide latitude in closing argument.
Wheeler, 226 Ill. 2d at 123. “The trial court’s determination
that closing arguments were proper will be upheld absent an abuse
of discretion.” People v. Williams, 228 Ill. App. 3d 981, 997,
593 N.E.2d 968 (1992). Prosecutorial misconduct warrants
reversal only if it “caused substantial prejudice to the
defendant, taking into account the content and context of the
comments, its relationship to the evidence, and its effect on the
defendant’s right to a fair and impartial trial.” People v.
Johnson, 208 Ill. 2d 53, 115, 803 N.E.2d 405 (2004). A
prosecutor’s comments during rebuttal argument will not be deemed
improper, however, if they were invited by defense counsel’s
closing argument. People v. Bakr, 373 Ill. App. 3d 981, 990, 869
N.E.2d 1010 (2007); People v. Watson, 342 Ill. App. 3d 1089,
1093, 796 N.E.2d 1087 (2003).
A. Defense Counsel Tried to Mislead the Jury
Defendant contends the prosecutor improperly accused defense
counsel during rebuttal argument of acting “ridiculous” and
focusing on “nonsense” instead of facts or evidence. Defendant
also contends the prosecutor’s comment that “[the defense]
want[s] to distract you” improperly suggested defense counsel was
trying to free his client through deception and trickery.
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“Unless predicated on evidence that defense counsel behaved
unethically, it is improper for a prosecutor to accuse defense
counsel of attempting to create reasonable doubt by confusion,
misrepresentation, or deception.” People v. Johnson, 208 Ill. 2d
53, 82, 803 N.E.2d 405 (2003). However, “a prosecutor may
comment on the persuasiveness of the defense theory of the case
as well as any supporting evidence and reasonable inferences
drawn therefrom.” People v. Abadia, 328 Ill. App. 3d 669, 678,
767 N.E.2d 341 (2001). “[W]here the complained-of remarks are in
response to opposing counsel’s own statements contradicting the
credibility of a witness, there is no prejudicial error.” People
v. Carson, 238 Ill. App. 3d 457, 468, 606 N.E.2d 363 (1992).
We find the prosecutor’s comments were invited by defense
counsel’s closing argument. Each of the challenged comments
directly responded to defense counsel’s attempts to impeach
certain witnesses or comment on the persuasiveness of the defense
theory of the case. Accordingly, we find the prosecutor’s
challenged comments were not improper. See Watson, 342 Ill. App.
3d at 1093.
B. Other Crimes Evidence
Defendant contends the prosecutor insinuated uncharged other
crimes evidence during the defendant’s cross-examination when he
questioned defendant regarding whether he had talked with his
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father about the content of his father’s testimony prior to
testifying. Although defendant recognizes an objection to the
question was sustained, he contends the State erred by making no
effort to perfect the impeachment or demonstrate a crime
occurred.
After the trial court sustained the objection and instructed
the jury to disregard the question, the State was precluded from
pursuing the line of impeachment any further. In light of the
trial court’s ruling and instruction to the jury, we find the
defendant was not harmed by the alleged error.
III. Major Case Prints
Defendant contends the evidence of "major case prints" was
prejudicial because it implied he had an extensive criminal
background and a propensity to commit serious crimes. Evidence
of other crimes for which a defendant is not on trial is
inadmissible if its only relevance is to show the defendant’s
propensity to commit crime. People v. Jackson, 372 Ill. App. 3d
112, 121, 865 N.E.2d 195 (2007). It tends to overpersuade the
jury, which might convict the defendant because it thinks
defendant is a bad person deserving of punishment. Jackson, 372
Ill. App. 3d at 121.
Defendant has forfeited this issue by failing to object to
the evidence at trial and failing to include the issue in his
post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186-87, 522
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N.E.2d 1124 (1988). Even if the issue were not forfeited, we
would disagree with defendant’s characterization of the evidence
as inadmissible "other crimes" evidence.
Forensic scientist and latent print examiner Christi Fischer
testified she received ten latent print lifts and eight major
case print cards marked with defendant’s name. She compared six
of the latent fingerprint impressions to the inked major case
print cards and concluded the prints did not match. Fingerprint
technician Stanley Mocadlo testified he received an order for
major case prints of defendant. He explained major case prints
"entail not only taking a set of fingerprints by rolling a
person’s fingers in ink and then on a contrasting card. But also
entails taking the tips, the sides of the fingers, and the joint
in the fingers and also the palm." Mocadlo said once the prints
were completed, they were taken to the lab.
Defendant says the evidence of eight major case print cards
implied defendant’s involvement in seven previous major cases.
There was no testimony the term "major case prints" referred
to the severity of any prior criminal convictions. Additionally,
the testimony referred to eight "cards," not eight "cases." The
fair inference from Mocadlo’s testimony is that the eight cards
were from the current case. There was no fingerprint match. The
State introduced into evidence his two prior criminal
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convictions. We conclude there was no error in the court’s
allowance of the testimony concerning defendant’s major case
prints.
IV. Coercion of Minority Jurors
Defendant contends the trial court misled and coerced the
minority jurors into reaching a verdict when it responded, "keep
deliberating" to the jury’s notes. The jury retired to
deliberate at 1:30 p.m. on Monday, November 7, 2005. At 2:15
p.m., the jury sent the judge a note with three questions: (1)
"May we see the copy of Officer Keating and Bechina’s arresting
report 9-7-02? (2) Was the gun ever dusted for prints after
arrest on 9-7-02? (3) Was the bike dusted for prints? When and
where was the bike recovered?" After discussion with the
parties, the court responded at 2:41 p.m., "You have all of the
evidence as to these questions. Please continue with your
deliberations." At 3:32, the jury sent a note requesting the
transcript from the court reporter. The court asked the jury to
clarify which transcript. The jury asked for Young’s and Neal’s
testimony. The transcripts were tendered at 3:47 p.m. At 5:05
p.m., the jury sent two notes to the judge stating, "If all the
people do not feel the same, what happen [sic]," and "We have 3
Not guilty and the rest guilty." Defense counsel suggested the
court respond that the jury is hung. Counsel then agreed to the
response, "keep deliberating." The court answered both questions
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at 5:22 p.m.: "Keep deliberating." At 5:50 p.m., the jury
requested to see "all the defense evidence." The court responded
at 6:30 p.m.: "You have received the evidence. Continue to
deliberate." The defense made a motion for a hung jury. The
court denied the motion. The jury returned its verdict at 7:20
p.m.
Defendant contends the responses, "keep deliberating," to
the jury’s notes sent at 5:05 p.m. were particularly coercive
because the judge knew one of the jurors was scheduled for
surgery the following day and would be unable to continue the
deliberations.
During voir dire, juror Denise Engler informed the court she
had surgery scheduled for Tuesday, November 8, 2005. The jury
began deliberations at 1:30 p.m. on Monday, November 7, 2005, and
reached its verdict at 7:20 p.m.
Defense counsel agreed to respond "keep deliberating" to
both notes. Where a defendant acquiesces in a trial court’s
answer to a jury’s question, he cannot later complain that the
trial court abused its discretion. People v. Reid, 136 Ill. 2d
27, 38, 554 N.E.2d 174 (1990); People v. Sutton, 252 Ill. App. 3d
172, 182, 624 N.E.2d 1189 (1993). Defense counsel also agreed to
allow the juror who was scheduled for surgery to remain on the
jury and did not object to dismissal of the alternate. We do not
know where she stood at the time the jury sent out its notes.
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We see no error in the trial court’s response to the jury’s
notes. A trial court may not "hasten" a verdict by giving an
instruction intended to coerce jurors into surrendering their
views. People v. Boyd, 366 Ill. App. 3d 84, 851 N.E.2d 827
(2006); People v. Gregory, 184 Ill. App. 3d 676, 680-81, 540
N.E.2d 854 (1989). "A court’s instruction to a jury to continue
deliberating should be simple, neutral, and not coercive" and
should avoid implying that the majority view is the correct one.
Gregory, 184 Ill. App. 3d at 681. "[T]he test is whether, upon
examination of the totality of circumstances, the language used
actually coerced or interfered with the deliberations of the jury
to the prejudice of the defendant." People v. Branch, 123 Ill.
App. 3d 245, 462 N.E.2d 868 (1984).
Defendant also contends the trial court should have
instructed the jury consistent with the suggested instruction in
People v. Prim, 53 Ill. 2d 62, 75-76, 289 N.E.2d 601 (1972):
"Your verdict must be unanimous. It is your
duty, as jurors, to consult with one another
and to deliberate with a view to reaching an
agreement, if you can do so without violence
to individual judgment*** In the course of
your deliberations, do not hesitate to
reexamine your own views and change your
opinion if convinced it is erroneous. But do
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not surrender your honest conviction as to
the weight or effect of evidence solely
because of the opinion of your fellow jurors,
or for the mere purpose of returning a
verdict***"
The mere failure to give a Prim instruction is not
reversible error. Gregory, 184 Ill. App. 3d at 681. The aim of
the suggested instruction in Prim was to avoid instructing jurors
to "heed the majority" as a means of securing a verdict.
Gregory, 184 Ill. App. 3d at 681. The trial judge’s instruction
to "keep deliberating" was simple, neutral, and non-coercive. It
did not imply to minority jurors that the majority view was the
correct one. There was no error in the judge’s instruction or in
the failure to give a Prim instruction. We note defense counsel
did not ask for a Prim instruction.
Citing People v. Santiago, 108 Ill. App. 3d 787, 439 N.E.2d
984 (1982), defendant contends the court’s instruction was
particularly coercive where the jury volunteered the number of
jurors favoring conviction and acquittal. In Santiago, the trial
court repeatedly called the jury into open court and asked the
numerical division of the jury, then ordered the jury to continue
deliberations. Here, the jury volunteered the information a
single time, and the court responded, "keep deliberating."
The defendant contends the court abused its discretion in
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failing to answer the jury’s question, "If all the people do not
feel the same, What happen [sic]." The trial court has a duty to
provide instruction to the jury where it has posed an explicit
question or requested clarification on a point of law arising
from facts about which there is doubt or confusion. People v.
Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534 (1994). A trial
court may exercise its discretion and properly decline to answer
a jury’s inquiries where the instructions are readily
understandable and sufficiently explain the relevant law; where
further instructions would serve no useful purpose or would
potentially mislead the jury; when the jury’s inquiry involves a
question of fact; or if providing an answer would cause the court
to express an opinion likely to direct a verdict. People v.
Pulliam, 176 Ill. 2d 261, 285, 680 N.E.2d 343 (1997).
The jury was instructed: "Your agreement on a verdict must
be unanimous." We believe the instruction sufficiently explained
the relevant law. Defendant has not shown he was prejudiced by
the trial court’s failure to explicitly answer the jury’s
question. See Pulliam, 176 Ill. 2d at 284-85 (no error in
court’s response, "You have your instructions. Keep deliberating"
in response to jury’s question, "What happens if we cannot reach
a unanimous decision?")
CONCLUSION
We affirm the defendant’s conviction and sentence.
Affirmed.
GARCIA, and R. GORDON, JJ., concur.
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