People v. Love , 285 Ill. App. 3d 784 ( 1996 )

First Division
November 25, 1996
No. 1-95-1893
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY.
)
v. )
)
WILLIE LOVE, ) HORABLE
) JAMES SCHREIER,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE WOLFSON delivered the opinion of the court:
The defendant, Willie Love, was tried and convicted of first
degree murder. He was given a 50-year-sentence. Love claims
errors occurred during trial and because of them he is entitled
to a new trial.
He contends:
1. The prosecutor's comment during rebuttal argument improperly
expressed her opinion of his guilt;
2. The defendant's counsel was ineffective;
3. The State improperly failed to reveal all pending charges
against one of its witnesses.
For reasons that follow, we affirm the defendant's
conviction and sentence.
FACTS
The defendant, Willie Love (Love), was tried and convicted
of the murder of Alberto Rivera (Rivera).
Rivera was killed October 10, 1992.
Horace Harrington (Harrington) testified for the State.
Harrington was a member of the Conservative Vice Lords.
Love was a high ranking member of that gang. Harrington knew who
Love was and was able to identify him in court.
On October 10, 1992, Harrington went to a vacant lot near
his home to buy drugs. The lot was near the corner of Ohio and
Hamlin streets in Chicago.
That day, Love ran a drug business out of the lot. Love was
not directly involved in selling the drugs.
When Harrington got to that lot that day, the sellers had
temporarily run out of heroin. A line had formed. Harrington
got in line. He was a few people behind Rivera. Harrington had
seen Rivera other times when he went to buy drugs.
While Harrington waited in line, Love came in from a near-by
alley. Love walked over to the person selling drugs, Sherman
Strickland (Strickland). After they talked, Love left. When
Love came back, he got into line. He stood a few feet behind
Rivera. Love asked Rivera, "What the fuck up with you?" This is
all Love said to Rivera. Rivera did not say anything to Love.
Love walked towards Rivera.
Harrington noticed that Rivera was kind of high. Rivera had
his head down and he put his hand into his pocket. He got out
some money. Harrington said the money was "what he was going to
buy with," but did not say how he knew that.
Love had a silver gun with a black handle. Love took his
right arm and brought it around, like a pinwheel. When his arm
was parallel to the ground, Love pulled the trigger.
Rivera fell to his knees, then on his face. Everybody
scattered.
Harrington went to a nearby store and called someone from a
phone outside. Harrington saw Love get into Love's black and red
Blazer and leave. Love drove down Ohio toward Avers and straight
down Pulaski. There was someone else in the truck. Harrington
heard four shots come from the truck. He did not see who did the
shooting.
Harrington used heroin every day. He had not used it for a
few days before trial because he had been in police custody for
failure to appear as a witness. Harrington had not appeared on
his own because his family was afraid.
Terry Williams (Williams) testified for the State.
Williams admitted that he was previously convicted of theft,
burglary, and delivery of a controlled substance. He told the
jury he had been to the penitentiary twice and was now in jail
again.
He said that he had a "sell of a controlled substance" case
that had been pending since sometime in 1992. It had not yet
gone to trial. Williams admitted that he did not want to go to
jail again. He said his testimony at Love's trial would not help
the disposition of his own case.
Williams knew Love. Williams also was a member of the
Conservative Vice Lords.
Williams sold drugs for Love's brother. Love dropped off
"packs" and collected money for the operation.
On October 10, 1992, Williams worked security for the drug
operation at the vacant lot. He stood at a corner near the place
where the drugs were being sold. He watched for police.
The first time Williams saw Love that day, Love was driving
around with someone named "Annie Miller." He was driving a red
Blazer with dark tinted windows. Love parked his car.
There was a commotion in the lot. Love left. He drove off
and then came back around. He parked the Blazer and left it.
Love walked toward the lot and up to Rivera.
Love left the lot again. Love got into the Blazer and drove
off. When Love came back, he jumped out of the Blazer with a
gun. He went towards Rivera. Rivera began to argue that he
shopped there every day and he did not want anyone butting in
line.
Williams saw Love "exchange words" with Rivera. Rivera was
not standing in line.
Love cocked his arm back, then "went forward with it." The
gun went off, striking Rivera in the head. Love ran off and
jumped in the Blazer.
After Love left, Strickland and another person working
security, David Lam (Lam), approached Rivera. They took money
out of his hand and pockets.
Williams went to the other side of Hamlin. Strickland came
up to him and said something. Williams left shortly after the
shot was fired.
Love did not return to the area. Williams went home.
Both parties stipulated to the testimony of Doctor Robert
Kirshner (Dr. Kirshner), a forensic pathologist. He performed
the autopsy on Rivera.
Rivera was injured by a single contact gunshot wound. The
entrance of the wound was on the top of Rivera's head, near the
midline. The bullet moved in an anterior direction down and
toward the left. The bullet exited through the mandible,
fracturing it. A photograph showed an exit wound under Rivera's
chin.
Cordell Butler (Butler) testified for Love.
Butler had been on probation since May 1993 for delivery of
a controlled substance.
Butler worked for Love selling narcotics. Love's job in the
drug operation was to make sure everything was in order.
Butler no longer sold drugs because he had been caught.
Butler was a former Conservative Vice Lord. He had quit a few
months before trial.
On October 10, 1992, Butler worked for the drug operation in
the vacant lot. He collected money from the customers. He was
working next to the "Pack Man," the person who sells the
narcotics.
He remembered seeing a "Puerto Rican fellow" who was there
to buy drugs.
According to Butler, Rivera bought $110 worth of drugs, or
11 bags, from Strickland. The bags were very small.
After Rivera bought the drugs, he began walking to an alley.
At this point, another customer in the line, a heavy set "black
guy," caught Rivera about 20 feet from the alley. The second man
had purchased one or two bags of drugs.
The second man grabbed Rivera by the collar. He pulled out
a gun and began to hit Rivera on the top of his head. The second
man told Rivera to give him his drugs. He hit Rivera two or
three times. While he was being struck, Rivera called out to
Strickland, asking for help. The third time, the gun went off.
Rivera was not facing the second man when the shot went off.
Rivera collapsed after he was shot. Butler and Strickland
looked around to make sure they were not shot. Strickland jumped
into the doorway. Two customers ran out the front.
Butler said Rivera was being robbed. Butler said the
shooter did not take anything from Rivera.
After Rivera was shot, Butler, Strickland, and Lam went over
to him. Lam took something from the body, but Butler did not
know what it was. Butler ran from the area. Lam later told
Butler that he took about six or seven heroin packets.
The man who shot Rivera was tall, about six foot five or
seven. He was wearing all brown clothing. Butler did not know
him.
Love was in the area the day the shooting occurred. He did
not shoot the gun. Love did not argue with or push Rivera.
Two police officers also testified during Love's defense
case. The police addressed inconsistencies between Williams' and
Harrington's statements to the police and their testimony at
trial. The inconsistencies involved such details as whether Love
pushed Rivera and whether Love hit Rivera on the head.
The jury started deliberating after lunch. It returned a
guilty verdict at 8:15 p.m. the same day.
Love was given a 50-year-sentence.
OPINION
1. Did prosecutor's comment during rebuttal argument improperly
express her opinion of the defendant's guilt?
After summarizing the evidence during rebuttal argument, the
prosecutor concluded:
"View the evidence. Think about the evidence. We're
certain you're going to come to the same conclusion we
have come to. He's been proven guilty beyond a
reasonable doubt, beyond a scintilla of doubt. The man
is guilty of first degree murder. Please find him so."
Love claims that the prosecutor's comment expressed her
personal opinion about his guilt. He claims that this comment
constitutes reversible error.
Love's attorney did not object to the comment. Love argues
the comment was plain error.
A defendant must object to an error at trial and include the
objection in his or her post-trial motion in order to preserve
the error for review. People v. Mullen, 141 Ill. 2d 394, 401,
566 N.E.2d 222 (1990). If an error is not properly preserved for
appellate review, the plain error rule may be invoked where the
evidence is closely balanced or where the error adversely
affected the defendant's right to a fair trial. Mullen, 141 Ill.
2d at 401-02.
Given the strength of the State's case, we find Love waived
this issue. Even if we were to consider the alleged error, we
would note that prosecutors have a great deal of latitude during
closing argument. For a prosecutor's remark to be considered
reversible error, it must have caused such substantial prejudice
to the defendant that it would have affected the verdict. People
v. Myers, 246 Ill. App. 3d 542, 547, 616 N.E.2d 633 (1993).
A prosecutor cannot express his or her opinion of the
defendant's guilt. People v. Brown, 253 Ill. App. 3d 165, 176,
624 N.E.2d 1378 (1993). For example, in People v. Roach, 213
Ill. App. 3d 119, 124-25, 571 N.E.2d 515 (1991), this court found
reversible error where repeated comments expressing the
prosecutor's opinion were not based on the record, but instead
were intuitive judgments that lay within the jury's province.
Prosecutors may, however, state an opinion which is based on
the record or on a legitimate inference derived from the record.
Brown, 253 Ill. App. 3d at 176. For example, in People v. Hill,
98 Ill. App. 2d 352, 355-56, 240 N.E.2d 801 (1968), a comment
concerning the prosecutor's opinion of the defendant's guilt was
not improper because it was reached after he "listened to the
case."
In this case, the prosecutor said that she had come to the
conclusion that the defendant was guilty after she summarized the
evidence. Her comment clearly was linked to that summary. It
was not intended to place the authority of the prosecutor's
office behind her argument. The single comment was not error.
2. Was defendant's counsel ineffective?
Love argues that he was prejudiced because his counsel was
ineffective.
To prove that defense counsel was ineffective, a defendant
must first show that the defense counsel's performance was
deficient. Strickland v. Washington, 466 U.S. 668 at 685 (1984);
People v. Albanese, 104 Ill. 2d 504, 525, 473 N.E.2d 1246 (1984).
The defendant then must show that this deficient performance
resulted in prejudice. Strickland, 466 U.S. at 685; Albanese,
104 Ill. 2d at 525. This means that the defendant must show that
counsel's errors actually adversely affected the outcome of the
case. People v. Dooley, 227 Ill. App. 3d 1063, 1067, 592 N.E.2d
1112 (1992). The defendant cannot merely speculate that the
results would have been different. People v. Holman, 164 Ill. 2d
356, 369, 647 N.E.2d 960 (1995).
Love claims that his counsel was ineffective in three ways.
Accomplice Instruction
Love argues his counsel was ineffective because he failed to
ask the trial court to give the accomplice instruction, Illinois
Pattern Jury Instruction Criminal 3.17, "Testimony of an
Accomplice." That instruction reads:
"When a witness says he was involved in the
commission of a crime with the defendant, the testimony
of that witness is subject to suspicion and should be
considered by you with caution. It should be carefully
examined in light of the other evidence in the case."
The threshold question is whether Williams can be considered
an accomplice. If not, there would be no reason for the trial
judge to give the Jury Instruction 3.17.
The test for determining whether a witness is an accomplice,
entitling the defendant to the accomplice-witness instruction, is
whether "there is probable cause to believe [he] was guilty as a
principal, on the theory of accountability." People v. Cobb, 97
Ill. 2d 465, 476, 455 N.E.2d 31 (1983), quoting People v.
Robinson, 59 Ill. 2d 184, 191, 319 N.E.2d 772 (1974).
To be considered an accomplice, the witness "must take some
part, perform some act or owe some duty to the person in danger
that makes it incumbent on him to prevent the commission of the
crime." People v. Robinson, 59 Ill. 2d at 191, quoting People v.
Hrdlicka, 334 Ill, 211, 221-22, 176 N.E.2d 308 (1931). An
accomplice is not somebody who was an admitted participant in an
offense distinct from the one at bar, even if the offense was
related to the charge being tried. People v. Henderson, 142 Ill.
2d 258, 314-17, 568 N.E.2d 1234 (1990); People v. Carlson, 224
Ill. App. 3d 1034, 1043, 586 N.E.2d 1368 (1992).
Williams was part of the defendant's drug operation. He was
kind of a security guard. It was the State's theory at trial
that the killing of Alberto Rivera was defendant's method of
keeping the peace at the scene of the drug-dealing business.
At the same time, there is no evidence Williams knew
anything about the killing before it happened or that he had any
direct role in it. Nor is there any evidence that Williams ever
was led to believe any law enforcement agency considered him a
suspect in the murder.
Still, Williams was part of the drug operation and was
acting to further its interests. The murder apparently, although
not clearly, was intended to protect that same business. Since
Williams was part of the unlawful enterprise that the defendant
arguably was seeking to further, by shooting Rivera, we find
there is probable cause to believe Williams was guilty of murder
under accountability principles. See People v. Terry, 99 Ill. 2d
508, 460 N.E.2d 746 (1984).
Under some circumstances, a defense lawyer would be
ineffective for failing to request the accomplice witness
instruction. In People v. Butler, 23 Ill. App 3d 108, 318 N.E.2d
680 (1974), where ineffectiveness was found, the accomplice was a
crucial State witness in a close case. And in People v.
Campbell, 275 Ill. App. 3d 993, 657 N.E.2d 87 (1995), failure to
ask for 3.17 was ineffectiveness where the witnesses admitted
their role in the crime and both admitted they had benefited from
their agreements to testify for the State.
On the other hand, we have held that the general credibility
instruction, telling the jury to consider any interest, bias, or
prejudice the witness might have, was sufficient to cure any
prejudice caused by the failure of defense counsel to request the
accomplice instruction. People v. Lewis, 240 Ill. App. 3d 463,
609 N.E.2d 673 (1992).
In this case, the State contends the failure to ask for
I.P.I. 3.17 must have been a strategic decision. Even if we were
to speculate on defense counsel's reasons for not asking for
3.17, we can't think of one. He should have asked.
Even an able and experienced defense lawyer can make a
mistake. Whether the oversight in this case amounts to
ineffectiveness of counsel is a question we need not decide. The
jury heard about Williams' prior convictions and a pending drug
charge, in addition to his unsavory occupation. Defense counsel
vigorously argued Williams' lack of credibility. Given the
record in this case, we cannot see how the giving of I.P.I. 3.17
would have affected the probable outcome of this trial. Because
the second prong of the Strickland test has not been satisfied,
there is no need to inquire further into counsel's performance on
this point. Failure to prevail on either prong of the Strickland
two-prong test is sufficient to defeat a claim of ineffectiveness
of counsel. People v. Pecoraro, 144 Ill. 2d 1, 13, 578 N.E.2d
942 (1991).
Hearsay Testimony
Love claims he was prejudiced by his attorney's failure to
object to hearsay testimony from Williams.
During his direct testimony, as Williams was about to relate
something that Strickland had told him, Love's counsel objected.
The objection was sustained.
During Williams' cross examination, Williams explained that
he did not hang around long after the shot was fired. In
explaining this, Williams said, "I hung around long enough until
Sherman Strickland told me that Mr. Love said, yaw, haven't seen
anything, you know, just you know, lay low." This statement was
not responsive to the defense lawyer's question. No motion to
strike the answer was made.
Love argues that this hearsay comment lent additional weight
to the State's argument during closing that it was possible other
witnesses failed to testify out of fear. More likely, any
comments referring to witnesses' fear about testifying referred
to the fact that Harrington did not originally show up at trial
because his family was afraid.
Even if Williams' testimony was objectionable, Love's
attorney's failure to object to it well may have been part of his
trial strategy. Love's attorney did not react to Williams'
comment in any way. He continued to question Williams on the
testimony he had given during direct examination. Love's
attorney reasonably could have believed that he would have led
the jury to suspect he was hiding something if he objected, and
decided not to call attention to what Williams had said. See
People v. Campbell, 163 Ill. App. 3d 1023, 1031, 516 N.E.2d 1364(1987) (ignoring hearsay comment acceptable trial strategy).
Even if Love's attorney's failure to object was not trial
strategy, we would find that Love was not prejudiced by it.
While the statement implicated Love, it was not a crucial piece
of evidence. The two eyewitness accounts were much more crucial.
Had the statement been excluded, there is no reasonable
probability that the jury would have acquitted Love. See People
v. Winchel, 159 Ill. App. 3d 892, 903, 512 N.E.2d 1298 (1987).
We cannot say every inartful question that draws a damaging
answer amounts to ineffective assistance of counsel.
Closing Argument
Love claims he was prejudiced because his attorney failed to
object to the prosecutor's comment that she believed Love was
guilty.
As we have said, the comment was not error. Therefore, we
find that Love was not denied effective assistance of counsel
because of his attorney's failure to object to the remark.
3. Did the State improperly fail to reveal all charges
pending against one of its witnesses?
Love claims that he was prejudiced when the State failed to
reveal all pending charges against Williams. Love argues this
failure violated his right to due process. And he maintains the
State violated discovery procedures set out in Supreme Court Rule
412 because it did not disclose "material or information within
[the State's] possession or control which tend[ed] to negate the
guilt of the accused as to the offense charged[.]" Supreme Court
Rule 412(c) (West 1992).
During direct testimony, Williams admitted that he was
previously convicted of theft, burglary, and delivery of a
controlled substance. He admitted he had "a drug case pending."
This court granted Love's request to include a supplemental
record. The supplemental record contains documents showing that
Williams had a second drug case pending at the time of Love's
trial. The two cases were tried and sentences imposed at the
same time.
The State's failure to disclose the second pending charge
was improper and inexcusable.
However, we find that Love was not prejudiced by the State's
failure to disclose Williams' second drug case. A new trial is
not warranted for a violation of Rule 412 unless the violation
was "material," meaning it might have affected the outcome of the
trial. People v. Dugan, 237 Ill. App. 3d 688, 692, 604 N.E.2d
1117 (1992).
Love argues that this case is similar to People v. Preatty,
256 Ill. App. 3d 579, 589-90, 627 N.E.2d 1199 (1994). In
Preatty, the court found a Rule 412 violation "material" and
granted the defendant a new trial. The facts of the case were
relatively simple and the verdict depended on a credibility
determination between the State's witness and the defendant. The
State's witness had been allowed to plead guilty to a felony and
was placed on pre-trial diversion without a conviction with the
prosecutor's approval. The court found that the State's failure
to disclose a possible motivation to lie, known to the
prosecutors, undermined confidence in the verdict.
This case is unlike Preatty in that the jury was aware that
Williams was going to be tried for at least one crime. It was
aware that Williams had been convicted for other crimes and twice
sentenced to the penitentiary. It heard Williams deny he had
made any deals with the State. In his closing argument, Love's
attorney insinuated that even if Williams had denied making any
deals, he was testifying because he was afraid of what would
happen in his pending drug case. It is difficult to imagine that
the jury, having heard so much about Williams' checkered career,
would have arrived at a different verdict had it been aware of
the second charge.
CONCLUSION
We affirm the defendant's conviction and sentence.
AFFIRMED.
BUCKLEY, J., concurs.
BRADEN, J., specially concurs.