Appeal from the Circuit Court of Madison County; the Hon.
Philip J. Rarick, Judge, presiding.
JUSTICE JONES DELIVERED THE OPINION OF THE COURT:
Defendant appeals the judgment of conviction and sentence imposed following a jury verdict finding him guilty of murder and armed violence. Defendant raises the following issues: (1) he was denied a fair trial by improper argument of the prosecutor, (2) he was denied effective assistance of counsel when his attorney failed to impeach a witness with a prior inconsistent statement and declined to call witnesses on his behalf, and (3) he was improperly charged with armed violence because of the double enhancement of a misdemeanor offense in which a weapon was used.
The State's principal inculpatory witnesses were David Taylor, "Fat Sam" Thomas and an ex-girlfriend of the victim. Approximately one week before the killing in question, the defendant accompanied "Fat Sam" Thomas and two others on a trip to Alton to see the deceased, James Jennings. Once in Alton they went to the apartment of Jennings' ex-girlfriend and waited for him. The ex-girlfriend testified that she suspected that the attempted meeting involved drug dealing. A few days later Jennings was seen with a large sum of money, perhaps $1,000 to $1,200. He asked the ex-girlfriend to leave town with him, but she refused.
On Saturday night, November 1, 1980, "Fat Sam" Thomas called David Taylor at midnight and asked him to pick him up. Taylor picked up "Fat Sam" and defendant, and "Fat Sam" gave instructions to Taylor to drive to Alton. While en route, Taylor heard defendant and "Fat Sam" conversing about some person owing them some money. The trio arrived in Alton between 12:45 and 1 a.m. "Fat Sam" told Taylor to stay in the van while he and defendant went into an apartment building. They found Jennings in the apartment of his ex-girlfriend. Jennings told them that his ex-girlfriend had his money and they went looking for her in an apartment next-door. She was not there. The next-door neighbor said that Jennings asked for his ex-girlfriend, then asked him for money. He testified that Jennings looked desperate and nervous and that a tall man and a fat man were waiting for him. The three next walked to the apartment of the ex-girlfriend's parents, but she was not there. The three men then returned to the van and got in. When the defendant, "Fat Sam" Thomas, and the deceased entered the van, "Fat Sam" sat in front with Taylor and defendant and Jennings got in the back seat. Taylor testified that after he started driving he heard a shot from the back of the van. He also heard some tussling and a grunt-like moan. He figured someone had been shot back there. He further testified that he heard defendant say something about blood on the floor in the back of the van. "Fat Sam" Thomas testified that he heard a shot from the back of the van. Both Taylor and Thomas testified that the defendant later told Taylor to stop the van and that he then dragged or threw Jennings' body out of the van. At the time, Taylor had turned the radio up very loud. Taylor testified that the defendant and "Fat Sam" Thomas later washed out the van. "Fat Sam" Thomas testified that the defendant and Taylor later washed out the van. While the three were at the car wash, defendant threw his hat onto the roof. It was later found by police and identified at trial as belonging to defendant.
Taylor initially told police that he had not driven to Alton on the night in question but that he had loaned the van to someone else. He testified that he did not tell the police about the murder because he was afraid. Sometime later "Fat Sam" Thomas told Taylor to tell the police what had happened, adding that he was sorry for involving Taylor in the incident.
"Fat Sam" Thomas initially told the police that he did not know Jennings and had not gone to Alton. He testified at trial that he did not remember exactly what had occurred. He had previously spoken with the St. Clair County public defender and told him that he had no recollection of the facts of the case.
Crime technicians testified for the State. A foot impression taken near the place where the body of the deceased was found was similar to defendant's shoe. Shotgun pellets found in the back of Taylor's van were similar to those found in the victim's hand. Flesh and bone fragments were found in the back of the van. A gold-colored fiber found on the road near the body of the victim was consistent with fiber in the carpet in the back of the van. Blood samples from the van were consistent with the victim's blood type.
As his initial issue defendant contends that in the rebuttal portion of his final argument the prosecutor made an argument that was inflammatory, prejudicial, not based upon any evidence in the record, and so prejudicial that it denied him a fair trial.
In that argument the prosecutor stated in pertinent part:
"[Mr. Jensen, Assistant State's Attorney]: Again, sometimes it's easy to think that, `Well, this is the type of crime that doesn't touch me or my family.' Or, `This is the kind of crime that's isolated, and people in ghettos and projects have to put up with that kind of thing.' That's not true. People like Mrs. Joiner [a witness for the State], people around the area, they depend on the juries in Madison County to see that law and justice is done. When an offense like this is committed, it's a tragedy. But what would have been more a tragedy is if, when that person was getting shot, someone had been witnessing it, someone had been standing in the way of the pellets, or someone had seen something, and they too would have had to have been killed. Because this man is very careful about cleaning up his evidence. The hat, throwing it away. The van, washing it out.
To prevent further crime, you must find him guilty. Because you cannot let this man out to do again what he has done. Because he'll be a little more careful next time. And there won't be any witnesses. Or there will be witnesses that he makes sure don't talk.
The witnesses that have testified, you noticed that some of the later witnesses happened to be very hesitant to answer? Wouldn't you be when you saw who was in the back of the courtroom here? Up from East St. Louis, or wherever they're from?
MR. HAWKINS: I would object to that, ...