Appeal from the Circuit Court of Cook County; the Hon. Leonard
Grazian, Judge, presiding.
PRESIDING JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
After a jury found defendant guilty of murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1), attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, pars. 8-4 and 18-2), and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), he was sentenced to a natural life term of imprisonment. Defendant appeals from his conviction and sentencing, raising as issues whether: (1) various instances of prosecutorial misconduct denied him a fair trial; (2) evidence of his identification at an uncounseled lineup was improperly admitted; (3) the circuit court erroneously denied his motion to discharge his jury panel; and (4) his sentence was excessive.
On June 29, 1981, John Stewart was shot to death during an attempted armed robbery in a take-out restaurant. The following day, Chicago police officers signed a complaint naming defendant as the perpetrator, and a warrant for defendant's arrest was issued. Defendant was arrested on August 1, 1981, and was placed in a lineup at the district police station, but no attorney was present on his behalf.
Prior to trial, the circuit court denied defendant's motions: to suppress identification testimony and defendant's statements based on alleged violations of his right to counsel; to suppress his statements based on voluntariness; to discharge his jury panel; and to conduct a hearing to determine how his venire was selected.
At trial, the State introduced evidence to the effect that at about 11 p.m. on June 29, 1981, two men in a van were involved in a "commotion" with three pedestrians who were standing in front of the van at 69th and Wentworth. When the light on 69th turned green, one of the pedestrians told the driver of the van to "[p]ull it over," which he did, to the east side of Wentworth. Defendant was recognized as one of the men by a witness who passed within three feet of him. The witness knew defendant's family and was a friend of his brother. Defendant drew a gun, went up to the passenger side of the van, put his arm inside and a shot went off. The van pulled away. Defendant and his companions proceeded to the entrance of a restaurant near the southeast corner of 69th and Wentworth. The lighting was very good, as the restaurant "lights up the whole corner." While his companions remained outside, defendant entered the restaurant and pulled the gun on the "guy that was inside." The victim put his hands up in the air, and words appeared to be exchanged. When several shots rang out, the men on the street ran south on Wentworth, followed closely by defendant. The victim went to the door, crouching and holding his chest, and peered outside. Defendant turned around, fired another shot, and the victim fell back into the restaurant. The witness named defendant to police as the offender. That night, he identified defendant's picture from a group of photographs he was shown. He also identified defendant in a lineup on August 1, 1981.
The driver of the van testified and essentially corroborated the evidence related to the shooting incident involving the van. He and his brother returned to the scene later that night and told police what had taken place earlier. The next day he was shown some pictures and he selected that of defendant as the man who had fired the gun in the van. On August 1, 1981, he viewed a lineup and identified defendant as the assailant. The van driver's brother testified in similar fashion, corroborating his brother's testimony. He selected defendant's photograph from a number of pictures he was shown by police the next day; he also identified defendant at a lineup conducted on August 1, 1981.
The proprietress of the restaurant at 6903 South Wentworth testified that the victim, a regular customer, entered her restaurant at about 11:20 p.m. on June 29, 1981, and placed and paid for his order. A man then entered the restaurant, crouching, with his right hand extended, and approached the victim. She heard three shots and called police, who arrived shortly thereafter. The victim was lying on the floor, along with his money and his Crown Royal bag. Although she saw the assailant's face, she could not positively identify him.
A witness from the Cook County medical examiner's office testified that the victim's death was caused by "a gunshot wound of the chest involving the heart and lungs."
For the defense, witnesses testified to certain factual discrepancies in the testimony given by some of the State's witnesses and that the two shooting occurrence witnesses viewed the lineup individually and made "tentative" identifications of defendant. The defense then rested.
After being found guilty, defendant waived his right to have a jury determine whether to impose the death sentence, sought by the State. The court, however, found sufficient mitigating factors to preclude imposition of the death penalty. Defendant's motion for a new trial was denied and, at a separate sentencing hearing, the court sentenced defendant to a natural life term of imprisonment. This appeal followed.
• 1 Defendant initially contends that he was denied a fair trial because of repeated acts of prosecutorial misconduct during closing argument. We are compelled to agree. Our examination of the State's rebuttal argument reveals a litany of remarks so vituperative and inflammatory that they could only have created an atmosphere inimical to the even-handed dispensation of justice and thus resulted in prejudice to defendant. We shall examine only the most flagrant instances of this misconduct to illustrate the bases for this conclusion.
First, the prosecutor repeatedly attacked the professional integrity of defense counsel, charging him with "lying" some 16 times, as well as with trying to "confuse" and "intimidate" the jury in an effort to win defendant's acquittal, a practice which our courts> have condemned (e.g., People v. Emerson (1983), 97 Ill.2d 487, 497, 455 N.E.2d 41; People v. Starks (1983), 116 Ill. App.3d 384, 394, 451 N.E.2d 1298), as serving merely to antagonize the jury and try the lawyers rather than the issue of guilt. (People v. Suggs (1977), 50 Ill. App.3d 778, 783, 365 N.E.2d 1118; see also People v. Polenik (1950), 407 Ill. 337, 348, 95 N.E.2d 414.) Such remarks are "inflammatory in the extreme," regardless of the strength of the State's case. People v. Brown (1983), 113 Ill. App.3d 625, 630, 447 N.E.2d 1011.
The State argues that the remarks were "invited" responses to defense counsel's failure to produce certain evidence "promised" by his opening statement. The State may properly comment on such failure (People v. Durso (1968), 40 Ill.2d 242, 253, 239 N.E.2d 842, cert. denied (1969), 393 U.S. 1111, 21 L.Ed.2d 807, 89 S.Ct. 923; but see People v. Britt (1974), 22 Ill. App.3d 695, 707-08, 318 N.E.2d 138), but repeated references to it as counsel's "lying" transcended the scope of any "invitation" and were merely inflammatory. The State's contention, that other references to "lying" were invited when defense counsel interrupted the prosecutor's rebuttal argument to state that co-defendant Michael Williams "ha[d] pled guilty and it was part of the deal that he would not testify for us," cannot be sustained. Although the interruption was improper, there is no record indication that the substance of counsel's remark was untrue and merited characterization as counsel's "lies." Lastly, defense counsel's statement in closing argument that defendant's lineup identification was unduly suggestive because he alone in the lineup wore a white shirt was supported by testimony of a prosecution witness who conceded on cross-examination that defendant was the only man in the lineup photograph wearing a long-sleeved white shirt. Such evidence dissipates the claimed invitation to respond to counsel's "lying." The profusion and gratuitous nature of the prosecutor's accusations made counsel's alleged prevarication the prevailing theme of the State's rebuttal argument, were extremely prejudicial, and could serve no purpose other than to inflame the passion of the jury. People v. Suggs (1977), 50 Ill. App.3d 778, 365 N.E.2d 1118; People v. Brown (1983), 113 Ill. App.3d 625, 447 N.E.2d 1011.
The prosecutor, furthermore, misstated applicable law. As one example, it was stated, "Ladies and gentlemen, the defendant has been cloaked with innocence, but now that innocence is gone because the hand of guilt * * * pointed to the defendant, Willie Ray." The presumption of an accused's innocence continues until the jury is convinced otherwise ...