Appeal from the Circuit Court of Cook County; the Hon. James
M. Bailey, Judge, presiding.
JUSTICE LORENZ DELIVERED THE OPINION OF THE COURT:
JUSTICE LORENZ delivered the opinion of the court:
Following a jury trial, defendant Joseph Rodriguez was convicted of two counts of murder (Ill. Rev. Stat. 1981, ch. 38, par. 9-1), and was sentenced to natural life in prison. He contends on appeal that a suggestive in-court identification by a witness and improper comments by the prosecutors deprived him of a fair trial. He also contends that the imposition of a natural life sentence upon a minor violates the United States and Illinois constitutions. Our disposition is based on the following facts.
Renaldo Hernandez testified that he had known defendant for years and that he and defendant were members of the Kool Gang. In 1981, a dispute arose between the Kool Gang and another southwest side street gang, the Villalobos. According to Hernandez, his gang believed that Charles Palmer, a member of the Villalobos, had a Kool Gang jersey. Defendant discussed the jersey with Charles Palmer several times during the summer and fall of 1981.
On December 12, 1981, defendant and Hernandez observed Joey and Theresa Palmer walking homeward; they mistook Joey for his brother, Charles. Defendant asked Hernandez if he wanted to kill them, and Hernandez responded that it was up to defendant. Hernandez went home for a gun which he said he had been holding for defendant. Defendant took the gun and positioned himself in hiding along Joey and Theresa's route. As Joey and Theresa passed him, defendant crossed the street, then sneaked up behind the two, raised the gun, and shot Joey in the back of the head. Theresa began screaming and defendant shot her twice, turned to run, then shot her a third time. Hernandez testified that he and defendant ran away, separated, and hid.
On cross-examination, Hernandez admitted that he had lied in a previous statement to an assistant State's Attorney and in his testimony before the grand jury. After his attorney advised him that he could be sentenced to a term of natural life in prison, Hernandez struck a deal: he would testify against defendant and plead guilty to obstructing justice in exchange for the State's Attorney's recommendation that he be sentenced to four years' imprisonment.
Theresa Santana testified that she lived across Halsted Street from the victims, and that she had known defendant for several years. Santana was descending a stairway outside her residence in the evening hours of December 12, 1981, when she saw Joey and Theresa Palmer walking home. She recognized defendant as he crossed Halsted Street toward her, but before she could greet him, he turned and jogged at an angle back across the street. Santana testified that defendant unzipped his jacket, pulled a gun, shot Joey once or twice and shot Theresa two or three times. She said that defendant then ran away.
Santana stated that she spoke to the police on the evening of the shooting and gave them a description, but she did not name defendant. The next day, the police showed her some photos, including a photo of defendant, but she again failed to identify him. Finally, two days after the incident, Santana identified defendant from a high school yearbook picture. She explained that she did not identify him earlier because she was afraid that his gang would retaliate; she stayed inside her house for three or four weeks after the shooting. On cross-examination, Santana admitted that she spoke with private investigator Robert Beseth on December 19, 1981. She said that Beseth never showed her any written statement, and she generally denied making the statements which defense counsel's questions attributed to her.
Danny O'Neal Morris testified that he was sitting near a window in his second-floor apartment at about 5:45 p.m. on December 12, 1981, when he heard four gunshots. He looked out the window, which overlooks an alley adjoining Halsted Street, and saw two men run through the alley. Morris said that he did not see the first man's face, but the man was 5 foot 8 inches, 160 pounds, with a medium complexion, an "afro" hairstyle and a brown jacket. He described the second man as a 5 feet 6 inches Latino, 135 pounds, with black hair parted in the middle, a black leather jacket, and a gun. Morris testified that he saw the second man's face for a few seconds, and he positively identified defendant as that man. Over defendant's objection, Morris identified defendant in a lineup photograph as well as in open court, although he had not attended the lineup nor made any pretrial identification.
The victims' mother testified that she heard shots and went downstairs to discover her daughter, bleeding and motionless, and her son, still conscious, not knowing what had happened. Charles Palmer, the victims' brother, substantially corroborated Hernandez' testimony concerning the dispute between the gangs. In addition, police officers described various stages of the investigation, and a pathologist opined that the victims died from bullet wounds.
Private investigator Robert Beseth testified for the defense. He said that on December 19, 1981, he spoke with Theresa Santana at her home. She told him that she did not initially identify defendant for three reasons: his hairstyle was not the same as she remembered, he did not have bags under his eyes as she remembered, and she was afraid. Beseth stated that he wrote a report of the interview immediately afterward, had the report typed two days later and asked Santana to sign it, but she declined, saying that the police and her parents told her not to sign anything.
During closing arguments, Assistant State's Attorney Timothy McMahon argued that Theresa Santana was understandably reticent to identify defendant, and he remarked that "after the police and her mother and her relatives reassure her not to be afraid, you will be protected, she tells the police [defendant's name]." Defense counsel responded that this comment was not supported by the evidence. In rebuttal, Assistant State's Attorney Brian Telander stated, "[A]s long as he brought it up, I'll tell you. Three weeks after this, we had to move her to Texas." The trial court overruled defense counsel's objection. Telander continued, "Do you think she enjoyed testifying against gang members? Do you think she enjoyed not going to school and leaving town? You know that's not true." The prosecutors also advised the jury that defense counsel's responsibility was "to try to get his client off," and that defense counsel lied in his argument. The prosecution attempted to minimize the impact of the deal with Hernandez, stating that he was "not guilty of murder."
Following deliberations, the jury returned verdicts of guilty on two counts of murder. The trial court entered judgment on the verdicts and sentenced defendant to natural life in prison. Defendant filed a timely notice of appeal.
Defendant first contends that the trial court improperly permitted Danny O'Neal Morris to identify defendant from a photograph of a lineup which Morris never attended. Because he was conspicuously seated at the defense table, defendant reasons, the identification procedure was so suggestive as to deprive him of a fair trial. Defendant relies upon Moore v. Illinois (1977), 434 U.S. 220, 54 L.Ed.2d 424, 98 S.Ct. 458, and Foster v. California (1969), 394 U.S. 440, 22 L.Ed.2d 402, 89 S.Ct. 1127.
Foster involved a series of suggestive pretrial confrontations during which the eyewitness progressed from "not sure" to "convinced" of his identification. (394 U.S. 440, 441-42, 22 L. Ed 2d 402, 405-06, 89 S.Ct. 1127, 1127-28.) The Foster court stated that the suggestiveness of the procedure "made it all but inevitable" that the victim would identify the accused, and held that the procedure was so unreliable as to violate due process. (394 U.S. 440, 443, 22 L.Ed.2d 402, 407, 89 S.Ct. 1127, 1129.) Recognizing that the reliability of an eyewitness identification is ordinarily a matter for the jury, the Foster court reiterated that such evidence must be excluded where procedures are so unnecessarily suggestive as to give rise to a substantial likelihood of irreparable mistaken identification. 394 U.S. 440, 442, 22 L.Ed.2d 402, 406, 89 S.Ct. 1127, 1128. See Simmons v. United States (1968), 390 U.S. 377, 384, 19 L.Ed.2d 1247, 1253, 88 S.Ct. 967, 971.
Moore involved a one-on-one confrontation between the victim and the accused at a preliminary hearing. The Moore court emphasized the inherent dangers of suggestive pretrial identification procedures:
"`[T]he first line of defense must be the prevention of unfairness and the lessening of the hazards of eyewitness identification at the lineup itself. The trial which might determine the accused's fate may well not be that in the courtroom but that at the pretrial confrontation, with the State aligned against the accused, the witness the sole jury, and the accused unprotected against the overreaching, intentional or unintentional, and with little or no effective appeal from the judgment there rendered by the witness "that's the man."'" Moore v. Illinois (1977), 434 U.S. 220, 225, 54 L.Ed.2d 424, 431, 98 S.Ct. 458, 463, quoting United States v. Wade (1967), 388 U.S. 218, 235-36, 18 L.Ed.2d 1149, 1162-63, 87 S.Ct. 1926, 1936-37.
The court noted that if the accused had been represented by counsel, counsel could have requested a less suggestive lineup, he could have asked the victim to attempt an identification while the accused sat in the audience, and he could have cross-examined the victim to test the identification before it became certain. (434 U.S. 220, 230 n. 5, 54 L.Ed.2d 424, 435 n. 5, 98 S.Ct. 458, 465-66 n. 5.) The Moore court stated that some or all of the suggestiveness could have been avoided and held that the preliminary hearing showup procedure violated the accused's right to counsel. 434 U.S. 220, 230-31, 54 L.Ed.2d 424, 435-36, 98 S.Ct. 458, 465-66.
Foster and Moore reveal the flaw in defendant's argument: the rationale for suppressing an identification tainted by extra-judicial suggestiveness simply does not apply here. Suppression seeks to avoid the risk that a suggestive pretrial identification will result in a mistaken or deceptively certain identification at trial. Danny O'Neal Morris attempted no pretrial identification, and so the risk is minimal that his identification in court was influenced by extra-judicial suggestiveness. It is true that Morris identified defendant under suggestive circumstances at trial, but it does not follow that defendant was denied due process.
In People v. Finch (1970), 47 Ill.2d 425, 266 N.E.2d 97, cert. denied (1971), 404 U.S. 836, 30 L.Ed.2d 68, 92 S.Ct. 122, the defendant argued that he was denied due process when a witness identified him for the first time at trial while he was seated at the counsel table. The Finch court rejected this argument, partly because the defendant failed to object and partly because the witness had an independent basis for the identification. (47 Ill.2d 425, 430-31.) In People ex rel. Blassick v. Callahan (1972), 50 Ill.2d 330, 279 N.E.2d 1, our supreme court distinguished from in-court identification police lineups, and relied on Finch for the proposition that "an in-court identification of itself does not deprive a defendant of due process." (50 Ill.2d 330, 335.) Similarly, this court has repeatedly held that a defendant has no absolute right to avoid identification at trial, suggestive circumstances notwithstanding. See People v. Patterson (1980), 88 Ill. App.3d 168, 176, 410 N.E.2d 396; People v. Kavanaugh (1980), 85 Ill. App.3d 783, 789, 408 N.E.2d 23; People v. Gregory (1976), 43 Ill. App.3d 1052, 1057-58, 357 N.E.2d 1251; People v. Petty (1973), 10 Ill. App.3d 975, 979, 295 N.E.2d 275.
• 1 In our view, suggestiveness at trial, absent the taint of extra-judicial suggestiveness, does not offend due process because the trial itself affords the defendant adequate protection. The defendant receives the full benefit of a trial by jury, under the guidance of an impartial judge, with representation by counsel and witnesses subject to oath and cross-examination. We stress cross-examination, "the greatest legal engine ever invented for the discovery of truth." (V Wigmore, Evidence sec. 1367 (Chadbourne rev. 1974).) Where a witness first identifies the defendant at trial, defense counsel may test the perceptions, memory and bias of the witness, contemporaneously exposing weaknesses and adding perspective in order to lessen the hazards of undue weight or mistake. (Cf. Moore v. Illinois (1977), 434 U.S. 220, 230 n. 5, 54 L.Ed.2d 424, 435 n. 5, 98 S.Ct. 458, 465-66 n. 5.) We emphasize, too, that the jury is capable of observing and weighing the suggestiveness of ...