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06/21/95 PEOPLE STATE ILLINOIS v. KEVIN PICKENS

June 21, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
KEVIN PICKENS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Cornelius Houtsma, Judge Presiding.

Rehearing Denied August 11, 1995. Petition for Leave to Appeal Denied December 6, 1995.

The Honorable Justice Rizzi delivered the opinion of the court: Tully, and Cerda, J.j., concur.

The opinion of the court was delivered by: Rizzi

JUSTICE RIZZI delivered the opinion of the court:

After a jury trial, defendant, Kevin Pickens, was found guilty of first degree murder and was sentenced to 40 years in prison. Defendant appeals this conviction and sentence. Defendant contends that: (1) the prosecutor argued in closing that the jury could consider defendant's status as the accused as a motive for defendant to lie thus denying him due process; (2) the prosecution bolstered its witnesses; (3) the prosecutor inflamed the jury during closing arguments by describing defendant as an assassin; (4) unreliable victim impact evidence denied defendant due process; (5) the trial court did not accurately assess mitigating factors during sentencing and thus his sentence should be reduced. We affirm.

Both Andrew Claborn and Ricky Atterberry lived in a two-level apartment complex in Harvey, Illinois. On the evening of September 23, 1989, defendant was visiting Atterberry in his apartment and Charles Broughton was visiting Claborn. Defendant, who was dating Claborn's mother, later stopped by Claborn's apartment to see if she was home. Broughton took the opportunity to ask defendant to pay for his broken windshield, which he claimed defendant broke. Defendant said he would not pay and they argued about a minute after which defendant left only to return with a rifle. With rifle in hand, defendant challenged Broughton to make him pay for the windshield now. Claborn intervened at that point and asked defendant to leave which defendant did. Subsequently, Claborn and Broughton went to the liquor store. When they returned 10 minutes later, Broughton saw defendant in the parking lot and again requested payment for his windshield. Defendant left the parking lot and ran upstairs to the balcony of Atterberry's second floor apartment. Defendant then resumed the argument with Broughton who was still standing below.

Ricky Atterberry observed the argument from his apartment on the second floor and Claborn observed it from the parking lot standing next to Broughton. Atterberry and Claborn both testified that defendant said he was going to kill Broughton and Broughton told him to go ahead. They saw defendant produce a rifle, aim the rifle over the balcony, and fire at Broughton. Defendant then fled with the rifle. Broughton, who was unarmed, died of a gunshot wound to the head. The police arrived five minutes later and unsuccessfully searched for the defendant. He was eventually stopped in Tennessee and extradited back to Illinois.

At trial, Rachel Mahan testified she was sitting in a car waiting for a friend when she saw four men arguing. Two of the men were on the ground and two were on a balcony. One of the men on the balcony said "I'll pop you," to which a man on the ground said "go ahead." She looked up and saw a man leaning over the balcony, pointing a rifle, and firing. Then she saw one of the men below fall to the ground.

Defendant testified that he saw Claborn, Broughton, and three other men he did not know standing under the balcony. Defendant got the rifle and was holding it to his side pointing downward when someone threw an object the size of a brick at him. Defendant testified he unintentionally fired when he reacted to the object being thrown.

Defendant's first contention is that the prosecutor, during closing statement, argued that the jury was judicially authorized to consider that defendant's status as the accused furnished a motive to lie. The prosecutor argued:

Of all the witnesses you have heard, there is only one person who has a motive to lie, and that is Kevin Pickens, because at this moment he is faced with a charge he does not want to face.

Ladies and Gentlemen, shortly you will be instructed by his Honor, Judge Houtsma, as to what the law is. You will be instructed to follow it as to what the law is. He will tell you certain things and I ask that you pay close attention to him. He will tell you that you should bring in your life experience into this courtroom, everything that you have learned during your life, you don't leave it out there, you bring it in, that is called common sense. You also bring in other things, the ability to look and to judge credibility of witnesses, the ability to observe a witness testifying, to determine whether they are telling the truth or a lie. There are other things you should consider during the witnesses' testimony, their interest, their bias. As stated before, there is only one person that has an interest in lying.

The trial court later instructed the jury to judge defendant's testimony in the same manner as that of any other witness. Illinois Pattern Jury Instructions, Criminal, No. 1.02 (2d ed. 1981) (hereinafter IPI instruction).

Attorneys may remark upon the credibility of witnesses during closing argument, provided the remarks are based upon facts on the record or reasonable inferences therefrom. People v. Ramey (1992), 151 Ill. 2d 498, 534, 603 N.E.2d 519, 534, 177 Ill. Dec. 449. Here, however, the prosecutor clearly implied that the defendant should be presumed to be a liar simply because of his status as a defendant. We find these remarks to be improper. See People v. Ellis (1992), 233 Ill. App. 3d 508, 510-11, 599 N.E.2d 498, 501, 174 Ill. Dec. ...


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