The opinion of the court was delivered by: Justice Thomas
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Appeal from the Circuit Court of Winnebago County.
Honorable Harris H. Agnew, Judge, Presiding.
Following a jury trial, the defendant, Ewatha Green, was convicted of unlawful delivery of a controlled substance (720 ILCS 570/401(d) (West 1996)). The indictment alleged that the defendant knowingly and unlawfully delivered less than one gram of a substance containing cocaine, a controlled substance, to James Randall. The trial court sentenced the defendant to 14 years in prison. The defendant appeals, contending that (1) he was denied the effective assistance of counsel where his attorney failed to attempt to suppress a photograph that was taken of the defendant during a pat down search; (2) the trial court erred in denying his motion in limine to suppress an eyewitness's identification of the defendant; (3) he was not proven guilty beyond a reasonable doubt; (4) the trial court improperly considered the State's race-neutral reasons for using its peremptory challenge to exclude a juror before allowing the defendant to establish a prima facie case of purposeful discrimination; and (5) the prosecutor made an improper comment during closing argument.
Prior to trial, defense counsel filed a motion to suppress certain identification evidence, alleging that the pretrial photographic identification procedure by which a police officer identified the defendant as the perpetrator of the crime was unnecessarily suggestive, resulting in a mistaken identification of the defendant. At the hearing on the defendant's motion to suppress, Rockford police officer James Randall testified that around 11:30 p.m., on January 30, 1996, he was working undercover and was assigned to purchase cocaine from drug dealers. At that time, the defendant approached Randall's unmarked van outside the Grand Hotel. The defendant then asked Randall if he wanted to purchase "some dimes." The officer responded that he did. The defendant then asked him to come inside the hotel. Officer Randall told the defendant that his legs hurt and that the defendant should get it and return. During their conversation, Officer Randall focused his attention on the defendant's face and was only about four feet away from the defendant. The officer noted that the area was well lit and there was ample lighting to allow him to view the defendant.
Randall further testified that after their initial conversation the defendant left and went inside the hotel. He returned a short time later and walked up to the driver's side window of the officer's van. From the time the defendant exited the hotel and until he reached the van, a space of about 10 yards, Officer Randall maintained eye contact with the defendant. Randall noted that there was no question that the man who approached his van the second time was the same person he had just negotiated with. When the defendant approached Randall's van this second time, the defendant displayed two plastic baggies containing crack cocaine. Officer Randall then handed the defendant two $10 bills, and the defendant gave the officer the two plastic baggies of cocaine. Officer Randall then identified the defendant in court as the man who sold him the two baggies of cocaine on the night in question.
Randall also testified that, after the defendant sold him the cocaine, Randall drove to a location three blocks away. A short time later, Officer Steven Johnson pulled up alongside Randall's van and handed him a photograph, asking him if it was the man who had just sold him drugs. Officer Randall looked at the photograph for about two seconds and told Officer Johnson that it was definitely him. Randall then identified the photograph in court, marked as State's exhibit No. 2, as the photograph that Johnson showed him on January 30, 1996, of the man who sold him cocaine on that date. Randall explained on cross-examination that he was shown one photograph of the defendant by Johnson, but two photographs were actually taken of the defendant and tagged as evidence.
Rockford police officer Steven Johnson testified at the suppression hearing that he photographed the defendant at the Grand Hotel because it was suspected that the defendant had sold drugs to Officer Randall. Johnson noted that, during the transaction between the defendant and Randall, Johnson was watching with binoculars from a block and a half away and could also see the defendant, although not his facial features. Johnson further testified that Randall radioed a description of the defendant after the transaction as being a black male, about 5 feet 10 inches tall, weighing 165 pounds, and wearing a gray jacket and a dark stocking cap.
Johnson stated that after Randall drove away he waited for about 10 minutes for the defendant to come out of the hotel. When the defendant did not come out, Johnson drove past the doorway of the hotel and looked inside through a large glass window and saw what looked to be the same person standing inside the foyer of the hotel. Johnson then parked his car and went into the hotel. At that time, other officers were already with the defendant. Johnson then took a photograph of the defendant. About five minutes later, he showed the photograph to Officer Randall, who identified the man in the picture without any hesitancy as the person who had just sold him drugs.
At the Conclusion of the hearing, the trial court denied the defendant's motion to suppress finding that the photographic procedure was not so impermissibly suggestive as to give rise to a substantial likelihood of irreparable misidentification and that Officer Randall had an independent basis for viewing the defendant.
Thereafter, the cause proceeded to a trial before a jury. Officers Randall and Johnson testified to the same general facts as presented at the hearing on the defendant's motion to suppress. Additionally, Randall testified at trial that two black males came near his window on the night in question but it was only the defendant who actually approached the window. Randall acknowledged that he did not mention the other black male in his police report. Randall further testified that the black male who actually approached his van asked Randall if he wanted some dimes. Randall explained that a "dime" is a street term for $10 worth of crack cocaine. Randall acknowledged that he had testified before the grand jury that he told the defendant that he was looking for dimes. He clarified, however, that his police report was more accurate and stated that it was the defendant that actually came up to the window and asked Randall if the officer wanted some dimes. Randall described the man who sold him cocaine on the night in question as wearing a gray coat and black hat. Randall also noted that the man had facial hair and a thin mustache or something like scruff on the top of his lip.
Johnson testified that when the defendant was searched on the night in question, no weapons or contraband were found. Johnson noted that he did not want to arrest the defendant at that time for the prior delivery to Officer Randall to avoid disclosing Randall's undercover status as a police officer at that location. Thus, he would have arrested the defendant at that time only if contraband was discovered on his person. At the hotel Johnson took two photographs of the defendant, which were marked as State's exhibits Nos. 2 and 3 and admitted into evidence. The defendant stipulated at trial that State's exhibit No. 1, the two baggies sold to Officer Randall on the night in question, contained cocaine.
Rockford police officer David Cone testified that he was working with Randall in connection with the undercover narcotics operation on the night in question. Cone stated that his role was to hide in the back of Randall's van for security purposes in case trouble ensued with a drug transaction. He specifically noted that ...