The opinion of the court was delivered by: Justice Rathje
On August 7, 1991, three members of the Gangster Disciples street gang were killed during two drive-by shootings in Chicago's Englewood neighborhood. The shots that killed them were fired from a taxicab by members of a rival gang, the Black Disciples. The shootings were provoked by an earlier incident in which a member of the Gangster Disciples shot at the car of a Black Disciple. In connection with the incident, a grand jury indicted defendant, Terrence Brooks, for three counts of first degree murder (intentional) (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(1)), three counts of first degree murder (knowing) (Ill. Rev. Stat. 1991, ch. 38, par. 9-1(a)(2)), three counts of attempted first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4(a), 9-1(a)), three counts of conspiracy to commit first degree murder (Ill. Rev. Stat. 1991, ch. 38, pars. 8-2(a), 9-1(a)(1)), and one count of aggravated discharge of a firearm (Ill. Rev. Stat. 1991, ch. 38, par. 24-1.2(a)(2)). The State later nol-prossed the aggravated discharge of a firearm and conspiracy counts.
Defendant and a co-defendant, Maurice Deloney, were tried in a bench trial that was conducted simultaneously with the jury trial of Ivan Smith and the severed bench trials of Javan Deloney and Curtis Milsap. The circuit court of Cook County found defendant guilty of six counts of first degree murder and three counts of attempted first degree murder. Defendant was convicted based upon the statements of several eyewitnesses. Following a sentencing hearing, a jury found no mitigating factors sufficient to preclude the death penalty. Accordingly, the court sentenced him to death. Defendant's execution has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a).
Prior to trial, defendant moved to suppress the identification testimony of three witnesses: Allen Epton,*fn1 George Cruthard, and Brenda Hall. In his motions, defendant alleged that the police used unnecessarily suggestive procedures when seeking to elicit identifications from these witnesses. Defendant sought to suppress in-court identifications as well as any testimony about photographic and lineup identifications. The following evidence was adduced at the hearings on the motions to suppress.
Detective Daniel McWeeny of the Chicago police department testified that on August 7, 1991, he was assigned to investigate two shootings that occurred on Chicago's south side. McWeeny learned that one shooting occurred in the 500 block of 71st Street, and another occurred near 66th Street and Peoria Street. A taxicab had been sighted at both locations, and 9-millimeter shell casings were found at both places. A red Chrysler LeBaron was also involved in the shootings. Three victims were killed: John Coleman and Greg Archibald at 71st Street, and Rhenardo Bussle at Peoria Street.
McWeeny went to St. Bernard's Hospital to speak to Allen Epton, a victim who survived the 71st Street shooting. McWeeny first spoke to Epton at approximately 1:30 a.m. on August 8, 1991. Epton told McWeeny that he was with Coleman and Archibald on 71st Street and that shots were fired from a red LeBaron and a taxicab. This interview lasted only five minutes. McWeeny, accompanied by Detective Ptak, returned to the hospital at 11 a.m. McWeeny told Epton that he had spoken to Marcus Taylor, another Gangster Disciple, and had learned about the gang war between the Gangster Disciples and the Black Disciples. McWeeny also informed Epton that Archibald and Coleman were dead. After learning that his friends had died, Epton told the detectives that he would tell them what happened.
Epton told the detectives that he was a member of the Gangster Disciples. He had been standing on 71st Street the night before with two friends, Archibald and Coleman. A taxicab and a red LeBaron drove by, and shots were fired from both cars. Epton, Archibald, and Coleman were all shot. Epton said that the people in the cab were Black Disciples. The taxicab was driven by "Tojo." Epton believed that the LeBaron was sometimes driven by "Dada," but he did not see Dada in either of the cars. However, he did see two of Dada's relatives. One was nicknamed Pete, and both had the last name Deloney. The only other person Epton remembered seeing was Ollie Bays. Epton described the perpetrators as male blacks in their late teens or early twenties.
McWeeny later returned to the hospital with eight Polaroid photographs. Epton identified Maurice and Javan Deloney as participants in the 71st Street incident. McWeeny then spoke with Javan Deloney. Javan verified that he, Maurice, Tojo, and Ollie Bays were involved. He added that defendant and Curtis Milsap were also involved. McWeeny then took more photographs to Epton's room. One photo array was made up of six color photos and included defendant's picture. The other array was of nine black and white pictures and included pictures of Milsap and Bays. Epton identified defendant, Milsap, and Bays as being involved in the shooting. He identified defendant as one of the shooters. McWeeny later learned that "Tojo" was Ivan Smith. He added Smith's photo to the black and white photo array previously shown to Epton and asked Epton if he could identify anyone else. Epton identified Smith as the person he knew as Tojo. Shortly after Epton identified defendant from the photo lineup, defendant was arrested. Epton then identified defendant in a live lineup conducted by Detective James O'Brien. Defendant was the only person in the lineup whose photograph Epton had previously viewed.
Allen Epton testified that he was one of the people who was shot on 71st Street. The police came to see him in the hospital, and he spoke to them several times before he was shown any photographs. Epton testified that defendant's photograph was among those he viewed in the hospital. Epton had not mentioned defendant to the police. Before August 7, 1991, he knew who defendant was, but only by the name "Terry." Epton denied naming of any perpetrators before he looked at the photographs. When asked how the police showed him the photographs, Epton testified that the police emphasized defendant's picture. The police kept flipping through the pictures and stopping at defendant's picture while saying, "This is the person. Isn't this him?" Epton said that he knew defendant, but did not know if defendant was involved in the shooting. The police kept going back to defendant's picture and saying it was him. They did not emphasize any other pictures. Epton denied telling the police that defendant was involved in the crime.
The court declined to rule on the admissibility of Epton's identifications. The State argued that there was no identification to suppress because Epton denied making an identification. Defendant's attorney argued that the police testified that Epton did make an identification, so the court would have to rule on whether suggestive techniques rendered that identification inadmissible. The trial Judge did not rule on the suggestiveness of the identification procedure, saying that it was a question for the trier of fact.
George Cruthard testified that he was one of three persons shot at 6556 South Peoria at 10:50 p.m. on August 7, 1991. The others were Marcus Taylor and Rhenardo Bussle. Almost two years later, in June 1993, Cruthard was taken to view some photographs at the State's Attorney's office. An assistant State's Attorney, Michael Smith, was present, as well as two homicide detectives. Cruthard had been brought to the State's Attorney's office several times during the previous three or four months. He had spoken to Smith several times prior to viewing the photographs. During those visits, Smith told him, "We already know who shot you; Little Terrence shot you." Smith also told Cruthard that Tojo was involved in the incident. Cruthard knew that Tojo was Ivan Smith. Cruthard understood that "Little Terrence" or "Little Terry" referred to defendant. Cruthard identified defendant in court. He testified that Smith mentioned other names but that he did not remember them. Cruthard identified the six photographs he was asked to look at in June 1993. One of the pictures was of defendant. Cruthard testified that he picked out that picture and identified it as being of defendant. He also picked Tojo's picture out of the photo array. On cross-examination, Cruthard testified that he had known defendant and Tojo for a number of years.
Detective Joseph Stehlik of the Chicago police department testified that he located Cruthard in the Cook County jail in June 1993. Stehlik found Cruthard there after he read in the paper that Cruthard was arrested for trying to bring several kilos of cocaine into Chicago. During an interview with Stehlik, Cruthard said that he witnessed the events of August 7, and that defendant and Ivan Smith were involved. Stehlik then showed Cruthard six photographs, and Cruthard picked out defendant and Ivan Smith. Stehlik identified the pictures that he showed to Cruthard.*fn2
Brenda Hall testified that on April 1, 1993, she went to the State's Attorney's office with Detective Mike Kill. Assistant State's Attorney Mike Smith asked her to view some photographs that were lying on a table. Hall picked out photographs of Javan Deloney and defendant. Prior to that date, she had been to the State's Attorney's office three or four times, the first time in September 1991. Smith had questioned her about the shootings during two of those visits, but she did not tell him anything. She did not say anything about any of the perpetrators prior to viewing the photographs. Hall testified that no one with the State's Attorney's office said anything to her before showing her the photographs. At the State's Attorney's office, Hall was asked if she had ever seen any of the boys before. Hall testified that she "told them no, because they almost killed me and my baby."
After Hall testified, defendant's attorney rested as to the motions to suppress Hall's and Cruthard's testimony. Without hearing argument or giving any explanation, the trial Judge stated, "Your motion will be denied." Defendant's attorney then began to argue with respect to Cruthard and pointed out that there was unrebutted testimony that Mike Smith told Cruthard before showing him the photographs that defendant and Ivan Smith were involved in the shooting. The Judge then stated, "Goes to weight, not admissibility. It will be denied."
Officer Patrick Doyle of the Chicago police department testified that on August 7, 1991, he was on beat patrol. Shortly before 11 p.m. he received a call that shots were fired and a person was shot at 6556 South Peoria, a multistory apartment building. When Doyle arrived, he saw a victim lying in the walkway leading to the front door of the apartment building. The door was a common entrance to both 6556 and 6558 South Peoria. The victim was bleeding from a chest wound. Doyle eventually ascertained that the victim was Rhenardo Bussle. Doyle noticed bullet holes around the front door of the apartment building.
The street lights in front of the building were on at the time. Doyle spoke to a few witnesses and then put out a description of a red and white taxicab that was wanted in connection with the shooting. Doyle further learned that two other victims of the shooting had fled to 6539 South Sangamon. Doyle went to that address and found the two victims, George Cruthard and Marcus Taylor. Cruthard had a wound to the left side of his neck, and Taylor had a wound on the right side of his abdomen. Neither Cruthard nor Taylor would give Doyle any information about the crime.
George Cruthard testified that he was currently serving a 15-year prison sentence for a narcotics offense. During the late afternoon of August 7, 1991, he was standing on the corner of 66th and Peoria. Several of Cruthard's "homies" were with him. A shot was fired at a car belonging to Tojo (Ivan Smith). The shot came from the same side of the street that Cruthard was standing on. Cruthard acknowledged that he was a member of the Gangster Disciples and that the gang sold drugs from 6558 South Peoria. Tojo was a member of the Black Disciples street gang, and there was an ongoing conflict or "war" between the two gangs. Cruthard did not know if Tojo got hit by the shot. After the shot was fired, Cruthard fled the scene.
At approximately 10 or 11 p.m., Cruthard was again standing in front of 6556-58 South Peoria. He was with Marcus Taylor and Rhenardo Bussle. Cruthard observed three cars coming slowly from the direction of 64th Street towards 66th Street. The car in the middle was a taxicab with its headlights turned off. As the cars moved closer, the windows on their passenger sides went down. Cruthard did not see anyone rolling the windows down because he was not paying attention. Cruthard recalled seeing that Tojo was driving the cab. He also remembered seeing defendant in the cab. Cruthard identified defendant in court. Cruthard had known defendant for about four years and knew him to be a member of the Black Disciples. When Cruthard saw defendant, defendant was in between the front and back seats of the cab, leaning forward towards the door. Cruthard testified that defendant appeared to be shooting. Cruthard saw flashes of lights coming from the cab and could not see anyone else's face. The cab was five or six yards away when the shooting started. Marcus Taylor was standing up as if he were in a daze, so Cruthard knocked him down and lay on top of him. The shooting continued, and Cruthard felt a burning sensation in his back. Cruthard jumped up and ran towards the gangway on the side of the building. While Cruthard was running down the gangway toward his house, he was shot in the jaw and the back of the head. He made it to his house, and his mother called an ambulance. Taylor also made it to Cruthard's house and was bleeding at the time.
Cruthard remembered speaking to some police officers at the hospital, but did not remember specifically to whom he spoke. Cruthard did not tell the police who was involved in the incident because he did not want the police to arrest him and he was worried about himself and his family. Cruthard then went into hiding from the police. Eventually, he was arrested on a narcotics offense. On June 8, 1993, 22 months after the shooting, he gave a court-reported statement to the State's Attorney's office. Shortly thereafter he was sentenced to 15 years in the Department of Corrections for the narcotics offense. He testified that, although there was no agreement in exchange for his statement, the State's Attorney would recommend that he be sent to Stateville or Pontiac.*fn3
On cross-examination, Cruthard acknowledged that he originally told the police that, because he dropped something and was bent over picking it up when the shooting started, he did not see anything. Cruthard also acknowledged that the shooting was going on for only a second or so before he dove on top of Taylor. When Cruthard was arrested for the narcotics offense in December 1992, he had been caught with approximately 10 pounds of cocaine. In May 1993, he lost a motion to suppress the evidence in that case. Before he gave his statement to Mike Smith on June 8, 1993, he had been to the State's Attorney's office twice. On those occasions, Smith stated that he knew who shot Cruthard.
However, Smith did not tell him that it was defendant or Tojo. Cruthard acknowledged that he previously testified that Smith did tell him prior to his viewing the photographs that Tojo and defendant shot him. He now denied that Smith did so, but testified that he was not lying before when he said that Smith made those assertions. The first time Cruthard told anyone about seeing defendant in the taxicab was June 8, 1993. That was also the same day he was sentenced on his drug case. Cruthard testified that defendant was not leaning out of the cab at the time of the shooting. Defendant was inside the car and the lights were off inside the car; the street lights on the corner were lit. According to Cruthard, everybody on the street knew within a week or two of the shooting that defendant had been arrested.
Jerome Taylor (a/k/a Marcus Taylor) testified that in the late afternoon hours of August 7, 1991, he was standing at the corner of 66th and Peoria Streets. The building at that corner is a hangout for the Gangster Disciples; they sold drugs in front of the building. Cruthard and Kevin Gibbs were with Taylor on the afternoon of August 7 when Tojo drove by. Taylor had known Tojo for four or five years. Tojo flashed a gang sign at them, and Gibbs flashed one back and said, "BDK" (Black Disciple killers), to which Tojo replied, "GDK" (Gangster Disciple killers). Someone from the building fired a shot at Tojo's car, and Tojo drove to the middle of the block and then said that he would be back. Taylor testified that the Gangster Disciples were at war with the Black Disciples at the time.
At 11 p.m. the same day, Taylor was selling drugs in front of the same building with Bussle (Taylor's cousin) and Cruthard. Taylor saw two cars drive up. The one in front was a red LeBaron, and the other was a taxicab. The LeBaron stopped in the middle of the intersection, and the taxicab stopped in front of the building. Taylor noticed the windows on the taxicab's passenger side being rolled down and saw the nose of a gun come out. When the shooting started, he could not see who was doing it. Cruthard pushed Taylor down, and Taylor laid on the sidewalk until the shooting died down. The taxicab was stopped for about 30 seconds while the shooting was occurring.
When the shooting subsided, Taylor got up and checked on his cousin. At that time he saw defendant in the front passenger seat of the taxicab, and then the taxicab sped away. Taylor had known defendant for about 12 years. He identified defendant in the courtroom. Taylor could not identify anyone else in the taxicab. Taylor testified that Cruthard got up and fled when the shooting died down, and the shooting stopped altogether when Cruthard ran away. Taylor checked on Bussle and found him choking on blood and saying "it hurts." Bussle then passed out, and Taylor went to find Cruthard. Taylor had been grazed with a bullet, but did not go to the hospital when Cruthard did because he did not want to get involved.
Taylor spoke to the police a day after the shooting but did not tell the police that he saw who did the shooting. His reason for not saying anything to the police was that the war was still going on and he did not want to be next. He finally gave a statement to an assistant State's Attorney on April 8, 1993. He did so because his aunt (Bussle's mother) was "coming down" on him and encouraging him to do the right thing. He was shown quite a few pictures at the State's Attorney's office, but defendant's was not one of them. Taylor testified that neither the police nor the assistant State's Attorney told him that defendant was a shooter. Taylor acknowledged that within a week or two of the shooting the Gangster Disciples knew that defendant had been arrested.
Officer Clarence Longley of the Chicago police department testified that he was assigned to a beat car in the Englewood neighborhood on August 7, 1991. His partner, Officer DeAngeles, was with him. Shortly after 11 p.m. he received a dispatch that a person had been shot at approximately 618 West 71st Street. When the officers arrived, they found that three persons had been shot. One was in an ambulance, another was lying on the curb, and another was lying inside a submarine sandwich shop. The officers spoke with some witnesses and then left to look for a red and cream taxicab that was reported to have been used in the shootings. Officers Longley and DeAngeles were called back to the scene to do the paper work. Longley identified photographs showing where John Coleman and Gregory Archibald were lying after being shot. Longley testified that all of the street lights in that area were working that night.
Detective James O'Brien of the Chicago police department testified that he stopped briefly at the Peoria Street location and was on his way to 71st Street when he heard over the radio a description of the taxicab used in the shootings. At a vacant lot at 6801 Normal, O'Brien spotted a cab that matched the description. O'Brien looked inside and noticed numerous shell casings strewn about. He believed that all of the shell casings were in the back seat of the cab.*fn4 There were no keys in the ignition, and the left-hand side of the steering column had been peeled open. The next day, O'Brien received a description of a red LeBaron that was involved in the incident. O'Brien also learned that a gray Chevrolet Chevette was connected to the crime. He located that car at 6750 South Emerald. The car had bullet holes in it. Ivan Smith's name was on the "license applied for" form displayed in the car's rear window. O'Brien could not locate the Chevette again until March 1993. At that time the car still belonged to Smith and there was duct tape over the bullet holes.
Marcella Scott testified that on August 7, 1991, she was in the vicinity of 71st Street and the Dan Ryan. She went there with her cousin, Brenda Hall. Scott was driving a white Camaro, and Hall was in a red Cavalier. Hall had her infant son with her. Scott's and Hall's cars were pulled up on the side of 71st Street, with Hall's car in front of Scott's. Hall was speaking to her boyfriend, Allen Epton. Epton went into a store after speaking with Hall. A short time later, Scott heard a sound like firecrackers going off. She felt a burning sensation in her back and turned around and noticed that her rear window had been shattered.
Scott got out of her car. She did not see anything unusual about any of the passing cars and did not see any guns. She then noticed a cab going towards the viaduct. She did not see any of the faces in the cab. Scott noticed that Hall's car had been shot too. Hall yelled to Scott to get back in her car and the two of them drove away. Before she drove away, Scott noticed that two persons had been shot. One was on the ground and another was standing in the doorway of the sub shop.
Brenda Hall testified that in August 1991 she lived at 1500 East 73rd Street. She no longer lived there because the Cook County State's Attorney's office helped her move. She was given $750 for her first and last month's rent and $150 for moving expenses.
On August 7, 1991, Hall was with her eight-month-old son and her cousin, Marcella Scott. They decided to go to 71st Street to see a friend of Hall, Allen Epton. They went in two separate cars. Hall and her baby were in her red Cavalier, and Scott was in a white Camaro. They parked on the side of 71st Street that had stores on it. Hall was parked next to a restaurant, and Scott was parked behind her. Epton came over to Hall's car and talked to her for 10 or 15 minutes. Hall was holding her son on her lap.
Hall told Epton that the person in the car behind her was Marcella. Epton then went back and spoke to Scott. Hall was playing with her son when she heard what sounded like fireworks. Hall turned her head to the right and looked towards the street. She saw a taxicab and could see two persons firing guns inside the cab. She identified Javan Deloney and defendant as the people she saw in the cab. Hall testified that the cab kept moving. Hall's son was screaming and she put him in the car seat. She looked around and could see three persons on the sidewalk. One of them was Epton, who had been shot in the foot. One of the other people was just lying there, and another was spitting up blood and asking Hall for help. Scott then told Hall that they should drive around the corner. After they got around the corner, they noticed that their cars had been shot. Hall found a piece of a shell inside her car. The rear window of Scott's car was gone, and there was a bullet hole in the car. Hall identified pictures of the taxicab. She also identified a series of photographs that she was shown on April 1, 1993. She picked out pictures of Javan Deloney and defendant as being pictures of the shooters.
On cross-examination, Hall testified that the people in the cab were not wearing hoods or hats. She remembered that defendant was in the front of the cab. She did not know if Epton or Coleman were Gangster Disciples. When Hall first heard the shots they sounded like they were coming from behind her. Marcella asked if she heard it. That is when Hall turned around and saw the cab driving by at a high rate of speed. She did not see any other cars. Hall testified that she looked at the cab for only two seconds before diving to cover up her baby. Prior to the shooting, she had never seen the two persons she later identified.
Hall testified that she was not shown any photographs for identification purposes until April 1993. She had spoken with Detective Kill before that but had not spoken to Mike Smith. Until April 1, 1993, Smith had never asked her what happened the night of the shooting. She then admitted that she went to Smith's office in September 1991 when she took in a bullet that she found in her car. She said that she gave the bullet to Smith, and he did not ask her any questions. She denied speaking to Smith at any other time before April 1, 1993. She said that her previous statement that she had been to Smith's office three or four times before April 1 was not accurate. She then said she was not sure how many times she had been to Smith's office.
Hall testified that her window was rolled all the way down at the time of the shooting. Her driver's side door was shot, but the window was not damaged. She acknowledged that the bullet she brought to Smith passed all the way through the driver's side door and landed in her lap. Before Hall looked at the photographs, she had never heard defendant's name. Allan Epton never mentioned it to her, nor did any of the police or the assistant State's Attorneys. The only time she ever saw defendant before picking out his picture was in the two seconds she looked at the cab. Hall testified that it was dark inside the cab and defendant was wearing a dark shirt. She saw defendant leaning out of the front window and another person leaning out of the back window. Both of these people were leaning far enough out that their chests were outside the car.
Hall acknowledged that the name "Terry Brooks" was written on the back of defendant's picture that she selected from the photo array. Hall did not know who wrote it, but it was there when she saw the photographs. She said that she had seen the photographs twice before. She said that no one ever told her the person in the photo was defendant, but acknowledged that all one would have to do is look at the back of the picture. First she testified that she had not looked at the back of the picture, but then testified that she had.
Allen Epton testified next. After testifying that he knew defendant, Allen Epton identified him in the courtroom. On August 7, 1991, Epton was shot in the foot. He testified that the bullet that hit him came from a passing taxicab. He could not tell how many persons were firing from the cab. He did not see who was firing the guns.
Epton identified a written and signed statement that he gave to Javan Deloney's attorney. He acknowledged making and signing the statement but testified that he did so because he was being threatened by certain people around his house. In the statement, Epton said that defendant was the only person he could positively identify. He saw defendant in the back passenger side of the car. Epton said that he signed the statement because he was ...