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People v. Shief

March 29, 2000

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
V.
KENNETH SHIEF, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cerda

Appeal from the Circuit Court of Cook County. Honorable Edward M. Fiala, Judge Presiding.

Following a jury trial in November 1997, defendant, Kenneth Shief, was convicted of armed robbery (720 ILCS 5/18-2 (West 1999)), and attempted aggravated criminal sexual assault (720 ILCS 5/8-4(a); 12-14(a)(1) (West 1996)), and was subsequently sentenced to concurrent terms of 25 years and 15 years, respectively, in prison. On appeal, defendant argues (1) pre-trial publicity concerning his case denied him his right to an impartial jury; (2) the trial court erred by allowing evidence of other crimes; (3) the evidence is insufficient to establish his guilt for attempted aggravated criminal sexual assault; (4) and certain statements made by the State during closing arguments operated to deny him a fair trial. We agree with defendant that certain closing remarks made by the prosecutor exceeded the bounds of proper argument and constituted reversible error. Accordingly, we reverse and remand for a new trial.

BACKGROUND

The State's evidence at trial established that at about 5:00 p.m. on the evening of January 9, 1996, the victim, Ida Smith, was walking home on Stony Island Avenue toward 79th Street, near Jackson Park Hospital. As she walked, Smith heard someone behind her. Smith turned and noticed a young man, wearing a black and brown cloth jacket and a dark colored skull cap, running toward her. When the man approached, he displayed a gun from his jacket pocket and told Smith "this is a stickup." The man then placed the gun back into his pocket, keeping it pointed at Smith. The man told Smith to follow him, but Smith refused. The man responded by instructing Smith to empty her pockets. Smith complied and gave the man $5 and a roll of bus tokens. According to Smith, the man told her that her money was not enough and that she either "had to give him some pussy or he would shoot her." Scared, Smith ran across the street to a nearby bus and went home where she contacted the police. Smith told the police that her attacker was a black male, about 25 years of age, 5'8" tall, weighing about 160 pounds, and having a medium complexion. About a week later, on January 15, 1996, Smith viewed a line-up at Area 2 police headquarters and identified defendant as the man who accosted her. At trial, Smith again identified defendant as her attacker. Over defendant's objection, the State presented the testimonies of Regina Bridges and Aisha Glover who each testified that defendant had threatened and robbed them on separate occasions. *fn1 Bridges testified that at about 6:45 a.m. on January 3, 1996, she was walking toward the bus stop located at 79th Street and East End Avenue when she noticed a man, whom she identified at trial as defendant, approach her from behind. Although she did not know defendant by name, Bridges explained she recognized defendant from the neighborhood and as a former student from grade school. Bridges further stated that she had seen defendant on numerous occasions.

Defendant, who was wearing a black coat and jeans, approached Bridges and stated he would shoot her if she ran or screamed. With his hands in his pockets, defendant demanded Bridges' money. Bridges gave defendant her bus fare of $1.75. Defendant refused to take Bridges' money, stating he knew she had at least $10. Noticing a bus approaching, defendant told Bridges to get on the bus, which she did. When Bridges arrived home, she informed the police of what occurred and informed them that defendant lived in the area of 76th Street. Bridges further described defendant as a black male, about 16 years of age, 5'10" tall, and weighing about 150 pounds. Bridges later identified defendant in a police line-up held on January 16, 1996.

Glover stated that at about 7:30 a.m. on January 14, 1996, she was at a bus stop across from Jackson Park Hospital at 76th Street and Stony Island Avenue. As she waited for the bus, Glover observed a man whom she identified at trial as defendant approach from her rear. According to Glover, defendant was wearing a black and brown winter jacket, a small black skull cap and black jeans. Defendant moved next to Glover, standing with his hands in his pockets. Defendant told Glover that she had two choices and five seconds to answer. According to defendant, Glover could either "give him some pussy or he would shoot her." Glover did not answer. Defendant repeated to Glover her two options. At that time, Glover saw a group of people exiting the hospital. Glover screamed and immediately ran across the street away from defendant.

Once Glover arrived at home, she called the police and reported the incident involving defendant. Glover told the police that her attacker was a black male, 28 to 32 years of age, 5'9" tall, and weighing about 130 pounds. Glover additionally stated that the offender's face was "scruffy" which, according to Glover, made him appear older. When the police arrived at Glover's house, they showed her a picture of an individual whom Glover identified as her attacker, and whom she identified at trial as defendant. Glover again identified defendant as the offender in a police line-up conducted on January 15, 1996.

Chicago police officer David Cavazos testified that he investigated a series of attacks in the area of 79th Street and Stony Island Avenue, including the attacks on Smith, Bridges and Glover. Cavazos explained he received a composite sketch of a suspect, as well as reports on the foregoing incidents.

While patrolling the area on the evening of January 16, 1996, Cavazos went to a residence at 1532 East 76th Place where he saw defendant, together with two of his family members, standing at the front door. Cavazos believed that defendant matched the composite drawing of the suspect. Cavazos was invited into the home by one of the residents. Once inside, Cavazos observed a black and brown coat on the couch. Upon obtaining consent to search the premises, Cavazos recovered two skull caps. Cavazos asked defendant if the coat was his, and defendant acknowledged that it was. Cavazos then placed defendant under arrest. Cavazos stated that the arrest report described defendant as a black male, 17 years of age, 6' tall, and weighing 146 pounds.

In his defense, defendant offered several stipulations concerning interviews conducted by police with Smith, Bridges, and Glover, and the reports they prepared based on these conversations, for purposes of impeaching the descriptions of the assailant provided by the State's witnesses.

Following closing arguments and jury deliberations, defendant was convicted of armed robbery and attempt aggravated criminal sexual assault, and was sentenced to concurrent prison terms of 25 years and 15 years, respectively.

ANALYSIS

As noted, defendant asserts error in certain remarks made by the prosecutor in closing. As a general principle, a prosecutor is afforded considerable latitude in his closing and rebuttal arguments and may argue to the jury facts and reasonable inferences from the evidence. People v. Kliner, 185 Ill. 2d 81, 151, 705 N.E.2d 850, 885 (1998); People v. Montefolka, 287 Ill. App. 3d 199, 212, 678 N.E.2d 1049, 1057-58 (1997) The trial court has the discretion to determine the proper character, scope and prejudicial effect of closing arguments. Kliner, 185 Ill. 2d at 151, 705 N.E.2d at 885.

In rebuttal arguments, the prosecutor explained in his own words the differences between a witness's ability to describe and ability to recognize an individual, stating:

"Now, let's talk about description versus recognition. A description is a person's ability to describe something, to say something, to use words to characterize something. On August 1, 1997, a nurse walked into a ...


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