APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 97-CR-11082
THE HONORABLE DENNIS PORTER, JUDGE PRESIDING.
PRESIDING JUSTICE COUSINS delivered the opinion of the court:
Defendant, Angel Rodriguez, was charged by indictment in the circuit court of Cook County with the murder of Ibrahim Zayed. Following a jury trial, defendant was found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 1996)) and subsequently sentenced to 60 years' imprisonment in the Illinois Department of Corrections. On appeal of his conviction and sentencing, defendant contends: (1) he received ineffective assistance of counsel where his trial counsel failed to file motions to quash defendant's arrest and suppress both defendant's lineup identification and post-arrest oral comment; (2) the trial court abused its discretion in (a) permitting several police detectives to improperly corroborate Bolton's identification of defendant with prior consistent statements, (b) allowing the jury to hear evidence of an informant's out-of-court statements, and (c) failing to correct the State's closing arguments; and (3) defendant was not proven guilty beyond a reasonable doubt where the sole eyewitness to the crime lacked credibility and where there was no corroborative evidence linking defendant to the crime.
For the following reasons, we reverse.
The evidence at trial established that, on November 24, 1996, Ibrahim Zayed and Andrew Bolton, Zayed's employee, were working in Zayed's grocery store, Karlov Foods, located on the corner of Karlov and Potomac Avenues in Chicago, Illinois. Zayed was involved in a legal dispute with the landlord of the building and had gotten into an argument on the telephone with the landlord that afternoon. Thereafter, at approximately 2:45 p.m., Zayed was seated behind the counter watching television and taking tape off of a toy gun. Bolton was seated on the other side of the counter, approximately two feet from Zayed and six feet from the front door of the store. A man entered the store holding the front door open with his left arm and holding a gun in his right hand. He shouted "hey" and fired the gun three or four times in the direction of Zayed, shooting him in the chest and abdomen. The man then fled southbound down Karlov Avenue. After the man ran out of the store, Bolton locked the front door, pressed the robbery button by the cash register and called 911. Bolton then comforted Zayed, who was moaning and having difficulty breathing. The police arrived on the scene approximately 5 to 10 minutes after the shooting. The ambulance arrived approximately five minutes after the arrival of the police. Zayed was then transported to Christ Hospital, where he subsequently died as a result of multiple gunshot wounds. Two 9 millimeter cartridge cases and one fired bullet were later recovered from the scene.
At the scene, Bolton described the shooter to Officer Daniel Keenan as a male Hispanic, brown eyes, 25 to 30 years old, 6 feet and 1 inch tall, 170 pounds, wearing a blue jean jacket and a colorful knit cap that came down over the man's eyebrows. Thirty minutes later, Bolton went to Area 5 police headquarters, where he spoke to Detective Robert Rutherford and created a composite sketch of the suspect with the assistance of a computer program. At Area 5, Bolton added to the description that the shooter also had a mustache.
On January 15, 1997, Detective Ernest Halvorsen was assigned to the investigation of Zayed's homicide. After interviewing Bolton, the detective learned that, one week after the shooting, Bolton saw the shooter in front of Pete and Jack's grocery store, located on the corner of Division Street and Keeler Avenue. Bolton informed Detective Halvorsen that the shooter and another individual were standing near the grocery store loading a snow blower onto a red pickup truck. However, Bolton did not call the police at the time because he was afraid that the shooter recognized him.
On January 16, 1997, Detective Halvorsen went to the grocery store and interviewed two of the store's employees, Steve and John Salamy. Upon questioning, Steve Salamy confirmed that an individual tried to sell him a snow blower in late November of 1996 and that the composite sketch looked like the man who tried to sell him the snow blower, except that the nose was slightly different. Salamy subsequently viewed a lineup in March 1997 in which defendant Angel Rodriguez was a participant, but was unable to make an identification.
In early March 1997, Detective Halvorsen received information of a possible suspect in the shooting. Detective Halvorsen then sent for a picture of the suspect, receiving a photograph of defendant. Detective Halvorsen noted that the physical description of defendant was "very similar" to the description of the shooter given to the police by Bolton on the date of the murder. Thus, in an effort to "physically look at this person," Detective Halvorsen went out to see defendant on the street, observing that he matched the physical characteristics of the shooter given by Bolton. Detective Halvorsen then put together a photo array consisting of defendant's photograph and five "filler" photographs to present to Bolton, who later identified defendant as the shooter.
On March 23, 1997, defendant was arrested on a traffic warrant and brought to Area 5. At trial, a stipulation was entered that defendant's traffic warrant had been recalled prior to the arrest.
On March 24, 1997, defendant participated in a lineup wherein he was identified by Bolton as the person who shot and killed Zayed. Defendant was then placed under arrest for first degree murder by Detective John Woodhall. Assistant State's Attorney (ASA) Sean Gallagher advised defendant of his Miranda rights and interviewed him immediately thereafter. Upon questioning, defendant stated that he did not know where he was on November 24, 1996, at approximately 2:45 p.m. However, while ASA Gallagher was asking defendant whether he knew what the victim was holding at the time of the incident, defendant interjected "fake gun." Although defendant contended at trial that he stated Zayed was playing with a toy gun because he believed that was what ASA Gallagher was about to say, neither the police nor ASA Gallagher told defendant that the victim was holding a toy gun prior to when defendant made this statement.
On March 10, 1998, following a jury trial, defendant was found guilty of first degree murder. See 720 ILCS 5/9-1(a)(1) (West 1996). On June 3, 1998, defendant filed his motion for judgment notwithstanding the verdict or, in the alternative, a new trial, which was denied by the trial court. Thereafter, on June 29, 1998, defendant was sentenced to 60 years' imprisonment in the Illinois Department of Corrections. This appeal followed.
Defendant contends that he received ineffective assistance of counsel where his trial counsel failed to file motions to quash defendant's arrest and suppress both defendant's lineup identification and post-arrest oral comment, as he was in custody as a result of a "dead" traffic warrant. We disagree.
It is well established in Illinois that the benchmark in determining whether there has been ineffective assistance of counsel is "whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 692-93, 104 S. Ct. 2052, 2064 (1984); see also People v. Beals, 162 Ill. 2d 497, 504, 643 N.E.2d 789, 793 (1994). Under the two-part test for judging ineffective assistance of counsel claims, a defendant must show that: (1) counsel's representation fell below an objective standard of reasonableness and the shortcomings of counsel were so severe as to deprive defendant of a fair trial; and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different. Strickland, 466 U.S. at 694, 80 L. Ed. 2d at 698, 104 S. Ct. at 2068; Beals, 162 Ill. 2d at 504, 643 N.E.2d at 793. Additionally, defendant bears the heavy burden of overcoming a strong presumption in favor of finding that counsel's advocacy was not ineffective. People v. Albanese, 104 Ill. 2d 504, 526, 473 N.E.2d 1246, 1255 (1984). Specifically, the defendant must show that his counsel made errors so serious, and his performance was so deficient, that he was not functioning as the counsel guaranteed the defendant by the sixth amendment to the United States Constitution, and that these deficiencies so prejudiced the defendant as to deprive him of a fair trial whose result is reliable. People v. Caballero, 126 Ill. 2d 248, 259-60, 533 N.E.2d 1089, 1091 (1989).
In the instant case, defendant contends that trial counsel was ineffective for failing to file motions to quash defendant's arrest and suppress the fruits of that arrest. However, the question of whether to file a motion to quash an arrest or to suppress evidence is traditionally considered a matter of trial strategy (People v. Morris, 229 Ill. App. 3d 144, 157, 593 N.E.2d 932, 941 (1992)), an area left to the trial counsel's discretionary judgment and, therefore, one in which the court will not indulge in hindsight analysis to determine whether counsel's decision was adequate under the circumstances (Albanese, 104 Ill. 2d at 525, 473 N.E.2d at 1255). Instead, to prevail on a claim that trial counsel is ineffective by failing to file a motion to quash and suppress, defendant must show that the motion would have been granted and that the trial outcome would have been different if the evidence had been suppressed. Morris, 229 Ill. App. 3d at 157, 593 N.E.2d at 941.
The parties stipulated at trial that the traffic warrant upon which defendant initially had been arrested had been recalled and was no longer active at the time of defendant's arrest. Nevertheless, nothing in the record indicates that police officers knew, at the time of arrest, that the traffic warrant was no longer in effect. No questions were posed to the police officers at trial regarding whether they knew of the status of the warrant at the time defendant was arrested, and the initial arrest report only indicates that defendant was arrested on an "outstanding traffic warrant." In the absence of evidence in contradiction, we agree that the police officers acted on the reasonable and objective good-faith belief that there was an active warrant for defendant's initial arrest. See 725 ILCS 5/114-12 (West 1996). Moreover, as defendant had been positively identified prior to his arrest as the individual who shot and killed Zayed on November 24, 1996, we agree that the police officers had probable cause to arrest defendant notwithstanding the recalled warrant. E.g., Morris, 229 Ill. App. 3d at 158, 593 N.E.2d at 942.
In sum, we hold that defendant has failed to overcome the strong presumption that his trial counsel's conduct fell within the wide range of professional assistance afforded to him under the sixth amendment (Strickland, 466 U.S. at 689, 80 L. Ed. 2d at 694, 104 S. Ct. at 2065), as any motion filed by trial counsel to quash defendant's initial arrest or suppress any fruits thereof would have been futile. See People v. Robinson, 299 Ill. App. 3d 426, 435, 701 N.E.2d 231, 240 (1998) ("[a] defense attorney who is aware that an arrest or search is proper may reasonably view a motion to suppress as a futile effort that he or she has no obligation to pursue"). In view of our disposition of the first prong of the Strickland analysis, we need not address whether defendant suffered prejudice as a result of defense counsel's alleged deficiencies. See People v. Bean, 137 Ill. 2d 65, 131, 560 N.E.2d 258, 288 (1990) (holding that a reviewing court may dispose of an ineffective assistance of counsel claim by applying either component of the Strickland analysis, and if it is not proved, need not consider the other component).
Defendant next contends that the trial court abused its discretion in (a) permitting several police detectives to improperly corroborate Bolton's identification of defendant with prior consistent statements, (b) allowing the jury to hear evidence of an informant's out-of-court statements, and (c) failing to correct the State's closing arguments. We will address each of defendant's contentions in turn.
A. Prior Consistent Statements
During trial, the State called Detective Halvorsen to testify to the description of the shooter provided by Bolton just after the incident. Thereafter, the following colloquy occurred:
"[THE STATE]: What was the next thing that you did with respect to this investigation?
[HALVORSEN]: Early in March a name of a possible suspect was given to me.
Q. After you received this information, the name of a possible suspect[,] what did you do?
A. I sent for a photograph of this person.
Q. And did you receive that photograph?
Q. And who was that a photograph of?
[DEFENSE COUNSEL]: Objection.
Q. When you received the photograph of the defendant did you also receive other ...