Appeal from the Circuit Court of Winnebago County. No. 97--CF--1081 Honorable K. Craig Peterson, Judge, Presiding.
The opinion of the court was delivered by: Justice Thomas
The defendant, Marvin Williams, was charged by indictment with four counts of first-degree murder (720 ILCS 5/9--1(a)(3) (West 1998) in connection with the shooting deaths of Justin Levingston and Adrienne Austin. The indictment alleged that the defendant shot the two victims on March 18, 1997, during the commission of a home invasion (counts I and II) or, in the alternative, during the commission of an attempted armed robbery (counts III and IV). Following a jury trial, the defendant was convicted of two counts of first-degree murder. The trial court sentenced him to a term of natural life imprisonment, without parole. The defendant appeals, contending that (1) an eyewitness voice identification of the defendant, stemming from an observation at a pretrial hearing, should not have been admitted at trial, (2) the State improperly elicited testimony from a co-defendant for whom the State had agreed to provide protection in prison in exchange for his testimony, and (3) certain comments by the prosecutor during closing argument were improper and denied defendant a fair trial.
Prior to trial, the defendant filed a motion seeking to exclude voice identification testimony from Lovenia Hinton. At a hearing on that motion held outside the presence of the jury, Hinton testified that she went to the Winnebago County courthouse on June 13, 1997, because she had been informed by her brother that the defendant had a court appearance scheduled and she wanted to see the defendant. She had heard that the defendant was the one who had shot her nephew and sister-in- law. Prior to coming to court on June 13, Hinton had not had any contact with the State's Attorney's office. Hinton entered the courtroom on June 13 and sat in the back row next to her brother and mother. The defendant's case was called, and Hinton knew that the defendant would be coming into the courtroom. Hinton was bent over, had her head down, and was looking at the floor when she heard a voice say, "Why do I have to be shackled like this[?]" At that point, Hinton raised her head, looked at her mother, and told her that that was the voice she had heard on the night her house was broken into when her nephew and sister-in-law were shot. She explained that, on the night of the murders, she was underneath the kitchen table with her head down when she heard a voice from 9 or 10 feet away say, "Who else is in the house, who else is in the house[?]" At the hearing on the motion to suppress the identification, Hinton identified the defendant in court as the person whose voice she had heard in the courtroom on June 13. She further testified that after she recognized the defendant's voice her brother spoke to an assistant State's Attorney and she eventually gave the police a statement indicating that the voice she had heard in the courtroom was the same voice she had heard on the night of the murders asking if anyone else was in the house.
The trial court denied the defendant's motion to exclude the voice identification. Thereafter, Hinton testified before the jury that on March 17, 1997, she lived with Justin Levingston, Adrienne Austin, and four-year-old Luckia Austin, at 1438 North Church, in Rockford, Illinois. That night, she fell asleep on the living room couch watching television. Around 2 a.m., she heard noises coming from the porch outside. She then heard voices outside and the door being kicked in. She heard a total of two kicks on the door. She then heard voices saying, "This is the police." A gunman then pointed a long-barreled gun at her face and grabbed her by her head. The man told her not to look and asked her where "their shit" was located. She then looked to the right and saw two men hitting Adrienne. The man who was holding a gun to her then took her into the kitchen and indicated that she should look at the wall. He again asked about the "shit" and then asked where "the Mexican ***" was." Hinton thought he was referring to Justin, who was light-skinned, so she pointed upstairs. He then told Hinton that the only reason they were there was that "he stole their reefer." The man then put Hinton down on the floor, with her face to the floor. She was on her knees, underneath the table. He told her not to move, look, or say anything. Shortly after that, she heard a gun shot, then another gunshot, and then she heard Adrienne say, "Oh, my God." At that time, the man who had brought Hinton into the kitchen was rubbing her back and telling her that it was going to be all right. She then heard another gunshot. Luckia then ran toward the kitchen, and the man told Hinton to grab the child, hold her, and keep her quiet. Hinton complied with that order. She then heard footsteps coming down the steps. From about 9 or 10 feet away she then heard a voice saying, "Who else is in the house, who else is in the house[?]" After that, it was quiet for a moment and then she heard the same voice say, "We up, this GD, we up." Thereafter, she heard footsteps going out the door and a car speeding off.
Hinton further testified that after the car drove off she grabbed Luckia and hid in the basement for a while. She then went upstairs and found Levingston lying on the stair landing, dead. She found Adrienne in a bedroom crouched down on the floor. Adrienne was struggling to breathe, with blood running from her shoulder. Hinton eventually called 911, and a tape recording of her call was played for the jury.
Hinton stated that she told the 911 operator on the night in question that five black men had come into her house. However, she told the police when they arrived on the scene that she saw two suspects making a lot of noise but there may have been more. Hinton acknowledged that at co-defendant Emmitt Wright's trial she had testified that there were three or four men. However, she stated that she now believed that there were at least four men involved. She heard two of them go upstairs, and one remained with her in the kitchen. She stated that she believed all the men were black because of their voices, and she knew that the man who held her in the kitchen was black because she saw him. She explained, however, that she could not see his face.
Hinton also testified that she went to the courthouse on June 13, 1997, because she wanted to see what Marvin Williams looked like and she had heard that he had done the shooting at her house. The defendant walked out in handcuffs and shackles when his case was called. When the subject of the blood discovered on the defendant's shoes was being discussed, Hinton put her head down. While her head was down, she heard the defendant ask the judge why he had to be shackled. He said it loud enough for her to hear it in the back of the courtroom. After she heard the defendant's voice, she turned to her mother and told her that it was the same voice that she had heard on the night of the murders that had said, "Who else is in the house, who else is in the house, this GD, we up."
Lemual Conley testified that he had known the defendant for more than two years and that he knew him quite well from "hanging out" with him. On the night of March 17, 1997, Conley and the defendant hung out together at the Fairgrounds housing project and then went to the Salvation Army to play basketball. Conley and the defendant eventually left there with Emmitt Wright and Antonio Trammell in Wright's car and went to buy liquor. After stopping at the liquor store, they went to a house where they drank, talked, and played video games. Someone mentioned a person who had 30 pounds of marijuana at his house, and they all agreed that they should just go there and take it. Wright drove the four of them to a house on Church Street. They parked across the street and walked to a house on the corner. Conley carried a .22-caliber handgun, and the defendant carried a .38-caliber handgun. Trammell and Wright were unarmed.
Conley further testified that the four of them went up to the door of the house and Wright knocked on the door and then kicked it twice. It opened on the second kick. They then entered the living room of the house and Conley yelled, "police." He saw two women, one on each couch. He grabbed one of the women by the arm and asked her where the "shit" was. She pointed upstairs. Conley then took her into the kitchen and told her to look at the wall and not at him. The defendant and Wright had taken the other woman upstairs. Conley could hear commotion coming from upstairs, and after two or three minutes he heard a shot. Shortly after that, he heard another shot. Then he heard more commotion from upstairs. A little girl then came into the kitchen area and Conley pushed her toward the woman in the kitchen, who was now kneeling down. Conley rubbed the woman's back, telling her to be cool and everything would "be straight." He did this to keep her from panicking. Then, Conley heard two more shots and more commotion from upstairs. At that point, Conley went toward the living room and saw Trammel there. Conley then proceeded to go up the steps. He stepped past Levingston, who was lying on the stairwell. Conley went into one of the upstairs bedrooms and saw the defendant standing in the room, alone. Conley then went back downstairs and into the kitchen and again told the woman to be cool. Conley then heard two more gunshots, about 10 seconds apart. The defendant then came down the stairs and into the kitchen near where Conley was standing. The defendant pointed his gun at the woman who was kneeling down in the kitchen and said, "Fitting to get her." At that moment, Conley pushed the defendant's arm out of the way, stood between the defendant and the woman, and told the defendant that that was not the reason they came. They then exited the house through the front door and left in Wright's car. As they were leaving the house, Conley yelled, "G.D., we up." Wright eventually dropped Conley and the defendant off at the Fairgrounds housing project, at 957 Acorn, which was the home of Angela Williams, the defendant's sister. Conley threw his gun into a box in a closet at Angela's house. That night he stayed at 963 Acorn, a few houses down. Conley stated that he had a "relationship" with Angela at the time.
Conley admitted that when he was first questioned by the police following the incident he denied involvement and claimed that he spent the night at Angela William's house. Conley acknowledged that he wrote a letter to Steven Hambrick while in jail on March 23, 1998, stating, "I wouldn't feel so bad if there was another way to get less time than to lie about *** what and who was there; but man, these punks was talking crazy anyway. I thought you was out there getting them tight flow lyrics together like that one cut, 'Smoke it till it's gone.' "
Conley also testified that he had an agreement with the State that, in exchange for his truthful testimony in this case, he would be allowed to plead guilty to home invasion, armed violence, and attempted armed robbery. The sentencing range would be from 15 to 45 years in prison, and the sentence to be imposed within that range would be left to the trial court's discretion. The State also agreed to dismiss an unrelated armed robbery charge and to provide whatever protection it could, if necessary, while the defendant was incarcerated in the Department of Corrections. Conley acknowledged that he had been convicted of felony theft in 1996.
Sixteen-year-old Antonio Trammell testified that after playing basketball at the Salvation Army on March 17, 1997, the defendant said that he knew a "guy who got somebody for 40 pounds of marijuana," and the defendant asked if Trammell, Conley, and Wright wanted to go there. The four of them drank beer and cognac, and the defendant again talked about getting the marijuana. During the ride to the house on Church Street, they all agreed to go into the house and take marijuana and money. After parking, Trammell put on a ski mask. Upon reaching the house, Wright kicked the door in and they ran inside. Conley hollered, "Police, get down," and then ran over to a woman and hit her in the face with his gun. Trammell heard another woman scream about her baby. Conley directed a woman into the kitchen. The defendant and Wright then went upstairs, while Trammell stayed in the hallway. Trammell then heard the defendant's voice, which was coming from upstairs, ask someone where "the shit" was. Trammell then heard a shot and a man in pain. The defendant again asked where "the shit" was, and then there was another shot. A woman said, "Oh, no, my son," and the defendant asked, "Bitch, where's the shit at[?]" The woman answered that she did not know, and the defendant accused her of playing with him. Trammell then heard another shot.
Trammell further testified that after he heard the three shots mentioned above he heard something tumble down the stairs. Trammell then saw Levingston on the stairwell, with blood around his chest and face. Trammell then heard the defendant say, "Oh, you faking," and then Trammell heard another gunshot. At that point, Trammell went into the kitchen and saw Conley emptying a can onto a table. Trammell asked Conley where the other woman was, and Conley told him that she was underneath the table. Trammell then went to the front door of the house and saw Wright pulling a car up to the front of the house. Trammell then ran and got into the car. All four of them eventually got into the car and they drove away. They dropped off the defendant and Conley at the Fairgrounds housing project.
When he was arrested on March 27, 1997, Trammell denied any knowledge of the incident. Later, he told the police that he was there but did not do any shooting. Trammell admitted that he wrote his mother a letter telling her that his attorney had told him that they would have to make it seem as though he did not know that there was going to be a robbery or that he ran out before any shots were fired. Trammell explained, however, that he was merely trying to inform his mother about what his attorney had told ...