The opinion of the court was delivered by: Justice Wolfson
APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY.
HONORABLE FRED G. SURIA, JR., JUDGE PRESIDING.
The defendant claims he was the victim of prosecutorial excess during his murder trial before a jury. He was. He was inaccurately described at trial as a convicted narcotics salesman and a convicted felon. In addition, his failure to testify was argued by inference and his lawyer was referred to as "a professional criminal defense lawyer."
Because the defendant's lawyer did not make timely objections, and because the evidence was far from overwhelming, we apply a plain error analysis to events at trial. We conclude that serious trial errors, taken in combination, were not harmless beyond a reasonable doubt. We reverse the defendant's convictions and remand this cause for a new trial.
Around 4:30 p.m. on August 23, 1996, two young men wearing black sweatshirts fired gunshots into a group of people gathered near a bar on Chicago's west side. Four people were hit by bullets; three survived. Gary Thomas was killed.
Johnson and Bernard Williams (Williams) were indicted for first degree murder, attempt first degree murder, aggravated battery with a firearm, armed violence, and aggravated battery. On November 10, 1998, a jury found Johnson guilty of first degree murder and three counts of aggravated discharge of a firearm. The trial court sentenced Johnson to 75 years imprisonment: a 45 year sentence on the murder conviction and three consecutive 10 year sentences on the three aggravated discharge of a firearm convictions. This appeal followed.
Johnson raises five issues on appeal: (1) whether evidence of his gang membership denied him a fair trial; (2) whether veiled evidence he failed a polygraph test denied him a fair trial; (3) whether evidence of his prior arrests and convictions denied him a fair trial; (4) whether the prosecution's closing argument denied him a fair trial; and (5) whether his attorney's ineffectiveness denied him a fair trial.
Johnson's attorney failed to raise the first three issues in a post-trial motion and did not consistently object in a timely manner. Johnson now attributes these omissions to ineffective assistance of counsel. We need not address Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), because the failure to preserve these issues implicates the plain error rule.
Illinois courts have consistently held a defendant who fails to raise an issue both at trial and in a post-trial motion forfeits the issue on appeal in the absence of plain error. People v. Keene, 169 Ill. 2d 1, 9-10, 660 N.E.2d 901 (1995); People v. Enoch, 122 Ill. 2d 176, 187, 522 N.E.2d 1124 (1988). Supreme Court Rule 615(a) provides: "Plain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the trial court." 134 Ill. 2d R. 615(a). The plain error rule bypasses normal forfeiture principles and allows reviewing court consideration when either "(1) the evidence is closely balanced; or (2) an error is so fundamental and of such magnitude that the defendant was denied a fair trial." People v. Nelson, No. 88186, slip op. at 4 (September 21, 2000); People v. Lucas, 151 Ill. 2d 461, 482, 603 N.E.2d 460 (1992); see People v. Bunning, 298 Ill. App. 3d 725, 727, 700 N.E.2d 716 (1998)("The plain error rule may be invoked to protect the defendant from serious injustices and to preserve the integrity and reputation of the judicial process ***.") But as we said in People v. Rivera, 277 Ill. App. 3d 811, 823, 661 N.E.2d 429 (1996): "We add this cautionary note: responsible advocacy would not require us to engage in a plain error analysis. Errors that are plain on review ought to be plain at trial."
We believe errors were committed in this case. The jury heard statements and arguments from prosecutors that it should not have heard. These errors implicate fundamental constitutional rights of an accused. But before they may be considered we have to determine whether the evidence is so closely balanced or whether the errors we identify were so fundamental and of such magnitude that the defendant was denied a fair trial. If the evidence is closely balanced, we then would consider whether we could say the errors were harmless beyond a reasonable doubt.
At trial, the only eyewitness testimony came from Martin Nash (Nash), a member of the shooting target's street gang and a convicted felon serving a four-year narcotics sentence at the time of the trial. None of the wounded survivors identified the shooters. Nash testified Chicago Police Detectives investigating the shooting showed him a group of five photos, and he insisted he identified both Johnson and Williams in this photo array. But Detective Kriston Kato testified the photo array contained only Williams' photo and agreed Nash identified only Williams.
Additionally, the probative value of Johnson's written inculpatory statement was contested by defense testimony from Dr. Dawna Gutzman (Dr. Gutzman), a staff psychiatrist at Forensic Clinical Services. Dr. Gutzman asserted Johnson's low intelligence, reading impairment, and dependent personality cast doubt on his ability to understand and waive his Miranda warnings and made him more susceptible to suggestion than the average person. Cordelia Parker (Parker), Johnson's special education teacher, also testified for the defense. Parker said Johnson had a fourth-grade reading level at the end of the eighth grade.
Because we conclude the case was close, we examine Johnson's first three issues on their merits. Before turning to these issues, we note: "The admissibility of evidence at trial is a matter within the sound discretion of the trial court, and that court's decision may not be overturned on appeal absent a clear abuse of discretion." People v. Illgen, 145 Ill. 2d 353, 364, 583 N.E.2d 515 (1991).
On September 12, 1996, Johnson signed an inculpatory statement, which Assistant State's Attorney Susan Ziegler read to the jury:
"DeAngelo and Bernard were in a car when they saw [Eric Smith,] Puff. When they saw Puff he was with three of his friends one was Elroy. When they saw Puff they decided to go and get guns to teach him a lesson to leave DeAngelo and Bernard alone. Puff was the leader of a gang called the Dog Pound. When DeAngelo and Bernard wouldn't sell drugs for Puff he threatened them. On Aug 21, 1996 Puff shot Bernard's house up meaning they [sic] fired 15 shots into Bernard's house. So on Aug 23, 1996 when Bernard and DeAngelo saw Puff they decided to teach Puff a lesson."
Before trial, the prosecution filed a motion in limine to allow evidence of Johnson's gang affiliation. The trial court provisionally indicated it would not allow this evidence, but noted it would revisit this ruling during trial if the prosecution showed gang rivalry appeared to be the sole motive for the shooting.
At trial, the prosecution called Nash as a witness. Nash testified he was standing in front of a bar with Eric "Puff" Smith (Smith) and two other men on August 23, 1996. According to Nash, Smith, leader of a street gang called "The Dog Pound," saw two young men approaching and said, "Man, look, here come those mother fucker niggers; man, mother fucker travelers." There was no objection to the hearsay. When the prosecution asked Nash what Smith meant, defense counsel did object.
In a sidebar conference, the defense asked for a mistrial. The prosecution explained its view of the gang motive:
"The Dog Pound is trying to recruit a couple of Traveling Vice Lords to sell drugs for the Dog Pound. The Dog Pound is a renegade street gang comprised of many different street gangs, most of whom are Vice Lords. He [Smith] tries to recruit two people to come to his gang to sell drugs for him. There may have been a previous altercation, but the retaliation by the Traveling Vice Lords is to get Puff, the leader of the Dog Pound. It is clear it is a gang motive. It is a gang retaliation."
The court overruled the objection: "*** I will allow the State to continue this line of inquire [sic] on the basis that the statement apparently indicates the reason for their going after Puff. And that being so, if Puff is a member of a different gang as related by this person who knows Puff, I would allow it." When the trial resumed, Nash said he understood Smith meant members of the Traveling Vice Lords street gang were approaching. Nash testified he later told the police Smith "*** might know who they is [sic] because he ...