Appeal from the Circuit Court of Cook County 96 CR 2212 Honorable James Schreier, Judge Presiding
The opinion of the court was delivered by: Presiding Justice McNULTY
Once again we must decide whether a prosecutor's closing argument requires reversal of a murder conviction. We find that the argument here improperly directed the jury's attention away from the issues. Because we find the evidence closely balanced, we cannot consider the error harmless. Thus, we reverse and remand for a new trial.
Around 10 p.m. on November 15, 1995, Charinida Willford sat on the steps of a house near her home, talking with Tasha Stinson and some other friends from the neighborhood. A bullet from across the street passed close by Stinson's head, and a shotgun blast killed Willford. Stinson told police she saw two black men dressed in black in a gangway across the street. She did not further describe the men. Police found spent cartridges in the gangway, but not outside the gangway.
About a month later Detective Richard Curley interviewed Tyrone Baldwin concerning an unrelated matter. Following that interview, Curley went to see Stinson. She told him she saw the two shooters come out of the gangway before they began shooting. She had seen one of the men several times in the neighborhood. When Curley showed her an array of photographs, she chose a picture of defendant Roy Fluker. Later, she identified defendant in a lineup as the person she saw shooting a handgun on November 15, 1995. Police then charged defendant with the first-degree murder of Willford and the attempted murder of Stinson.
In discovery defense counsel learned that, before Curley went to interview Stinson, Baldwin had identified defendant as the shooter. Some months later Baldwin went to the office of the public defender, where he wrote out a statement concerning his conversation with Curley. He denied making any identification of the shooter, saying that he did not see who shot the guns. He said Curley asked him if he knew that defendant had shot Willford, and Baldwin told Curley he did not know that.
At trial Stinson testified that she, Baldwin and Willford were talking with Donald and Derrick Acker and two other persons outside on November 15, 1995. When she saw a red beam land on her she immediately got down to the floor of the porch, just as the shooting began. She said she did not look to see where the beam came from. But later during the questioning she said that, before she got down, she looked up and saw two men dressed in black, one holding a handgun, in the gangway across the street. She admitted that she told Curley she had seen defendant shooting.
Stinson testified that after the shooting she and Baldwin saw a white Oldsmobile less than a block away. She had previously seen defendant driving that car. At first she said that she never told police the man she had seen in the car was the same as the man she saw shooting, but later she contradicted that testimony. She said she did tell police the man she had seen in the car was the same as the man she saw shooting.
The prosecuting attorney, Laura Morask, asked Stinson whether she had refused to come to court at an earlier stage of the proceedings. Stinson admitted that she had not come, because her "life could be in danger." Some people she saw on the street asked her if she was going to testify against defendant. She told them she would not. She testified that she told the truth in her written statement to police; in that statement she said she saw defendant shoot at her group.
At the conclusion of cross-examination, the court asked for clarification:
"Q. To be clear, is it your testimony today that you saw or did not see the defendant Roy Fluker at or in the gangway where the shooting came from?
Q. Did not see. Secondly, is it your testimony today that you saw or did not see the defendant Roy Fluker at or in the white Oldsmobile on the night of the shooting?
A. I did not see him in the white Oldsmobile, true, or did not shoot."
But on further examination by the prosecutor, Stinson reiterated that she told Curley the truth. She said she saw defendant outside on the night of the shooting, but she did not remember where. The prosecutor reminded her of what she told Curley. Stinson answered that she could not say whether she saw defendant shooting. The court asked her why. She said, "I have kids that live there."
An assistant State's Attorney testified that he spoke with Stinson before trial. She said she told Curley the truth, but she said that she would not identify defendant at trial as the shooter because, in the assistant State's Attorney's words, "she has three children; two of the children from three separate fathers, and two of the fathers have been killed already from gang violence and there is no way that she was going to jeopardize the life of her other children to identify [defendant] in court." The assistant State's Attorney clarified that Stinson said she "was afraid of Roy Fluker or the people that he knows and associates with directly coming to her family and putting harm to her family."
A police officer testified that in November 1995 the Unknown Vice Lords were rivals of the Four Corner Hustlers in a struggle for control of areas for sales of narcotics.
Baldwin testified that he and the Acker brothers belonged to the Unknown Vice Lords, rivals of the Four Corner Hustlers. He saw the red beam coming from the gangway, then he saw two men in the gangway. One man looked like defendant, but Baldwin said that the man was "just a look alike." He saw the man come out of the gangway holding a handgun, along with another man holding a shotgun. Baldwin ran, looking back, as the men started shooting. On cross-examination Baldwin agreed that the man he saw holding a handgun "looked like Roy but wasn't Roy."
On direct examination Baldwin swore that about a half hour after the shooting he and Stinson saw a white Oldsmobile parked in the area. Defendant and another man approached the car. The other man broke the window, then defendant got in the car and drove off. Baldwin had never seen defendant drive that car before.
Baldwin admitted that he spoke to Curley about a month after the murder. After Curley finished interviewing him about another matter, Baldwin volunteered that he witnessed Willford's murder. Baldwin picked defendant's picture from a photo array, and later he identified defendant in a lineup as the person he saw shooting a handgun on November 15, 1995.
The prosecutor asked Baldwin about the statement he wrote out for the public defender. Baldwin said he went to the defender's office in response to a subpoena, and he stayed in the office for two hours because the attorneys would not let him leave. They treated him as though he were on trial. He wrote what the attorney wanted so he could leave. Baldwin admitted that he did not have the subpoena. His mother received it and told him about it.
Toward the end of his testimony he reiterated that he did not know who shot at him, but the man looked like defendant. He admitted that he told police he saw defendant shooting the handgun on November 15, 1995.
Curley corroborated most of Baldwin's trial testimony concerning their discussion in the police station. Curley added that Baldwin told him he knew defendant was a member of the Four Corner Hustlers, and ...