The opinion of the court was delivered by: Justice Thomas
Docket No. 87117-Agenda 6-September 2000.
The defendant, Edward Bolden, was convicted of the first degree murders of two persons and of the attempted first degree murder and aggravated battery of a third person. The defendant was sentenced to natural life imprisonment for the two murder convictions and to a consecutive term of 30 years' imprisonment for attempted murder. The appellate court affirmed the defendant's convictions and sentences in an unpublished order. No. 1-96-4221 (unpublished order under Supreme Court Rule 23). We allowed the defendant's petition for leave to appeal (177 Ill. 2d R. 315(a)), and we now affirm the judgment of the appellate court.
Before this court, the defendant raises two issues concerning a lineup he voluntarily participated in before he was charged with any offense in this case. The defendant also challenges one of the jury instructions used at his trial, as well as the trial judge's exclusion of certain related evidence. Given the nature of the issues raised by the defendant, we will provide only a brief summary of the trial evidence and a more detailed recitation of the testimony introduced at the suppression hearing.
According to the evidence presented at trial, on January 29, 1994, the three victims in this case-Clifford Frazier, his brother, Derrick Frazier, and a third man, Irving Ledell Clayton-went to J&J's Fish Store at 64th Street and Cottage Grove Avenue in Chicago to sell three kilograms of cocaine. Upon arriving at the fish store, they entered the building and spoke to "Ant" Williams, with whom they had engaged in similar transactions in the past. Clifford Frazier testified that he was asked to leave the store because he was armed, so he went across the street to another restaurant, ordered some food, and watched the fish store from a window. After about five minutes, Clifford saw a man enter the fish store and shake hands with Williams, Derrick Frazier, and Ledell Clayton. After another 5 or 10 minutes, Derrick, Ledell, and the man entered the restaurant where Clifford was waiting. As Derrick and Ledell spoke with Clifford, the man got change and left the building.
Clifford testified that Derrick and Ledell next got into Derrick's car with the man and drove off. Clifford Frazier then left the restaurant and moved his car to a nearby vacant lot. According to Clifford, two suspicious-looking men came out of a building and walked to a car behind his. Clifford got out of his own vehicle, opened the hood, and watched the two men. Clifford testified that after 10 to 15 minutes, the man who had earlier driven off with Derrick and Clayton approached on foot, shouted "Freeze," and started firing a gun at him. Clifford ran off but was struck in the back and the leg. Clifford ran to the fish store, but the door was locked and no one would let him in. The man caught up with Clifford, and the two struggled. Clifford fell, and the man ran off. At trial, Clifford identified the defendant as the man who had shot him.
Derrick Frazier and Ledell Clayton were found a few blocks away in Derrick's car; both of them had been shot a number of times in the head at close range. Derrick was dead, and Ledell died the next day. Investigators learned that the defendant, who fit a description provided by the surviving victim, Clifford Frazier, had talked with "Ant" Williams earlier, and they subsequently attempted to contact the defendant at his mother's house.
According to the testimony presented at the suppression hearing, the defendant retained counsel, and his lawyer, Charles Ingles, later contacted the police in response to the detectives' inquiries. The defendant eventually agreed to meet with the detectives. Following some delay, the defendant and his lawyer went to Area 2 headquarters on February 26, 1994. At that time, the defendant was not under arrest and had not been charged with any offense in connection with this case. At the police station, the defendant agreed to take part in a lineup. The lineup consisted of five persons, including the defendant; because of disparities in height, the participants were seated. The witness, Clifford Frazier, viewed the lineup through a one-way mirror from an adjacent room.
Called as a witness by the defendant, Detective Angelo Pesavento testified at the suppression hearing that the defendant was given his choice of which seat to take, and he chose the fourth seat. Pesavento also testified that he told the defendant's lawyer, Charles Ingles, that Ingles could not be in the same room with the witness during the lineup but that he was welcome to remain with the defendant. According to Pesavento, Ingles chose instead to wait in an office outside. Detective Pesavento stood with the witness in the viewing room. Pesavento testified that the witness readily identified the defendant as the person who had fired shots at him. Pesavento denied that the defendant was told where to sit and that the defendant later changed chairs with another participant. Pesavento also denied that an officer walked into the lineup room and addressed the defendant by name during the procedure and that Frazier was prompted in any way in making his identification.
Also testifying at the suppression hearing was Charles Ingles, the lawyer who had represented the defendant at the time of the lineup. Ingles stated that he contacted the police after he learned that the police were trying to reach the defendant. The defendant agreed to meet with the police, and Ingles and the defendant went to Area 2 headquarters on February 26, 1994. After some initial questioning by the detectives, the defendant agreed to take part in a lineup. Ingles testified that he told the detectives that the defendant would participate in a lineup if counsel could be present. According to Ingles, one of the detectives responded that that would be all right. The defendant was later placed in a lineup room. Ingles saw the witness, who had walked by the defendant and counsel earlier, go into the viewing room. Ingles said that he started to follow the witness and Detective Pesavento into the viewing room but that Pesavento barred his way. Ingles reminded the detective of their agreement, that the lawyer could be present during the lineup; Pesavento replied that he was present.
The defendant also testified at the suppression hearing. The defendant stated that, after speaking with police detectives, he agreed to take part in a lineup if his lawyer could be present. The defendant said that he was then taken to the lineup room, which contained five chairs; four of them were already occupied. According to the defendant, he was told to sit in the empty chair, which was the first one. The door to the room was then closed. The defendant said that he then switched seats with the person sitting in the fourth chair. After changing places, the defendant saw the witness on the other side of the window come to the glass and point to the person sitting in the first chair. The defendant described the witness as chubby and said that he was wearing a green sweatshirt and a gold chain with the letter "D" on it. The defendant testified that he then saw the detective in the viewing room put his head out the door; the detective who was outside the lineup room next opened the door, stuck his head in, and said " `You, Eddie Bolden, right?' " The defendant did not reply. The detective again said, " `Eddie Bolden, right?' " and gave the defendant's address. This time the defendant replied in the affirmative. The detective then told the persons in the lineup room to stand up, and they did. The defendant testified that he was next able to see the witness in the other room move down to where the defendant was standing, and he could see the detective say something to the witness. The witness shook his head no and tried to walk away, but the detective grabbed him, brought him back to the glass, and said something again, and the witness then nodded his head yes.
Appearing on behalf of the State at the suppression hearing, Officer Joe Barnes testified that he was one of the participants in the defendant's lineup. Barnes stated that he, the defendant, and three other men entered the lineup room together that afternoon. A detective told the defendant that he could sit wherever he liked, and the defendant chose to sit in the fourth chair. The lineup was then conducted. Barnes stated that persons in the lineup room were not able to see or hear persons in the viewing room. Barnes denied that the defendant switched places with anyone and that a detective entered the room and called out the defendant's name during the lineup.
Detective George Karl also testified on behalf of the State at the suppression hearing. Karl stated that the defendant's lawyer, Charles Ingles, asked to be with Frazier during the lineup. Karl told Ingles that the lawyer could not be with the witness but that he could be with the defendant. Karl said that Ingles instead stayed in a nearby conference room or squad room during the course of the lineup. Detective Karl further testified that the defendant was given his choice of chairs in the lineup room and that the defendant selected the fourth seat. Karl denied that the defendant initially sat in the first chair and then switched places. Karl also stated that a person in the lineup room could see into the adjacent witness room only by putting his head right against the one-way mirror that separated the two rooms. Detective Karl stated that when the witness, Clifford Frazier, arrived at the police station, the detectives did not have him walk by the defendant. Karl denied that anyone called out the defendant's name during the procedure.
At the conclusion of the hearing, the trial judge denied the defendant's motion to suppress the lineup identification. The judge concluded that the defendant's constitutional rights were not violated by the detectives' refusal to permit defense counsel to be with the witness during the lineup. The judge believed that the police had been more than accommodating in this case, because they had gone beyond what the law required in suggesting that defense counsel could be with the defendant during the lineup. The judge also rejected the defendant's separate contention that the lineup was suggestive.
The preceding witnesses testified similarly at trial when they were questioned about the circumstances surrounding Frazier's identification of the defendant in the lineup. The eyewitness in this case, Clifford Frazier, had not testified at the suppression hearing, and at trial he said he did own a necklace like the one described by ...