Appeal from Circuit Court of Champaign County No. 97CF1862 Honorable John G. Townsend, Judge Presiding.
The opinion of the court was delivered by: Justice Cook
On October 15, 1998, a jury convicted defendant, Teshome Campbell, of first degree murder (720 ILCS 5/9-1(a)(2) (West 1996)) for his involvement in the beating death of James Shepherd. On November 24, 1998, the trial court denied defendant's posttrial motion and sentenced him to 55 years in prison. On January 7, 1999, the trial court denied defendant's motion to reconsider his sentence. Defendant appeals his conviction. We affirm.
During the early morning hours of December 25, 1997, James Shepherd, the murder victim, picked up Rita Butler, a prostitute, and drove to the corner of Bellefontaine Street and Clock Streets in Champaign to buy "crack" cocaine. Butler purchased a $20 rock of crack cocaine from defendant. Defendant had sold her drugs on two or three previous occasions. She and the victim then drove to a different location to smoke the crack. Upon discovering the crack was fake, the victim drove back to Bellefontaine Street to get his money back from defendant. The victim exited his van and approached defendant, who was standing with a large group of people. Butler remained in the van, which was parked around the corner and facing away from the area where the victim approached defendant and the group of men on Bellefontaine Street.
Butler testified that the victim and defendant began to struggle. She did not see who threw the first punch. Five to nine people then joined in the fight. Unable to defend himself, the victim fell to the ground. The crowd continued to kick and punch the victim until the sound of approaching police sirens caused the crowd to disperse. The victim died about one month after the attack as a result of multiple blows to the head.
The following material, i.e., the remainder of the facts, is nonpublishable under Supreme Court Rule 23 (166 Ill. 2d R. 23).
[Nonpublishable material under Supreme Court Rule 23 (166 Ill. 2d R. 23) omitted here.]
Defendant appeals and asks this court to reverse his conviction on the basis of prosecutorial misconduct, ineffective assistance of counsel, the improper admission of hearsay testimony, and insufficient evidence to prove defendant guilty beyond a reasonable doubt. We address each issue in turn.
A. Prosecutorial Misconduct
The material in this section and sections (A)(1) through (A)(4) is nonpublishable under Supreme Court Rule 23.
[Nonpublishable material under Supreme Court Rule 23 omitted here.]
Defendant contends his fifth amendment right to remain silent was violated when the prosecutor presented evidence and argument referring to defendant's exercise of that right when questioned by police prior to his arrest and prior to any warnings. Defendant agreed to talk to the officers and followed them to their unmarked squad car where the officers interviewed him. The officers asked defendant if he was present the night of the murder. He told them he was outside a house on Bellefontaine Street and witnessed the beating, but he was not involved or anywhere near the victim. The officers asked where he went after the beating, and defendant responded, "I think I left. I think I went and got some pussy, but I don't really remember." Officer Kelly testified he then asked defendant, "Well, who was it? Where did you go?" At this point, defendant replied, "Man, I ain't got nothing more to say to you," and exited the vehicle.
Even illegally obtained evidence may be used to impeach a defendant. Where a defendant does not merely deny the elements of the claim against him, but makes "sweeping claim[s]," such as that he had never dealt in or possessed any narcotics, defendant may be impeached with illegally obtained evidence. Walder v. United States, 347 U.S. 62, 65, 98 L. Ed. 503, 507, 74 S. Ct. 354, 356 (1954) (heroin illegally seized from his home two years earlier). Such impeachment may include a statement made by defendant which would be inadmissible under Miranda v. Arizona, 384 U.S. 436, 16 L. Ed. 2d 694, 86 S. Ct. 1602 (1966). Harris v. New York, 401 U.S. 222, 224, 28 L. Ed. 2d 1, 4, 91 S. Ct. 643, 645 (1971). However, impeachment by defendant's post-arrest silence after he had received Miranda warnings is impermissible. Such silence is "insolubly ambiguous" and using such silence would be fundamentally unfair given the fact that the warnings carry the implicit assurance that silence will carry no penalty. Doyle v. Ohio, 426 U.S. 610, 617-18, 49 L. Ed. 2d 91, 97-98, 96 S. Ct. 2240, 2244-45 (1976).
In contrast, a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. Anderson v. Charles, 447 U.S. 404, 65 L. Ed. 2d 222, 100 S. Ct. 2180 (1980) (impeachment by prior inconsistent statements permitted); see also Jenkins v. Anderson, 447 U.S. 231, 65 L. Ed. 2d 86, 100 S. Ct. 2124 (1980) (where defendant claimed self-defense at trial, State allowed to impeach by defendant's prearrest silence in not reporting stabbing for two weeks). A defendant who chooses to answer police questions may be cross-examined regarding matters he did not disclose. "Following his arrest and Miranda warnings, defendant did not remain silent. He related an entire version of events, but denied his knowledge of the cocaine and the anticipated drug deal. Defendant also omitted signifi-cant details to which he later testified at trial." People v. Frieberg, 147 Ill. 2d 326, 356, 589 N.E.2d 508, 522 (1992) (State could properly cross-examine). Frieberg distinguished an earlier case: "[People v.]Gagliani[, 210 Ill. App. 3d 617, 569 N.E.2d 534 (1991),] did not concern a situation where a defendant gave authorities any version of events which later proved inconsistent; the defendant simply denied knowledge of the incident." Frieberg, 147 Ill. 2d at 356, 589 N.E.2d at 522.
Frieberg involved impeachment, but there is no reason a defendant's prior statements cannot come in substantively, on direct examination. Perhaps mere silence, either at trial or during the initial questioning by police, is not admissible on direct examination. United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987) (initial questioning); Griffin v. California, 380 U.S. 609, 14 L. Ed. 2d 106, 85 S. Ct. 1229 (1965) (silence at trial). This case, however, does not involve mere silence but a defendant who chose to speak to the police. Any statement by an accused person, unless excluded by the privilege against self-incrimination or other exclusionary rules, may be used against him as an admission, even if it is not inculpatory or against interest. People v. Aguilar, 265 Ill. App. 3d 105, 110, 637 N.E.2d 1221, 1224 (1994).
Defendant chose to speak to the police. He made an important assertion in his own defense, that he did not flee the scene in co-defendant Bobby Joe Douglas's car, that "I think I went and got some pussy, but I don't really remember." When the police attempted to verify the details of defendant's alibi, defendant refused to provide the name of the woman. The State was entitled to show that defendant either could not or would not furnish the details of his alibi, thereby permitting the inference that his alibi was fictitious. Omitting facts within a statement does not involve the right to remain silent. People v. Mischke, 278 Ill. App. 3d 252, 265, 662 N.E.2d 442, 451 (1995). A defendant who spoke to the police about his thriving narcotics trade could not complain when the officer testified that defendant said nothing about the murder at the time of his arrest except, "it will all come out in court." People v. Garza, 276 Ill. App. 3d 659, 669-70, 658 N.E.2d 1355, 1362 (1995). Here, the prosecutor did not comment on defendant's silence but on the inconsistent statements defendant made to police.
Frieberg and Anderson stand for the proposition that a defendant who voluntarily speaks after receiving Miranda warnings has not been induced to remain silent. It is no help to defendant that this case did not involve a custodial interrogation and did not rise to the level where a Miranda warning was required. Instead, that fact weighs in favor of the prosecution. Impeachment by post-arrest silence not preceded by Miranda warnings has been allowed on the basis that the government has not induced silence by implicitly assuring the defendant that his silence would not be used against him. Fletcher v. Weir, 455 U.S. 603, 606-07, 71 L. Ed. 2d 490, 494, 102 S. Ct. 1309, 1312 (1982). It has been held that a potential Doyle violation, in cases in which the evidence is closely balanced, should be treated as plain error for purposes of review. Gagliani, 210 Ill. App. 3d at 626, 569 N.E.2d at 540. This case does not involve a Doyle violation, but a situation where defendant chose to talk to police. It could be argued that defendant's statement, "Man, I ain't got nothing more to say to you," was not a refusal or inability to answer a specific question, but an invocation of his fifth amendment privilege. The trial court was deprived of the opportunity to address the issue or attempt to prevent any unfair prejudice by giving instructions or the like by defendant's failure to object.
Defendant argues that the prosecutor improperly used evidence of his invocation of his right to remain silent as evidence of guilt during the State's case in chief and during argument. During opening arguments, the prosecutor told jurors defendant "wasn't real cooperative" when police initially interviewed him. During closing arguments, the prosecutor said that the reason there was no physical evidence against defendant was because when the police interviewed defendant four days after the attack, defendant "stonewalled" them. The prosecutor further commented that defendant "threw up an attitude" when police questioned him and he "built a wall" between himself and the police. Again, these comments are properly viewed, not as a comment on defendant's silence, but as a comment on the statements defendant did make to the police.
6. Prosecutor's Improper Remarks During Closing Argument
Defendant's final six allegations of prosecutorial misconduct relate to closing argument. In analyzing whether a prosecutor's closing argument was improper, the law gives a prosecutor wide latitude in argument and he may comment on facts and legitimate inferences that may be drawn therefrom. People v. Enis, 163 Ill. 2d 367, 407, 645 N.E.2d 856, 874 (1994). Further, the prosecutor may respond to comments made by defense counsel, denounce the activities of the defendant, and highlight inconsistencies or weaknesses in the defendant's argument. People v. Sutton, 260 Ill. App. 3d 949, 960, 631 N.E.2d 1326, 1335 (1994). Finally, in reviewing allegations of prosecutorial misconduct, the arguments of both the prosecutor and the defense counsel must be examined in their entirety and the allegedly improper remarks must be placed in the proper context. People v. Westbrook, 262 Ill. App. 3d 836, 856, 635 N.E.2d 398, 411 (1992).
The material in sections (6)(a) and (6)(b) is nonpublishable under Supreme Court Rule 23.
[Nonpublishable material under Supreme Court Rule 23 omitted here.]
Defendant next contends the prosecutor improperly told the jury the witnesses were afraid to testify and implied the defendant was responsible for that fear. Specifically, defendant contends that during closing argument the prosecutor emphasized and contrasted the "alleged fears" of the witnesses with a menacing and threatening portrayal of defendant.
First of all, the "alleged fears" commented upon were based on testimony from the witnesses that they were, in fact, afraid. Rita Butler testified she was "scared" when Officer Swan questioned her about two weeks after the incident. Damion Johnson, a witness to the beating originally charged with the murder but who was testifying in exchange for having the charges dropped, testified he did not voluntarily tell police what he knew about the incident because he did not want his cousins and friends (some of the co-defendants were also his cousins) to get in trouble, and he was afraid of what might happen if he talked to police. When asked what he was afraid might happen, Johnson said, "[s]omebody coming back and blow us up, too." A few lines later, Johnson clarified he was afraid "[']they['] might try to do something to me," and "try to hurt me." Looking at the prosecutor's closing argument in its entirety and putting comments in their proper context, it becomes clear that the prosecutor's purpose in commenting on the evidence of the witnesses' fear to come forward was to explain why it was not inconsistent for them to have a different story now than they did initially. There was no impropriety here.
Finally, during Johnson's testimony, the prosecutor made this reference to Johnson's fear and reluctance to testify: "listen carefully, 'cause [Damion Johnson's] got his chin down on his chest because his cousin's sitting right there staring daggers at him." The prosecutor did commit error when he made the comment that defendant was "staring daggers" at Johnson while Johnson was testifying. People v. Crabtree, 162 Ill. App. 3d 632, 637, 515 N.E.2d 1323, 1326 (1987) (error for prosecutor to comment on defendant's non-testifying demeanor). We find this single, isolated comment to be harmless, however, because the jury was instructed that closing arguments made by counsel were not evidence and that any argument or statement made by counsel not based on the evidence should be disregarded. This instruction has been held to cure any prejudice to the defendant because of the prosecutor's improper remarks. People v. Labosette, 236 Ill. App. 3d 846, 857, 602 N.E.2d 966, 974 (1992).
The material in sections (6)(d), (6)(e), and (6)(f) is nonpublishable under ...