Appeal from the Circuit Court of Cook County. No. 99 CR 6530 Honorable Michael P. Toomin, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
Following a jury trial, the appellant, Michael Smith, was found guilty of first degree murder and armed robbery. The trial court subsequently sentenced Smith to serve 50 years' imprisonment for first degree murder and 20 years' imprisonment for armed robbery with the sentences running concurrently. On appeal, Smith maintains: (1) he received an unfair trial because he did not have an impartial jury, (2) the trial court improperly excluded his prior consistent statements as inadmissible hearsay, (3) he was denied his fundamental right to be present at all stages of his trial, (4) the prosecutor elicited irrelevant and prejudicial testimony from the victim's wife and compounded the error by making improper comments during his opening and closing arguments, (5) the prosecutor improperly shifted the burden to the defense during his closing and rebuttal arguments, (6) the trial court improperly included "or" between the factors of Illinois Pattern Jury Instructions, Criminal, No. 3.15 (3d ed. 1992)(hereinafter IPI Criminal 3d No. 3.15.) when it gave the instruction to the jury and (7) he received ineffective assistance of counsel due to a variety of errors committed by his trial lawyer. For the reasons that follow, we reverse the decision of the trial court and remand this matter for a new trial.
On the afternoon of January 19, 1999, Lester Mosbacher died from gunshot wounds he sustained during an armed robbery which occurred that morning. The incident took place at a currency exchange that Mosbacher owned which was located at 12719 South Halsted Street, in Chicago, Illinois.
At trial, Rose Brown testified that she was driving her son to school on the morning of January 19, 1999. As she was driving, the traffic came to a stop and Brown's car was subsequently positioned in front of Mosbacher's currency exchange. At that time, Brown noticed a man walking through "a big hole in the front window" of the currency exchange.
Brown said that the man was wearing black boots, black pants and a black jacket with a hood. She testified that the man was black, approximately 5 feet 7 inches tall, and weighed about 150 pounds. Almost 10 seconds later, Brown observed a second man exit the currency exchange through the same window.
Brown said that the second man was wearing black boots, blue jeans, a red shirt and a jacket. She testified that the second man was black, approximately 5 feet 4 inches to 5 feet 5 inches tall, wore his hair in an Afro and had "a huge nose and huge lips." Brown identified the second man as the defendant.
After she took her son to school, Brown returned to the currency exchange and spoke to the police. Brown then accompanied the police to Area 2 police station, where she helped the authorities to create a composite sketch of the defendant.
On January 22, 1999, Detectives John McCann and David Fidyk visited Brown at her home. There, the detectives showed Brown a photographic lineup. Brown identified a picture of Smith as the person she saw on the day of the occurrence. On February 12, 1999, Brown went to Area 2, where she again identified Smith in a lineup as the shorter offender exiting the currency exchange.
At trial, Officer Richard Clark, from the Calumet Park police department, testified that on February 12, 1999, at approximately 11:40 a.m., he was on patrol when he saw Smith walking down the street. Clark was aware that Smith was wanted for questioning by the Chicago police department. Clark subsequently placed Smith under arrest. At the time, Smith identified himself as Shawn Cotton.
Detective McCann testified that on February 12, 1999, he learned that Smith had been stopped in Calumet Park. Shortly after 12 noon, McCann made arrangements with Clark to have Smith transported to Area 2. McCann estimated that at the time, Smith was 6 feet 1 inch and weighed approximately 150 to 160 pounds. At Area 2, Smith was placed in a conference room.
At approximately 1:15 p.m., McCann had a conversation with the defendant. McCann testified that he initially advised Smith of his Miranda rights. The conversation between McCann and Smith lasted approximately 15 to 20 minutes. After their conversation, Smith was taken to the 5th District lockup to have his fingerprints and photograph taken. At approximately 7 p.m., Brown identified Smith from a lineup.
Assistant State's Attorney (ASA) Michael Hood testified that on February 12, 1999, at approximately 11:15 p.m., he interviewed Smith for approximately 45 minutes. Detective McCann and ASA Sharon Opryszek were also present. At the end of the interview, Hood did not approve any charges against Smith.
At trial, Detective Fidyk testified that on February 13, 1999, at approximately 8:30 a.m., he had a conversation with Smith. Initially, Fidyk said that he asked Smith if he needed to go to the bathroom and if he wanted any water and offered him something to eat. Consequently, Fidyk said, Detective Mike McDermott went to get Smith something to eat for breakfast.
Fidyk advised Smith of his Miranda rights. Smith then told Fidyk that on the morning of January 19, 1999, he left his house at approximately 7:30 a.m. to meet a friend. As he waited for his friend on 127th Street and Halsted Street, he saw two individuals known to him as Christopher Hamilton and Antoine Jackson walking toward the currency exchange. At this time, Smith saw Mosbacher drive up in his car. Mosbacher sat in his car and made a telephone call on his cell phone.
After Mosbacher exited his vehicle, Smith began to walk toward a bus stop on Vermont Avenue when he heard gunshots. After hearing the shots, Smith ran from the scene. Later that day, Smith said that he went to Peoria, Illinois, with a friend named Lashonda. He returned a few days later on January 21, 1999. When their conversation ended, McDermott had returned from McDonald's. Smith was then given his food and the detectives left to allow him to eat.
At approximately 11 a.m., Fidyk and McDermott spoke with Smith again. Smith was again advised of his Miranda rights. Smith told the detectives that he wanted to make some changes to what he had told them earlier.
Smith said that he knew Jackson and Hamilton. On the morning of the incident, they approached Smith and asked him if he would act as a lookout. Shortly thereafter, Mosbacher pulled up in his car. Mosbacher exited his vehicle and started walking toward the door of the currency exchange. At this time, Jackson and Hamilton approached Mosbacher and forced him through the door of the currency exchange. A short time later, Smith said that he heard gunshots and ran from the scene.
After this conversation, Fidyk and McDermott took Smith to 11th and State Street to speak with an investigator. Fidyk estimated that they arrived there at approximately 12:30 p.m. Fidyk then introduced Smith to police investigator Robert Tovar. Tovar interviewed Smith for approximately an hour. Neither Fidyk nor McDermott was present during Tovar's interview with Smith.
Tovar testified that his interview with Smith began at approximately 12:45 p.m. Tovar initially advised Smith of his Miranda rights and had the defendant sign a Miranda form. Smith informed Tovar that on the morning of the incident, he was inside the currency exchange with Jackson and Hamilton. The three were fighting with Mosbacher. They were trying to force Mosbacher into the rear rooms of the currency exchange. Mosbacher did not want to relinquish his keys and was swinging his briefcase at Jackson and Hamilton.
Tovar testified that Smith told him: "Jackson then attempted to give the handgun, the gun to Mr. Smith. Then there were some shots that were fired, some more shots were fired. Mr. Smith said that the man, referring to the victim again, didn't want to give up his wallet ...