Appeal from the Circuit Court of Cook County. No. 04 CR 1517 (03) The Honorable Steven J. Goebel,Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Cunningham concurred in the judgment and opinion.
¶ 1 Defendant, Earl Faber, appeals his conviction after a jury trial of first degree murder and aggravated battery with a firearm, and his respective sentences of 60 years' and 25 years' imprisonment to be served consecutively. On appeal, Faber contends he was denied a fair trial where (1) the trial court erred in relying on the prosecutor's misstatement of the law and preventing his counsel from eliciting identification testimony from Sergeant Flaherty; (2) his trial counsel provided ineffective assistance by failing to prepare for the case, failing to elicit exculpatory evidence, and not producing evidence promised to the jury during opening remarks; (3) the trial court erred in denying his motion to suppress his identification in two photo arrays where the arrays were lost by the State, foundation testimony was inconsistent, and the later lineup was suggestive; and (4) the lineup in which he was identified was unduly suggestive since he was the only participant wearing the clothing the offender was described as wearing and physically stood out from the others. For the following reasons, we affirm.
¶ 3 The trial court sentenced Faber on October 15, 2009, and he filed a timely notice of appeal on November 13, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, § 6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
¶ 5 Faber, along with James Lenoir, Donald Phillips, and Leondray McClellan, was charged in the shootings of Deonte Wright and Jose Perez. Wright died from his injuries. The trial court granted Faber's motion to sever his trial from that of the other defendants.
¶ 6 Prior to trial, Faber filed a motion to suppress the testimony of two witnesses who had viewed a photographic array in which they identified Faber as the shooter. He also sought to suppress witnesses' identification of him from the lineup, arguing the lineup was unduly suggestive. At the hearing, Detective Flaherty testified that on September 17, 2003, witnesses Martha Christopher and Willie Stallworth were shown a photo array containing a photograph of Faber. Detective Flaherty described the photos as head and shoulder shots, approximately the size of a piece of 8 x 11 inch paper. They obtained photos of other subjects from Chicago police computer records. The photos are closely matched by gender, race, age, and facial features.
Detective Flaherty went to the residences of Christopher and Stallworth and showed them an array containing a photograph of Faber and five "fillers." He asked them to look through it to see if they recognized anyone. He did not tell them that he believed a photograph of one of the offenders was in the array. Both Christopher and Stallworth selected a photograph of Faber from the array. The selected photo was dated and signed by the witnesses and by Detective Flaherty. He stated that the last time he saw the photos of Faber was October 2003.
¶ 7 On September 19, 2003, Stallworth, Mrs. Christopher, Mr. Christopher, Mr. Nzau, and Mr. Reap came to the police station to view a lineup. At one point, the witnesses sat together in the same room but later they were separated. The lineup contained two co-defendants, James Lenoir and Donald Phillips, as well as Faber. Detective Flaherty informed Faber that he would be placed in a lineup and asked him to pick a position in the lineup. He wore his civilian clothes. The witnesses viewed the lineup one at a time. Ms. Christopher, Mr. Christopher, and Mr. Stallworth picked Faber out of the lineup. At no time were witnesses told that the shooter was in the lineup.
¶ 8 At the hearing, Faber testified that while he was in custody at the police station, he saw his clothes in a bag. The police told him he would be in a lineup and was given only his jeans and an undershirt to wear. He was not given his "tee shirt, jacket, [or] [his] hat." He was not asked where he wanted to sit in the lineup. Instead, others were already seated and there was "a place for [him] to sit once [he] got there." He did not voluntarily participate in the lineup, nor was he offered a phone call. During the lineup, the participants were asked one by one to step up to the two-way mirror and turn left and right. After going through all the participants, they performed the lineup procedure again. Faber stated that "the second time they ran the lineup it was like I was up there longer than the first time."
¶ 9 The trial court denied Faber's motions, finding that the lineup was not suggestive and the procedure using the photographic array was fair. It accepted the testimony of Detective Flaherty, finding him to be a credible witness. It also believed that the State's loss of the photographs was inadvertent and the State diligently attempted to find the photos once it realized they were missing. No one told the witnesses which photo to select or that the offender's photo was in the array. It stated that it would not "preclude the State from going into the photographic array."
¶ 10 At trial, Officer Kusinski testified that on September 16, 2003, he was conducting narcotics surveillance a few blocks from the intersection of Madison and Western in Chicago, Illinois, when he heard approximately six gunshots in the area. He ran to where he heard the shots fired and saw a lot of people running away. He fought his way through the intersection and found the victim, Deonte Wright, lying on Madison Street in front of a white Blazer. Officer Kusinski called for an ambulance and officer assistance. He observed another victim in the driver's seat of a yellow Camaro with a gunshot wound to his head.
¶ 11 Jose Perez testified that he had been driving northbound on Western when he stopped at the intersection of Western and Madison. He suddenly felt a hot sensation in his head and then awoke in a hospital.
¶ 12 Wright died from his injuries. One shot entered the front right side of his neck, traveled through his Adam's apple, hyoid bone, tongue, and the roof of his mouth to the skull and brain and partially exited the left top side of his head. He also suffered gunshot wounds to the left side of his head, his left arm, left buttock, and the left side of his abdomen. Perez survived, underwent surgery and had a metal plate inserted in his head.
¶ 13 Several witnesses testified regarding the shooting. Willie Stallworth testified that shortly after 3 p.m., he was driving his white Chevrolet Blazer when he stopped at a light at the intersection of Madison and Western. A lot of people were getting out of school. A man approached his vehicle from the left, passed behind and continued along the passenger side. Stallworth watched the man from his side-view mirror. He then observed Wright run south toward a vacant lot to his left. Wright ran in front of Stallworth's vehicle and he saw the man shoot Wright twice. Wright fell in front of the Blazer and the shooter walked up to him, put his gun under Wright's chin, and shot again. No one else shot at Wright. Stallworth testified that the offender was no more than five feet from his Blazer when he shot Wright. After shooting Wright, the man looked directly at Stallworth, turned and walked southbound. Stallworth identified Faber in court as the shooter. The following day, a detective came to his residence and showed him some photographs. From the photo array, Stallworth identified Faber as the shooter. He also identified Faber in a lineup conducted at the police station on September 19, 2003.
¶ 14 Michael Christopher testified that he had parked in a vacant lot so his wife could visit a shoe stand operated by Innocent Nzau on the southeast corner of Madison and Western. As he waited for his wife, he observed a two-tone blue Chevy park in front of him. Four people were inside the vehicle. The two rear passengers exited the vehicle and one of the men was holding something in his hand, but Mr. Christopher could not see the object. He exited his car and watched as the man pointed the gun toward the people at the bus stop. He heard gunshots and tried to get his wife's attention. He then saw Wright fall in front of a white sport utility vehicle facing west on Madison. The man with the gun stood over Wright, aimed at his head and shot him again. The shooter then walked past Mr. Christopher's car and back to the blue vehicle. Mr. Christopher did not identify the shooter.
¶ 15 Martha Christopher testified that she was looking at shoes when she noticed her husband pointing out something to her. She looked to where he was pointing and saw a man raise his arm and shoot in the direction of a bus stop. She observed Wright run onto Madison Street toward her. The offender continued to shoot at Wright and Wright fell in front of a white Blazer. The man stood over Wright and shot him again. The shooter smiled and walked south toward the vacant lot. He passed her husband's vehicle but she did not see where he went afterwards. Mrs. Christopher described the offender as "tall, dark-skinned. He had a Dago-T on and a pair of jeans." She stated that a Dago-T was "a T-shirt that doesn't have sleeves." When police visited her residence the next day, she viewed six photographs contained on a single page. She identified Faber from the array and also identified him in a lineup at the police station. At trial, she identified Faber as the man she saw holding a gun.
¶ 16 Innocent Nzau testified that he was helping Mrs. Christopher find some shoes when he heard gunshots coming from the area of Madison and Western. He observed Wright in the street with the shooter standing over him. The shooter then shot at Wright's head as he was on the ground, and then ran behind Nzau's van. Nzau acknowledged that he did not get a good look at the shooter because he had to hide behind his display as the shooting occurred. During cross-examination, defense counsel asked Nzau whether he was unable to pick the shooter out of the lineup and he responded, "I give a probability." After a sidebar, defense counsel asked Nzau if he could "make a hundred percent certain identification of any person in that line-up" to which he answered, "Hundred percent, no."
¶ 17 Before Detective Flaherty took the stand, the State asked the trial court to admonish defense counsel that he not raise the issue of Nzau's identification of Donald Phillips when he viewed the lineup. The trial court agreed with the State since the subject of his identification never arose during Nzau's testimony at trial.
¶ 18 Detective Flaherty testified that he interviewed witnesses including Stallworth, Mr. and Mrs. Christopher, and Nzau at the police station after the shooting. Detective Flaherty put together separate photo arrays each containing a picture of Faber along with five other people. On September 18, 2003, he went to Mrs. Christopher's residence and showed her one photo array. She identified Faber as the shooter. He also went to Stallworth's residence that day and showed him another photo array from which he identified Faber as the shooter. Detective Flaherty stated that the arrays were inventoried and turned over to the assistant State's Attorneys. He acknowledged that the photo arrays have since been lost.
¶ 19 On September 18, 2003, co-defendant James Lenoir was arrested. Co-defendant Phillips was arrested on September 19, 2003, and Faber was also arrested that day. That afternoon, the police conducted a lineup that included Faber, Lenoir, Phillips and three fillers. Stallworth, Mr. and Mrs. Christopher, and Nzau came to the police station and separately viewed the lineup. Stallworth identified Faber in the lineup as the one who shot Wright. Mrs. Christopher also identified Faber as the man who shot Wright. Mr. Christopher and Nzau did not identify the shooter after viewing the lineup.
¶ 20 Detective Patrick Deenihan testified that when he arrived to work on September 20, 2003, he learned that Faber, Lenoir and Phillips were all in custody at the station, and that another co-defendant, McClellan, was in custody in Waukegan. He also discovered that Lenoir had given a videotaped confession and that Faber had been identified in lineups. Around 1:50 a.m., he and Assistant State's Attorney (ASA) Mary Jo Murtaugh interviewed Faber. She introduced herself as the prosecutor and advised Faber of his rights. He stated that he understood his rights and agreed to speak with her and Detective Deenihan. Faber initially denied shooting Wright, although he admitted to being in the car. Detective Deenihan informed Faber that Lenoir and Phillips had given statements implicating Faber in the crime. Shortly after 7 a.m., Faber was brought into a room to view the videotaped statements. After ...