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People v. Simmons

Court of Appeals of Illinois, First District, Fourth Division

September 22, 2016

ANTOINE SIMMONS, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 07 CR 03703 Honorable Thomas Joseph Hennelly, Judge Presiding.

          PRESIDING JUSTICE ELLIS delivered the judgment of the court, with opinion. Justices McBride and Howse concurred in the judgment and opinion.



         ¶ 1 Defendant Antoine Simmons was convicted of first-degree murder based on evidence that he shot and killed Larry Watkins at a stoplight at the corner of Garfield Boulevard and Michigan Avenue in Chicago. Three eyewitnesses, including the two passengers in Watkins's car, identified defendant as the shooter. The State also presented evidence that a bullet found in Watkins's body matched a bullet recovered in the shooting of Ellen Williams. Williams testified that defendant had shot her in the hand about a month before Watkins's death.

         ¶ 2 Defendant appeals, raising seven issues: (1) that the State failed to prove him guilty beyond a reasonable doubt because the eyewitnesses' identifications of him were unreliable; (2) that the trial court erred in denying his motion to suppress the identifications because the judge who saw defendant testify was not the same judge who ultimately denied the motion, and the outcome of the motion rested on a credibility determination; (3) that the expert who testified that the bullets from the Watkins and Williams shootings matched failed to lay an adequate foundation for his opinion, rendering his testimony inadmissible; (4) that the evidence of the Williams shooting was inadmissible because the State failed to show that defendant was involved in that shooting, and any probative value attributable to that evidence substantially outweighed the risk of unfair prejudice it carried; (5) that the prosecution made improper comments during closing arguments; (6) that the trial court failed to consider defendant's rehabilitative potential when it sentenced defendant to natural life in prison; and (7) that three of the counts of murder of which he was convicted should be vacated pursuant to the one-act, one-crime doctrine.

         ¶ 3 We affirm defendant's conviction and sentence. Defendant was proven guilty beyond a reasonable doubt, where the three eyewitnesses identifications of defendant as the shooter bore sufficient indicia of reliability and were corroborated by firearms evidence linking defendant to the crime. Defendant cannot claim that the trial court erred in ruling on his motion to suppress after reviewing a transcript, where that was the course of action his attorney suggested the trial court take. The trial court did not abuse its discretion in admitting the testimony of the State's firearms identification expert where the deficiencies in his testimony merely affected its weight, not its admissibility. Nor did the court err in admitting evidence of the Williams shooting where Williams, who knew defendant, identified him as the shooter and the evidence of the other shooting was significantly probative of defendant's identity. We also find that the prosecutor's remarks in closing arguments, though improper, did not prejudice defendant's right to a fair trial. Finally, we find that the trial court considered proper factors in sentencing defendant to natural life in prison and decline to reweigh the sentencing factors considered by the court.

         ¶ 4 We agree with defendant that three of his counts of murder must be vacated because they arose out of the same act. We direct the clerk to issue a corrected mittimus with only one count of first-degree murder.

         ¶ 5 I. BACKGROUND

         ¶ 6 A. Motion to Suppress Identifications

         ¶ 7 Prior to trial, defendant moved to suppress lineup identifications of him as the shooter, arguing both that the police improperly showed him to witnesses before conducting the lineups and that the compositions of the lineups were suggestive.

         ¶ 8 The hearing on the motion was conducted over the course of two dates. Judge Laws presided over the hearing on the first date.

         ¶ 9 On the first hearing date, defendant testified that the police took him to Area 1 police headquarters on the evening January 11, 2007. At the time, defendant was in a wheelchair because he had "just [been] shot" and could not walk.

         ¶ 10 Defendant testified that, when he arrived at Area 1, the officers left him in the back of the squad car in the parking lot. Another squad car pulled up next to defendant and shined a spotlight on defendant. Defendant testified that he tried to duck down, but the detective in the squad car made him raise his head into the light.

         ¶ 11 Defendant testified that he saw two people in the other car with a police officer. He said that he heard one of these people say, "I'm Blackstone. You the one that killed my man." The two men in the car then got out and approached defendant. One of the men said, "I'm Blackstone. I'm gonna kill you." Defendant testified that he believed "Blackstone" was a reference to a gang but defendant did not know either man.

         ¶ 12 Defendant said that the officers in his squad car retrieved his wheelchair from the trunk and brought him into the police station. The officers took him to the bathroom, where he again saw one of the two men who had confronted him in the parking lot.

         ¶ 13 Defendant testified that the police put him in a lineup with four other people. The detectives took defendant's wheelchair from him and made him lean against the person next to him in the lineup. Defendant testified that, during the lineup, he heard one of the detectives say, "Hurry up. We ain't got time for this bullshit. Hurry up. Pick him up. You wasting our time, " and "That's him. Antoine Simmons, guy number four, right there. Pick him out." Defendant testified that the detective also told another witness to pick him out of the lineup, saying, "That's the guy right there who killed your friend, Walker."

         ¶ 14 Defendant acknowledged that, in a picture of the lineup, he was seated. But he said that photograph was taken after the witnesses had picked him out.

         ¶ 15 Defendant testified that he had been convicted of four prior felonies: aggravated discharge of a firearm, two separate attempted murders, and escape.

         ¶ 16 After defendant testified, the parties agreed to continue the hearing so that defense counsel could locate another witness. The hearing was continued several times at defense counsel's request.

         ¶ 17 Eventually, the case was reassigned to Judge Hennelly. Defense counsel explained to Judge Hennelly that defendant had three cases pending and said, "The elected matter is a homicide in which we started a motion with Judge Laws. What I suggest to the Court is if this court could read the transcript from what we've heard already." The court replied, "Sure. I'm glad to do that." The parties agreed to continue the hearing again.

         ¶ 18 After one more continuance, the hearing resumed before Judge Hennelly. Judge Hennelly indicated that he had read the transcript of defendant's testimony, summarized defendant's testimony, and asked defense counsel if the summary was accurate. Defense counsel said that it was and rested defendant's case.

         ¶ 19 The State called Detective Brian Lutzow, who testified that he conducted the lineup on January 11, 2007. Lutzow said that defendant was in a wheelchair when they picked him up from Cook County jail.

         ¶ 20 When Lutzow set up the lineup, he put defendant in a chair and brought him another chair so that he could put his feet up. Lutzow testified that the other participants in the lineup were also seated. Lutzow said that he kept the three witnesses who viewed the lineup separate from one another before and after they viewed it.

         ¶ 21 Lutzow denied displaying defendant before the witnesses in the parking lot of the police station. He also denied bringing defendant to the bathroom in front of any of the witnesses or instructing any of the witnesses to identify defendant.

         ¶ 22 The parties stipulated that, in a report prepared by Detective John Foster regarding the lineup, Foster said that the lineup participants were told "to approach the one-way mirror and perform facing movements so that both side[ ] profile[s] and full face position could be viewed."

         ¶ 23 The court reserved its ruling for a later date, at which time the court denied defendant's motion. The court explained:

"I am faced with the situation where I have to juxtapose and judge the testimony of the defendant, who has been proven to be a convicted felon, against the testimony of a Chicago Police Officer, which I found came in un-rebutted and uncontradicted.
Therefore, *** having reviewed [the defendant's] testimony, along with that of the detective, and the allegation that [defendant has] made, *** I choose to believe the testimony of the police detective.
And the [defendant's] factual allegations I find to be without merit, and I frankly do not believe that factual allegations that [he has] made in [his] motion ***."

         ¶ 24 B. Trial

         ¶ 25 Karl Stevens and Jeffon Henson, two friends of the decedent, Larry Watkins, testified regarding the shooting.

         ¶ 26 On the evening of December 27, 2006, Stevens, Henson, and Watkins went to a liquor store and purchased champagne and small cigars to roll "blunts"-cigar rolling papers filled with marijuana. Stevens testified that he and Watkins had smoked two blunts that morning, and Henson testified that he had smoked marijuana earlier that day. Both Stevens and Henson denied being under the influence of marijuana at the time they went to the liquor store, however.

         ¶ 27 Watkins, Stevens, and Henson stopped at Watkins's house, picked up marijuana, and left in Watkins's car. Watkins drove, Stevens sat in the front passenger's seat, and Henson sat in the middle of the backseat.

         ¶ 28 The trio drove east along Garfield Boulevard (which is also known as 55th Street), stopping at a red light at the intersection of Garfield and Wells Street. Stevens testified that he noticed a bright red Grand Am with "big rims, " the number "22" on the side of it, and "some type of diamond shape over *** the vent" in the parking lot of a gas station on the corner. Stevens testified that, when the light turned green, the red car quickly pulled out of the gas station and cut off the cars waiting at the light. At that point, Stevens did not get a good look at the driver of the red car, but he could tell the driver was a man. Stevens testified that, at the light at Garfield and Wells, Watkins's car was first in line in the lane adjacent to the right-turn lane.

         ¶ 29 Henson also testified that he saw the red car come out of the gas station at Garfield and Wells. He testified that he was able to see the driver, whom he identified as defendant, at that point. Henson testified that Watkins's car was waiting behind another car at the light, in the lane adjacent to the right-turn lane.

         ¶ 30 Watkins, Stevens, and Henson continued driving east. They caught up to the red car at the intersection of Garfield and State Street, where they stopped at another red light. Stevens testified that, at that point, the red car was on their left. Stevens said that he saw the driver, whom he identified as defendant, and a woman in the front passenger seat of the red car. Stevens testified that nothing was blocking his view of defendant, and the streetlights were working that night. There were no lights on in the red car.

         ¶ 31 Henson testified that, when he, Stevens, and Watkins reached the State Street stoplight, the red car was on the right side of Watkins's car. Henson testified that he was laying across the backseat of Watkins's car, with his back against the inside of the rear passenger-side door. Henson testified that he was able to see defendant in the red car again. He testified that nothing blocked his view of defendant and that the streetlights were working. He acknowledged that there were no lights on in the red car.

         ¶ 32 When the light at State Street turned green, Watkins, Stevens, and Henson began to drive again. They stopped for a third time at the light at Garfield and Michigan Avenue, where they were again near the red car.

         ¶ 33 Stevens testified that the red car was on the left side of Watkins's car. Stevens testified that the music in the car was very loud. Stevens said that Watkins bumped him, trying to get his attention. Stevens reached to turn the music down, when he glanced to his left and saw the driver of the red car reaching toward Watkins's car with an object in his hand. Stevens saw a "flash" and felt Watkins lean on him. The car began to move forward, and Stevens tried to steer it. Stevens crashed the car into two parked cars, when Henson was able to reach into the front seat and put the car in park. Stevens jumped out of the car and ran to a nearby McDonald's, where he yelled for someone to call 911.

         ¶ 34 Henson testified that, when he, Stevens, and Watkins reached the Michigan stoplight, the red car was to their left. Henson saw the woman in the red car lean back and the passenger-side window of the red car roll down. Henson said that he tapped Watkins in order to get his attention because he thought that defendant was trying to speak to Watkins. Henson testified that he heard a shot but did not see a gun. When the shot went off, Henson ducked. He did not see defendant at that point.

         ¶ 35 Henson estimated that he remained ducked in the backseat for "a good minute." When he sat up, Watkins was slumped over and his foot was still on the gas. Henson testified that Stevens grabbed the wheel of the car and turned it, smashing into several cars. The crash caused the car to stop, when Henson reached over, pulled Watkins's foot off the gas, and put the car in park.

         ¶ 36 Henson testified that he did not remember telling an assistant State's Attorney (ASA) that he saw defendant fire a handgun. He maintained that he did not see defendant with a gun at Garfield and Michigan.

         ¶ 37 Stevens and Henson testified that they went to the police station on January 11, 2007 and separately viewed a lineup. They both testified that they identified defendant. Henson testified that, when the lineup participants entered, he noticed that one of them had difficulty walking. He also testified that, after the lineups, he saw defendant sitting in the back of a police car in the parking lot of the station. He acknowledged that the police shined a light on defendant in the parking lot.

         ¶ 38 Stevens testified that he had four felony convictions: a conviction for armed robbery in 2009, two convictions for delivery of cannabis in 2003 and 2005, and a conviction in 2005 for giving false information to the police. Stevens had also been convicted of a misdemeanor cannabis offense in 2007. He also had several misdemeanor charges made against him since Watkins's death, which were dismissed. Stevens testified that the State had never offered to dismiss any of charges against him, or offered him any other deals, in exchange for his testimony. Nor did the State make any threats in order to secure his testimony.

         ¶ 39 Henson testified that he had felony convictions for possession of a stolen motor vehicle in 2005, delivery of cannabis in 2007, and attempted burglary in 2011. He had also been convicted of several misdemeanors and had several misdemeanor charges dismissed following the shooting. Henson also testified that the State had not offered him any deals in exchange for his testimony in this case.

         ¶ 40 The parties stipulated that, at an earlier hearing, Henson testified that Stevens smoked another blunt before the shooting and that he believed that Stevens was under the influence of marijuana at the time of the shooting. And the parties stipulated that, when Henson arrived at the police station to view the lineup, a detective told him that they had "the possible guy who shot" Watkins.

         ¶ 41 Michael Smith also testified regarding the shooting. Smith said that, around 8:45 p.m. on December 27, 2006, he was driving east on Garfield to drop off his friend. At the stoplight at the intersection of Garfield and Wells, Smith saw a red Grand Prix with "nice wheels" cut him off as the light turned green. Smith identified a photograph of the red car-the same photograph that Stevens and Henson had identified as the red car defendant was driving. Smith testified that, at that time, he was in the lane adjacent to the right-turn lane and was the first car in line at the light.

         ¶ 42 Smith testified that he recognized a black car two lanes to his left, and two cars back, that he recognized as Watkins's. Smith knew Watkins's face from the neighborhood but had no relationship with him. Smith also recognized Stevens and Henson from the neighborhood but did not know them personally.

         ¶ 43 Smith saw the driver at that point and he identified defendant as the driver. Smith also noticed a woman in the front passenger's seat.

         ¶ 44 Smith said that, as he continued east on Garfield, he lost sight of the red car because it was speeding. A few blocks east from Garfield and Wells, Smith saw the car again. It was pulled alongside Watkins's car, moving slowly. Smith testified that the front passenger-side window of the red car was rolled down. He could not tell what the people in the cars were doing; he said they were "just rolling real slow."

         ¶ 45 Smith testified that, because the two cars were moving so slowly side-by-side, the other traffic began to go around them in the third lane. Smith also drove around the red car and black car.

         ¶ 46 Smith said that, after he passed them, he heard a "pop" noise. He looked in his rearview mirror and saw the black car swerve and hit a parked car. The red car sped away, passed Smith, and turned south onto Martin Luther King Drive.

         ¶ 47 Smith dropped off his friend and, on his way home, he passed the location where he had heard the pop. He saw yellow police tape, stopped, and told the police what he had seen.

         ¶ 48 Smith testified that, on January 4, 2007, the police showed him a photo array, from which Smith picked defendant's picture. On January 11, 2007, Smith viewed an in-person lineup at the police station and again selected defendant as the driver of the red car.

         ¶ 49 Detective Lutzow went to the scene of the shooting around 9 p.m. on December 27, 2006. He spoke to Stevens, Henson, and Smith at the scene. Lutzow testified that they described defendant's car as a "Grand Prix, 22 inch rims with dents, 22 decals near the front wheels, and red in color, red or maroon." Lutzow also testified that Henson and Smith simply described the driver of the red car as "a male black, " and that Stevens described the driver as "a male black with a clean look, clean hair." They described the passenger of the red car as "a female black [with] long hair." Lutzow did not include the description of the driver having "clean hair" in his reports.

         ¶ 50 Lutzow testified that he searched a Chicago police department database using the description of the red car he had received from the three eyewitnesses and obtained information on a vehicle matching that description. Lutzow sent out the vehicle's information in a citywide broadcast to other police officers.

         ¶ 51 Lutzow testified that, the next day, he heard that the red car had been recovered. He received a picture of the car that had been recovered and showed it to Stevens, Henson, and Smith. All three identified the photograph as a picture of the red car they had seen on December 27, 2006.

         ¶ 52 Lutzow testified that he also received a name in connection with the red car. Using that name, Lutzow compiled a photo array that he showed to Smith. Lutzow testified that Smith picked out defendant's picture from the array.

         ¶ 53 The medical examiner who performed Watkins's autopsy testified that his cause of death was a gunshot wound to the face. The wound to Watkins's face was irregular, which suggested that the bullet likely hit something, such as a window, before hitting him. The medical examiner uncovered a bullet lodged in Watkins's brain, which was sent to the Illinois State Police for testing.

         ¶ 54 The State introduced its other-crime evidence via two witnesses: Ellen Williams and Officer Ricky Thompson. Williams testified that she knew defendant through the father of her children, Abdulah Ali. Williams testified that, around 1 a.m. on November 14, 2006, she was in front of her friend's home at 8238 South Paulina Street in Chicago. Defendant pulled up in a "dark colored car" and spoke to Williams. Williams testified that she and defendant exchanged "very [harsh] words, " then defendant drove away.

         ¶ 55 Williams testified that, five to seven minutes later, defendant emerged from an alley two houses down with a gun. She also said that defendant was "five feet" from her. On cross-examination, she testified that defendant could have been six or seven feet from her. She also testified that she could see it was defendant because the streetlights were illuminated.

         ¶ 56 According to Williams, defendant yelled something at her and fired the gun. Williams tried to run into the house and noticed that her fingers were bleeding. She did not see where defendant went after he fired the shots. She also said that defendant fired "[m]aybe three" shots at her but that she was not sure.

         ¶ 57 Williams identified photographs of the front stoop of her friend's house. Those photographs show that the front door to the house was recessed slightly, so that a brick wall blocks the view of the stoop from the alley. On redirect examination, Williams testified that she was not on the stoop when defendant shot at her; she testified that she was in front of the house. She added that nothing blocked her view of defendant when he emerged from the alley. The photographs showed no blood on the sidewalk in front of the house.

         ¶ 58 Williams called the police and paramedics, who took her to the hospital. She was treated for the graze wound to her fingers. While at the hospital, a police officer discovered a bullet in Williams's jacket.

         ¶ 59 Williams testified that she told the police that defendant had shot her. She also identified defendant in a photo array.

         ¶ 60 On cross-examination, Williams testified that Ali had been incarcerated shortly before November 14, 2006. She denied blaming defendant for Ali's incarceration and testified that Ali did not shoot one of defendant's friends. She also testified that she did not know whether defendant yelled, "I had your baby's daddy locked up, " when he pulled up in his car.

         ¶ 61 The parties stipulated that Williams had been convicted of felony manufacturing or delivery of a controlled substance in 1997. They also stipulated that Williams told a detective that she believed that defendant "had something to do with her boyfriend *** getting arrested" and that she heard defendant fire one or two shots at her.

         ¶ 62 Officer Thompson testified that he responded to the Williams shooting on November 14, 2006. He testified that Williams said that the car defendant had pulled up in was a black Chrysler and that defendant said, "I had your baby's daddy locked up." He testified that his partner found a bullet in Williams's jacket ...

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