Find Legal Information

FOURTH DIVISION
December 15, 2005

PRESIDING JUSTICE QUINN delivered the opinion of the court:

Defendant Antoine Smith was charged with three counts of firstdegree murder (720 ILCS 5/9-1(a)(1) through (a)(3) (West 2000)), aswell as attempted armed robbery (720 ILCS 5/8-4, 18-2 (West 2000)),in connection with a botched robbery at the Citgo gas station onGreen Bay Road in Evanston, Illinois. During the attempted armedrobbery, the cashier, James Pappas, was killed. After a jurytrial, defendant was convicted of both first degree murder andattempted armed robbery, and sentenced to a term of natural lifeimprisonment. On direct appeal to this court, defendant argued (1)the circuit court erred in denying his request to call aneyewitness during his motion to suppress the identificationtestimony of that witness; (2) the evidence at trial wasinsufficient to support either conviction; (3) the State improperlyused a codefendant's prior consistent statement as substantiveevidence; (4) the circuit court misinstructed the jury as to how itwas to consider identification evidence; (5) the prosecutorelicited irrelevant testimony at trial and made improper andinflammatory comments during closing argument; (6) the circuitcourt failed to instruct the jury as to the definition of "wantoncruelty"; (7) the State failed to prove beyond a reasonable doubtthat the murder was committed in a brutal and heinous manner,indicative of wanton cruelty; and (8) the circuit court'simposition of a life sentence was excessive. In a publishedopinion, we affirmed defendant's conviction and sentence. SeePeople v. Antoine Smith, 357 Ill. App. 3d 73, 826 N.E.2d 1225(2005). In our opinion we found, among other things, that theinstruction given to the jury regarding how it was to consideridentification evidence was proper and that defendant had waivedthe issue by failing to object at trial or include it in hisposttrial motions. See Smith, 357 Ill. App. 3d at 92-3.

On September 25, 2005, our supreme court denied defendant'spetition for leave to appeal, but issued a supervisory orderdirecting this court to vacate our order and "reconsider the casein light of [the supreme court's] opinion in People v. Herron, 215Ill.2d 167, 294 Ill. Dec. 55, 830 N.E.2d 467 (2000)." See Peoplev. Smith, --- Ill. App. 3d ---, ---, 834 N.E.2d 912 (Sept. 29,2005). Pursuant to that order, we hereby vacate our prior orderand, having considered Herron, re-affirm defendant's convictionsand sentence.

BACKGROUND

Before trial, defendant sought to suppress the identificationtestimony of eyewitness Dawn Lockhart. Instead of attempting tosecure Lockhart's presence at the suppression hearing throughprocedures set out in the Uniform Act to Secure the Attendance ofWitnesses from Within or Without a State in Criminal Proceedings (725ILCS 220/3 (West 2000)) (the Witness Attendance Act) because Lockharthad moved out of state, one of defendant's investigators tried toserve her with a subpoena. The State filed an emergency motion toquash defendant's subpoena, arguing that the subpoena was invalidbecause defendant failed to follow the procedures under the WitnessAttendance Act, and Lockhart's testimony was not relevant for theissues raised in defendant's motions. The State noted that Lockharthad moved out of state because of her fear of defendant. The circuitcourt quashed the subpoena, but postponed ruling on whether the Statehad to produce Lockhart for the suppression hearing.

After calling six police officers during the suppression hearing,defense counsel renewed his "request to have Dawn Lockhart produced." Though noting that "[a]t this point there's been no evidence of anysuggestive identification," the circuit court said that it would allowdefendant to call Lockhart on the next court date, strictly limitingany questioning, however, to "the identification process, thephotographs she was shown, the lineup she was shown."

On that next court date, the State renewed its objection todefendant calling Lockhart during the suppression hearing. Characterizing defendant's request as "unprecedented," the Stateargued that "[g]enerally, the law is that civilians do not testify atmotions to suppress identification unless there has been a preliminaryshowing there is some sort of suggestiveness at the lineup procedure." In support of this proffered statement of law, the prosecutor citedPeople v. Strong, 274 Ill. App. 3d 130, 653 N.E.2d 938 (1995), as"exactly on point." The circuit court sustained the State'sobjection, finding:

"At this point I see no reason to call Dawn Lockhart. Ifthe testimony of Dawn Lockhart, on direct and crossexamination should give rise, the jury will be removed fromthe room and you will be allowed to, defense, to reopen themotion to suppress identification based on both suggestiveidentification and photographic identification. Based onwhat I heard to this point of the several days of testimonythat we have heard on this case and the officer from [NorthRegional Major Crimes Task Force] and Evanston and so on, atthis point I think that the movant has failed to sustaintheir burden and those motions will be denied."

The court reiterated, however, that "[i]f I hear any evidence to thecontrary, I'll reopen."

At trial, Maria Pappas, the victim's sister, testified that thelast time she saw her brother alive was at her house on Palm Sunday,the night before his murder. She stated that he slept there thatnight so that he could open up the gas station for his godfather, DeanHasapis, the next morning.

Dawn Lockhart testified that, on April 13, 1998, at approximately6:35 a.m., as her mother was driving her to work, they stopped at theCitgo gas station so she could buy a pack of cigarettes. When shewent inside the store, she did not see the cashier. Peering behindthe cashier's counter, she saw defendant bent down on his knees,moving his right fist up and down, hitting a man who was lying on thefloor.

Lockhart testified that she had seen defendant sporadically on"Howard Street, sometimes, off Church Street, Dempster" for a periodof about a year prior to April 1998. Though she and defendant werenot friends and she would not necessarily say hello to him, shetestified that she recognized him. She also testified that shebelieved her aunt was dating a man who was related to defendant. Shefurther testified that, though she might not have known defendant'sname, she "knew his face" from the streets.

She stated that she saw something in defendant's hand, but couldnot tell what it was. After hearing a noise, she and defendant lookedat each other. She stated that even though defendant was wearing anylon across his face, she could see his eyes, nose, upper cheekbones,and forehead. After they looked at each other, she ran outside to hermother's car.

As she was leaving the store, she saw a Hispanic couple driveinto the gas station. After motioning to them not to enter the store,she and her mother drove away. As they drove and as she told hermother what she had seen, she noticed defendant running "kitty-cornerright across from where [they] were driving." She then saw a policeofficer parked on the side of the road. After explaining to theofficer what she had seen, she went home. Though her mothertold her not to get involved, she agreed to go to the Evanston policedepartment. While at the station, she looked through various mugbooks, but she did not see defendant's photo. She also described theman she had seen to a police sketch artist, but she testified that shedid not "fully cooperate with the making of that sketch" or theinvestigation because she "really didn't want to be involved with anyof this." She testified that she was not "completely candid with thepolice" because she "wanted them to leave [her] alone."

On April 22, 1998, eight days after the murder, she was asked toview a lineup at the Evanston police department. Though she sawdefendant in that lineup, she testified that she did not identify himbecause she was nervous and scared. She stated that when she sawdefendant, she told the officers present in the room that she "wantedto go home," that she would not cooperate, and that she would not"tell them anything." She testified that she subsequently sawdefendant on the streets of Evanston several times after the murder.

In March 2000, Detectives Glenn Cannon and Jim Hutton came to herhome and asked her to "get involved again" in the investigation. Though initially she refused, a few days later she went to theEvanston police department but left inexplicably. The next day, shereturned to the police station and met with Cannon and Evanston PoliceChief Frank Kaminski, telling them that she wanted to cooperate. After viewing a series of photographs, she identified defendant as theman she had seen in the gas station. She was also shown a photo ofthe lineup conducted on April 22, 1998, and, again, identifieddefendant.

Jose Cruz Torres testified that on April 13, 1998, atapproximately 6:35 a.m., he and his wife were driving down Green BayRoad in Evanston when they pulled into the Citgo gas station to buysome coffee. As he was walking towards the front door of the store,two women came out "in a hurry." One of the women, whom he laterlearned was Lockhart, looked afraid and signaled to him not to enterthe store. The women then got into a car and drove off. A fewseconds later, a man dressed in "black pants, black [Nike] shoes,black sweatshirt with a hoodie and blue ski mask" came out of thestore.

Torres testified that the man was between 5 feet 6 inches and 5feet 8 inches, about 165 to 185 pounds, and had a husky build. Torrestestified that the man was wearing black gloves and that his righthand was tucked inside his sweatshirt. He stated that it looked likehe was "pulling something or hiding something" in his right hand. Because the man was wearing the ski mask, however, all Torres couldsee was the man's eyes. The man looked at him and then ran acrossGreen Bay Road toward Ashbury Street. When Torres went inside thestore, he found Pappas lying against a file cabinet inside thecashier's area. Seeing this, Torres ran outside to a pay phone andcalled 911. As he was dialing, he saw a police officer driving pastthe gas station. After flagging down the officer, they both wentinside the store and tried to open the door to the area where Pappaswas lying. When they could not open it, Torres and the officer wentoutside and waited for the ambulance.

Detective Cannon testified that he conducted a lineup on April22, 1998. He stated that Lockhart, who viewed the lineup for aboutfive minutes, was nervous, convulsing, violently shaking, crying,sobbing, and clutching Kaminski's arm. Lockhart repeatedly told himthat she wanted "it to be over" and that she wanted to get out ofthere. When he realized that they "weren't going to get anywhere thatevening," he ended the lineup.

Cannon testified that in March 2000, he and Hutton went to talkto Lockhart at her home. He told her that they were stillinvestigating Pappas' murder and asked her if she remembered anythingthat she had not previously told them. She told him that she did notremember anything new. She stated that she had been "spending thelast couple of years trying to block it from her memory" and that shewas recently having nightmares about what she had seen.

A few weeks later, Cannon was told that Lockhart was at thepolice station, but by the time he got downstairs to meet her, she hadleft. Then, on April 13, 2000, he met with Lockhart at the policestation. She told him that she knew who killed Pappas and that shewanted to identify him. Cannon testified that Lockhart identifieddefendant from a photo array.

Dean Hasapis, the victim's godfather and owner of the Citgo gasstation, testified that Bobby Fomond had worked at his gas stationsince 1995. Fomond's duties included working the cash register,cleaning, filling stock, and going to the bank. He stated that Fomondhad gone to jail in 1997, but had returned to work in December of thatyear.

Hasapis testified that there was a safe located in the washroomof the store where he would put the money earned each day. EachMonday, someone would take the money, normally around $8,000 to $9,000out of the safe and bring it to a bank. To open the safe, one neededboth the combination and a key. Hasapis testified that though both heand Pappas knew the combination, only he had the key.

Hasapis stated that Pappas was at his home for Palm Sunday, a"special holiday for [him] and [his] family." Because Hasapis was onvacation, Pappas offered to open the store that Monday morning. Hasapis did not give Pappas the key to the safe.

Hasapis testified that the video cassette recorder (VCR) for thesecurity camera had not been working and that he told Fomond to haveit fixed. On the day of the murder, it had not been replaced. On themorning of April 13, 1998, Hasapis received a phone call from anemployee who told him that Pappas had been shot in the store. Hestated that no money had been taken from either the cash register orthe safe.

Jimmy Tillman testified that, on April 13, 1998, at approximately7 a.m., while walking to his daughter's house, he saw defendant,wearing dark clothes, walking south on Green Bay Road, away from theCitgo gas station. His daughter's house was about five blocks fromthat gas station. Tillman knew defendant and crossed the street totalk to him. Defendant gestured to him, but continued to walk pasthim. As Tillman continued to walk, he looked behind him and sawdefendant cross the street, turn around, and head north towards thegas station. He later heard about the attempted robbery and murder atthe Citgo gas station and, in January 2000, he identified defendant asthe man he saw on Green Bay Road on the morning of the murder.

Robert Fomond testified that he was currently living in thewitness protection program at the Cook County jail. As part of anagreement with the State's Attorney's office, in exchange for histestimony, Fomond was to serve 11 years in the Illinois Department ofCorrections for attempted armed robbery, but the murder chargesagainst him were dismissed.

Fomond testified that he began working at the Citgo gas stationin 1995, and, after he got out of prison in 1997, he returned to thatjob. He also moved a few houses away from defendant and they becamefriends. Fomond stated that Hasapis normally opened the store onMondays and that only he had a key to the safe.

After work on April 10, 1998, Fomond went to Twigg's bar onHoward Street in Chicago. When he got there, he saw defendantstanding outside. After discussing how they both were in need ofmoney, he and defendant decided to rob the gas station. Initially,defendant suggested that they stage a "fake robbery," where he wouldrob Fomond while on his way to the bank. They decided instead to robthe store on a Monday, when the safe would have the most amount ofmoney in it. Fomond told defendant where the safe was located and thebest time to commit the robbery.

The two of them decided that they would buy drugs with the money. Fomond testified that he expected his share to be between $1,000 to$2,000. Defendant told him that he would get "one of them things" tocommit the robbery, which Fomond took to mean a gun. Defendant alsosaid that he was going to wear a mask and dark clothing so no onecould identify him.

On April 11, 1998, while Fomond was at work, defendant came intothe gas station store. Defendant noticed the security cameras andasked Fomond whether they were working. After Fomond told defendantthat the VCR was broken, defendant looked around and then left.

On April 13, 1998, at approximately 7:30 a.m., Fomond was awokenby Detective Springer, who told him that a murder had occurred at thegas station. Fomond testified that he went to the Evanston policestation and spoke to the police. He did not tell them about his anddefendant's plan to rob the gas station.

At approximately 4 p.m., while driving, Fomond saw defendantdriving in the opposite direction. After they flagged each otherdown, defendant told him that "it didn't go down right." Defendantsaid that "he got into a tussle with the guy, and - - and he had togive it to him," which Fomond took to mean that defendant shot him. Defendant reassured Fomond that he "didn't leave them nothing to goon."

On April 14, 1998, Fomond was again picked up by policeinvestigators, but he did not tell them about either his ordefendant's involvement. Instead, he told them about a separateincident during which a "neighborhood guy" had used a stolen creditcard at the gas station. Fomond admitted that he had allowed the manto use the stolen credit card because he received some cigarettes inreturn.

On April 16, 1998, the police again picked up Fomond, but, again,he did not tell them about either his or defendant's involvement. After talking with the police, Fomond called defendant and went overto his house. He told defendant that the police were askingquestions, but defendant told him not to worry. Defendant also toldFomond, "you didn't tell me that old boy was goin' to be there." While in defendant's bedroom, Fomond saw a pair of black Nike gymshoes.

On April 17, 1998, the police picked up Fomond, who identifiedMansfield Wallace as the man who had used the stolen credit card. That night, Fomond met again with defendant, who again told him not toworry about the police.

Finally, on April 21, 1998, the police picked up Fomond and toldhim that his "credit card story wasn't matching out." At that point,Fomond told the police about his conversation with defendant atTwigg's bar and their meetings subsequent to the murder.

Once Fomond's direct and cross-examinations had concluded,defense counsel made a motion in limine to bar the State from havingAssistant State's Attorney Jonathan Lerner (ASA Lerner) testify as tothe substance of the written statement Fomond gave to him on April 21,1998. After the circuit court denied defense counsel's motion, ASALerner read Fomond's written statement to the jury. Over defendant'sobjection, the circuit court subsequently allowed the statement to goback with the jury during its deliberations.

After the State rested and the circuit court denied defendant'smotion for a directed verdict, Sergeant James Hutton testified onbehalf of defendant. Hutton testified that, according to his arrestreport, defendant weighed approximately 230 pounds on the day of hisarrest on April 21, 1998.

Officer Christine Bell testified that she interviewed Lockhart atapproximately 9:30 a.m. on the morning of the murder. Lockhartdescribed the man she saw in the gas station store as wearing a blacksweatshirt-type hooded jacket, regular (not baggy) dark pants, and ablack nylon-type hat on his head. The nylon hat had a knot tied onthe top and that band had some writing on it. The band was pulledover the man's eyes and rested on the lower part of his nose. Bellstated that Lockhart was unsure what kind of shoes he was wearing orwhether he was wearing gloves. Lockhart told Bell that the man wasdark skinned, possibly black. During cross-examination, Bell statedthat Lockhart was very nervous, could not sit still or catch herbreath, and was crying.

Lieutenant Richard Weiner testified that he met with Lockhart onthe day of the murder and that Lockhart gave him a description of theman she saw inside the gas station store. She told him that the manwas "a male, unknown race, approximately 5'6", wearing a dark-hoodedsweatshirt and dark pants." Lockhart said the man wore a "do-rag"made of nylon that was pulled over his head. She did not say that thenylon had a knot on the top of it. Based upon her descriptions,Weiner generated a computer composite of the suspected offender. Lockhart told him that the sketch looked like the suspect.

During cross-examination, Weiner stated that because Lockhart wasunable to describe any facial features, the sketch was "based upon thecomputer-generated drawing based upon her description of a - - the 5-foot-6 heavy build." Weiner stated that, throughout the process,Lockhart was "quite nervous, agitated, kept wanting to get up, have acigarette, stand up, sit down, stand up."

Officer Jim Charter, an evidence technician with the Lincolnwoodpolice department, testified that he was assigned to the murder. While canvassing the area, he discovered two bloodstains about oneblock away from the gas station. Though he was unable to determinethe age of those stains, he stated that whoever left them was walkingtoward the gas station. He did not find any blood trails leadingeither to or from the gas station.

Tracey Reppen, a forensic scientist with the Illinois StatePolice, testified that she tested samples taken from the bloodstainsfound by Officer Charter, but neither matched Pappas or defendant.

Ron Walczak, a Community Strategies Bureau employee with theEvanston police department, testified that, on April 13, 1998, atapproximately 6:23 a.m., while driving to work on Green Bay Road, hesaw a nervous-looking man standing on a corner about 50 to 60 yardsaway from the Citgo gas station. He described the man as black, lightto medium complexion, in his early 20s, about 5 feet 7 inches, 150 to170 pounds, wearing dark clothing, dark pants, and a dark waist-lengthjacket.

After closing arguments, the jury found defendant guilty of firstdegree murder and attempted armed robbery. The jury found that themurder was both (1) accompanied by brutal and heinous behavior,indicative of wanton cruelty and (2) committed during the commissionof the felony of attempted armed robbery.

During the sentencing hearing, the State called Officer StephanGershon, who testified as to the facts of defendant's prior convictionfor criminal sexual assault, and the victim's sister, Maria Pappas,who read a victim-impact letter. Defendant called his grandmother andfirst cousin in his behalf. After argument, the circuit courtsentenced defendant to a term of natural life imprisonment. Defendantfiled a timely notice of appeal.

ANALYSIS

I. MOTION TO SUPPRESS

Defendant argues that the circuit court erred when it barred himfrom calling Lockhart as a witness during his motions to suppress heridentification. Defendant does not contest the court's denial of hismotions, only the court's refusal to allow him to call "the mostpivotal witness to his motion -- the actual person who made theidentification." Defendant contends that the court's refusal "wasparticularly prejudicial because the police officers' testimony[during the suppression hearing] was so vague regarding the processthrough which Lockhart eventually identified" him.

There is no question that a defendant has a right to a fair andimpartial hearing to determine whether an eyewitness's identificationwas the product of undue or suggestive police procedures. See Peoplev. Robinson, 46 Ill. 2d 229, 231-32, 263 N.E. 2d 57 (1970); People v.Carroll, 260 Ill. App. 3d 319, 631 N.E. 2d 1155 (1992). Because"[h]earings on such motions eliminate collateral issues at trial[citation] and permit defendants to preserve their constitutionalrights," a defendant "must be given ample opportunity to support hisposition and generally should be permitted to call and to examinethose witnesses who have information bearing on the matters before thecourt." People v. Rosenborgh, 21 Ill. App. 3d 676, 686, 315 N.E. 2d545 (1974).

Initially, we flatly reject the trial prosecutor's statement that"[g]enerally, the law is that civilians do not testify at motions tosuppress identification unless there has been a preliminary showingthere is some sort of suggestiveness at the line up procedure." Wecould find no case, either here in Illinois or elsewhere, that wouldsupport such a statement. Moreover, People v. Strong, 274 Ill. App.3d 130, 653 N.E. 2d 938 (1995), a case which the prosecutor stated was"exactly on point," is inapposite. Nowhere in Strong did this courthold, or even hint, that a civilian cannot or should not testify at amotion to suppress an identification until there is a preliminaryshowing of suggestiveness. See generally Strong, 274 Ill. App. 3d at137-38. We note that the State has abandoned this argument on appeal.

While no general "civilian testimony" bar exists, there is alsono rule that an identifying witness must testify during a defendant'smotion to suppress that identification. Such a requirement would notonly serve to resurrect the now-defunct "material witness" rule, whichmandated that all individuals involved in procuring an allegedlyinvoluntary confession testify during a motion to suppress thatconfession (see People v. R.D., 155 Ill. 2d 122, 143-44, 613 N.E.2d706 (1993) (repudiating the material witness rule in its entirety)),but also extend that discarded rule into areas where our supreme courthas explicitly refused to go (see People v. Stokes, 46 Ill. 2d 325,327-28, 263 N.E.2d 21 (1970) (refusing to extend the material witnessrule to a motion to suppress an allegedly suggestive identification)).

Instead, it is within the sound discretion of the circuit courtto determine whether to bar a witness from testifying during asuppression hearing. See People v. Moore, 51 Ill. 2d 79, 83, 281N.E.2d 294 (1972) (finding that the circuit court did not abuse itsdiscretion in denying a request to call the complainant as the court'switness in the hearing on the motion to suppress the identification);People v. Agee, 100 Ill. App. 3d 878, 883, 427 N.E.2d 244 (1981)(finding no error in court's refusal to call identifying witness asthe court's witness during suppression hearing); but see People v.Bentley, 11 Ill. App. 3d 686, 689, 297 N.E.2d 282 (1973) (reversingthe defendant's conviction and remanding for a new suppression hearingbecause the circuit court erred in denying the defendant's motion tosuppress after hearing only one witness (the victim) and refusing toallow the defendant to call other witnesses). Indeed, the circuitcourt may not only bar a witness from testifying, it may alsoterminate the hearing in its entirety if "it appears that a pretrialmotion is frivolous or imposed for delay." Rosenborgh, 21 Ill. App.3d at 686.

During a motion to suppress an identification, the defendantbears the burden of establishing that, based upon the totality of thecircumstances, the pretrial identification was so unnecessarilysuggestive that it gave rise to a substantial likelihood of anunreliable identification. People v. Denton, 329 Ill. App. 3d 246,250, 767 N.E.2d 879 (2002), citing People v. Simpson, 172 Ill. 2d 117,140, 665 N.E.2d 1228 (1996). If the defendant meets his burden, theState must then show, by clear and convincing evidence, an independentbasis of reliability. People v. Coleman, 203 Ill. App. 3d 83, 91, 560N.E.2d 991 (1990), quoting People v. Garcia, 97 Ill. 2d 58, 73, 454N.E.2d 274 (1983).

The initial burden of suggestiveness being placed squarely uponhim, it is clear that a defendant should be permitted to call, as awitness, the person who made the identification in his attempt tosuppress that identification. Who better to testify as to thepotentially suggestive procedures utilized by the police in procuringan identification than the identifying witness herself?

Allowing the identification witness's testimony during thesuppression hearing furthers not only the fairness of the hearing, butalso its fullness, presenting the trial court with a complete pictureof the police procedures used in procuring an identification throughthe testimony of both the officers, who employed those procedures, andthe identifying witness, who participated in them. See Robinson, 46Ill. 2d at 232 (stating that unless a defendant is afforded a full andfair hearing, it is difficult to make an informed judgment as towhether the identification was influenced by improper proceedings).

That is not to say that the court must always permit a defendantto call the identifying witness(es). There may be situations where itis either impracticable, unnecessary, or otherwise unreasonable forthe identifying witness to appear as a witness. Absent a compellingreason, however, the circuit court normally should allow a defendantto call the identifying witness during a suppression hearing. We neednot decide here whether the circuit court abused its discretion inbarring Lockhart because it was never given a real opportunity toexercise that discretion.

Instead of utilizing the procedures set forth in the WitnessAttendance Act, defendant attempted to secure Lockhart's presence byhaving one of his investigators serve her out of state with a subpoenathat was issued in Illinois. That subpoena, once removed from theboundaries of Illinois, was insufficient to compel Lockhart'spresence:

"Generally, a state has no power to subpoena witnessesover which it has no jurisdiction. Thus, the constitutionalright of compulsory process, which includes the subpoena ofwitnesses, is applicable to the states but extends only toin-state process. In the absence of an interstate compact,compulsory process cannot extend beyond the territory of thestate, and a state court cannot require the attendance of awitness who is a nonresident of, and is absent from, thestate." 81 Am. Jur. 2d Witnesses