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Docket No. 87117-Agenda 6-September 2000.

THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v. EDWARD BOLDEN, Appellant.

Opinion filed June 21, 2001.

JUSTICE THOMAS delivered the opinion of the court:

The defendant, Edward Bolden, was convicted of the firstdegree murders of two persons and of the attempted first degreemurder and aggravated battery of a third person. The defendantwas sentenced to natural life imprisonment for the two murderconvictions and to a consecutive term of 30 years' imprisonmentfor attempted murder. The appellate court affirmed the defendant'sconvictions and sentences in an unpublished order. No. 1-96-4221(unpublished order under Supreme Court Rule 23). We allowedthe defendant's petition for leave to appeal (177 Ill. 2d R. 315(a)),and we now affirm the judgment of the appellate court.

Before this court, the defendant raises two issues concerninga lineup he voluntarily participated in before he was charged withany offense in this case. The defendant also challenges one of thejury instructions used at his trial, as well as the trial judge'sexclusion of certain related evidence. Given the nature of theissues raised by the defendant, we will provide only a briefsummary of the trial evidence and a more detailed recitation of thetestimony introduced at the suppression hearing.

BACKGROUND

According to the evidence presented at trial, on January 29,1994, the three victims in this case-Clifford Frazier, his brother,Derrick Frazier, and a third man, Irving Ledell Clayton-went toJ&J's Fish Store at 64th Street and Cottage Grove Avenue inChicago to sell three kilograms of cocaine. Upon arriving at thefish store, they entered the building and spoke to "Ant" Williams,with whom they had engaged in similar transactions in the past.Clifford Frazier testified that he was asked to leave the storebecause he was armed, so he went across the street to anotherrestaurant, ordered some food, and watched the fish store from awindow. After about five minutes, Clifford saw a man enter thefish store and shake hands with Williams, Derrick Frazier, andLedell Clayton. After another 5 or 10 minutes, Derrick, Ledell, andthe man entered the restaurant where Clifford was waiting. AsDerrick and Ledell spoke with Clifford, the man got change andleft the building.

Clifford testified that Derrick and Ledell next got intoDerrick's car with the man and drove off. Clifford Frazier then leftthe restaurant and moved his car to a nearby vacant lot. Accordingto Clifford, two suspicious-looking men came out of a buildingand walked to a car behind his. Clifford got out of his own vehicle,opened the hood, and watched the two men. Clifford testified thatafter 10 to 15 minutes, the man who had earlier driven off withDerrick and Clayton approached on foot, shouted "Freeze," andstarted firing a gun at him. Clifford ran off but was struck in theback and the leg. Clifford ran to the fish store, but the door waslocked and no one would let him in. The man caught up withClifford, and the two struggled. Clifford fell, and the man ran off.At trial, Clifford identified the defendant as the man who had shothim.

Derrick Frazier and Ledell Clayton were found a few blocksaway in Derrick's car; both of them had been shot a number oftimes in the head at close range. Derrick was dead, and Ledell diedthe next day. Investigators learned that the defendant, who fit adescription provided by the surviving victim, Clifford Frazier, hadtalked with "Ant" Williams earlier, and they subsequentlyattempted to contact the defendant at his mother's house.

According to the testimony presented at the suppressionhearing, the defendant retained counsel, and his lawyer, CharlesIngles, later contacted the police in response to the detectives'inquiries. The defendant eventually agreed to meet with thedetectives. Following some delay, the defendant and his lawyerwent to Area 2 headquarters on February 26, 1994. At that time,the defendant was not under arrest and had not been charged withany offense in connection with this case. At the police station, thedefendant agreed to take part in a lineup. The lineup consisted offive persons, including the defendant; because of disparities inheight, the participants were seated. The witness, Clifford Frazier,viewed the lineup through a one-way mirror from an adjacentroom.

Called as a witness by the defendant, Detective AngeloPesavento testified at the suppression hearing that the defendantwas given his choice of which seat to take, and he chose the fourthseat. Pesavento also testified that he told the defendant's lawyer,Charles Ingles, that Ingles could not be in the same room with thewitness during the lineup but that he was welcome to remain withthe defendant. According to Pesavento, Ingles chose instead towait in an office outside. Detective Pesavento stood with thewitness in the viewing room. Pesavento testified that the witnessreadily identified the defendant as the person who had fired shotsat him. Pesavento denied that the defendant was told where to sitand that the defendant later changed chairs with anotherparticipant. Pesavento also denied that an officer walked into thelineup room and addressed the defendant by name during theprocedure and that Frazier was prompted in any way in making hisidentification.

Also testifying at the suppression hearing was Charles Ingles,the lawyer who had represented the defendant at the time of thelineup. Ingles stated that he contacted the police after he learnedthat the police were trying to reach the defendant. The defendantagreed to meet with the police, and Ingles and the defendant wentto Area 2 headquarters on February 26, 1994. After some initialquestioning by the detectives, the defendant agreed to take part ina lineup. Ingles testified that he told the detectives that thedefendant would participate in a lineup if counsel could bepresent. According to Ingles, one of the detectives responded thatthat would be all right. The defendant was later placed in a lineuproom. Ingles saw the witness, who had walked by the defendantand counsel earlier, go into the viewing room. Ingles said that hestarted to follow the witness and Detective Pesavento into theviewing room but that Pesavento barred his way. Ingles remindedthe detective of their agreement, that the lawyer could be presentduring the lineup; Pesavento replied that he was present.

The defendant also testified at the suppression hearing. Thedefendant stated that, after speaking with police detectives, heagreed to take part in a lineup if his lawyer could be present. Thedefendant said that he was then taken to the lineup room, whichcontained five chairs; four of them were already occupied.According to the defendant, he was told to sit in the empty chair,which was the first one. The door to the room was then closed.The defendant said that he then switched seats with the personsitting in the fourth chair. After changing places, the defendantsaw the witness on the other side of the window come to the glassand point to the person sitting in the first chair. The defendantdescribed the witness as chubby and said that he was wearing agreen sweatshirt and a gold chain with the letter "D" on it. Thedefendant testified that he then saw the detective in the viewingroom put his head out the door; the detective who was outside thelineup room next opened the door, stuck his head in, and said" 'You, Eddie Bolden, right?' " The defendant did not reply. Thedetective again said, " 'Eddie Bolden, right?' " and gave thedefendant's address. This time the defendant replied in theaffirmative. The detective then told the persons in the lineup roomto stand up, and they did. The defendant testified that he was nextable to see the witness in the other room move down to where thedefendant was standing, and he could see the detective saysomething to the witness. The witness shook his head no and triedto walk away, but the detective grabbed him, brought him back tothe glass, and said something again, and the witness then noddedhis head yes.

Appearing on behalf of the State at the suppression hearing,Officer Joe Barnes testified that he was one of the participants inthe defendant's lineup. Barnes stated that he, the defendant, andthree other men entered the lineup room together that afternoon.A detective told the defendant that he could sit wherever he liked,and the defendant chose to sit in the fourth chair. The lineup wasthen conducted. Barnes stated that persons in the lineup room werenot able to see or hear persons in the viewing room. Barnes deniedthat the defendant switched places with anyone and that a detectiveentered the room and called out the defendant's name during thelineup.

Detective George Karl also testified on behalf of the State atthe suppression hearing. Karl stated that the defendant's lawyer,Charles Ingles, asked to be with Frazier during the lineup. Karltold Ingles that the lawyer could not be with the witness but thathe could be with the defendant. Karl said that Ingles instead stayedin a nearby conference room or squad room during the course ofthe lineup. Detective Karl further testified that the defendant wasgiven his choice of chairs in the lineup room and that thedefendant selected the fourth seat. Karl denied that the defendantinitially sat in the first chair and then switched places. Karl alsostated that a person in the lineup room could see into the adjacentwitness room only by putting his head right against the one-waymirror that separated the two rooms. Detective Karl stated thatwhen the witness, Clifford Frazier, arrived at the police station, thedetectives did not have him walk by the defendant. Karl deniedthat anyone called out the defendant's name during the procedure.

At the conclusion of the hearing, the trial judge denied thedefendant's motion to suppress the lineup identification. The judgeconcluded that the defendant's constitutional rights were notviolated by the detectives' refusal to permit defense counsel to bewith the witness during the lineup. The judge believed that thepolice had been more than accommodating in this case, becausethey had gone beyond what the law required in suggesting thatdefense counsel could be with the defendant during the lineup. Thejudge also rejected the defendant's separate contention that thelineup was suggestive.

The preceding witnesses testified similarly at trial when theywere questioned about the circumstances surrounding Frazier'sidentification of the defendant in the lineup. The eyewitness in thiscase, Clifford Frazier, had not testified at the suppression hearing,and at trial he said he did own a necklace like the one described bythe defendant, but he could not recall whether he had worn it onthe day of the lineup.

Following the presentation of evidence, the jury found thedefendant guilty of the first degree murders of Derrick Frazier andIrving Ledell Clayton and of the attempted first degree murder andaggravated battery of Clifford Frazier. A capital sentencinghearing then commenced. The jury found the defendant eligible forthe death penalty on the ground that he had murdered two or morepersons. After the presentation of evidence in aggravation andmitigation, the jury was not able to unanimously conclude that thedefendant should be sentenced to death. The judge subsequentlysentenced the defendant to natural life imprisonment for the twofirst degree murder convictions and to a consecutive term of 30years' imprisonment for his conviction for attempted first degreemurder. The judge concluded that the conviction for aggravatedbattery merged into the conviction for attempted first degreemurder and therefore did not impose any sentence for the formeroffense.

The appellate court affirmed the defendant's convictions andsentences in an unpublished order. No. 1-96-4221 (unpublishedorder under Supreme Court Rule 23). The appellate courtconcluded that the evidence was sufficient to establish thedefendant's guilt for those offenses. The court also rejected thedefendant's contention that the lineup identification should havebeen suppressed because counsel was not allowed to observe it. Inaddition, the court held that the jury was properly instructed in thiscase, that there was no error in the exclusion of certain evidenceat trial, and that certain comments by the prosecution were eitherproper or did not constitute reversible error. One member of theappellate panel dissented, believing that the lineup wasconstitutionally flawed because counsel had not been allowed toview the lineup as it proceeded. We allowed the defendant'spetition for leave to appeal. 155 Ill. 2d R. 315(a).

ANALYSIS

I

The defendant first argues that the lineup identification mustbe suppressed because the police failed to honor his lawyer'srequest that counsel be permitted to observe the lineup and thewitness' identification of the defendant. In essence, the defendantcontends that a person who is represented by counsel and who hasagreed to take part in a lineup has a right, as a matter of dueprocess, to have counsel present during the identification process.The defendant recognizes that there is generally no constitutionalright to counsel when a person is placed in a lineup prior to theinitiation of adversary proceedings, but he argues that the presentcase is different because he was already being represented bycounsel and because the detectives had previously agreed to permitcounsel to view the lineup.

Prior to the initiation of adversary proceedings, a person doesnot have a constitutional right to counsel when he takes part in alineup. The sixth amendment right to counsel does not attach untilthe initiation of adversary proceedings against the person, whetherby formal charge, preliminary hearing, indictment, information, orarraignment. Moran v. Burbine, 475 U.S. 412, 429-30, 89 L. Ed.2d 410, 426-27, 106 S. Ct. 1135, 1145-46 (1986); Kirby v. Illinois,406 U.S. 682, 688-89, 32 L. Ed. 2d 411, 417, 92 S. Ct. 1877,1881-82 (1972) (plurality opinion); United States v. Wade, 388U.S. 218, 226-27, 18 L. Ed. 2d 1149, 1156-57, 87 S. Ct. 1926,1931-32 (1967); People v. Garrett, 179 Ill. 2d 239, 247-48 (1997).

At that time a person also does not possess a right to counselunder the fifth amendment. A person's appearance in a lineup isnontestimonial in nature and does not constitute interrogation; forthese reasons, identification evidence stemming from a lineupdoes not implicate any fifth amendment concerns. Kirby, 406 U.S.at 687-88, 32 L. Ed. 2d at 416-17, 92 S. Ct. at 1881; Wade, 388U.S. at 221-23, 18 L. Ed. 2d at 1154-55, 87 S. Ct. at 1929-30;People v. Nelson, 40 Ill. 2d 146, 152 (1968). As the United StatesSupreme Court explained in Wade:

"We have no doubt that compelling the accused merelyto exhibit his person for observation by a prosecutionwitness prior to trial involves no compulsion of theaccused to give evidence having testimonial significance.It is compulsion of the accused to exhibit his physicalcharacteristics, not compulsion to disclose any knowledgehe might have." Wade, 388 U.S. at 222, 18 L. Ed. 2d at1154-55, 92 S. Ct. at 1930.

The defendant acknowledges that he had no right to counselat the lineup under the preceding authorities. He believes that adifferent rule must apply in his case, however, because he wasalready represented by counsel and because the detectives hadagreed to permit counsel to observe the lineup. The defendantcontends that these circumstances conferred on him a right underdue process to have counsel present during the lineup. In supportof this proposition, the defendant relies primarily on a line of casesfrom New York, in which courts of that state have concluded thata person who is represented by counsel is entitled to have thelawyer view a lineup in which the client appears, even thoughadversary proceedings have not yet been initiated against theclient.

The New York cases cited by the defendant base their resulton an interpretation of that state's own constitution and publicpolicy. See People v. Wilson, 89 N.Y.2d 754, 680 N.E.2d 598(1997); People v. Hawkins, 55 N.Y.2d 474, 435 N.E.2d 376(1982); People v. Blake, 35 N.Y.2d 331, 320 N.E.2d 625 (1974);People v. Lennon, 243 A.D.2d 495, 662 N.Y.S. 821 (1997). Incontrast to the New York decisions, our own cases have previouslydeclined to recognize a right to counsel in circumstances similarto the ones here. Thus, in People v. McCauley, 163 Ill. 2d 414(1994), this court declined to hold that a defendant who wasrepresented by counsel was entitled to have counsel present duringa lineup. McCauley, 163 Ill. 2d at 447. Although the court in thatcase concluded that a defendant for whom a lawyer has beenretained must be told, prior to any interrogation, that counsel isavailable for consultation, the court declined to impose a similarrequirement with respect to lineups. See also People v. Garrett,179 Ill. 2d 239 (1997).

The defendant contends that McCauley is distinguishable,however, because the defendant in that case was already underarrest and therefore could be compelled to appear in a lineup. Thepresent defendant was not yet under arrest at the time of thelineup, and he argues that a different rule should therefore applyin these circumstances. We do not agree. We do not believe thatthe defendant's status as a person not under arrest at the time ofthe lineup conferred on him a constitutional right to the assistanceof counsel. In fact, the absence of an arrest would seem to arguefor the opposite conclusion. If the defendant was free to leave, hecould have simply done so, and thus one option in this case wasfor the defendant to refuse to take part in the lineup if counsel wasbarred from assisting him.

II

The defendant raises an additional argument concerning thelineup identification. He contends that the refusal of the police topermit his lawyer to observe the witness during the lineupconverted his voluntary appearance at the police station into aseizure by the detectives. As a preliminary matter, the Statecontends that the defendant has waived consideration of this issueby his failure to raise it in the courts below. See Parks v.Kownacki, 193 Ill. 2d 164, 180 (2000); Jones v. Chicago HMOLtd., 191 Ill. 2d 278, 306 (2000).

This point was first raised by the dissenting justice in theappellate court, who believed that the detectives' refusal to permitcounsel to observe the witness make the identification transformedthe defendant's voluntary appearance at the police station into aninvoluntary seizure for fourth amendment purposes. The waiverrule is a limitation on the parties, however, and not on thejurisdiction of the courts. People v. Shaw, 186 Ill. 2d 301, 327(1998). Recognizing both the importance of this issue and ourobligation to maintain a sound and consistent body of case law, wechoose to address the question in this appeal. See People v.Williams, 188 Ill. 2d 293, 301 (1999); People v. Szabo, 186 Ill. 2d19, 23 (1998); Hux v. Raben, 38 Ill. 2d 223, 224-25 (1967).

The defendant argues that the detectives' conduct hereviolated the fourth amendment of the United States Constitutionand the search and seizure and privacy clauses of article I, section6, of the Illinois Constitution. None of these authorities arepersuasive, however, and we decline to find that the defendant wassubjected to an involuntary seizure.

The defendant cites article I, section 6, of the IllinoisConstitution as providing a basis on which to conclude that theaction by the police amounted to an involuntary seizure. Article I,section 6, of the Illinois Constitution provides, "The people shallhave the right to be secure in their persons, houses, papers andother possessions against unreasonable searches, seizures,invasions of privacy or interceptions of communications byeavesdropping devices or other means." Ill. Const. 1970, art. I,