People v. Jackson

FOURTH DIVISION
December 18, 1997

No. 1-96-1445

THE PEOPLE OF THE STATE OF ILLINOIS, )
)
Plaintiff-Appellee, ) Appeal from the
) Circuit Court
v. ) of Cook County.
)
TERRY JACKSON a/k/a CORNELL WEATHERS, )
)
Defendant-Appellant. ) Honorable
) BERTINA E. LAMPKIN,
) Judge Presiding.
)

JUSTICE SOUTH delivered the opinion of the court:

Following a jury trial, defendant, Terry Jackson a/k/a Cornell
Weathers, was found guilty of first degree murder and sentenced to
30 years imprisonment. Jackson admitted that he performed the acts
which caused the death of the deceased, Milton Collins. However,
Jackson claimed that he took those actions in self-defense out of
fear of Collins.
On appeal, Jackson argues that the court erred in precluding
evidence regarding Collins' past acts of violence and prior
convictions and in admitting a 911 tape. Jackson also contends
that numerous comments made during the prosecutor's closing
argument and the court's denial of his motion for mistrial denied
him a fair trial. For the following reasons, we affirm Jackson's
conviction of first degree murder.
During trial, Jackson testified that on the morning of March
7, 1994, he was asleep in a friend's apartment at 2616 South King
Drive in Chicago when he was awakened by Collins who was hitting
him in the face and then collaring him against the wall. Jackson
hit Collins and ran, partially clothed, to the lobby downstairs.
While in the lobby, Jackson saw the building manager and told him
he had been attacked and to call the police. The manager refused,
stating that was not his job.
Jackson then went outside to a phone booth, called 911 and
told the operator that he had been attacked at 2616 South King
Drive. The operator instructed him to wait in the lobby of the
building and that a squad car would be there in about five minutes.
As he was going back into the building, he picked up a stick lying
against the wall of the building, carried it inside the lobby and
waited for the police. While in the lobby, he saw Collins walking
toward the bus stop on King Drive with a television in his hands.
Approximately 15 minutes had passed from the time Jackson ran from
the apartment until he saw Collins.
Jackson further testified that after Collins sat down at the
bus stop, he walked up to Collins and asked why he was bothering
him and why he wanted to take from him. Collins replied "fuck
you," "eased up off the bench" and reached out trying to grab him.
Jackson then hit Collins between the neck and the shoulder with the
stick because he was afraid. After being hit with the stick,
Collins sat back down on the bench. He then "eased up" again with
his hands up. Jackson reached over his hand and hit him with the
stick in the side of the neck, close to the ear. Jackson then saw
Collins was dazed and ran back to his friend's apartment to put on
some clothes.
Jackson also testified that after he got dressed, he returned
to the lobby. He took the stick with him for protection. When the
elevator door opened to the lobby, Jackson saw Collins coming
through the door of the elevator room. Both men could not pass
through the doorway at the same time. Jackson then asked Collins
why did he want to bother him. He told Collins, that he ought to
"get off that shit bothering people."
Collins replied "fuck you" and moved toward Jackson with a
look on his face as though he wanted to grab him. As Jackson tried
to get out the door, Collins came a little closer to him. Jackson
testified that he then hit Collins in the mouth to get Collins off
of him, and again in the head with the stick because he was afraid.
After Collins was struck in the head with the stick, he fell to the
ground on his face and his tooth came out. Jackson then ran out of
the lobby and threw the stick on the side of the building.
The prosecution presented the testimony of three eyewitnesses
to the following events. Darryl Love, the building superintendent
of the Prairie Courts Apartments at 2616 South King Drive,
testified that on March 7, 1994, at approximately 8:30 a.m., he was
working on the north side of the building. When he opened the door
of the building, he heard a resident, Floyd Metcalfe, yelling to
Love from his apartment window above, "We need to stop this, you
need to stop this." Love turned and saw Jackson and Collins at the
bus stop on King Drive. Collins was sitting on the bench and
Jackson was standing next to him holding a stick.
Love testified that Jackson and Collins were saying something
to each other, but he could not hear what was being said. He saw
Jackson hit Collins in the head with the stick and Collins place
his hands over his head in an attempt to cover himself. Jackson
swung the stick again and hit Collins in the head a second time.
Love further testified that Collins did not have a weapon and never
attempted to hit Jackson, get up from the bench or move his hand
toward Jackson at all.
Floyd Metcalfe testified that he witnessed a man beating
another man with a stick at the bus stop. Although Metcalfe could
not identify either man because he could not see their faces, he
did identify the stick used to strike Collins. Metcalfe testified
that the only man fighting was the one with the stick, the man on
the bench never got up from the bench and did not have time to do
anything other than to put up his arms to try to block the blows.
Luke Boone, the building manager, did not see what occurred at
the bus stop. However, Boone testified that he saw Jackson strike
Collins in the head with the stick in the lobby of the 2616 South
King Drive building. When Boone came through the south door of the
lobby on the morning of March 7, 1994, he saw Collins standing in
the lobby. Jackson came through the door into the lobby with a
stick in his hand and stopped Collins with the stick, telling him
that "he ought to get up off of that shit of jumping on people."
Jackson, while holding the stick on his shoulder with one
hand, hit Collins in the mouth with his fist. At that time,
Collins leaned over on a plexiglass window groping around with his
fingers in his mouth trying to find if a tooth had been loosened.
Another man standing in the north door stated that the police were
coming. Jackson grabbed the stick a little tighter and hit Collins
in the top portion of his head, "baseball style," as if he were
swinging a baseball bat. After Collins was struck with the stick,
he bounced off the plexiglass window, slid down to the ground and
began to cough up blood.
Boone further testified that Collins had nothing in his hands,
his feet were stationary and he did not move at all toward Jackson
before being hit him in the mouth and the head. Jackson then ran
away, and Boone ran to the manager's office to call 911. Boone
later went to the police station and identified Jackson in a
lineup. Collins subsequently died from multiple head injuries
sustained when Jackson struck him in the head with the stick.
Jackson first argues that the court erred in precluding
evidence regarding Collins' past acts of violence and prior
convictions. The Illinois Supreme Court has stated that when the
theory of self-defense is raised, evidence of the victim's
aggressive and violent character is relevant to show (1) the
defendant's state of mind during the altercation with the victim
and (2) to support the defendant's version of the facts where there
are conflicting accounts of what happened. People v. Lynch, 104 Ill. 2d 194, 470 N.E.2d 1018 (1984).
Prior to opening statements, the court ruled on the
prosecution's motion to exclude evidence of Collins' past
convictions and bad acts. The court held that Jackson would be
allowed to present evidence of Collins' prior bad acts of which
Jackson was aware at the time of the altercation in order to show
Jackson's state of mind or to demonstrate his perception as to why
he needed to use force against Collins.
However, the court further held that any violent acts of which
Jackson was unaware were not admissible under Lynch to show
Collins' propensity to commit violence because they did not in any
way support Jackson's version of the facts since there were no
conflicting accounts of what happened, and the evidence concerning
who was the aggressor was undisputed.
The record indicates that approximately 15 minutes had passed
from the time Jackson ran from the apartment until he saw Collins
walking toward the bus stop. The testimony of two eyewitnesses,
Love and Metcalfe, Jackson's statement to investigating officers
and Jackson's trial testimony established that at the time Jackson
struck Collins twice in the head with the stick at the bus stop,
Collins was easing up off the bench, had nothing in his hands, was
not fighting Jackson, and simply tried to cover his head with his
arms in an unsuccessful attempt to avoid being struck.
The testimony of another eyewitness, Boone, Jackson's
statement to investigating officers and Jackson's trial testimony
established that when Jackson struck Collins in the mouth with his
fist and in the head with the stick in the lobby, Collins had
nothing in his hands. He did not touch Jackson, and his feet were
stationary.
As a general proposition of law, admission of evidence is
within the sound discretion of the trial court, whose decision will
not be overturned on review unless a clear abuse of discretion is
apparent. People v. Biro, 260 Ill. App. 3d 1012, 636 N.E.2d 803
(1994). Furthermore, this court has held that, Lynch evidence may
be properly excluded where, as here, there was no conflict
concerning who was the aggressor. People v. McGee, 213 Ill. App.
3d 458, 572 N.E.2d 1046 (1991); accord People v. Armstrong, 273
Ill. App. 3d 531, 653 N.E.2d 17 (1995) (Lynch evidence properly
excluded where defendant initiated the confrontation and failed to
withdraw).
In view of the undisputed facts of record, we find that
Jackson initiated the confrontation and failed to withdraw at the
bus stop and in the lobby when he struck the death blows to
Collins' head with the stick. Thus, there was sufficient evidence
supporting the court's ruling that there was no conflict concerning
who was the aggressor and that, therefore, any violent acts of
which Jackson was unaware were not admissible under Lynch to show
Collins' propensity to commit violence. Accordingly, we find no
abuse of discretion by the court.
Jackson next contends that the court erred in admitting a 911
tape to impeach his testimony and in permitting the prosecutor to
play the tape during rebuttal closing argument. There is no doubt
that sound recordings are admissible if they are otherwise
competent, material and relevant, and where a proper foundation is
laid. People v. Williams, 244 Ill. App. 3d 669, 614 N.E.2d 367
(1993). Where a tape accurately portrays the conversation used in
evidence, it should be admissible. Williams, 244 Ill. App. 3d 669,
614 N.E.2d 367.
In the present case, Jackson stipulated that the tape
accurately portrayed the calls made to 911 between 7:58 a.m. and
9:14 a.m. on the morning of March 7, 1994, and further stipulated
that the only call reporting an incident at 2616 South King Drive
from any citizen other than Mr. Boone was the 8:20 a.m. call that
was played for the jury. Therefore, Jackson stipulated to the
necessary foundation for the admission of the 911 tape.
Jackson next argues that the court erred in admitting the 911
tape because it was hearsay. Hearsay is an out-of-court statement
used to prove the truth of the matter asserted. People v. Velasco,
216 Ill. App. 3d 578, 575 N.E.2d 954 (1991). In the present case,
the tape was not admitted to prove the truth of the matter
asserted, i.e., that Jackson beat Collins with a bat on 26th and
King Drive. Rather, the court held that, "[t]he only reason I
would allow the tape would be to rebut his testimony that he called
the police."
During direct examination, Jackson testified that he made the
911 phone call and told the police he had been attacked. Since
Jackson stipulated that the tape accurately reflected calls made to
911 between 7:58 a.m. and 9:14 a.m. on March 7, 1994, the tape
contradicted Jackson's testimony that he called 911 himself.
Moreover, when a defendant chooses to testify in his own
behalf, he places his credibility into issue, and when he
introduces an issue on direct examination, even if that issue is
collateral to the issue to be proved, his statement may be attacked
both on cross-examination and in rebuttal. People v. Ford, 163
Ill. App. 3d 497, 516 N.E.2d 766 (1987). Therefore, the court
properly admitted the tape for the non-hearsay purpose of rebutting
Jackson's testimony that he called the police during that time
period.
Jackson further contends that he was prejudiced and denied a
fair trial when the court allowed the prosecution to replay the 911
tape during closing argument. In support of this contention,
Jackson cites People v. Ammons, 251 Ill. App. 3d 345, 622 N.E.2d 58
(1993). In Ammons, the appellate court found reversible error
where the prosecution played defendant's taped statement during its
rebuttal. The court stated that "[a]llowing such evidence to be
reintroduced dramatically overemphasized its credibility. As such,
the defendant was severely prejudiced." 251 Ill. App. 3d at 347,
622 N.E.2d at 60.
The limited purpose for which the tape was allowed
distinguishes this case from Ammons. In Ammons, the prosecutor
played the defendant's 18-minute long statement during closing
argument. Here, the 911 tape shows that the caller reported that
a man was beating another man with a baseball bat at 26th and King
Drive. This fact had already been established by three
eyewitnesses, defendant's statements to investigating officers, and
defendant's testimony at trial. The portion of the tape that was
played for the jury was approximately 15 seconds long, and was
allowed only to rebut defendant's statement that he phoned 911. It
was previously stipulated that the 911 tape was a true and accurate
transcription of the calls made regarding the incident at 2616
South King Drive on March 7, 1994.
In addition, evidentiary errors are harmless where the
properly admitted evidence is so overwhelming that no fair-minded
juror could reasonably have voted to acquit defendant. People v.
Miller, 173 Ill. 2d 167, 670 N.E.2d 721 (1996). As previously
stated, Jackson's guilt was established through three eyewitnesses,
his statements to investigating officers, and his own testimony at
trial. Because the evidence of Jackson's guilt was so overwhelming,
any error in playing the tape in rebuttal argument could not
reasonably have affected the verdict and, therefore, was harmless.
Finally, Jackson argues that numerous comments made during the
prosecutor's closing argument, and the court's denial of his motion
for mistrial, denied him a fair trial. We disagree.
The boundaries of proper closing argument are broad. People
v. Anderson, 250 Ill. App. 3d 439, 620 N.E.2d 1281 (1993). The
prosecutor has a right to comment on the evidence and draw all
legitimate inferences deducible therefrom, even if they are
unfavorable to defendant. People v. Spain, 285 Ill. 2d 133, 604 N.E.2d 294 (1996). When challenged comments are within rebuttal
argument, they will not be held improper if they have been invited
by defense counsel's argument. People v. Smith, 199 Ill. App. 3d
839, 854, 557 N.E.2d 596 (1990).
Further, improper prosecutorial comments can be cured by
instruction to the jury to disregard argument not based on the
evidence and to consider instead only the evidence presented to it.
People v. Moore, 171 Ill. 2d 74, 662 N.E.2d 1215 (1996). Moreover,
a verdict will not be disturbed on review unless it is shown that
the comments substantially prejudiced defendant to the extent that
absent the comments, the jury would have returned a different
verdict. People v. Byron, 164 Ill. 2d 279, 295, 647 N.E.2d 946,
954 (1995). Additionally, because the circuit court is in a better
position than a reviewing court to determine the prejudicial effect
of any remarks made during closing argument, its determination of
the propriety of the remarks will not be disturbed absent a clear
abuse of discretion. People v. Pittman, 126 Ill. App. 3d 586, 467 N.E.2d 918 (1984).
Jackson first argues that the prosecutor improperly argued
that the jury not consider Collins' violent behavior by stating:
"Don't treat Milton Collins as the defendant
would have you. Milton Collins is a victim,
ladies and gentlemen of the jury. He's the
victim of a murder. He is the same as any
other victim of murder in this county."
The prosecutor's statements did not suggest that the jury disregard
Collins' prior bad act. Rather, the statements restated evidence
adduced at trial that Collins was not the aggressor but the victim.
In rebuttal closing argument the prosecutor stated:
"The fact that someone has alcohol in their
system, the fact that someone has a, not
cocaine but a metabolite of cocaine in their
system, that does not mean that the law treats
them different..."
The record reflects that the prosecutor's remarks were made in
response to statements made during defense counsel's closing
argument when he stated the victim was "a bully," and "you hate to
see a bully like that get away with stuff like that," and comments
regarding the victim's blood alcohol content as well as evidence of
the metabolite of cocaine in Collins' system. In addition, upon
defense counsel's objection to the prosecutor's remarks, the court
immediately cured any error by admonishing the jury to dismiss a
statement which is not based upon the evidence or reasonable
inferences therefrom.
Jackson next argues that during rebuttal closing argument, the
prosecutor improperly attacked defense counsel by stating:
"[A] number of comments that were made to you
by Mr. Sarley, and this is nothing personal
against him, that are not the law and are
being done to divert your attention from two
things."
Defense counsel objected to this remark, and the court stated,
"Well, counsel, you can say defense counsel's statements."
The prosecutor also stated that defense counsel had accused
the felony review assistant State's Attorney "of deliberately doing
something," and stated, "That is improper for them to suggest, and
they know it." Upon defense counsel's objection, the court
immediately instructed the jury, "[a]ny statement that is not based
on the evidence and reasonable inferences should be disregarded."
Finally, Jackson challenges the prosecutor's remarks that
"[o]nce defendant takes the stand, make no mistake about it, they
do not want you to understand this, *** he opens himself up, and
his credibility is on the line in this case." Defense counsel's
objection to this statement was overruled.
The prosecutor's statements were responses to defense
counsel's closing argument and were not directed to him personally,
and the court admonished the jury that, "[a]ny statement that is
not based on the evidence and reasonable inferences should be
disregarded."
Jackson also argues that the prosecutor improperly attempted
to shift the burden of proof by referring to defendant's subpoena
powers. During Jackson's closing argument, defense counsel argued,
"Why doesn't the state's attorney office call detective Ryan in
their case in chief *** and tell you about what was said in those
thirty or forty minutes? There were three pages of notes taken
during that conversation ***. Cornell Weathers was talking about
this incident ***. I submit they do not want you to know why."
In response to defense counsel's statements, the prosecutor
stated that defense counsel possessed "the same subpoena power" as
the State. Defense counsel objected to this remark and the court
sustained his objection. Hence, any potential error was cured.
Moore, 171 Ill. 2d 74, 662 N.E.2d 1215. Further, the prosecutor's
statements were direct responses to defense counsel's closing
argument.
Jackson further argues the prosecutor improperly vouched for
and enhanced the credibility of another assistant State's Attorney
and characterized second-degree murder as a compromise verdict.
While we agree that such comments by the prosecutor are highly
improper, careful review of the record indicates that there is no
evidence that Jackson was substantially prejudiced by the
prosecutor's comments to the extent that absent the comments, the
jury would have returned a different verdict. The evidence that
Jackson was the aggressor and did not act in self-defense when he
caused Collins' death by repeatedly striking him in the head with
the stick was overwhelming.
Furthermore, each of the challenged statements were cured by
the court's admonishment to the jury that it must disregard and
dismiss any statement not based upon the evidence or reasonable
inferences therefrom and that the prosecution had the burden to
prove Jackson's guilt beyond a reasonable doubt. Therefore, we
find that the prosecutor's comments, taken individually or
cumulatively, did not deprive Jackson of his right to a fair trial.
Jackson's final argument is that the court erred in denying
his motion for mistrial. A mistrial should be declared only where
there is an occurrence of such character and magnitude as to
deprive a party of a fair trial and the moving party demonstrates
actual prejudice. People v. Garrett, 276 Ill. App. 3d 702, 658 N.E.2d 1216 (1995). The decision whether to grant a mistrial is
within the broad discretion of the trial court based on the
particular circumstances of the case and should not be disturbed on
review absent a clear abuse of discretion. Garrett, 276 Ill. App.
3d 702, 658 N.E.2d 1216.
Here, there was no basis to grant a mistrial. As noted above,
the prosecutor's comments were either based on the evidence,
invited by defense counsel, cured by jury instructions or harmless.
Accordingly, we find that the court did not abuse it's discretion
in denying Jackson's motion for a mistrial. For the aforementioned
reasons, we affirm Jackson's conviction of first degree murder.
Pursuant to People v. Nicholls, 71 Ill. 2d 166, 374 N.E.2d 194
(1978), and relevant statutory provisions (725 ILCS 5/110-7(h)
(West 1994); 55 ILCS 5/4-2002.1 (West 1994)), we grant the State's
motion and incorporate as part of the judgment and mandate a fee of
$100 for defending this appeal.
Affirmed.
HOFFMAN, P.J., and HOURIHANE, J., concur.