Justia.com Opinion Summary: Defendant, convicted of first degree murder for a 2003 shooting death, was sentenced to 55 years' imprisonment. On appeal, his arguments included denial of Sixth Amendment right to counsel because police barred his attorney from observing witnesses during a lineup. The appellate court affirmed, finding the evidence closely balanced and applying plain-error analysis. The highest court affirmed after holding that the matter was not within the purview of plain-error review and the evidence was not closely balanced. Even if the right to counsel had attached at the time of the line-up, given the overwhelming evidence of guilt in the record, the defendant could not show prejudice. The record was undeveloped on the issue of whether defendant was entitled to counsel at the line-up, because the issue was not raised at trial.
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2011 IL 109689
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 109689)
THE PEOPLE OF THE STATE OF ILLINOIS, Appellee, v.
KENYATTA WHITE, Appellant.
Opinion filed August 4, 2011.
JUSTICE KARMEIER delivered the judgment of the court, with
opinion.
Chief Justice Kilbride and Justices Thomas, Garman, and Theis
concurred in the judgment and opinion.
Justice Burke dissented, with opinion, joined by Justice Freeman.
OPINION
¶1
Following a bench trial in the circuit court of Cook County,
defendant, Kenyatta White, was convicted of first degree murder for
the shooting death of Aramein Brown. Defendant was subsequently
sentenced to 55 years’ imprisonment. Defendant appealed, arguing,
inter alia, that he was denied his sixth amendment right to counsel
where the police barred his attorney from observing witnesses when
they identified the defendant in a lineup. Defendant had not raised
that argument in the circuit court. After its review of the record the
appellate court found, as a threshold matter, that the evidence was
closely balanced; thus, the appellate court proceeded to examine the
issue via the closely-balanced-evidence prong of plain-error analysis.
Ultimately, the appellate court affirmed, finding, first, that a total
prohibition of defense counsel from observing the moment of
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identification was a violation of the accused’s sixth amendment right
to effective assistance of counsel, but concluding thereafter that
defendant’s sixth amendment right to counsel had not attached at the
time the lineup was conducted. 395 Ill. App. 3d 797.
Defendant filed a petition for leave to appeal to this court, arguing
that (1) the appellate court erred when it held that defendant’s sixth
amendment right to counsel had not attached “even though defendant
had been formally charged, his arraignment had been prompted and
restrictions had been imposed on his liberty”; and (2) the appellate
court erred when it ruled that defendant’s sixth amendment right to
counsel had not attached “at the time he ought to have been presented
in court for his initial appearance.”
We granted leave to appeal pursuant to Supreme Court Rule
315(a) (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)). Having now
thoroughly examined the record, and having considered all bases for
relief pursuant to plain-error review, we affirm the judgment of the
appellate court insofar as it upheld defendant’s conviction; however,
we find that the appellate court’s pronouncements on the substantive
issues are dicta, as the facts of this case do not bring it within the
purview of plain-error review: the evidence was not closely
balanced—contrary to defendant’s argument and the appellate court’s
finding. We note that a determination as to whether evidence is
closely balanced is not strictly a quantitative assessment. No
argument was made that the alleged error was of such a magnitude
that it would have affected the fairness of defendant’s bench trial and
challenged the integrity of the judicial process. In order to
demonstrate the error in the appellate court’s assessment, and the
relative insignificance of the claimed sixth amendment violation in
the outcome of defendant’s bench trial, we will set forth an extensive
recitation of the evidence, testimony, and arguments presented below.
BACKGROUND
Aramein Brown was shot and killed at approximately 10:30 p.m.
on January 6, 2003, at a gas station located at 79th and Yates in
Chicago. Preliminary investigation of the matter led to the filing of a
“Complaint for Preliminary Examination”on February 20, 2003, in
which “complainant,” Detective Alejandro Almazan, stated that
defendant had committed the murder. On the basis of those
allegations, an arrest warrant was issued setting bond at $1 million.
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Defendant was arrested that same day—February 20, 2003—in
East St. Louis, Illinois, and was held in the St. Clair County jail until
he was transported back to Chicago on February 25, 2003. On the
following day, February 26, 2003, defendant was placed in a lineup.
Defendant’s attorney was present with defendant in the room where
the lineup participants were displayed, but counsel was not present in
the adjoining room where and when the witnesses viewed the
individuals in the lineup.
Grand jury proceedings were conducted on February 27, 2003.
Martina Brewer testified that she and her boyfriend, Aramein Brown,
were at a gas station on January 6, 2003, at approximately 10:30 p.m.
Aramein was at the gas pump talking to two other individuals on the
other side of the pump—one of whom was his cousin—when
someone came from behind the van in which she was seated and shot
Aramein several times. Brewer testified that Aramein tried to run, and
more shots were fired. She said she knew the shooter by the name of
“Yatta.”1 After Yatta shot Aramein, Yatta ran away. Brewer said she
began to chase him, but soon turned around and went back to where
Aramein was lying on the ground. Then she called the police.
Assistant State’s Attorney Nicholas Pappas showed her People’s
Exhibit No. 1, which she identified as a photo of Yatta, the person she
saw shoot Aramein that night.
Keith Slaughter also testified before the grand jury. On January
6, 2003, between 10 and 10:30 p.m., Slaughter was driving down
79th westbound toward Yates. While stopped at a red light, he heard
a gunshot, and then noticed two individuals at a nearby gas station:
“One had just seemed as though he just fell over, just hit the ground.
And another individual was standing there also. He had just started
*** running off.” The person he saw ran off about 10 feet after the
shooting, “then he doubled back to the individual” and “shot him four
to six more times.” Thereafter, the shooter “casually trotted off”
southbound on Yates and jumped into a vehicle. Slaughter was shown
People’s Exhibit No. 1, the photo of Kenyatta White, and he
remarked, “It looks to be the person who was the shooter.” The
assistant State’s Attorney asked:
“Q. The person you just testified to?
A. Yes.
1
This nickname later appears in the record as “Yada.” The same
person is referenced in both instances.
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Q. The one you indicated started to run away and then
came back and fired several times, four or five times, at the
victim?
A. Correct.
Q. The same one that ran down Yates?
A. Exactly.”
Slaughter affirmed that he never saw the person falling in
possession of a weapon, nor did the victim make any threatening
gesture toward the shooter. Slaughter testified that the man he
identified in People’s Exhibit No. 1 got in a car after the shooting and
drove off. When he later looked back at the victim, he saw a female
“hovered over him on the ground.” Slaughter acknowledged that on
February 13, 2003, he was shown a series of photographs and he
identified the person in People’s Exhibit No. 1 as the shooter. Further,
Slaughter confirmed that he was present for a lineup on February 26,
2003, at which he identified the same individual he had recognized
in the photo. Slaughter was then asked:
“Q. Okay. At any time on February 19th or February 26th,
did anyone force you, threaten you, or coerce you to identify
the individual here in People’s Exhibit No. 1?
A. No.
Q. And how about on February 26th, did anyone force
you, threaten you, or coerce you to make that identification?
A. No.”
With respect to conditions at the crime scene, Slaughter noted that the
lights were “very bright.”
The day after grand jury proceedings were concluded, a second
“Complaint for Preliminary Examination” was filed on February 28,
2003, with Detective John Fassl as the listed complainant. That same
day, defendant made his initial court appearance.
Based on the grand jury testimony, an indictment was filed on
April 2, 2003, charging defendant with six counts of first degree
murder for the shooting death of Aramein Brown.
On December 5, 2005, a bond hearing was conducted for material
witness, Martina Brewer. At that hearing, the State alleged that
Brewer had made “numerous statements” that she had no intention of
coming to court to testify in this matter. Bond was set at $25,000 to
ensure her appearance at defendant’s trial. Her attorney stated: “I
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don’t know what kind of case this is because I was just appointed a
few minutes ago but she is I guess in fear for her safety.” Brewer,
speaking to the judge, then confirmed: “Ma’am, please, I swear I’m
afraid. You can ask them. They know.” Brewer’s appointed counsel
suggested that the State should “try to help her as opposed to putting
her in the Cook County Jail.”
Assistant State’s Attorney Brian Sexton responded: “Judge, we’ve
offered this witness witness relocation. She is afraid and that’s just
like a lot of other witnesses out there and she’s already indicated
she’s not coming to court because she’s afraid.”
Appointed counsel opined: “Judge, they’re willing to risk her
safety in the Cook County Jail to get her appearance for trial.”
Brewer, obviously distraught, pleaded: “Can you all please help me?
I swear I’m going to come to court ***. I just don’t want to go in
there because I’m afraid ***. They know where my mother live.
That’s why she moved.”
Judge Diane Gordon Cannon, the judge who would preside at
defendant’s bench trial, stated: “We will see you on January 24th,
Ma’am.”
Defendant’s bench trial commenced on January 24, 2006. The
State called Martina Brewer as its first witness.
Brewer testified that the victim, Aramein Brown, was her
boyfriend in January of 2003. She identified defendant in open court,
stating that she knew him by the nickname “Yatta.” Brewer testified
that she and Aramein were in Chicago on January 6, 2003, and at one
point, around 10 p.m., they went to a gas station at 79th and Yates to
get gas and buy marijuana from Brown’s cousin. Aramein was
standing outside talking to his cousin when Brewer heard a loud
sound like a firecracker. She said she looked up and “the guy” was
running away. Aramein was running, holding the back of his head,
then he fell to the ground and did not move thereafter. Brewer stated
that she got a gun out of her vehicle and ran after the man, then came
back. The other two men present—Aramein’s cousin and the other
unidentified individual—drove off. She said they came back later and
she gave them Aramein’s gun.
Brewer then testified that Aramein’s brother, Ajani, showed up.
According to Brewer, he asked her if she knew who killed Aramein.
Brewer claimed she told him she did not. Continuing, Brewer
testified as follows: “So he said, you know what, let me talk to you
before anybody else comes.” She claimed that Aramein’s brother,
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Ajani, walked away a short distance with her and told her to say that
Yatta “did this killing.” She continued: “I don’t know what his reason
was for telling me that, but my boyfriend had just got murdered,
anything sound like a good idea at this point. If you know what I
don’t know, then fine, I’m gonna roll with you.” At that point in her
testimony Brewer insisted she did not know who killed Aramein
Brown.
Upon further questioning by the State, Brewer acknowledged her
testimony before the grand jury wherein she identified defendant as
the shooter. She denied telling Detective Almazan at the hospital,
after the shooting, that Yatta had shot Aramein. She acknowledged
that, when she was later at the police station, she told the detectives
she knew “the offender” and his name was Yatta. Brewer denied
telling the police that Ajani Brown and Yatta used to be friends,
stating: “No sir, because I don’t know Ajani Brown.” In questioning
immediately thereafter, Brewer contradicted herself, acknowledging
that she did know Ajani Brown, and that he and Yatta had been
friends. Brewer confirmed that the police had shown her a photo array
at the police station and she had identified defendant as the offender.
She testified she “probably” had identified defendant’s photo before
the grand jury as well. Immediately after that testimony, Brewer
stated, “I don’t even remember them showing me pictures.”
Asked if she was afraid to identify defendant as the shooter, she
responded she was not. The prosecutor then recalled the statements
Brewer had made in open court during her bond proceeding on
December 5, 2005, when she indicated she was afraid to testify.
As Brewer acknowledged her prior statements, and started to
explain why she was afraid, the court halted proceedings and
admonished Brewer: “If you’re testifying that you lied before the
Cook County Grand Jury, ma’am, that’s perjury.” The court advised
Brewer that she needed to consult with an attorney, the court
appointed an attorney for that purpose, and took a short recess to
allow for consultation.
When trial resumed, the prosecutor asked Brewer who shot
Aramein Brown. Brewer refused to answer. When the court directed
Brewer to answer, Brewer responded: “Okay. I don’t know.” The
prosecutor then resumed questioning Brewer about the fear she had
expressed at her December 2005 bond hearing. In response, Brewer
suggested that she was afraid of Aramein’s brother. The prosecutor
then asked: “So what you’re telling us is that you were afraid of the
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Browns and not Kenyatta White, is that what you’re telling us?”
Brewer responded: “I mean, I was afraid of both.”
Brewer confirmed she had initially given the police an account of
the shooting. When the prosecutor questioned her about specific
details of that account, and asked whether the Brown family had told
her to say those things, Brewer repeatedly answered, “I don’t
remember,” or she replied in the negative. Brewer denied telling the
authorities that she was afraid to testify against defendant because she
had heard there was going to be a hit on her child if she testified
against him. However, she acknowledged that she had indicated she
was afraid to testify against him. Further, she admitted, on the day of
her bond hearing, making the following statement to the prosecutors
when they were trying to secure her testimony: “What if I told you
someone else did it?” She admitted she had been approached by
someone who told her the offender could not have been Kenyatta
White because he would have had a hard time running due to a bad
leg. When asked to identify that person, Brewer refused to do so.
When the court directed her to answer, she stated she did not know
the man’s name. Brewer denied that she had told law enforcement
officials, on December 5, 2005, that Kenyatta was the shooter, and
that she had later learned defendant mistook Aramein for Ajani
Brown, who was the intended target.
Under cross-examination, Brewer reiterated her testimony on
direct that defendant was not the shooter. She testified she did not tell
the dispatcher she knew who killed Aramein. She said she could not
recall telling any uniformed police officer at the scene of the shooting
that she knew the shooter. Brewer said: “I may have told them that he
had on dark clothes, but that’s all I knew.” She said the offender did
not seem to be struggling when he ran away. Brewer then testified to
the statement of recantation she provided to defendant’s counsel.
On redirect, the prosecutor inquired as to the circumstances giving
rise to Brewer’s recantation:
“Q. How was it that you found out who represented
Kenyatta White?
A. I went down there to his office, my brother took me to
his office.
Q. How did he find out?
A. I don’t know. I was in New Orleans. I just got a call.
Q. You came all the way from New Orleans up here?
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A. Yes, sir.
Q. Because you wanted to set the record straight, is that
correct?
A. Yes, I did, because I was tired of living the way I was
living. I knew I was lying about this guy and I know that
Aramein’s brother told me that if I didn’t say this that he was
going to harm my daughter, so–
Q. Let me ask you this question, when did the fear of the
Browns end?
A. When I moved away. I didn’t have to see them any
more, so, you know.
Q. So when you were here back on December 5th, who
were you afraid of when you were saying you were afraid?
A. I was afraid of Aramein’s family and Kenyatta.
Q. Oh, but you weren’t afraid enough to sign that recant,
is that right?
A. Because I knew I was telling the truth.”
On recross, Brewer testified that she got a call from her brother
while she was in New Orleans: “He said you know do you want to
come down here and tell them what really happened? And I said,
yeah, why not, you know, because I’m tired walking around with this
on my back.” Brewer said she did not call the State’s Attorney’s
office because her lawyer told her she did not have to talk to them.
The court then questioned Brewer, inquiring as to the
circumstances of her abrupt return to Chicago from New Orleans in
order to make a statement recanting her prior sworn testimony.
Referring to Brewer’s brother, the court asked:
“Q. He called you in New Orleans out of the blue and says
do you want to come out here?
A. He called me the other day. I had just left from up here.
And I was, you know, telling him what happened. So he was
like, you know, do you want to come and tell this guy’s
lawyer what happened for real. And I’m like yeah, you know,
because I’m tired with walking around with this on my back,
I’m tired of lying about this whole situation, I just want it to
be over with and that’s what happened.
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I came down here, I will [sic] talked to the lawyer, I told
him everything that I knew about the whole thing and I went
back home.
Q. So you were here, didn’t talk to any lawyers, went back
to New Orleans, get a call from your brother, come right
back?
A. Yes, ma’am. And that’s what happened.
Q. Why didn’t you talk to the lawyers when you were
here?
A. Because they didn’t know–I didn’t know anything
about the lawyers when I was here. And I was upset because
I had just gotten home. So when I got home, and that’s when
he called me, like man I need you to come back out here, you
know.
Q. So your brother told you he needed you to come up?
A. Yeah, he needed me to come back out here i[f] I
wanted to get this thing straight. I’m like, of course I want to
get it straight.
Q. Where is your brother now?
A. I’m not sure.
Q. What state does he live in?
A. He lives in Chicago.”
The court then inquired as to why Brewer did not call the State’s
Attorney’s office and advise them of her recantation:
“Q. You said you didn’t call the State’s Attorney’s office
because your lawyer told you that you didn’t have to talk to
them.
A. Lawyers. I had just got, you know, what you call it,
legal advice. It wasn’t my lawyer. But I was asking, you
know, what am I–am I supposed to tell these people that I
went and talked to his lawyer or what am I supposed to do.
And the lady that I talked to, she told me that it’s not
necessary for me to tell them.
Q. What lady was this?
A. I’m not sure of her name, it was just–I had called her,
my mom gave me a number to call a lawyer, so I said fine I’ll
call her and get legal advice. So she said I didn’t have to tell
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them everything I was doing, every move that I was making,
she said that I didn’t have to tell them.
Q. You don’t know this woman’s name?
A. No, I’m not sure of her name, ma’am.”
For its next witness, the State called Nick Pappas, an attorney
who, on February 27, 2003, was employed by the Cook County
State’s Attorney’s office. Pappas testified he spoke with Martina
Brewer on that date, when she appeared as a witness before the grand
jury. He identified grand jury transcripts to which the defense
stipulated. Brewer told him, and the grand jury, that she knew the
shooter by the name of Yatta. She never indicated that she had been
threatened by Ajani Brown to name Kenyatta White as the murderer.
Pappas specifically asked her if anyone had threatened or coerced her
and she said no one had. She identified defendant as the offender by
his photograph.
The State next called Sherry Collier to testify. Collier stated she
was new to the neighborhood where the shooting occurred, having
lived there only “two to three days”at the time of the murder. She
resided there with her grandson, who was then five years old. On
January 6, 2003, at approximately 10:30 p.m., she was at the gas
station located at 79th and Yates using a pay phone, as she had not yet
gotten phone service in her home. At that time, she saw a van at the
gas pumps and noticed a person coming toward her down 79th Street.
Eventually, the man came to stand right next to her and her grandson.
He was a mere five feet away, and he made her uncomfortable
because she felt he was too close to her grandson. She got a good
look at him. She testified that he had “a distinct face.” Collier
identified defendant in open court as the man she saw that night.
Collier testified that defendant was looking toward the pumps. He
then pulled out a black gun and started walking, then trotting, toward
the pumps. When he reached the pumps, he shot at a man standing by
the van. After the first shot, the man at the pump started to run. Both
men ran toward Yates. The victim then fell, defendant shot him again,
and defendant then took off “full speed” southbound on Yates.
Collier said she was scared and she took her grandson across the
street to a grocery store. She testified she was there for “30, maybe 40
minutes” watching out the window. The police arrived in less than 10
minutes. Asked what she was thinking at the time, Collier responded:
“Actually, I was thinking, you know, my son had just got killed two
years before this, and I was debating on did I want to go over and say
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what I saw or should I just go home.” Collier decided to say
something. She walked back across the street with her grandson and
looked for “the nicest policeman” she could find.
She eventually spoke to a uniformed police officer and offered a
general description of the man she saw. She said he wore black pants,
a black hoodie, a leather jacket, and a skullcap. The man pulled the
hoodie back when he started to shoot. Collier confirmed she had
given an estimate of the man’s height and weight. Asked if she had
noticed anything unusual about the man’s hair, Collier stated that the
man had black hair, “dreads, a lot of hair,” but it was underneath his
skullcap.
Collier stated she had never seen defendant before that night. She
testified she did not know anyone by the name of “Johnny Brown or
Sundyatta Brown.”2 She had never heard of the victim in this case,
Aramein Brown. She had “never heard of an individual that went by
the nickname ‘Yatta’.”
Collier testified that the police showed her a series of photos at
the police station on January 13, 2003. The prosecutor asked if she
had picked anyone out in those pictures. She indicated she had,
stating: “That guy right there.” The record indicates that Collier was
pointing to defendant. Collier was then asked if she viewed a lineup
on February 26, 2003, and if she had identified anyone in that lineup.
She stated that she had: “That guy right there in the green suit.”
Again, the record indicates that Collier was pointing to defendant.
Collier was shown People’s Exhibit No. 7, the photo array she
viewed, from which she identified the defendant as the shooter. She
was then shown People’s Exhibit No. 8, a photo of the lineup in
which defendant was a participant. Collier put a mark above
defendant’s image in that photograph, indicating that he was the
person she identified. She affirmed in neither instance did the police
indicate who she should pick.
Collier confirmed that the State’s Attorney’s office had paid
various expenses to relocate her. At the time of trial, she was no
longer living in the home she occupied on January 6, 2003.
Under cross-examination, Collier insisted that she got a good look
at defendant as she was facing his direction while talking on the
2
“Johnny Brown” appears to be a reference to Ajani Brown. The
name “Sundyatta Brown” later appears in the record as “Sundiata” Brown.
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phone. “I got the best look when he was standing next to my
grandson.” She said she had turned to ask defendant to move back
some when defendant produced the gun. At that point he was focused
on the people at the pump. She agreed with defense counsel’s
suggestion that defendant has a distinctive face, and she
acknowledged she had not mentioned that to the police. Collier
testified she looked through a lot of photographs when she made her
initial identification of defendant. In the lineup she later viewed only
one man who had a lot of hair, and that was defendant.
On redirect, the prosecutor asked Collier if she had identified
defendant in the lineup only by his hair. Collier answered in the
negative, explaining, “Because he has the same face.” The prosecutor
then asked: “What is so unusual about the person’s–that person’s
face?” Collier responded: “It’s long. It’s–it’s ugly.” Upon further
questioning, the prosecutor established that Collier had picked
defendant’s photo out of the photo array even though he did not have
long hair in the photo.
On recross, defense counsel again elicited Collier’s
acknowledgment that she had told neither the officers at the scene nor
the detectives that the offender had a long, ugly, or distinctive face.
She maintained, however, that she did tell the detectives that night
she could identify the shooter.
The State next called Shawn Davis. On January 6, 2003, Davis
was living at 7938 Yates. He testified he was going out his front door
around 10:30 p.m. that evening when he heard three gunshots coming
from the direction of the gas station. He later looked in that direction
and saw a man running to a car at the pace of a “jogging sprint.” The
man got into the passenger side of a burgundy or red Dodge Stratus,
which then sped away up the street. Davis testified that he got a look
at the man’s face, noting, the “street light is right there in front of my
house.” Davis identified defendant in open court as the man he saw
that night. Davis testified he does not know anyone by the name of
Ajani Brown, Aramein Brown, Sundyatta Brown, or Sherry Collier.
Davis said he and his sister went up to the gas station the night of
the shooting and saw the victim on the ground. Davis then spoke to
a uniformed officer at the scene. He stated, when he observed
defendant the night of the shooting, defendant was dressed in dark
colors, wearing a hoodie and a skullcap. He had noticeable facial hair
and hair sticking out of the hoodie. The prosecutor asked: “Is there
anything unique that you noticed about this defendant?” Davis
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responded: “His jaw line. *** It’s very distinct. It’s very like a
chiseled jaw line.” On the night of the shooting, the officer did not
ask him about the jaw line; Davis just gave a general description and
indicated he could identify the man he saw running from the gas
station. Davis said defendant did not appear to have difficulty running
on the night of the shooting.
Davis testified he told detectives later that night that he could
identify the man he had seen. They came to his house on January 29,
2003, and showed him a series of photographs. From that photo array,
he picked “[t]he man sitting right there,” pointing again to the
defendant in open court.
Under cross-examination, Davis acknowledged that he had seen
defendant “growing up in the neighborhood,” stating, “I have seen
him on 79th Street, never knew who he was.” Davis estimated, in his
lifetime, he might have seen defendant four or five times in passing
on the street.
The State next called Mart Brewer—Martina Brewer’s
brother—to testify. Mart Brewer confirmed that Aramein Brown was
Martina’s boyfriend in January of 2003. Mart stated he did not know
defendant or the Brown family that well. Brewer testified he was at
a McDonald’s on 53rd Street in Hyde Park when he “overheard”
someone “saying that, that I guess [defendant’s] lawyer needed to talk
to my sister, so she can get the truth out.” Brewer said he felt
threatened insofar as they were talking about his sister in his
presence. He felt that his sister was being threatened, and he was
concerned for the safety of his sister, her child, and his mother.
Thereafter, he called his sister in New Orleans. When she returned
from New Orleans, he picked her up at the airport and took her
downtown. She got out of the vehicle, and he picked her 30 minutes
later.
Brewer testified that Martina never told him that Ajani Brown had
threatened her. She never said she had made up something against
defendant because she was afraid of the Browns. He acknowledged
he did not want to come and testify in this case.
When the defense declined an opportunity to question the witness,
the court conducted its own examination. In the course of that
examination Brewer explained, after he overheard the conversation
in the McDonald’s, he called his sister and told her she needed to
come back to Chicago. The court then inquired:
“Q. How did you know where to drive once she got back?
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A. I don’t remember. That was like four years ago.
***
Q. Did they say, by the way, when she comes in, she
should head down to LaSalle?
A. I know it wasn’t nothing like that, but I don’t
remember.
Q. How did you get the address to take your sister from
the airport?
A. Ma’am, I don’t remember. Like that was so long ago.
Q. Did she tell you where to go?
A. I don’t remember, ma’am. I don’t remember. It was so
long ago, ma’am. I really don’t remember.
Q. Well, how many lawyers’ offices, how many times
have you overheard conversations about your family, family
members, prompting you to call another state, tell them to
come in, and drive them downtown? Has that ever happened
before?
A. No.
Q. How did you know where to go?
A. Ma’am, I really don’t remember. It was so long ago.
Q. Did you have an address written down?
A. No, I didn’t have an address written down.
Q. How would you have known where to go in the
downtown area with your sister who just flew in from New
Orleans? How could you have known that?
A. Ma’am, I really don’t remember. It was so long ago.”
With that, the court apparently recognized the futility of further
questioning and the witness was excused.
The next witness to testify was Gustavo Martinez, an investigator
for the State’s Attorney’s office. Martinez testified that he served a
subpoena on Martina Brewer on December 5, 2005. He took Martinez
initially to the Lansing police department, and then to the courthouse
at 26th and California. Outside the courtroom, two assistant State’s
Attorneys spoke with her. Martinez and his partner were also present.
During that conversation, Brewer related that she was afraid to
testify because she had heard through her child’s father that there was
going to be a hit on her if she testified against the defendant. She also
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stated she saw what she saw, she knows defendant, and she identified
defendant via photograph for the police. At one point she asked,
“What if I told you someone else did it?” When asked why she would
say that, Brewer indicated someone had approached her and told her
the offender could not have been defendant because he had a hard
time running due to a bad leg. Brewer was then asked whether
defendant shot Aramein Brown, and she responded affirmatively,
acknowledging that defendant had a distinctive face. She stated she
had heard defendant really wanted to kill Ajani Brown, but mistook
Aramein for Ajani. Martinez reported that Brewer cried several times
during the course of the conversation.
Under cross-examination, Martinez acknowledged that Brewer
was not under oath at the time she spoke, she was not represented by
an attorney, and she was, at the time, facing an imminent bond
hearing.
Following Martinez’s testimony, a stipulation was entered of
record concerning statements she made in the course of the bond
hearing, specifically, that she said she was afraid to testify in this,
defendant’s, case, because “they” knew where her mother lived.
Next, Officer Ken Francisco was called and testified that he was
working the evening of January 6, 2003, when, around 10:30 p.m., he
was dispatched to the scene of a shooting. He was only a block and
a half away when he received the call. Upon his arrival at the scene,
he observed a young lady standing next to a person on the ground.
There was a pool of blood around the victim’s head. Officer
Francisco described the woman as “somewhat hysterical.” He later
learned that woman was Martina Brewer. Francisco testified he was
able to get a “brief description” of the offender from Brewer, but she
was not very detailed. She did not at any point tell him that Kenyatta
did it. Another witness came up to him while he and his partner were
discussing processing of the crime scene. That witness was Sherry
Collier. Collier, who had a young boy with her, related a basic
summary of what happened and provided a description of the
offender. She described the shooter as a black male, 20 to 30 years of
age, approximately 5 feet, 10 inches tall, between 160 and 190
pounds, wearing dark clothing and a black hat. Specifically, she said
he wore a three-quarter length jacket, a black sweatshirt, and black
pants. Francisco did not ask her if the man had unique facial
characteristics. Shawn Davis also approached Francisco and
described the person he saw running from the scene as wearing all
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¶ 53
¶ 54
¶ 55
¶ 56
black, similar to Collier’s clothing description. Davis added the
general observation that the man had a lot of hair.
Under cross-examination, Francisco stated he was on the scene
within minutes of the shooting. Brewer never told him she knew who
the shooter was, nor did she mention distinctive features. She did say
he was dressed in dark clothing. Collier never mentioned distinctive
facial features, or that the offender was wearing a hoodie, or that he
had lots of hair. No one indicated that the offender had difficulty
running or trotting.
On redirect, Francisco reiterated that Collier did mention a dark
sweatshirt. Moreover, Francisco noted that his conversations with the
witnesses only lasted a minute or two.
Detective Brandon Deenihan testified that he was assigned to
investigate the homicide. Working with Detective Almazan, they first
went to South Shore Hospital, where they spoke with Martina
Brewer. They later interviewed Brewer in an interview room at Area
2 Detective Division between 1 and 2 a.m. on January 7. At that time,
she had already told Detective Almazan who the offender was.
Brewer stated she and Aramein were at the gas station to buy
marijuana. She described what she did after shots were fired, a
recounting of events that was consistent with her grand jury
testimony. Brewer never indicated that she was afraid of Ajani Brown
or that he had threatened her. Deenihan showed her a photo array and
she picked out defendant’s photograph. Deenihan also spoke with
Sherry Collier and Shawn Davis at their homes. Both stated they
would be able to identify the person they saw.
Deenihan said he was unsuccessful in his attempts to locate the
victim’s cousin, David Jennings. Deenihan received a phone call from
defendant the evening of January 8. Deenihan told defendant he was
interested in speaking with him, and defendant said he would come
to Area 2 Detective Division on January 13; however, defendant
never showed up. Assuming defendant’s presence, arrangements were
made to bring in several witnesses, including Martina Brewer and
Sherry Collier, for a possible lineup on January 13. When defendant
did not appear, Deenihan showed Collier a photo array, from which
she identified defendant as the shooter. Shawn Davis also identified
defendant from a photo array.
Under cross-examination, Deenihan was asked how he created an
unbiased photo array, and he explained how the computer-generated
photo array was produced. He stated he inputted the person he was
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looking for and the computer then generated other subjects with
similar characteristics to be included in the array. Defendant’s photo
came from the Chicago police department database warehouse; in that
photo defendant had short hair. Because defendant had short hair in
his mug shot, all the other individuals generated by the computer also
had short hair.
Deenihan acknowledged that Collier did not say anything about
the offender’s hair, a hoodie, or distinctive facial features. She
described the gun as a black automatic. She stated defendant ran
south on Yates after the shooting. Davis was the first one to mention
a hoodie. He said the offender had facial hair, but he said nothing
about hair on the offender’s head or distinctive facial features.
According to Deenihan, Davis stated he made his observations from
his front door. He did not indicate he had seen the man before.
Detective Alejandro Almazan was also assigned to investigate the
January 6, 2003, homicide of Aramein Brown. Almazan testified he
first spoke with Martina Brewer at South Shore Hospital, where she
told him she knew the shooter by the name of “Yatta” or “Kenyatta.”
After that conversation he arranged for her to be taken to Area 2
headquarters.
Detective John Fassl testified that he was contacted by the U.S.
Marshall’s Service on February 18, 2003, and informed of the
whereabouts of Kenyatta White. Two days later, on February 20, a
warrant was issued for defendant’s arrest. Defendant was detained in
East St. Louis, Illinois, and was then brought to the St. Clair County
jail, where he was held until he was transported back to Chicago on
February 25, 2003.
Fassl then contacted witnesses for a lineup. Fassl testified he was
present when Sherry Collier viewed a lineup on February 26.
Defendant and four other individuals participated in the lineup.
Attorney Johnson, who was representing defendant, was in the room
with defendant. Fassl entered a separated room with Collier where
she viewed the lineup through one-way glass. She identified
defendant as the person she saw shoot Aramein Brown. Fassl testified
she identified defendant immediately upon viewing the lineup.
The following colloquy took place in the course of attorney
Johnson’s cross-examination:
“Q. [W]hen I came and I wanted to be present for the
lineup, you placed me in the same room with those five
fellows here in Exhibit No. 8, only you can’t see me, right?
-17-
A. Yes sir. ***
***
Q. So Room No. 4 is where you put me, the attorney,
right?
A. Yes, sir.
Q. And that was your decision to put me in that room?
A. Well, that’s procedure, sir. You would go, you are
entitled to be with your client.
Q. Well, so is it Chicago police policy that if an attorney
comes to be present for a lineup, that he is to be placed into
the same room with the people to be observed?
***
A. The policy is if you wish to be present for a lineup, it’s
to be in the room with your client *** not with the people
viewing the lineup.
Q. And that’s the way in other lineups that you have
conducted which you have had attorneys present, you put
them in the room with the people being viewed and not the
viewer?
A. Yes, sir.
Q. And then, basically, you are present with the person
viewing, so you are the person that could then come to court
and testify, if needed, as to what this person’s reaction was,
correct?
A. Yes, sir.
Q. You are the person–that can come here and say the
person was positive, or hesitant, or that didn’t make an
identification, is that correct?
A. Yes, sir.
Q. The attorney is in the room where he can’t observe the
witness making these observations, correct?
A. That’s correct, yes, sir.
Q. So the attorney has no way of knowing what this
witness may or may not be saying, correct?”
An objection to relevance was made and overruled.
“Q. And that’s the policy of the Chicago Police
Department?
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A. Yes, sir.”
Fassl acknowledged that defendant was the only one in the lineup
with dreadlocks, and that two of the participants were in their
twenties, while defendant was in his forties.
On redirect, it was established that two other participants were 43
and 47 years of age. Speaking to the composition of the lineup, Fassl
explained: “We use people from the lockup from the 5th District, so
we try to get as close physical age, height, et cetera, and that’s the
best that we could do at the time.’
On recross, attorney Johnson asked: “Detective, could you find
anybody else with the distinctive facial features of Mr. White to put
in that lineup?” Fassl stated he could not.
After various stipulations were entered of record regarding
pending exhibits and forensic findings, the State rested. Defense
counsel made a motion for directed verdict. In the course of his
argument in support of that motion, counsel addressed his decision
not to challenge the identifications made by Brewer and Collier via
photo array and lineup:
“Your Honor, there’s no motion pending, nor have we
filed a motion regarding suppression of this photo array or
lineup. And the reason being, your Honor, is I don’t know
how the police department could create a fair lineup with Mr.
White. I don’t know how they could do it.
When the court as the trier of facts looks over and looks
at Mr. White, there’s one thing that is obvious; and, that is,
Mr. White’s facial features. We can’t get by that. We can’t get
around that.
When Mr. White walks into a courtroom, that’s where all
of our eyes are, his features. And for that reason, Judge, I
know it was different [sic], probably impossible to create a
lineup finding other people that looked like Mr. White.
For that reason, Judge, the fact that individuals stood out
and Ms. Collier chose that picture is no surprise. It’s not that
she saw Mr. White, but Mr. White stood out.”
Defense counsel went on to use defendant’s distinctive features in
support of an argument that witnesses who did not mention
defendant’s distinctive features could not have seen him commit the
murder.
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The State countered that the witnesses were not asked if
defendant’s facial features were distinctive; they told the police they
could identify the offender, and they did: “These witnesses have
nothing to gain to testify against this defendant. This defendant does
have a distinctive face, that’s how they were able to identify him,
Judge.”
In denying defendant’s motion for directed verdict, the trial court
first spoke to Martina Brewer’s recantation:
“Months after her boyfriend who she had lived with for
three years is killed in front of her, she says I didn’t see
anything. Cries and says don’t make me testify. Somehow, a
conversation is overheard in a McDonald’s and lo and behold
she lands in a lawyer’s office and no one knows how this
came about. The recantation is suspect.
*** I have weighed her testimony under [section] 115,
and I find her grand jury testimony, her statements to the
police immediately following it, her identification of the
defendant in a photo array to the police to be credible.”
The court then referenced the corroborative impact of Sherry
Collier’s testimony:
“Supporting her testimony is a grandmother who
somehow found the strength to walk back across the street
after having witnessed this shooting and speak to the police,
and she was as sure as she can be when she identified
defendant in open court.
She said she would never forget his face. And Mr. White,
it’s a blessing, it’s a curse to have a distinctive face. You can
look at it both ways. She recognized your face. She identified
you with hair and without hair. She is sure she would not
forget your face. Her testimony was credible. She was
unimpeached. She has no motive to lie, to pick out a man she
has never seen before in her life. She had only lived in that
neighborhood three days at the time of her–the shooting and
when she made the identification to the police.”
As for Shawn Davis’ testimony, the court noted, “[H]e came in
again after hearing shots fired, he corroborates the path that the
defendant took following the shooting ***.” The court concluded that
the State had met its burden of proof.
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The first witness called by the defense was Samantha Davis,
Shawn Davis’ sister. Like her brother, she too testified that she was
in her residence at 7938 South Yates Boulevard when, around 10 or
10:30 p.m., she heard gunshots coming from the gas station on the
corner of 79th and Yates. Davis disputed her brother’s testimony
concerning their positions in the house when they heard shots fired,
insisting that she was initially at the front door and he was at the
window. Moreover, she testified that the Dodge Stratus—or Chrysler
Sebring—that the running man entered was green rather than red or
burgundy. However, she agreed that the man was dressed entirely in
black. Although she saw only a side view of the man, she did not
notice any unusual facial features. She testified she was sure
defendant was not the man she saw that night. She stated she was not
able to identify anyone in the photos police showed her, and she told
the State’s Attorney’s office she would not be able to come to court
because she had to take care of her mother.
Under cross-examination, Davis denied telling the police that the
man she saw entered a burgundy Dodge Stratus. She admitted telling
the detectives that she would not be able to identify anyone. The
prosecutor then asked:
“Q. So how do you know it’s not him if you can’t identify
anybody?
A. Because the man I saw was tall.
Q. So you’re just basing it on tall?
A. No, I’m not basing it on height. He had just a regular
sculptured round face.”
Davis claimed she told the detectives the man she saw had a “round
structured face.” Davis acknowledged that there is a street light right
in front of her house and the man she saw was running in her
direction. The prosecutor then asked about her perception of her
brother’s experience as a witness:
“Q. Now did you have an opportunity to talk to your
brother yesterday after he testified?
A. I spoke with him briefly.
Q. And in fact, what if anything–where did you talk to
him?
A. At our residence.
Q. And what if anything did he tell you?
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A. As I just said, somebody was after him. Get in the
house. And that was it.
Q. And did he tell you–did he appear scared?
A. Yes.
Q. You still live in that neighborhood don’t you?
A. Yes.
Q. He does not? He doesn’t live at 7938 South Yates?
A. Yes.
Q. Your mother still lives at 7938 South Yates?
A. Yes.
Q. You were concerned about your brother when he said,
get in the house? Didn’t he say, hurry, get in the house they’re
after me?
A. Yes.
Q. You were concerned weren’t you?
A. Not really because I didn’t know what was going on.
I had, like, arrived at my residence.
***
Q. You knew he was a witness in this case didn’t you?
A. I knew he was a witness, but I didn’t know what dates
he had to come to court.
Q. Well, when he said, hurry get in the house, they’re after
me, you were concerned for him, right?
A. Right, I asked him what he was talking about. He never
did say. I went about my business.
Q. Well, you were concerned yourself as well, weren’t
you?
A. Yes.
Q. And you’re still concerned, aren’t you?
A. Yes.
Q. Because you still live there?
A. Yes.”
Davis testified she was driven to court by attorney Johnson’s
associate. The prosecutor then asked: “And, in fact, Mr. Johnson out
in the hallway before you testified, he showed you Mr. Kenyatta
White, he was standing about two feet from you wasn’t he?” Davis
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responded affirmatively. The prosecutor inquired: “How did that
make you feel?” Davis denied that she was bothered by the
confrontation, stating: “He’s just a person.” However, she again
conceded she was concerned for her safety and that of her brother.
On redirect, Davis denied that she had been threatened in order to
secure her testimony; she maintained she was testifying truthfully.
The next witness to testify in defendant’s behalf was Annie Mae
Handy. Handy testified that defendant would sometimes “just show
up” at her residence to visit, and he did so on the evening of January
6, 2003. Handy stated that defendant arrived at her residence around
7 or 8 p.m. She said he ate with her and her daughters, Tonya and
Anastasia, and he watched television with them. Handy testified that
she went to bed after the 10 p.m. news, and Anastasia left at that time.
Handy said she later awoke to find defendant and Tonya playing
cards. Around 11 or 11:15 p.m., she told him it was time to leave.
Handy stated she had known defendant for approximately seven
years, and he is unable to run.
Under cross-examination, Handy testified that defendant called
and talked to her and her daughters the day after the shooting. She
said, “I don’t know what he said to them, but they told me that–he
said he had been accused of killing somebody.” She recalled an
investigator from the State’s Attorney’s office coming to talk to her
“quite a few times.” She described her interaction with him as
follows:
“[H]e showed his credentials. And I asked him if I had
committed any crime, and he said no. I said, ‘well, I don’t
want to talk to you,’ and I closed the door.”
Handy said the investigator asked about defendant, and she did not
answer any of his questions.
Inquiring about her relationship with defendant, the prosecutor
asked:
“Q. So he comes over and he plays cards, right? Does that
happen a lot?
A. No.
Q. How often did it happen?
A. It happened that night. I don’t allow gambling in my
house.”
Handy estimated that defendant showed up “once every three weeks,
maybe a month.” She could not give any other dates when he was
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there. Handy said she spoke to defendant three days after his visit.
They talked about him being at her house at that particular time, he
told her he was being sought in connection with a murder, then he
started teasing her about her ex-husband. The prosecutor inquired:
“Q. And did you ever take this information that you had
and *** go to the authorities or the police or someone and say
oh, this guy couldn’t have done it because he was with me?
A. Well, I felt like if his lawyer–I should have been telling
that to his lawyer.
Q. Oh, so the answer is no, you didn’t do that, right?
A. I didn’t do that.
***
Q. [W]hen Kenyatta White talked to you on the telephone
and asked you to be a witness.
A. Okay.
Q. He told you what date he was supposed to be at your
house, right?
A. Right.
***
Q. But he never told you, oh, it would be like at 10:30 at
night that I need you to say I was there?
A. Oh, no.
Q. Never said that?
A. Never said that.
Q. But did you see him during that day?
A. No.
Q. So for all you know, that crime could have occurred at
10:00 o’clock in the morning, right?
A. I don’t know.
Q. Well, no, that’s true isn’t it? It could be at 1:00 o’clock
in the morning, right?
A. I guess it could have been, I don’t know.
Q. But you still told him oh, I’ll be a witness, right?
A. Right, I did.”
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Handy said the last time she had seen defendant was the day before
she testified, when she was at his lawyer’s office, being prepared for
what her testimony would be.
On redirect, Handy maintained that she is a religious woman and
would not vouch for defendant if in fact he had not been at her house.
Defendant next called Tonya Evans, Annie Handy’s daughter.
Evans testified that she lived with her mother, and did so in January
of 2003. Evans said she had known defendant for six or seven years.
He was a friend of her father’s. Evans testified that defendant came
to their house, by himself, on January 6, 2003, around 8 or 8:15 in the
evening. She said he ate with them and watched television. Evans
stated that her mother went to bed when the news ended, and she and
defendant then played cards for money. Between half an hour to 45
minutes later, her mother came back and asked defendant to leave.
Under cross-examination, Evans said her sister, Anastasia Smith,
was also present that night and left before the news at 10 p.m. Evans
initially resisted the prosecutor’s attempt to characterize defendant as
a friend of hers, but she eventually conceded that he was. She was
unsure of other dates defendant might have been to their home prior
to January 6, 2003. She testified that date stuck out in her mind:
“Because he used my toilet upstairs, broke my toilet. We laughed
about that, and I told him to get the plunger and get to work.” Levity
aside, Evans testified that she also remembered that particular night
because it was her first day back at work after having given birth to
her son. The prosecutor later asked:
“Q. So he told you about the murder?
A. No, he stated that they said he had committed a murder
the day before. And I explained to him that, how could he
have committed a murder when he was here with us?
Q. Did he also tell you that they said he committed a
murder at a certain time?
A. No, he did not. We didn’t discuss the time.
Q. Well, if you didn’t know the time, how is it that you
knew you were a witness and he couldn’t have done it?
A. Because he was over at our house that night.
Q. Oh, he said night?
A. Yes he did.”
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Evans acknowledged that she had seen defendant four or five
times between his arrest and her testimony. She stated she and her
mother had spoken about what happened. Although she knew the
police were looking for defendant in connection with a murder, she
testified, initially, that she did not tell them or the State’s Attorney’s
office that defendant was in her house when the murder occurred.
Under continued questioning, she claimed to have told a sergeant
“maybe after the tenth visit”; however, she could not remember his
name.
On redirect, Evans testified that defendant’s attorney never told
her what to say. She confirmed she had asked attorney Johnson
whether or not she was obligated to go to the State’s Attorney or the
police and he told her she was not.
The next witness to testify was Akim Akbar, the man who
specified the location for the drug transaction during which Aramein
Brown was killed. Akbar testified that he knew David Jennings and
also knew members of the Brown family. He said he knew defendant,
though they were not friends. Akbar testified that he and Jennings
went to the Amoco on 79th Street on January 6, 2003, to sell
marijuana to Aramein Brown. According to Akbar, no one other than
the three of them knew about the meeting. When Akbar and Jennings
arrived, Brown was already there and Martina Brewer was with him.
Akbar said he got out of the vehicle to give Brown the marijuana and
then went inside the station to get cigars. Akbar testified, as he was
returning to his van, a man came from the rear of his van and started
shooting at Brown. Akbar said the shooter had a brown skullcap and
a beige outfit. He testified he had never seen the man before, and that
man was not in the courtroom.
Akbar testified, after the shooting, he and Jennings drove away a
couple of blocks, and then Jennings told him to go back. According
to Akbar, he refused and got out. He said Jennings then took the van
back to the scene. Akbar later learned that Aramein Brown had been
killed. Akbar never went to the authorities or told anyone that he had
seen the shooting. Akbar testified that defendant was not the shooter.
Akbar denied that he was threatened or paid to testify, and he asserted
his testimony was truthful.
On cross-examination, the prosecutor asked Akbar how he picked
that particular gas station as the site for the drug transaction. Akbar
stated it was not far from his neighborhood. He denied he was a gang
member, and claimed he knew defendant’s name, “[j]ust through
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¶ 87
neighborhood conversations, overhearing it.” He was aware there was
some animosity between defendant and the Browns at the time of the
shooting. Akbar admitted that the gas station, the site of the drug
transaction, was well-lit. The prosecutor then asked:
“Q. But for some reason you had to get out in this lighted
station and give him the stuff outside there, is that right?
A. Yes, sir.
Q. Anything that prevented him from just coming inside
that van where you could give it to him?”
Akbar responded that Jennings was on the passenger side. The
prosecutor continued to question Akbar about the conspicuously
public exchange of drugs in a well-lit area:
“Q. So there’s nothing that would prevent [Aramein] from
just going up to the driver’s side and saying here and you
giving him *** the marijuana, correct?
A. Naw.
Q. Pardon me?
A. Not that I know of.
Q. No. But you say you had to get out, right?
A. Yes, I got out.”
Akbar testified he never went to the police to let them know the
shooter was someone else, even though he was aware the police were
looking for defendant. He admitted he had been convicted of
unlawful use of a firearm by a felon, had gone to the penitentiary, and
had been released less than 10 years from the date of his testimony.
He stated he did not know a woman by the name of Sherry Collier or
a man named Shawn Davis. He claimed he had not told anyone what
his testimony would be before he took the stand.
On redirect, Akbar acknowledged he had spoken with attorney
Johnson about a week prior to his testimony, and at that time related
the account of events to which he testified at trial.
The defendant’s next witness was Keith Slaughter, the man who
had provided identification evidence during grand jury proceedings.
Slaughter testified that, on January 6, 2003, he was a passenger in a
vehicle driven by Brian Williams. They were coming to a stop at a
stoplight at the corner of 79th and Yates when Slaughter heard
gunshots. Slaughter said he looked over at the gas station and noticed
one individual who seemed to have just fallen, and another person
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who was either past him or appeared to be running away from him.
That person then went back and shot the man on the ground about
four more times.
Slaughter testified that the shooter was wearing beige clothing
and a matching skullcap. He did not recall a hoodie. Slaughter stated
the man ran, apparently without difficulty, from the gas station
toward a parked car. He said the car looked “like a station wagon,”
perhaps a Taurus. Slaughter testified he did not get a good look at the
man’s face. He said he and Williams chased the car, but they were
unable to get a license number. They eventually called 911, and he
told the police what he saw.
Slaughter then testified to a February 10, 2003, phone
conversation with the police wherein he claimed to have told them he
would not be able to make an identification. He said they came to his
home on February 19 and showed him some photos. Referring to the
photo array that bore indicia of his identification, Slaughter testified
he told them: “I couldn’t make out the person on this as far as the
shooter. I didn’t see the shooter, but before I finished looking at the
pictures I said the person and the resemblance of this one person my
name is next to.” Slaughter stated, after he said that, the detectives
said, “that’s the person.” Slaughter testified he never confirmed that
was the person; he never said he was sure.
About a week later, he was summoned to the police station to
view a lineup. Referring to a photo of that lineup, which again bore
his mark, indicating an identification of defendant, Slaughter claimed
to have said at the moment of identification: “I believe I said that’s
the person right there that I saw in the picture.” Slaughter stated he
never indicated that defendant looked like the shooter.
Under cross-examination, Slaughter conceded that his vehicle was
stopped about a third of a block from the gas station, a “nice
distance,” and that the scene of the shooting was illuminated with
yellow lights. He recalled talking to detectives on February 19 and at
that time describing the perpetrator’s clothing as light to medium
brown. Slaughter admitted it was possible that the shooter was
wearing a hoodie and it was down. He stated the man he saw ran
down Yates toward a red car. Slaughter then testified that he could
not say whether defendant was the shooter or not, conceding he could
be. He acknowledged that the police never told him whose
photograph he should pick, and that his signature appeared by
defendant’s photo. Slaughter could not recall an assistant State’s
-28-
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¶ 93
¶ 94
¶ 95
Attorney coming to his house later and showing him the same photo
array. He could not recall telling the assistant State’s Attorney the
person in the photograph he identified was the person he saw
shooting on January 6, 2003. He admitted he might have said that, he
just could not recall.
Slaughter testified when he viewed the lineup he had not spoken
with any other witnesses. The witnesses were kept separate. He does
not know Sherry Collier and he did not talk to her before the lineup.
The detectives did not tell him whom to pick. He admitted he picked
defendant’s photo.
Slaughter recalled testifying in front of the grand jury on February
27, 2003, around the same time as the lineup. When he was
confronted with his grand jury testimony, Slaughter recalled saying
that the shooter “casually trotted off” south on Yates after the
shooting and jumped into a vehicle. He recalled testifying before the
grand jury that the person he identified in People’s Exhibit No. 1, the
photo array, “looks to be the person who was the shooter.” Upon
further reflection, he did not think he told the grand jury that the
person he identified in the photo array was someone who merely
“resembled” the shooter. Slaughter acknowledged that he testified
under oath before the grand jury.
On redirect, Slaughter maintained that the shooter’s clothing still
appeared to be beige as he ran away from the lights of the gas station.
Despite his grand jury testimony, he insisted he never positively
identified defendant as the shooter.
The defense next called Detective John Fassl. Fassl was first
questioned about the processes by which defendant was identified as
the perpetrator. Fassl testified, prior to February of 2003, he had
conducted approximately 50 lineups. Prior to the February 26, 2003,
lineup in this case, defendant had been identified via photo array. A
week before the lineup was conducted, Fassl and his partner,
Almazan, had gone to Slaughter’s house with a photo array. They
asked Slaughter if he could identify anyone in the photo array and,
without hesitation, Slaughter picked defendant’s photograph, stating,
“that was the man who he saw–who did the shooting at 79th and
Yates, that was the offender.” He made a positive and unequivocal
identification. Slaughter did not remark on any unusual facial
features. He said the man he saw was wearing a matching brown
outfit and got into a red Ford Taurus station wagon. Later, at the
lineup, Fassl was alone with Slaughter in the viewing room. Fassl
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¶ 97
¶ 98
explained that lineups are conducted with the subjects individually
approaching the viewing glass. When defendant, who was the third
subject, approached the glass, Slaughter said something to the effect
of “that’s him.” He did not say that was the guy from the photograph.
Fassl noted that Sherry Collier also made a positive identification of
defendant at the lineup.
On cross-examination, Fassl explained, when he talked to
Slaughter on February 19, he asked Slaughter whether he could
identify the shooter and showed him the photo array; that is when
Slaughter chose defendant’s picture. In that photo, defendant had
short hair. Fassl did not ask Slaughter to describe any unusual facial
features.
With respect to the lineup, Fassl stated that attorney Johnson was
in the room with his client. Johnson never objected to the lineup. At
the lineup, Slaughter never said he was identifying defendant because
he saw him in the photograph.
On redirect, attorney Johnson asked: “Now detective, if I had said
to you that evening, no, stop the presses, no lineup–.” At that point
the State objected on the basis of speculation, and the objection was
sustained. Defense counsel’s questioning then returned to the matter
of his placement during the lineup procedure—a matter which
counsel chose not to challenge pre-trial, after the State’s case-in-chief,
at the close of all the evidence, or post-trial, but upon which defense
counsel nonetheless questioned Fassl during both the State’s case and
his own. Redirect examination proceeded, in part, as follows:
“Q. Detective, where was I placed at the lineup?
A. You were in Room Number 4 with your client and the
other participants in the lineup.
Q. I was in that room, but did I ask to be in that room?
A. I can’t recall. I believe you asked to be present, and as
I stated when I testified last week, that procedurally if you
want to be present for the lineup you would stand with your
client and not in the room with the witnesses.
Q. Was I in a position to know who the witnesses were at
that point?
A. No, sir.
Q. You didn’t allow me to see the witnesses, did you?
A. No, sir.”
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¶ 100
¶ 101
¶ 102
In the course of questioning, Fassl confirmed that counsel was not
in a position to know who the witnesses were at that point, as counsel
was not allowed to see them, and counsel did not know what the
witnesses said until after the fact, when Fassl told counsel that his
client had been positively identified by both witnesses. Fassl stated it
was his understanding that defense attorneys are placed in a room
apart from the witnesses to avoid intimidation of witnesses. Fassl
acknowledged, under the circumstances, he was the only one who
could testify what the witnesses said when they viewed defendant.
After Fassl’s testimony, defendant took the stand. He stated he
was 44 years old and he was a promoter for Burning Spear
Entertainment. He attributed his “distinctive look” to a condition
called acromegaly, a growth hormone defect that causes protruding
growth. In addition to that condition, he said he also suffered from a
deteriorating bone disease and severe arthritis. He claimed he could
not run, and he displayed his legs for the court. Defendant said he did
not have the ability to run down the street and jump into a car.
Defendant acknowledged that he knew the Browns and he
confirmed, at some point “years ago,” there was a “falling out” with
them. Defendant then suggested the reason for the “falling out” was
his discovery, in the “last part of 2002, the early part of ‘03” that
Ajani Brown was wearing a wire for the government. Defendant
stated that his nephew, Antwon White, was killed in November of
2002, and “Sandiata” Brown was arrested. After acknowledging the
acrimonious relationship he had with the Browns, defendant testified
that he had nothing to do with the shooting of Aramein Brown.
Defendant testified, in the evening of January 6, 2003, when the
shooting took place, he was at the home of Anna Mae Handy.
Defendant said he was a friend of Handy’s ex-husband, Odell Smith,
who then lived in East St. Louis, Illinois. Defendant stated he went
alone to Handy’s residence on January 6, 2003, arriving around 8 or
8:15 p.m. He said, when he arrived, persons present were: Tonya
Evans3 and her son, her sister, Anastasia Smith, and her mother, Anna
Mae Handy. Defendant testified they watched television that night
until Anna Mae went to bed. Then he and Tonya played cards until
around 11 or 11:15 p.m. when Anna Mae told him to leave.
3
In the transcript of defendant’s testimony, Evans is identified as
“Tanya” instead of “Tonya,” as earlier in the record. We will refer to her
here as “Tonya.”
-31-
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¶ 104
¶ 105
Defendant said he then drove home to Park Forest, a 25-minute drive,
stopping on the way at a gas station at 69th and Ashland.
Defendant said he learned about the shooting the next morning
when he got a call from an individual named Ricky Green. He
testified he then called around to see if it was true and ascertained that
the shooting took place in the evening. He said he next called Tonya
and Anna Mae and “said that I might need them as alibi witnesses
depending on the time.” Defendant testified he later learned the time
the shooting took place. He stated he did not ask Evans or Handy to
lie for him. Subsequently, defendant learned the police were seeking
him for questioning. Defendant acknowledged he did not go to the
police, offering this explanation:
“[T]hey had repped the street that the police were saying
it was me, and once I learned that I knew then that something
was wrong. *** I was hoping at some point that the truth
would come out and there wouldn’t be no need for me.”
Instead, defendant went to East St. Louis with Anastasia Smith,
stating that he “went down to see Odell Smith.” He was arrested there
on February 25, 2003. He was subsequently transported back to Area
2 headquarters, and was ultimately charged in Aramein Brown’s
murder. Defendant posted bond, but was arrested on December 29,
2003, for an incident involving Ajani Brown. Defendant explained:
“Ajani Brown had got shot 15 times if I’m not mistaken.” Defendant
said the case against him was later dismissed. Defendant stated he
was also arrested upon leaving the courthouse on July 7, 2004. The
accusation was that he had shot Gregory Floyd. Defendant said those
charges were dismissed when he provided the police with proof that
he was in Los Angeles when the crime occurred.
On cross-examination, the prosecutor established that defendant
knew the police were looking for him, that he had agreed to come in,
that he had a lawyer at the time, yet defendant never showed up. The
prosecutor then asked why. The following colloquy ensued:
“A. Because I was hoping for the truth.
Q. What do you mean?
A. Well, there are no two people that I know of that look
like me, so when you talk about mistaken identity, I know
that’s almost impossible.
***
-32-
Q. So you didn’t want to come in in case you were
identified in a lineup, did you?
A. No, sir, that wasn’t the case.
Q. So why didn’t you come in?
A. Because I was hoping that the truth would come out
and there would be no need for me to.
Q. So you didn’t want to help the police out at all, did
you?
A. If I could have, I would have.
Q. Right. You wanted to get away from the police?
A. No, sir.
Q. Well, you didn’t try to clear your name, did you?
A. No, sir.
Q. You knew the police were looking for you?
A. Yes, sir.
Q. So you did the exact opposite, you left the jurisdiction,
didn’t you?
A. No, sir.
Q. Well, you were in East St. Louis, weren’t you?
A. Sometime after that, yes.
Q. In February of ’03?
A. Yes, sir.
Q. And this whole time you knew that the police were
looking for you, didn’t you?
A. Yes, sir.
Q. In fact, they were knocking on Anna Mae’s house a lot
of times, weren’t they?
A. Yes, sir.
Q. And you probably heard from them that the police were
looking for you, didn’t you?
A. Yes, sir.
Q. And you never showed up and volunteered to surrender
yourself to the cops, did you?
A. No, sir.
***
-33-
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¶ 107
Q. And instead of surrendering yourself to the police you
decided to go to East St. Louis?
A. Yes, sir.”
Defendant acknowledged that he went by the nickname “Yada,”
that he does not know Sherry Collier, that he has never seen her with
the Browns, and that he does not know Shawn Davis. However, he
claimed he had seen Shawn Davis with the Browns. Asked when,
defendant responded: “I think it had to be the ending part of 2002.”
Asked where, defendant said it was at Ajani Brown’s mother’s house.
The prosecutor then asked:
“Q. Why would you be at Ajani Brown’s house if you
already had a personal grudge against him in–I believe you
said in September of ’02 or late ’02?
A. Just about the ending of ’02.
Q. So why would you be over [at] the Browns’ house if
you had a beef with him?
A. We hadn’t actually fell out then.
Q. Oh, so it’s before the beef?
A. Yes, sir.
***
Q. So how do you know it was Mr. Davis?
A. I remember his face when he was sitting there.
Q. And that just occurred to you, huh?
A. Yes, sir.
***
Q. So that’s the first time you ever seen him was in Mr.
Brown’s house?
A. Yes, sir.
Q. Again, what was the exact date that you were over at
the Brown’s house?
A. I don’t recall.
Q. Give us a ball park figure.
A. I would say it was in the summertime, maybe about
July, June or July.”
The prosecutor then turned his attention to the nature and extent
of defendant’s physical disability, noting at the outset:
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“Q. Well, you walked here fine today to get to court every
single day, correct?
A. Yes, sir. I did.
Q. And back in January of ’03 you didn’t have a cane did
you?
A. It depends because it varies.
Q. So you had a cane now, is that your testimony?
A. No, no, I’m saying I don’t remember. I’m saying
sometimes I have a cane, sometimes I don’t. Well actually,
crutches.
Q. You didn’t have a cane with you today, did you?
A. No, sir, I didn’t.
Q. And you said this condition gets worse, correct?
A. It varies, it fluctuates.
Q. So this whole time you’ve been coming to court, have
you had a cane once?
A. No, sir, I haven’t.
Q. So back in January of ’03 you could walk fine,
couldn’t you?
A. I don’t remember.”
The prosecutor then returned to defendant’s disagreement with
Ajani Brown, asking:
“Q. You had a disagreement with Ajani Brown in late ’02,
2002?
A. Yes, sir, I would say.
Q. Because you had heard that he was dangerous?
A. Yes, sir.
Q. He was wearing a wire against you, that’s what you
were worried about, weren’t you?
A. No, sir.
Q. Well, why would you think he was dangerous then?
A. Well, because if somebody is looking for him and I’m
with him, I don’t think they’re going to distinguish. If they
hurt him, I’m going to get hurt.”
Defendant claimed it did not even occur to him that Brown might be
wearing a wire against him. He said he was not mad at Ajani Brown,
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¶ 110
¶ 111
¶ 112
¶ 113
and he had never said or done anything to him, so he was at a loss to
explain why Brown would “put a case on him.”
Questioned as to his relationship with Anastasia Smith, defendant
described it as a “cordial” relationship. He acknowledged that they
went to East St. Louis together, but he denied that he stayed in a
motel room with her—or that the police had to chase him when he
was arrested. He admitted that Anastasia Smith posted $50,000 bond
to secure his release on March 1, 2003, and that she was listed on the
bond receipt as “best friend.” However, he claimed—notwithstanding
the bond slip’s recitation that it was her money—that the money
actually came from Raymond Washington. The prosecutor asked
defendant if Anastasia still stayed at 6357 South Laflin (Handy’s
residence), and defendant responded he did not know. Asked when he
last saw her, defendant answered the day prior to his testimony.
On redirect, defendant insisted he had seen Shawn Davis before,
but he had not seen him since the summer of 2002, when he was at
the Browns’ house.
After defendant’s testimony, it was agreed that the State would
begin presenting rebuttal witnesses even though defendant still had
one witness to call in his case. The first rebuttal witness to be called
by the State was Robert Prawiec.
Prawiec testified that he worked as an investigator for the Cook
County State’s Attorney’s office and, on October 13, 2005, he and
Gus Martinez went to 6357 South Laflin to interview Anna Mae
Handy, Tonya Evans, and Anastasia Smith. He said, on that date, they
attempted to ask Tonya Evans about Kenyatta White and she replied
she did not want to talk to them until she spoke to defendant’s
attorney. They returned to that address on October 17, 2005, and
spoke to Anna Mae Handy, who said she did not know anything about
the case and did not do anything wrong.
Nick D’Angelo, an assistant State’s Attorney, testified that he met
with Detective Fassl on February 19, 2003, at approximately 9 p.m.,
and interviewed Keith Slaughter. Fassl brought a photo array that
Slaughter had already seen. They showed the photo array to Slaughter
and he identified the photo of Kenyatta White. He made a positive
identification of White as the shooter. As a result, D’Angelo
approved an arrest warrant for the defendant. D’Angelo said
Slaughter never indicated that defendant only resembled the person
he saw shooting: “[H]e told me it was a positive identification of the
shooter.”
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¶ 115
¶ 116
¶ 117
Under cross-examination, D’Angelo said of Slaughter: “He told
me that the picture that he picked out in the photo array, the same
photo array I showed him, was the person that he saw shoot the
victim at the gas station.” Present at that time with D’Angelo were
Fassl and Almazan. D’Angelo observed that the photo array had
previously been marked and signed by Slaughter. D’Angelo
explained: “I wasn’t there, but that’s one of the reasons that I went to
his house, to interview him myself.” D’Angelo acknowledged that
Slaughter had said the shooter was wearing all brown clothing and a
brown hat, and he did not mention unusual facial characteristics or
hair, but D’Angelo noted: “I didn’t ask him either.” D’Angelo said
Slaughter stated the man he saw got into a red Ford Taurus station
wagon after he had walked down Yates after the shooting. D’Angelo
stated that Slaughter said the man “started to walk and then maybe he
said ran to the car, but I think he said walking down Yates.”
The State next called Sergeant Brandon Deenihan. Deenihan
testified that he interviewed Samantha Davis at her house on January
7, 2003, at approximately 8:30 p.m. During that interview, she did not
at any time tell him that the offender had entered a green car; she said
it was a burgundy Dodge Stratus. She never gave a physical
description of the man she saw, and she stated she could not identify
him. She said she observed a black male running south.
Officer Ken Francisco was called by the State to testify that there
were four witnesses initially in the investigation: Sherry Collier,
Shawn Davis, Samantha Davis, and Martina Brewer. Francisco said
the police were looking for a maroon car at the outset of the
investigation.
The defense then called its final witness, Brian Williams.
Williams testified that he knows Keith Slaughter—they were
childhood friends—and he was with him in the evening of January 6,
2003. Williams said he was driving his car westbound on 79th, with
Slaughter as his passenger. They were stopped at a red light at the
corner of 79th and Yates when they heard gunshots. Williams said he
saw a man running from behind a gas station at that location and then
realized the shots had come from that direction. Williams testified he
saw one man run from behind the gas station and fall, then another
came from behind the station with a gun. Williams stated that man
was wearing a brown matching outfit and hat. Williams confirmed the
color could be described as beige. The man was wearing a skullcap;
he did not notice a hoodie. Williams said he saw the man’s face. The
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¶ 119
¶ 120
man with the gun ran south to a burgundy automobile, jumped in, and
the auto took off.
Williams followed the car for a while, but eventually stopped and
returned to the gas station. Slaughter had by then called the police.
However, Williams did not talk to the police. He said around a month
later, he spoke to a DEA agent, and he believed he gave that person
a description of the clothing the perpetrator was wearing. Williams
said no law enforcement officer ever asked him to view photographs.
Williams acknowledged he had told his friend, Keith Slaughter, that
he did not want to look at any lineups or photographs.
Williams said a little more than a week prior to his
testimony—about three years after the shooting—he had a
conversation with a private investigator who was working for defense
counsel. The investigator asked him to look at some photos. Williams
met the man at a Borders book store at 53rd and Lake Park Avenue.
He viewed those photos—apparently photos of defendant—and told
the investigator: “This wasn’t the man I saw do the shooting.”
Williams stated, in open court, defendant was not the man he saw the
night of the shooting. Williams said he did not know defendant.
Under cross-examination, Williams admitted he could not give
any description of the female he saw in the vicinity of the shooting.
He acknowledged the investigator showed him a photo of only one
individual three years after the incident. The prosecutor then asked:
“Q. And these photos that you were shown here with
the—on the profile here, you’re not telling us that the man
that you saw stopped so you could study his profile, are you?
A. No. The man I saw, I think I told the detective when I
found out that the gentleman got locked up for the crime, I
saw another guy on 79th Street, I would testify he did the
shooting more than he did.
Q. What detective was that?
A. Whoever the guy was that contacted me last week.
Q. The guy that contacted me last week?
A. Yes, the investigator.
Q. When you say detective, what was your understanding
of who that person was.
A. He told me he was representing—he said something.
I don’t know.
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Q. Pardon me?
A. I forgot what he told me, who he was.
Q. Well, did he say he was a detective?
A. No.
Q. He didn’t say?
A. Yes, yes, he did. He said detective.
Q. And what did you understand that to mean? Who did
he work for?
A. I really didn’t care.
Q. You didn’t care?
A. No.
Q. You didn’t want Keith Slaughter to tell where you
lived, is that a correct statement?
A. Yes.”
The prosecutor then questioned Williams about his decision not
to step forward and provide information earlier in the investigation of
the case:
“Q. Now, when you went over—when this was done with
and you went over by the gas station, you never got out of the
car and talked to the police over there, is that correct?
A. Correct.
***
Q. Why is that?
A. Because I *** felt my job was done. I chased the car,
tried to get the license plates. The lady who was there, she
saw the guy. The police was there doing their job. I figured it
was an open-and-shut case.
Q. Okay. So didn’t bother to tell them, hey, I can identify
this person, I know what he looks like, right?
A. No.”
Further questioning revealed that the person who contacted Williams
to testify in this case was given Williams’ new cell phone number by
Keith Slaughter. However, Williams maintained he had not recently
discussed the case with Slaughter. The prosecutor asked:
“Q. No mention of this at all?
A. No.
-39-
¶ 122
¶ 123
Q. He didn’t mention to you he was going to be
testifying?
A. No.
Q. And you never realized that he was a witness in this
case is what you’re telling us?
A. At the beginning he told me he had to go down there to
look at some mug shots.
Q. Did you say to him I’ll come and look at mug shots
with you?
A. No.
Q. Why was that?
A. I told him I wasn’t going.
Q. Why, sir?
A. I felt I did my job already.
***
Q. You didn’t want to be a witness in this case at all, am
I correct about that?
A. You’re correct.
Q. Stand to reason you didn’t want to be because you
were afraid to be a witness in this case as well, is that correct?
A. No.
Q. No?
A. No.
Q. You just thought your job was done by following this
car?
A. Yes.”
Asked about the street lighting near the scene of the shooting, as
depicted in People’s Exhibit No. 4, Williams agreed that it looked
yellow in color.
On redirect, defense counsel asked Williams if he thought the
lighting made the offender’s outfit appear beige. Williams responded:
“It was in the brown family, I wouldn’t say beige. Beige is too light.
It was more rust.” He acknowledged that the outfit did not change
colors when the man was running down the street. Upon questioning
by defense counsel, Williams recalled the investigator/detective
telling him that he was working in conjunction with defendant’s
attorney. Williams said, when the investigator showed him the
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¶ 125
¶ 126
¶ 127
¶ 128
photos, he was sure the man depicted therein was not the man he saw
that night.
After stipulations of minimal significance, the parties made their
closing arguments to the court. Thereafter, the trial judge rendered her
decision.
In announcing its finding of guilt, the court noted, at the outset,
its previous findings of credibility with respect to the State’s
witnesses when the court denied defendant’s motion for directed
verdict. The court then addressed the credibility of defendant’s alibi
witnesses, Anna Mae Handy and Tonya Evans, and defendant’s
relationship with Handy’s other daughter, Anastasia Smith. The court
clearly questioned the credibility of Handy and Evans, citing, inter
alia, their lack of forthrightness during the three years between the
shooting and their trial testimony, and an overall minimization on the
part of the defense as to the true nature of the relationship between
defendant and Anastasia. The court rejected attorney Johnson’s
repeated attempts to bolster their credibility by portraying them as
“God-fearing witnesses.”
The court also offered negative commentary on the circumstances
of Martina Brewer’s recantation, observing, with respect to her initial
reports, that she “did name the defendant as the shooter on the night
of the incident and did know defendant.”
As for Keith Slaughter’s attempt at trial to essentially retract, or
recharacterize, his prior identification of the defendant, the court
observed: “He said [the photograph he identified] resembled the
shooter, and if one side has said it, both sides have said it, Mr. White
is not somebody that you would confuse with someone else.”
In the end, the trial court made these comments, which seem to
appropriately summarize—while understating—the underlying
dynamics one discerns in this case, even by reading the cold record:
“It goes without saying that witnesses are reluctant to
come into a court of law in any case, especially a charge of
first-degree murder. The Court has examined the possibilities
for the reluctance of some of the witnesses and the testimony
of the witnesses and any possible motives, bias or interests
they may have.”
The court concluded, based on the credibility of the witnesses, and
the reasonableness of their testimony, that defendant was proven
guilty beyond a reasonable doubt.
-41-
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¶ 130
¶ 131
ANALYSIS
In defendant’s petition for leave to appeal, and in his opening
brief in this court, defendant asked us to decide whether his sixth
amendment right to counsel had attached at the time of the lineup, a
question of constitutional magnitude. If we were to find that
defendant’s sixth amendment right to counsel had attached at the time
of the lineup, only then would we have to address whether defense
counsel’s absence from the viewing room violated defendant’s
constitutional right. Even if we were to answer both questions in the
affirmative, we would still have to determine whether defendant was
due any relief.
Defendant would have us reach his constitutional contentions via
the closely-balanced-evidence prong of plain-error review; he has
chosen to forgo an ineffective assistance of counsel argument that
would have required him to address trial counsel’s articulated
strategic decisions, including what the State characterizes as an
“affirmative waiver of the admissibility of the lineup identifications.”
In that regard, the State further observes:
“A complete record has not been developed because defense
counsel chose to attack the weight of the identifications by
asking limited questions that established only that counsel did
not hear or see the witnesses at the time that they identified
defendant, and that the Chicago police department had a
policy of not permitting non-police personnel to be in the
room with the witness viewing the lineup.
***
*** [T]he undeveloped record in this case is utterly silent
as to whether defense counsel actually asked to be in the room
at the time of the identification, asked to be in a position
where he could hear or see the witnesses when they identified
defendant, or whether he asked, or was permitted, to
interview them immediately afterwards or before they made
their identifications. Thus, the evidence does not support the
conclusion that defense counsel was ‘prohibited’ from doing
anything[.]”4
4
As the State observes, through questioning at trial, defense counsel
deftly established that he likely would have been excluded from the witness
viewing room had he requested to be present with the witnesses; however,
there is no actual evidence of record that he sought to be present and was
-42-
¶ 132
¶ 133
¶ 134
Clearly, trial counsel recognized that the admissibility of the lineup
identification could have been challenged—whether or not
successfully—yet he chose not to do so—either by a pretrial motion
to suppress or via posttrial motion—stating, on the record, his reasons
for not doing so. The omission was not inadvertent; it was professedly
tactical.
Given the circumstances, one might well argue—as the State
implicitly does—that trial counsel’s “preferred, well-articulated
strategy should not have been deemed ‘clear error’ sufficient to
warrant plain error review,” and that defendant should have to pursue
his constitutional challenges by means of an ineffective assistance of
counsel argument within the framework of Strickland v. Washington,
466 U.S. 668 (1984), showing both that counsel’s performance was
deficient and that prejudice resulted from that deficiency. See People
v. Bailey, 232 Ill. 2d 285, 289 (2009). While such a question might
warrant discussion under different circumstances, there is no need to
address it here, where the outcome for this defendant would be the
same under either plain-error review or an ineffective assistance
analysis.
Plain-error review under the closely-balanced-evidence prong of
plain error is similar to an analysis for ineffective assistance of
counsel based on evidentiary error insofar as a defendant in either
case must show he was prejudiced: that the evidence is so closely
balanced that the alleged error alone would tip the scales of justice
against him, i.e., that the verdict “may have resulted from the error
and not the evidence”properly adduced at trial (see People v. Herron,
215 Ill. 2d 167, 178 (2005) (plain error)); or that there was a
“reasonable probability” of a different result had the evidence in
question been excluded (see Strickland, 466 U.S. at 694).
It is clear in this case, having reviewed the record, that defendant
cannot show prejudice. There is no reason to go further for purposes
of either an ineffective assistance analysis or one founded upon the
closely-balanced prong of plain error. Both analyses are evidencedependent and result-oriented. Even if we were to assume, arguendo,
there was error in the admission of evidence concerning the lineup,
the evidence against defendant is such that he cannot show prejudice
for purposes of either analysis. See generally People v. Davis, 233 Ill.
denied access, nor are other relevant circumstances leading up to and
surrounding the lineup fully developed in the record.
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2d 244, 273-75 (2009) (“assuming, arguendo,” there was error,
defendant could not establish prejudice for purposes of plain-error
review); People v. Sims, 192 Ill. 2d 592, 628 (2000) (“[a]ssuming,
without deciding,” there was error, this court found “no plain error”
because there was “no reasonable probability that the jury would have
acquitted the defendant”); People v. Keene, 169 Ill. 2d 1, 16-19
(1995) (concluding that “no basis exists” to reach defendant’s claim
of plain error because, “[a]ssuming that prior consistent statements in
fact were used improperly to bolster [the witness’s] credibility ***
the claim does not implicate a substantial right”). Although federal
plain-error review is distinct from our alternative two-prong test—the
federal approach requiring four elements for relief, i.e., (1) an error
or defect not affirmatively waived; (2) a clear obvious error; (3) one
that affects substantial rights; and (4) one that seriously affects the
fairness, integrity or public reputation of judicial proceedings—we
find guidance in the federal court's analysis to the extent that when a
party has failed to establish any of the other required elements, the
court need not consider whether there was error. See Nguyen v.
United States, 539 U.S. 69, 89 (2003) (Rehnquist, C.J., dissenting,
joined by Scalia, Ginsburg, and Breyer, JJ.) (“Assuming, arguendo,
that petitioners could satisfy the first three elements of the plain-error
inquiry, [citations] their constitutional claim fails for the same reason
as does their statutory claim: Petitioners have not shown that the
claimed error seriously affected the fairness, integrity, or public
reputation of judicial proceedings.”); United States v. Cotton, 535
U.S. 625, 632-33 (2002) (declining to decide the third federal plainerror prong because the claim did not satisfy the fourth prong);
Johnson v. United States, 520 U.S. 461, 469 (1997) (same); United
States v. McBride, 633 F.3d 1229, 1233 (10th Cir. 2011)
(acknowledging that a defendant “is not entitled to relief if he fails to
establish one or more of the four elements of plain error” and finding,
“[w]ith respect to the first alleged procedural error, Defendant fails
on the third prong”); United States v. Rivera-Rodríguez, 617 F.3d
581, 600-01 (1st Cir. 2010) (“[W]e assume, arguendo, that the
Appellant’s claim satisfies the first and second prongs of the Supreme
Court’s articulation of the plain-error standard. However, because we
do not find that Appellants’ claim satisfies the third prong, we need
not resolve the fourth prong, and Appellant’s claim fails.”); United
States v. Vargas, 580 F.3d 274, 279 (5th Cir. 2009) (even if,
arguendo, it was obvious that the prosecutor’s remarks were
improper, defendant failed to establish the third prong of plain-error
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¶ 135
¶ 136
review); United States v. Garza, 566 F.3d 1194, 1201 (10th Cir.
2009) (“[W]e need not resolve whether the challenged testimony was
error or whether that error was plain, because Mr. Garza cannot
satisfy the fourth element of plain-error review ***.”); United States
v. Fields, 483 F.3d 313, 360 (5th Cir. 2007) (assuming, “arguendo,”
there was error, defendant could not show prejudice for purposes of
plain-error review); United States v. Smith, 419 F.3d 521, 530 (6th
Cir. 2005) (rejecting claim, because it did not satisfy the third plainerror prong, without determining whether an error occurred).
Accordingly, we need not resolve whether there was error here
because, under a closely balanced analysis, defendant cannot establish
prejudice.
Evidence of the lineup identification quite simply did not tip the
scales against the defendant. We believe our exhaustive recitation of
the evidence in this case demonstrates just how heavily the
evidentiary balance weighed in the State’s favor, and reveals the
minimal significance the trial court accorded the lineup identification.
The starting point for an overview of the evidence implicating
defendant has to be the testimony of Sherry Collier. Unlike some of
the other witnesses who had ties to the neighborhood where the
shooting took place—and were subject to internal influences—Collier
had none: she had only lived in the neighborhood two or three days
at the time of the shooting. She knew no one; she had no arguable
motive to identify defendant as Aramein Brown’s killer; she had the
best opportunity to view the shooter; she was not impeached; and she
identified defendant as the murderer via photo array before the lineup
that is the focus of defendant’s constitutional claims.
Defendant’s only viable basis for challenging Collier’s
identification is that she simply misidentified him as the shooter—and
she did not initially volunteer comments about his distinctive facial
characteristics. It would truly be an incredible sequence of
coincidences that Martina Brewer would, immediately after the
shooting, falsely identify the very person that Sherry Collier mistook
for the killer; that Keith Slaughter would, without reservation,
initially identify defendant as the shooter; and that Shawn Davis
would identify defendant as the man running from the gas station
seconds after the shooting. Four unrelated individuals initially
identified defendant as the person present, or running from, the gas
station the night of the shooting. Obviously, those identifications
were not mere coincidence.
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¶ 137
¶ 138
We would be remiss in our evaluation of the evidence if we did
not acknowledge the overriding impact that fear appears to have had
on the people who testified in this case. Martina Brewer openly
expressed her fear while this case was pending and she was
recognized as a witness for the State and against the defendant. Her
recantation appears to have assuaged her fear. Samantha Davis, who
still lived in the neighborhood and did not want to be involved—but
who was involved at the instance of the defense—expressed fear for
her safety and that of her brother, who was obviously in fear for his
safety after testifying for the State. Samantha Davis, after being
placed essentially toe-to-toe with defendant just prior to her
testimony, testified that defendant was not the man she saw running
the night of the shooting; this, after she had previously told the police
she would not be able to identify anyone. Then there was Keith
Slaughter, whose positive identification of defendant became less
than positive when he sat on the witness stand facing defendant; and
Slaughter’s friend, Brian Williams, who, like Samantha Davis, did
not want to be involved, but who was involved when Slaughter
provided the information used to locate and contact Williams.
In addition to these witnesses, there were defendant’s “friends,”
Anna Mae Handy and Tonya Evans—respectively the mother and
sister of defendant’s “cordial friend,” Anastasia Smith—who
apparently offered to be alibi witnesses for defendant before they
even knew what time the murder had been committed, and who
passed on the opportunity to offer exculpatory evidence prior to the
time of trial. There was Akim Akbar—the man who set up the time
and place for the drug transaction during which an armed assailant
just happened to be present, and just happened to shoot the victim.
Akbar, the drug dealer with a felony record, testified that defendant
was not the murderer. And, of course, there is defendant’s testimony.
Although he acknowledged a falling out with the Browns over Ajani
Brown’s wearing of a wire for the government, he denied that he had
anything to do with Aramein Brown’s death. He knew that the police
were looking for him in connection with Brown’s death, and he
acknowledged that he told them he would come in and speak with
them, but failed to show up. Defendant, who, in other cases, readily
offered exculpatory information to gain dismissal of pending charges
against him, did not choose to do so in this case. Instead, he chose to
travel—most would reasonably infer flee—to East St. Louis.
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¶ 139
¶ 140
¶ 141
¶ 142
Evaluating the totality of the evidence in this case—as a practical
matter a preliminary step any court of review would take where a
defendant claims the evidence was so closely balanced that review of
an error is necessary—we disagree with the appellate court’s
threshold finding that the evidence in this case was closely balanced.
It was that preliminary finding that served as the justification for
further plain-error analysis. A qualitative—as opposed to strictly
quantitative—commonsense assessment of the evidence demonstrates
that the evidence was not closely balanced, as our evidentiary
recitation reveals.
Moreover, the trial court’s comments of record indicate that the
lineup did not figure prominently in the court’s finding of guilt. In the
isolated instances when the lineup is mentioned, those references are
invariably conjoined with references to the photo identifications
which preceded the lineup—photo identifications that are not
implicated in defendant’s constitutional contentions. Instead, the
court’s remarks focus on the credibility of witnesses, as its
concluding comments make clear. After first commenting on its prior
determinations regarding the credibility of State witnesses, at the
close of the State’s case, and remarking, negatively, on the credibility
of defendant’s alibi witnesses, the court concluded with these
remarks:
“The court has examined the possibilities for the reluctance of
some of the witnesses and the testimony of the witnesses and
any possible motives, bias or interests they may have. The
court finds based on the credibility of the witnesses who I
have observed, their demeanor, their manner while testifying
and the reasonableness of all of them that the defendant has
been proven guilty beyond a reasonable doubt ***.”
The transcript of trial proceedings in this case is more than
sufficient to reveal nuances of motive, bias, and interest in witnesses’
testimony, from which we, as a court of review, can adequately
evaluate the weight given the lineup identification and its impact on
in-court identifications of defendant. The impact is de minimis.
With respect to the in-court identification of those witnesses who
had previously viewed the lineup—and had before that identified
defendant via photo arrays—there was clearly an independent basis
for their identifications of defendant. In United States v. Wade, 388
U.S. 218 (1967), the Supreme Court outlined critical factors for a
court to consider in deciding whether there exists an independent
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¶ 143
basis for identification, including “the prior opportunity to observe
the alleged criminal act, the existence of any discrepancy between any
prelineup description and the defendant’s actual description, any
identification prior to lineup of another person, the identification by
picture of the defendant prior to the lineup, failure to identify the
defendant on a prior occasion, and the lapse of time between the
alleged act and the lineup identification.” Wade, 388 U.S. at 241.
Both Collier and Slaughter—assuming for present purposes that
Slaughter even made an in-court identification—observed the
criminal act, which took place in a well-lit area, but Collier in
particular had an excellent opportunity to view the defendant at close
range before the shooting started. The initial descriptions given by
them were of necessity sketchy, as the police were quickly trying to
gather information immediately after the shooting; however, any
discrepancies were not what we would consider significant. Neither
witness previously identified someone other than defendant, or failed
to identify him as the offender when given the opportunity.
Significantly, both identified defendant, before the lineup, by viewing
photo arrays. Finally, only a little over a month elapsed from the time
of the shooting to the lineup. Under these circumstances, having
examined the record of trial proceedings, we are convinced that no incourt identifications were influenced by the lineup. Cf. United States
v. West, 628 F.3d 425, 430 (7th Cir. 2010) (record insufficient to
make Wade findings).
However, the circumstances surrounding the conduct of the
lineup, and those leading up to it, are less clearly developed. Because
defense counsel never moved to suppress the lineup identifications on
grounds defendant now asserts, there was no suppression hearing;
hence the State may not have adduced all available evidence bearing
upon defendant’s current constitutional contentions. Thus, we do not
have a record equitably compiled for the purpose of addressing the
attachment issue defendant actually raised in his petition for leave to
appeal and in his opening brief, nor for the issue we might have to
address in the event we were to find the right to counsel had attached
at the time of the lineup. Neither side presented arguments applicable
thereto. In sum, we are not confident that all of the evidence that
could have been brought to bear on these issues was in fact adduced.
The question then is whether we should pass upon defendant’s
constitutional claims of error where the state of the record is suspect
for that purpose and a finding one way or the other on the claimed
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¶ 144
¶ 145
errors would not affect the outcome of this case in any event. We
think the answer is clearly no.
We acknowledge that, as a matter of convention, this court has
typically undertaken plain-error review by first determining whether
error occurred at all. People v. Sargent, 239 Ill. 2d 166, 189-90
(2010); People v. Walker, 232 Ill. 2d 113, 124 (2009). In this respect,
our sequential analysis has been more rigid than that of our federal
counterparts. This court has also cautioned, however, that courts of
review should not ordinarily consider issues where they are not
essential to the disposition of the cause or where the result will not be
affected regardless of how the issues are decided (People v. Campa,
217 Ill. 2d 243, 270 (2005); Barth v. Reagan, 139 Ill. 2d 399, 419
(1990)), and that “ ‘[a] court will consider a constitutional question
only where essential to the disposition of a case, i.e., where the case
cannot be determined on other grounds.’ ” Beahringer v. Page, 204
Ill. 2d 363, 370 (2003) (quoting Bonaguro v. County Officers
Electoral Board, 158 Ill. 2d 391, 396 (1994)); Abbasi v.
Paraskevoulakos, 187 Ill. 2d 386, 396 (1999) (same); accord
Calloway v. Kinkelaar, 168 Ill. 2d 312, 329 (1995) (constitutional
challenge to special duty doctrine not addressed because, inter alia,
it was unnecessary to our disposition); People v. Dixon, 28 Ill. 2d
122, 125 (1963); see also Harmon v. Brucker, 355 U.S. 579, 581
(1958) (“In keeping with our duty to avoid deciding constitutional
questions presented unless essential to proper disposition of a case,
we look first to petitioner’s non-constitutional claim ***.”). This
principle has been invoked and applied “even though the court
acquires jurisdiction of the case because a constitutional question is
involved.” (Internal quotation marks omitted.) People v. Waid, 221
Ill. 2d 464, 473 (2006). In considering whether we should address the
alleged errors in this case, and adhere to our “conventional”approach
to plain-error review in cases where the only basis for a claim of plain
error is that the evidence is closely balanced, we have found guidance
in the previously cited federal authorities, and in the United States
Supreme Court’s recent decision in Pearson v. Callahan, 555 U.S.
223 (2009).
In Pearson, the Court addressed the analytical framework to be
utilized in cases raising an issue of qualified immunity, which
protects government officials from liability for civil damages insofar
as their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have known.
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Specifically, the Court considered whether to continue mandating the
rigid procedure established in Saucier v. Katz, 533 U.S. 194 (2001).
That procedure required a two-step sequence for resolving
government officials’ qualified immunity claims. First, a court was
required to decide whether the facts that a plaintiff had alleged or
shown made out a constitutional violation. Second, if the plaintiff had
satisfied the first step, the court would decide whether the right at
issue was “clearly established” at the time of defendant’s alleged
misconduct. Saucier required that the analysis of a qualified
immunity issue be undertaken in that specified sequence. The
Pearson Court noted that commentators and lower courts had
criticized, or had been less than enthusiastic about, the Saucier “rigid
order of battle” on grounds that it resulted in “a puzzling
misadventure in constitutional dictum” (quoting from Pierre N. Leval,
Judging Under the Constitution: Dicta About Dicta, 81 N.Y.U. L.
Rev. 1249, 1275, 1277 (2006)), and that its implementation “violated
*** principles of judicial restraint” which “caution us to avoid
reaching constitutional questions when they are unnecessary to the
disposition of a case” (quoting from Higazy v. Templeton, 505 F.3d
161, 179 n.19 (2d Cir. 2007)). Pearson, 555 U.S. at 234. In Pearson,
the Court decided that the sequential, analytical requirements
announced in Saucier should be relaxed, stating that “judges of the
district courts and the courts of appeals should be permitted to
exercise their sound discretion in deciding which of the two prongs
of the qualified immunity analysis should be addressed first in light
of the circumstances in the particular case at hand.” Pearson, 555
U.S. at 236. In reaching that result, the Court noted that:
“[T]he rigid Saucier procedure comes with a price. The
procedure sometimes results in a substantial expenditure of
scarce judicial resources on difficult questions that have no
effect on the outcome of the case.” Pearson, 555 U.S. at 236.
Further, the Court observed that “[u]nnecessary litigation of
constitutional issues also wastes the parties’ resources” (Pearson, 555
U.S. at 237) and “departs from the general rule of constitutional
avoidance,” running “counter to the ‘older, wiser judicial counsel
“not to pass on questions of constitutionality ... unless such
adjudication is unavoidable.” ’ ” Pearson, 555 U.S. at 241 (quoting
in part from Scott v. Harris, 550 U.S. 372, 388 (2007) (Breyer, J.,
concurring), quoting from Spector Motor Service, Inc. v. McLaughlin,
323 U.S. 101, 105 (1944)).
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¶ 146
¶ 147
Finally, the Court pointed out, in “other analogous contexts,” it
had declined to mandate the order of decision that the lower courts
were required to follow, citing as an example the analytical option
that courts have in applying the two-prong requisites of Strickland v.
Washington, 466 U.S. 668 (1984): “ ‘[T]here is no reason for a court
deciding an ineffective assistance claim to approach the inquiry in the
same order or even to address both components of the inquiry if
defendant makes an insufficient showing on one.’ ” Pearson, 555
U.S. at 241 (quoting from Strickland, 466 U.S. at 697).
Given comments the justices of the Supreme Court have made
post-Pearson, it is clear that they did not intend for the principles of
judicial restraint expressed therein to apply only to lower courts; they
intend to continue abiding by those time-honored dictates themselves.
For example, in Northwest Austin Municipal Utility District Number
One v. Holder, 557 U.S. __, __, 129 S. Ct. 2504, 2508 (2009), the
Supreme Court noted that the constitutional question it had been
urged to decide had “attracted ardent briefs from dozens of interested
parties”; however, the Court concluded: “[T]he importance of the
question does not justify our rushing to decide it. Quite the contrary:
Our usual practice is to avoid the unnecessary resolution of
constitutional questions.” In Chief Justice Roberts’ concurring
opinion in Citizens United v. Federal Election Comm’n, 558 U.S. __,
130 S. Ct. 876 (2010), he observed that the majority and the dissent
were united in expressing allegiance to the principles that the Court
would “refrain from addressing constitutional questions except when
necessary to rule on particular claims before us” and “never to
formulate a rule of constitutional law broader than is required by the
precise facts to which it is to be applied.” (Internal quotation marks
omitted.) Citizens United, 558 U.S. at __, 130 S. Ct. at 918 (Roberts,
C.J., concurring, joined by Alito, J.) (in part quoting United States v.
Raines, 362 U.S. 17, 21 (1960), quoting Liverpool, New York &
Philadelphia Steamship Co. v. Commissioners of Emigration, 113
U.S. 33, 39 (1885)). Similarly, in Ashcroft v. al-Kidd, 563 U.S. __,
131 S. Ct. 2074 (2011), Justice Sotomayor concurred with the result
reached by the majority, but concluded the majority opinion
“unnecessarily resolve[s] [a] difficult and novel questio[n] of
constitutional ... interpretation that will have no effect on the outcome
of the case.” (Internal quotation marks omitted.) Ashcroft, 563 U.S.
at __, 131 S. Ct. at 2089-90 (Sotomayor, J., concurring, joined by
Ginsburg and Breyer, JJ.) (quoting Pearson, 555 U.S. at 237). Thus,
while they may not agree on when the Pearson principles apply, there
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¶ 148
¶ 149
is no disagreement that they generally control the Court’s decisions
to reach and address issues.
The various principles cited in Pearson in support of the Supreme
Court’s relaxation of the Saucier protocol, and in Supreme Court
opinions postdating Pearson, would appear to apply with equal force
in this situation. We do not, and should not, manufacture reasons to
address issues—constitutional or otherwise—where the record has
not been fully and fairly developed for that purpose and where
resolution of the issues is unnecessary. Certainly, it is a fundamental
rule of judicial restraint that a court not reach constitutional questions
in advance of the necessity of deciding them. See Holder, 557 U.S.
at __, 129 S. Ct. at 2508; Three Affiliated Tribes of the Fort Berthold
Reservation v. Wold Engineering, P.C., 467 U.S. 138, 157-58 (1984).
Where the only basis proffered for plain-error review is a claim that
the evidence is closely balanced, an assessment of the impact of an
alleged evidentiary error is readily made after reading the record.
When it is clear that the alleged error would not have affected the
outcome of the case, a court of review need not engage in the
meaningless endeavor of determining whether error occurred. As the
Supreme Court observed in Massaro v. United States, 538 U.S. 500,
504 (2003), “[t]he procedural-default rule *** is a doctrine adhered
to by the courts to conserve judicial resources and to respect the law’s
important interest in the finality of judgments.” In this context, a
procedure that requires Illinois courts of review to examine and
address claimed evidentiary errors that could not have affected the
outcome runs contrary to the very purpose of the procedural-default
rule. In this instance, the circumstances of this case, and the principles
of appellate review we have discussed, militate against our review of
the constitutional issue defendant would have us address.
Before concluding, we feel compelled to respond to our
“dissenting” colleagues, though it may be a mischaracterization to
refer to them as such insofar as they do not take issue with the
ultimate disposition of this case. Rather, they insist that we should
discuss the questions raised in defendant’s petition for leave to appeal
and his opening brief—both limited to the question of the attachment
of the sixth amendment right to counsel—before we deny defendant
relief. The dissenters imply that this discussion is necessary so that
the lower courts will have the benefit of our wisdom. In essence, the
dissenters insist that we took this case to address the question of
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¶ 150
¶ 151
attachment and we knew what we were getting into when we took the
case.
That is simply not so. We do not see the record when we grant or
deny a petition for leave to appeal. Surely the dissenters are aware of
instances when something “we uncovered in our review of the
record” serves as the justification for not reaching an issue we
intended to address when we allowed a petition for leave to appeal.
See People v. Smith, 228 Ill. 2d 95, 103-06 (2008) (this court
disposed of the case on the basis of a mistake or defect in the notice
of appeal which the parties did not address and the appellate court
apparently did not find significant). While we can normally rely upon
an appellate panel’s assessment that the evidence in a case is closely
balanced, that assessment was not reliable in this instance. Whether
that was because the appellate court put too much emphasis on the
quantity of evidence adduced on each side, or whether it too was
simply desirous of reaching the issues, is not entirely clear. With
respect to the latter possibility, it does seem that logic might dictate
determining first whether the sixth amendment right attached before
finding the lineup procedure violated that right. Had the appellate
court proceeded in the converse manner, given its ultimate holding on
the attachment issue, there would have been no need to address the
procedure by which the lineup was conducted.
In any event, there is also the suggestion by the dissenters that
courts below are in need of guidance on these issues and this is the
case in which to give it. We note, however, that the attachment issue
does not appear to be one that arises frequently, nor is it one over
which there are conflicting appellate opinions. Aside from that, we
have the additional record deficiencies already mentioned, which
resulted from defense counsel’s fence-riding strategy: neither raising
the issues in earnest, nor contenting himself to leave them alone. With
respect to the attachment issue, the appellate court commented on the
consequences of counsel’s attempt to have it both ways, without
apparently recognizing the cause: “The State has not addressed the
issue of defendant’s prolonged detention nor has it given any
explanation as to why eight days is not considered an ‘unnecessary
delay’ other than to state that defendant produced no evidence to
show that it was not his decision to waive arraignment. ***
Defendant does not argue, and the record does not support an
argument that the police intentionally delayed presenting him to a
judicial officer for the purpose of preventing attachment.” 395 Ill.
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¶ 152
¶ 153
App. 3d at 824. That, it seems to us, is what defendant is now
arguing. With respect to the secondary issue, concerning the propriety
of the lineup procedure, we note that Detective Fassl testified he had
conducted approximately 50 lineups in the same manner, and that the
procedure employed in this instance represents the established policy
of the Chicago police department. To our knowledge, this was the
first such case raising this specific issue, suggesting that the
procedure is not seen as problematic by the criminal defense bar. If
it is a concern, we anticipate the issue will soon resurface via a case
in which pertinent evidence is adduced and the issue is properly
argued and preserved.
We next respond to the dissenters’ contention—in service of their
insistence that we address the issues raised in defendant’s petition for
leave to appeal—that People v. Allen, 222 Ill. 2d 340 (2006), is
indistinguishable from this case. Initially, in response to their charge
of inconsistency, we note that the dissenters’ view of when this court
should or should not reach an issue raised in a petition for leave to
appeal seems to be variable and idiosyncratic. See People v. Manning,
241 Ill. 2d 319, 350 n.1 (2011) (Freeman, J., dissenting, joined by
Burke, J.) (arguing that the majority should not have addressed the
continued viability of this court’s holding in People v. Metcalfe, 202
Ill. 2d 544 (2002)—a principal issue raised in defendant’s petition for
leave to appeal—because it was not necessary to do so); see generally
Keene, 169 Ill. 2d at 16-19 (holding there was “no basis” upon which
to reach the claimed error, pursuant to plain-error review, because,
“[a]ssuming that prior consistent statements in fact were used
improperly to bolster [the witness’s] credibility,” the claim did not
implicate a substantial right).
In any event, we believe there are distinctions to be made between
this case and Allen. For one thing, as the Allen dissenters
acknowledged at the outset, “[t]his court ha[d] never addressed the
propriety of using [a stun belt as a] restraint at a criminal trial.” Allen,
222 Ill. 2d at 361 (Freeman, J., dissenting, joined by McMorrow and
Kilbride, JJ.). That would be one reason to address, in Allen, whether
error occurred at all. This is certainly not the first time this court has
been called upon to address whether the sixth amendment right to
counsel had attached at the time of a lineup. See People v. Ballard,
206 Ill. 2d 151, 171-75 (2002); People v. Garrett, 179 Ill. 2d 239,
246-51 (1997). Second, we believe the pertinent considerations weigh
more heavily in favor of addressing the claimed error itself, in the
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context of plain-error review, when the argument is that the claimed
error is one that qualifies for review under the second prong of our
plain-error analysis. The question there is whether the claimed error
is the type of error that “ ‘erode[s] the integrity of the judicial process
and undermine[s] the fairness of the defendant’s trial.’ ” Allen, 222
Ill. 2d at 364 (Freeman, J., dissenting, joined by McMorrow and
Kilbride, JJ.) (quoting People v. Herron, 215 Ill. 2d 167, 186 (2005)).
In such cases, there may be a procedural synchronicity that militates
in favor of addressing both the claimed error and its trial context. In
this case, however, the only basis advanced for plain-error review is
a contention that the first prong of plain error applies, that the
evidence is closely balanced. It is not. Irrespective of whether the
right to counsel had attached, or whether the lineup procedure
violated that right, the result would not have been otherwise because
evidence of the lineup did not make a difference in the outcome.
Third, although we have already commented on the state of the
record, we have, perhaps, not sufficiently emphasized our concerns
over the way in which record deficiencies came about. Unlike Allen,
a case that fits comfortably within the plain-error mold, a case in
which trial counsel seems to have been less than conversant with the
applicable law, defense counsel in this case was obviously very astute
and knowledgeable. This is not an instance in which the issues now
argued were forfeited because of trial counsel’s ignorance.
Defendant’s trial attorney chose to proceed in this manner. His
questioning touched upon the issues now in controversy, but lightly,
and in a manner that would not likely evoke responsive questioning
by the State on those points, particularly in light of the fact that
defense counsel had not filed anything raising either issue. Now, on
appeal, appellate counsel would have us reach defendant’s issues via
plain-error review, on a record which we deem inequitably compiled
for this purpose—and consciously so—without so much as
mentioning trial counsel’s deliberate actions and omissions bearing
upon the issues. This seems to us a consideration in deciding whether
to address, as plain error, the issues defendant raises in this appeal.
This consideration was not present in Allen. Finally, we comment
again upon the sequence of determinations made by the appellate
court. It was only because of the appellate court’s first determination,
an assessment that the evidence was closely balanced, that the
appellate court addressed either of the issues now in controversy. It
was only because the appellate court decided to address the lineup
procedure—which it found violative of defendant’s right to
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¶ 154
¶ 155
counsel—before it even considered whether a right to counsel existed,
that the propriety of the lineup procedure was even reached. In view
of this sequence of events, we believe it appropriate to caution courts
of review—particularly when constitutional issues are involved—that
they are not free rangers riding about the legal landscape looking for
law to make. Judicial restraint is a principle of review that the justices
of the Supreme Court strive to observe. See majority and dissenting
opinions in Camreta v. Greene, 563 U.S. __, __, __, 131 S. Ct. 2020,
2031, 2040 (2011). Our precedent counsels such adherence as well.
We expect appellate panels to do the same.
For the reasons stated, we affirm the judgment of the appellate
court, though we find it unnecessarily, and inappropriately, addressed
defendant’s constitutional contentions, given the circumstances
aforementioned. See People v. McDonough, 239 Ill. 2d 260, 275
(2010) (this court is not bound by the appellate court’s reasoning and
may affirm on any basis presented in the record). Consequently, we
reject that part of the appellate court’s opinion that discussed, and
rendered holdings on, the issues of attachment of the right to counsel
and the lineup procedure employed in this case.
Affirmed.
¶ 156
¶ 157
JUSTICE BURKE, dissenting:
We granted defendant’s petition for leave to appeal in this case in
order to address an important issue regarding when the sixth
amendment right to counsel attaches. The majority chooses not to
address this issue. Because there is no legal reason why it should not
be addressed, I dissent.
¶ 158
¶ 159
I
In his appeal to the appellate court, defendant argued for the first
time that his sixth amendment right to counsel was violated when,
pursuant to Chicago police department policy, his attorney was not
allowed to be present in the witness room during the in-person lineup
conducted for Sherry Collier. According to defendant, the lineup was
a critical stage of the criminal proceedings at which counsel was
entitled to be present and, because his attorney was not permitted to
view or hear Collier identify defendant, he was deprived of the
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¶ 160
¶ 161
¶ 162
opportunity for meaningful cross-examination at trial regarding the
identification. In addition, defendant claimed that the absence of
counsel from the witness room gave the State an advantage in
presenting testimony that supported the propriety of procedures and
events that took place within that room. Defendant acknowledged that
his sixth amendment claim had not been raised in the trial court but
asked the appellate court to review the claim for plain error.
Addressing defendant’s claim for plain error, the appellate court
held, as a matter of “first impression in Illinois” (395 Ill. App. 3d 797,
810), that once adversarial criminal proceedings have commenced, a
general policy of prohibiting defense attorneys from observing the
moment of identification at a lineup violates the accused’s sixth
amendment right to counsel. The appellate court then went on to hold,
however, that adversarial criminal proceedings do not begin, and a
defendant’s sixth amendment right to counsel does not attach, until
the defendant has been presented before a judicial officer. Because
the defendant in this case did not appear before a judge until after the
lineup had been conducted, the appellate court concluded that
defendant’s sixth amendment rights had not been violated. Id. at 824.
Defendant thereafter filed a petition for leave to appeal in this
court in which the sole contention presented was that the appellate
court erred in holding that defendant’s right to counsel had not
attached. The petition for leave to appeal maintained that review by
this court was warranted because the appellate court’s holding was
contrary to the United States Supreme Court’s decision in Rothgery
v. Gillespie County, 554 U.S. 191 (2008), and in addition, because
establishing the onset of the right to counsel is an issue that touches
“every criminal prosecution,” it was “paramount that Illinois’s court
of last resort be heard.” Recognizing the importance of the issue
presented, we granted defendant’s petition for leave to appeal.
In this court, defendant contends that the appellate court erred in
holding that his sixth amendment rights had not attached at the time
of the lineup. The State disputes this contention, maintaining that the
appellate court correctly held that Rothgery did not “obviate
presentment before a judicial officer as a trigger to attachment of the
sixth amendment right to counsel” (395 Ill. App. 3d at 823). The State
also contends that, even if defendant’s right to counsel had attached
at the time of the lineup, the appellate court erred in holding that the
policy of excluding defense attorneys from the witness room violated
that right. As in the appellate court, defendant acknowledges that his
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sixth amendment claim was not raised in the trial court and asks us
to review the matter for plain error.
¶ 163
¶ 164
¶ 165
¶ 166
II
“As a matter of convention, our court typically undertakes
plain-error analysis by first determining whether error occurred at all.
If error is found, the court then proceeds to consider whether either of
the two prongs of the plain-error doctrine have been satisfied.”
People v. Sargent, 239 Ill. 2d 166, 189-90 (2010); see also, e.g., In re
Jonathon C.B., No. 107750, slip op. at 21 (June 30, 2011) (“in
addressing a plain-error argument, this court first considers whether
error occurred at all”); People v. Walker, 232 Ill. 2d 113, 124 (2009);
People v. Hudson, 228 Ill. 2d 181, 191 (2008); People v. Urdiales,
225 Ill. 2d 354, 415 (2007); People v. Durr, 215 Ill. 2d 283, 299
(2005).
In this case, the majority departs from our customary plain-error
analysis by skipping over the question of whether error occurred. The
majority does not decide the issue raised in defendant’s petition for
leave to appeal, i.e., whether defendant’s sixth amendment right to
counsel attached at the time of defendant’s lineup. Instead, the
majority assumes, arguendo, that defendant’s right to counsel had
attached and that the police department’s policy of excluding
attorneys from the witness room violated that right. The majority then
concludes, however, that because the evidence in this case is not
closely balanced, defendant was not prejudiced by the constitutional
violation. Supra ¶ 134. Thus, because defendant was not prejudiced
by the assumed error, the majority holds that defendant has not
established plain error.
The majority’s primary justification for departing from our
customary plain-error analysis is that, by declining to address whether
error occurred in this case, it is avoiding a “meaningless endeavor,”
thereby conserving judicial resources and adhering to the purpose of
the procedural default rule. The majority explains:
“Where the only basis proffered for plain-error review is a
claim that the evidence is closely balanced, an assessment of
the impact of an alleged evidentiary error is readily made after
reading the record. When it is clear that the alleged error
would not have affected the outcome of the case, a court of
review need not engage in the meaningless endeavor of
determining whether error occurred. As the Supreme Court
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¶ 167
¶ 168
observed in Massaro v. United States, 538 U.S. 500, 504
(2003), ‘[t]he procedural-default rule *** is a doctrine
adhered to by the courts to conserve judicial resources and to
respect the law’s important interest in the finality of
judgments.’ In this context, a procedure that requires Illinois
courts of review to examine and address claimed evidentiary
errors that could not have affected the outcome runs contrary
to the very purpose of the procedural-default rule.” (Emphasis
in original.) Supra ¶ 148.
I agree with the majority that Illinois courts of review do not
always have to address whether error occurred when conducting
plain-error analysis. Although it is customary to decide whether there
was error, the reviewing court always has the discretion to resolve the
forfeited claim on the basis that the defendant suffered no prejudice.
In this case, however, the majority’s assertion that we must forgo
deciding the issue raised in defendant’s petition for leave to appeal
because of a need to conserve judicial resources and adhere to the
purpose of the procedural default rule is not persuasive.
The present case is a discretionary appeal brought under Supreme
Court Rule 315 (Ill. S. Ct. R. 315(a) (eff. Feb. 26, 2010)). The only
issue raised in defendant’s petition for leave to appeal was whether
the appellate court erred in holding that defendant’s right to counsel
had not attached at the time of the lineup. Moreover, it was evident
from defendant’s petition and the appellate court opinion that this
issue had been forfeited. Because the attachment issue was the only
issue raised in defendant’s petition for leave to appeal, our granting
of the petition was necessarily a determination that the attachment
issue, though forfeited, is of substantial public importance and, as
such, merits the expenditure of this court’s time and effort to review
it. The majority has not retreated from that determination. That is, the
majority has not concluded that, upon further consideration,
discretionary review of the attachment issue is inappropriate and this
appeal was improvidently granted. Accordingly, the majority’s
decision not to address the attachment issue and to resolve
defendant’s claim on prejudice alone reduces, ultimately, to this: The
majority continues to believe that defendant’s petition for leave to
appeal was properly granted because it raises an issue of public
importance that merits the expenditure of this court’s time and effort.
However, the majority will not address that issue because it would
take too much time and effort. This is not a reasonable position.
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¶ 169
¶ 170
¶ 171
¶ 172
Courts of review have discretion regarding how to proceed when
conducting plain-error review. We exercised that discretion when we
granted defendant’s petition for leave to appeal. It makes no sense, in
my view, to grant a petition for leave to appeal in order to address a
forfeited issue and then to conclude that we cannot address that issue
because it is forfeited. To be consistent with our decision granting
leave to appeal, and in accordance with our customary plain-error
analysis, we should address the attachment issue.
The majority contends, however, that there is more to its decision
not to reach the attachment issue than simply a need to adhere to
principles of procedural default. According to the majority, the
attachment issue may not be addressed because “it is a fundamental
rule of judicial restraint that a court not reach constitutional questions
in advance of the necessity of deciding them.” (Emphasis in original.)
Supra ¶ 148. But this rule, which has been referred to as the “last
resort rule” (see Lisa A. Kloppenberg, Avoiding Constitutional
Questions, 35 B.C. L. Rev. 1003 (1994)), is not an absolute or
jurisdictional bar to adjudication. It is, instead, a self-imposed judicial
restraint, or “prudential rule” (Zobrest v. Catalina Foothills School
District, 509 U.S. 1, 7 (1993)), invoked at the “sound discretion” of
the court “in light of the circumstances in the particular case at hand”
(Pearson v. Callahan, 555 U.S. 223, 236 (2009)). See also, e.g.,
Michael L. Wells, The “Order-of-Battle” in Constitutional
Litigation, 60 S.M.U. L. Rev. 1539, 1552 (2007) (the last resort rule
“is best characterized as a flexible norm, not an absolute
requirement”).
Because it is a discretionary doctrine, the last resort rule logically
cannot preclude this court from addressing the very issue that
prompted us to exercise our discretion and accept this case for review
in the first place. Indeed, by invoking the rule here, the majority
adopts an untenable position: We allowed defendant’s petition for
leave to appeal because it raised an important constitutional issue.
Yet, according to the majority, we cannot address that issue because
it is constitutional. Again, this is not a reasonable position.
Further, previous decisions from this court have established that
the last resort rule does not bar us from deciding whether error
occurred in this case. For example, in People v. Allen, 222 Ill. 2d 340
(2006), the defendant was required to wear an electronic restraining
device, or stun belt, under his clothes at trial. In the appellate court,
the defendant argued that the trial court erred in requiring him to wear
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¶ 173
¶ 174
¶ 175
¶ 176
the device without first holding a hearing pursuant to People v.
Boose, 66 Ill. 2d 261 (1977), and that the failure amounted to plain
error. The appellate court agreed and reversed his conviction.
The State thereafter filed a petition for leave to appeal in this
court, raising the appellate court’s holding with respect to the stun
belt as its sole claim of error. In its petition, the State maintained that
review was warranted because a stun belt did not implicate any of the
concerns presented by visible physical restraints such as handcuffs
and shackles and, therefore, the appellate court erred in holding that
the stun belt fell within the requirements of Boose. The State also
contended that, even if a Boose hearing was required, and the trial
court erred in not holding one, the defendant was not prejudiced by
the error.
Reviewing the defendant’s claim for plain error, this court first
held that Boose applied to electronic restraints and that “the trial
court’s failure to follow the procedures set forth in Boose before
ordering that defendant continue to wear an electronic stun belt
during his trial constitute[d] a due process violation.” Allen, 222 Ill.
2d at 345-49. The court then went on, however, to hold that the error
did not prevent defendant “from obtaining a fair trial” and,
accordingly, he could not establish plain error. Id. at 353-54. Thus, in
Allen, this court decided a constitutional question–whether the
defendant’s due process rights were violated by the failure to hold a
Boose hearing–even though it could have been avoided and the case
resolved solely on the basis that the defendant failed to demonstrate
prejudice.
The present case is, in relevant part, indistinguishable from Allen.
As in that case, the substantive issue in this case arises within the
framework of plain error, where we customarily first consider
whether error occurred at all. And, just as the last resort rule played
no role in Allen, it should play no role here. See also, e.g., In re
Jonathon C.B., slip op. at 19-23 (addressing whether a constitutional
error occurred within the context of plain error).
The majority does not dispute that we knew, when we granted
defendant’s petition for leave to appeal, that the only issue presented
was a forfeited, constitutional issue. However, the majority points out
that we did not know the state of the record. Now, having examined
the record, the majority concludes that review of the attachment issue
is inappropriate because the record was not “equitably compiled for
the purpose” of addressing that issue. Supra ¶ 143. According to the
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¶ 177
¶ 178
majority, “[n]either side presented arguments applicable” to the
attachment issue in the trial court and thus, “the state of the record is
suspect for that purpose.” Supra ¶ 143. I cannot agree with this
reasoning. The definition of a forfeited issue is one that was not
argued in the trial court. If the fact that no arguments were made in
the trial court on the attachment issue was sufficient to preclude our
discussing whether error occurred in this case, then the plain-error
doctrine would cease to exist.
The majority further states that they are “not confident that all of
the evidence that could have been brought to bear on [the attachment
issue] was in fact adduced.” Supra ¶ 143. However, the majority
never explains why further evidence might be required or what that
evidence might be. Defendant raised only one issue in his petition for
leave to appeal: whether “presentment before a judicial officer [is] a
trigger to attachment of the sixth amendment right to counsel” (395
Ill. App. 3d at 823). This is an issue of law that does not require
further evidentiary development to be addressed.
Finally, even if I were to agree with the majority that we cannot
address the attachment issue, I still could not join the majority
because I do not agree with their treatment of the appellate court’s
sixth amendment holdings. After explaining at length why they
cannot reach the merits of any of the sixth amendment issues
addressed by the appellate court, the majority reverses course at the
conclusion of their opinion and states that they “reject that part of the
appellate court’s opinion that discussed, and rendered holdings on,
the issues of attachment of the right to counsel and the lineup
procedure employed in this case.” Supra ¶ 154. I do not understand
how the majority can reject holdings they have expressly declined to
review. If the majority believes, as it states, that the appellate court
“unnecessarily, and inappropriately, addressed defendant’s
constitutional contentions” (supra ¶ 154), then the majority should
vacate those portions of the appellate court’s opinion. This would be
the logically appropriate disposition, given the majority’s
determination that none of the sixth amendment issues should ever
have been reached by the appellate court. The majority’s reluctance
to employ the appropriate legal terminology is perplexing and will no
doubt lead to confusion on the part of those who attempt to follow
this decision.
-62-
¶ 179
¶ 180
¶ 181
¶ 182
III
I express no opinion on how the attachment issue should be
resolved. My point is that, having already determined that the
attachment issue is important enough to address when we granted
defendant’s petition for leave to appeal, we should do so. It is not that
I believe the lower courts need “the benefit of our wisdom” (supra
¶ 149), as the majority states. It is simply a matter of being consistent
with our decision granting leave to appeal.
We should not abandon logic out of a misplaced concern for
judicial restraint. Instead of worrying about whether we have attained
“procedural synchronicity” (supra ¶ 153), or scolding our appellate
justices for being “free rangers riding about the legal landscape”
(supra ¶ 153), I would address the issue that we took this case to
address. Because the majority does not do so, I dissent.
JUSTICE FREEMAN joins in this dissent.
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