People v. Nolan

                                             Fourth Division     
                                             August 14, 1997     
                    
                    







No. 1-95-4390

THE PEOPLE OF THE STATE OF ILLINOIS,    )    APPEAL FROM THE
                                        )    CIRCUIT COURT OF
          Plaintiff-Appellee,           )    COOK COUNTY.
                                        )
     v.                                 )    
                                        )    
                                        )
DONNELL NOLAN,                          )    HONORABLE
                                        )    MICHAEL B. BOLAN,
          Defendant-Appellant.          )    JUDGE PRESIDING.
     

     PRESIDING JUSTICE WOLFSON delivered the opinion of the 

court:

     On the morning of December 8, 1989, Donnell Nolan (Nolan)
entered the Pershing Food and Liquor Store at 857 East 39th
Street, to purchase a bottle of pop.  The proprietor, Zaki
Fakhoury (Fakhoury), accused Nolan of shoplifting.  During an
altercation, Nolan pulled a loaded gun from his pocket, then shot
and killed Fakhoury.  The question for the jury to resolve was
whether Nolan's actions constituted first degree murder, second
degree murder, involuntary manslaughter, or no crime at all.
     In his first jury trial, Nolan was found guilty of first
degree murder and sentenced to 40 years imprisonment.  That
conviction was overturned, because of an instructions error, in a
Rule 23 order issued on December 24, 1992.  In his second jury
trial, Nolan was found guilty of second degree murder and
sentenced to 30 years imprisonment.  It is from this judgment
that he now appeals.  We affirm the defendant's conviction, but
we reduce his sentence to 15 years.
FACTS
     Two months after the shooting, on February 8, 1990, Nolan
turned himself in to the police.  He gave a signed statement to
the assistant State's Attorney in which he admitted shooting
Fakhoury.  Nolan was positively identified in a line-up and at
trial by an occurrence witness, Mrs. Willingham.  The gun used to
shoot Fakhoury was recovered from the home of Nolan's friend,
Calvin Brown, who testified at trial.
     At trial, the controversy was not whether Nolan shot
Fakhoury, but how the shooting occurred.
      Mrs. Ann Willingham testified that she was standing in the
check-out line in Fakhoury's store at 8:30 a.m. on December 8,
1989, waiting to make her purchases.  Nolan entered the store and
walked to the back, where the coolers are located.  While Nolan
was walking down the aisle and looking at the merchandise,
Fakhoury watched Nolan in a mirror.  Fakhoury spoke to another
worker in Arabic and gestured toward Nolan.  It was Mrs.
Willingham's perception that Fakhoury thought Nolan was
shoplifting.
     Nolan came to the front of the store and stood in line with
a bottle of pop in his hand.  Fakhoury came around from behind
the counter and began to shout at Nolan, demanding that he "give
me what you got."  Nolan replied, "I don't have anything." 
Fakhoury kept advancing toward Nolan while Nolan kept backing up,
telling Fakhoury "back off" and "don't keep walking up on me
because I don't have nothing." 
     Fakhoury was not about to give up.  He continued to shout at
Nolan and grabbed his wrist, trying to draw him toward the front
of the store.  Nolan tried to pull away from Fakhoury's grasp and
said, "Let go of me, let go of me, I told you I didn't have
anything."
     Mrs. Willingham said she turned away from this confrontation
and attempted to finish her transaction.  While her back was
turned she heard a gunshot.  She turned back to see Fakhoury
falling to the floor and Nolan walking backwards.
     The other store clerk had locked the front door.  But, after
the shooting, Nolan "jogged to the door" and shook it until it
opened.  Nolan left the store with the gun still in his hand.
     On cross-examination, Mrs. Willingham said she never saw
Fakhoury try to reach into Nolan's pockets.  She said that
Fakhoury was just "grabbing -- snatching, tugging" at Nolan while
Nolan was trying to get loose.
     In a written statement given to Assistant State's Attorney
(ASA) Holmes, Nolan said he entered the store with two loaded
handguns in his jacket pockets.  He got a bottle of pop out of
the cooler in the back of the store and then came to the front
check-out.  Fakhoury came up to him, grabbed his left arm, and
started to shout at him, "Give it back."  Nolan said Fakhoury
would not let go of his arm and was trying to search his pockets. 
Nolan pulled a .38 caliber snub nose out of his right pocket and
shot the man one time in the chest.  Nolan also told ASA Holmes
he "wanted the man to let go because the Arabs are always
grabbing on black men in the store, and he did not want to be
searched because he did not steal anything."
     When ASA Holmes testified about interviewing the defendant
and taking this statement, she did not recall Nolan saying that
there had been a struggle over the gun.  Her recollection was
that Nolan said Fakhoury grabbed Nolan while accusing Nolan of
shoplifting.  Nolan's pockets were bulging due to the guns. 
Nolan pulled out a gun to show Fakhoury that he had guns, not
merchandise.  When Fakhoury would not let go of Nolan, Nolan
stepped back and shot Fakhoury.
     ASA Holmes also testified that while she wrote out Nolan's
statement, he was looking at the paper and making corrections or
changes.  After she finished the written statement, Nolan read it
out loud, made some corrections, then signed it.
     Detective Redmond testified that he was present at Area 1
headquarters when Nolan turned himself in.  He arrested Nolan and
handcuffed him to the wall of an interview room.  Although Nolan
turned himself in because he knew the police were looking for him
in connection with the shooting, Detective Redmond testified that
Nolan initially denied being involved in the shooting.
     Mrs. Willingham was brought to headquarters and identified
Nolan in a line-up.  Detective Redmond then informed Nolan that
he had been identified.  After receiving this information, Nolan
agreed to speak to the assistant State's Attorney and admitted
his part in the shooting.
     Nolan's trial testimony about the occurrence was similar to
his written statement, with one major exception.  He said at
trial that Fakhoury came around the counter and demanded that he
"give it back."  Fakhoury then grabbed Nolan's arm and tried to
reach into his pockets where he had the guns concealed.  Nolan
said he pulled one gun out to show Fakhoury that he had a gun and
not merchandise in his pocket.  Then, he said, he "cocked" the
gun and "in the tussle" with Fakhoury "my hand was on the trigger
and it just went off."  Nolan described the "tussle" as Fakhoury
trying to grab at him, reaching into his pockets, and grabbing at
the gun.  He said he did not intend for the gun to go off. 
Nolan's written statement did not include his claim that the gun
went off when Fakhoury grabbed at the gun.
     On cross-examination, Nolan admitted that Fakhoury was
unarmed and Fakhoury did not threaten or hit him.  Nolan said he
pulled out the gun and showed it to Fakhoury, thinking that it
would "make him let me go."  He admitted that he deliberately
cocked the gun and held the gun with his finger on the trigger,
but contended that the trigger was pulled and the gun went off
accidentally because Fakhoury came at him, trying to take the gun
away.
     When asked whether he ever told ASA Holmes that the gun went
off accidentally because Fakhoury was grabbing for it, Nolan
said, "I don't recall."  The prosecutor then asked whether Nolan
told ASA Holmes, as it said in the statement, that he just pulled
out the gun and shot Fakhoury in the chest.  Nolan said, "I don't
recall that.  It's been almost 5 years."
     Having heard all of the evidence, the jury was instructed on
the elements of first degree murder, second degree murder, and
involuntary manslaughter.  The jury found Nolan guilty of second
degree murder.  Nolan later was sentenced to an extended term of
30 years.
DECISION
     In his first issue on appeal, defendant claims he was denied
the right to fully present a defense because he was prohibited
from eliciting testimony from Detective Redmond concerning what
he characterizes as a "prior consistent statement."
     The trial court ruled, on hearsay grounds (see People v.
Barnwell, 285 Ill. App. 3d 981, 675 N.E.2d 148 (1996); People v.
Young, 206 Ill. App. 3d 789, 811, 564 N.E.2d 1254 (1990)), that
Nolan could not ask Detective Redmond about oral statements Nolan
may have made in the presence of Redmond and ASA Holmes that were
not contained in Nolan's signed, written statement.  The trial
court also ruled, however, that if Nolan testified that he made
such statements, Detective Redmond could be called to corroborate
Nolan's testimony.
     Nolan now contends that he should have been allowed to
question Detective Redmond to determine whether the detective
recalled Nolan saying that Fakhoury was shot in a struggle over
the gun.  The detective's testimony, says defendant, was
admissible to counter the State's argument of recent fabrication
and admissible under the completeness doctrine.
     Though defense counsel did not raise these specific claims
in his post-trial motion, Nolan now contends the court's
restriction on the cross-examination of Detective Redmond was
plain error.  We disagree.
     If we ignore the fact that this issue was not properly
preserved (People v. Enoch, 122 Ill. 2d 176, 522 N.E.2d 1124
(1985), the issue fails on its merits.
     When the defendant is the declarant of an out-of-court
statement and available to testify in his own behalf, the self-
serving or exculpatory statement made to police while in custody
is considered unreliable and may be excluded on hearsay grounds
(People v. Barnwell, 285 Ill. App. 3d 981, 675 N.E.2d 148
(1996)), unless one of the exceptions to the general rule against
admission of hearsay applies.
     In this case, the trial court should have allowed defense
counsel to question Detective Redmond about oral statements Nolan
may have made.  Detective Redmond was present while ASA Holmes
prepared Nolan's written statement.  Under the completeness
doctrine (see People v. Hosty, 146 Ill. App. 3d 876, 884, 497 N.E.2d 334 (1986)), Nolan should have been able to test the
accuracy of the written statement.  The trial court allowed Nolan
to question ASA Holmes about matters that she may have left out
of the written statement.  We see no reason why a different
standard should have applied to Detective Redmond.
     There was no reason to condition asking Detective Redmond
the pertinent question on Nolan first testifying to the sought-
after statement.  The purpose of the rule of completeness is to
correctly convey the true meaning of a statement to the triers of
fact.  People v. Weaver, 92 Ill. 2d 545, 556, 442 N.E.2d 255
(1982).  Completeness may be accomplished through cross-
examination of witnesses who were present at the time of the
statement.  People v. Williams, 109 Ill. 2d 327, 334, 487 N.E.2d 613 (1985).  The testimony sought from Redmond was limited to the
same subject at the same time and at the same place.  The
question should have been allowed.
     But there is an inherent problem with defendant's contention
that this constitutes reversible error: defendant failed to
establish that a "prior consistent statement" existed.
     ASA Holmes testified that she did not recall being told that
Fakhoury was shot in a struggle over the gun.  ASA Holmes
recalled being told that Nolan was trying to get away from
Fakhoury and kept backing up.  Nolan shot Fakhoury because he
would not let go.  This is what was reported in the written
statement she prepared and which, Nolan admitted, he reviewed and
signed after making corrections.  
     It is clear that Nolan did not establish he ever told
Detective Redmond or ASA Holmes about a struggle over the gun. 
In his own trial testimony, Nolan said he could "not recall" if
he said this.  No offer of proof was made to show that Detective
Redmond would have recalled such a statement.  For this reason,
it is mere speculation that Detective Redmond would have been
able to testify to a "prior consistent statement" by Nolan.  We
will not reverse Nolan's conviction for reasons based on
speculation.
     In his second issue, Nolan contends that his conviction
should be reversed because of comments made by the prosecutor in
closing argument.  He claims that the prosecutor vouched for his
witnesses' credibility, misstated facts, and misstated law.
     Defendant objected to only two of these errors at trial and
failed to specify the objectionable remarks in the post-trial
motion.  The issue is not preserved for review.  People v. Enoch,
122 Ill. 2d 176, 522 N.E.2d 1124 (1985).  Though defendant raised
a generic claim of improper closing argument, no specific
examples of misconduct were illustrated.  This constitutes a
waiver of the issue on appeal.  People v. Robinson, 238 Ill. App.
3d 48, 606 N.E.2d 122 (1992).
     Nor does plain error defeat the waiver here.  Prosecutors
are afforded substantial latitude in closing argument.  People v.
Pecoraro, 144 Ill. 2d 1, 16, 578 N.E.2d 942 (1991).  Even when
improper, prosecutorial remarks will not warrant reversal unless
they result in substantial prejudice to the defendant.  People v.
Sims, 285 Ill. App. 3d 598, 673 N.E.2d 1119 (1996).
     As required, we have reviewed each of the complained-of
comments in context of the closing remarks as a whole.  People v.
Alvine, 173 Ill. 2d 273, 671 N.E.2d 713 (1996); People v.
Thompkins, 121 Ill. 2d 401, 445, 521 N.E.2d 38 (1988).  
     Nolan claims the prosecution vouched for the veracity of its
key witness, ASA Holmes.  But the transcript reveals what the
prosecutor said:
     "And you know that's not what he said from the
     testimony of Detective Redmond and the testimony of Pat
     Holmes.  And you can judge their demeanor and their
     testimony and what they saw and what they heard from
     the defendant.  He didn't say that once.  Pat Holmes
     was telling the truth to what he said.  His own
     statements tell you the truth."
     It is clear to us the prosecutor was not expressing his
personal belief in the witness's veracity, but was asking the
jury to judge the witness's veracity based on demeanor and the
other evidence presented.  See People v. Wheeler, 216 Ill. App.
3d 609, 575 N.E.2d 1326 (1991).  It is fair comment on the
evidence to argue that witnesses are believable because of their
demeanor and because they have been corroborated.  People v.
Nitz, 143 Ill. 2d 82, 572 N.E.2d 895 (1991).
     The remaining remarks are equally inoffensive and need not
be discussed.  Most of the complained-of comments were made in
rebuttal argument and were either provoked or invited by the
defense.  As such, they were permissible comments directly
related to the evidence or reasonable inferences drawn from the
evidence.  There was no error.
     The final claim on appeal is that the trial court abused its
discretion when it imposed the maximum extended term sentence of
30 years imprisonment on Nolan.  Although Nolan did not object to
the sentence imposed at the sentencing hearing, and did not file
a written motion for review of the sentence within 30 days in
accord with the statutory provision (730 ILCS 5/5-8-1(c) (West
1996)), we are not compelled to apply the waiver rule when we see
plain error.  People v. McCleary, 278 Ill. App. 3d 498, 663 N.E.2d 22 (1996).  
     Defendant acknowledges his eligibility for an extended term
sentence based on his two prior felony convictions: residential
burglary and possession of a stolen motor vehicle.  However, a
defendant's eligibility for an extended term does not require
that result.  People v. Taylor, 278 Ill. App. 3d 696, 663 N.E.2d 1126 (1996).  It is left to the trial court's sound discretion to
determine whether an extended term sentence should be imposed.
     Nolan complains that his 30 year sentence, which is the
maximum extended sentence that could be imposed, is excessively
harsh, motivated by vindictiveness, and an abuse of discretion. 
He has a point.
       As the defendant contends, the "factual matrix surrounding
the shooting" does not warrant a 30-year prison term.  It is
clear that Fakhoury was the aggressor in the encounter with
Nolan.  The evidence consistently showed that Nolan was
attempting to back away from the encounter and extract himself
from the situation.  The shooting was not an act of plan or
premeditation.  Although Nolan was unable to prove Fakhoury
reached for the gun and the gun went off accidentally, this was a
close case and Nolan carried his burden of proving mitigating
factors which reduced the offense to second degree murder.
     Though Nolan's two prior felonies make him eligible for an
extended term, neither one of the two prior felonies indicates
that Nolan is a dangerously aggressive criminal.
     After his first trial in which he was found guilty of first
degree murder, Nolan was sentenced to 40 years imprisonment. 
This was not the maximum sentence available.  No extended term
sentence was given, although Nolan was eligible.  Yet, when
defendant was retried and found guilty of second degree murder,
which carries a maximum penalty of 15 years, an extended term
sentence of 30 years was imposed -- just 10 years less than the
sentence imposed earlier.
     Under these circumstances, the sentence amounts to an abuse
of discretion.  See People v. Andrews, 132 Ill. 2d 451, 548 N.E.2d 1025 (1989).  On the authority granted us by Supreme Court
Rule 615(b)(4) (134 Ill. 2d R. 615(b)(4)) we reduce the
defendant's sentence to 15 years.  
CONCLUSION
     For the reasons stated, the defendant's conviction is
affirmed.  His sentence is reduced to 15 years.
     AFFIRMED AS MODIFIED.
     CERDA and BURKE, JJ., concur.