People v. Williams
Annotate this Case
SECOND DIVISION
MARCH 3, 1998
1-96-2496
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 94-CR-2496
)
MICHAEL WILLIAMS, ) THE HONORABLE
) JOSEPH KAZMIERSKI,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE COUSINS delivered the opinion of the court:
Defendant, Michael Williams, and codefendant, Buford Hodby,
were convicted of first-degree murder in simultaneous jury trials
for the shooting death of a rival gang member. On appeal,
defendant seeks a new trial on the grounds that: (1) the trial
court abused its discretion in denying defendant's motion for a
new trial when newly discovered evidence exculpated defendant and
inculpated two other individuals; (2) the trial court committed
plain error by failing to inquire during voir dire if the
potential jurors would be prejudiced by knowledge that defendant
was a gang member; (3) the State's closing argument was improper,
inflammatory, and included evidence not presented at trial; and
(4) defendant was denied his right to effective assistance of
counsel because his attorney failed to tender questions to the
trial court during voir dire regarding juror bias toward gangs
and failed to object to the State's improper closing argument.
We affirm.
BACKGROUND
On the night of August 27, 1994, into the early morning of
August 28, Turonica Williams (a friend and no relation to
defendant) held a birthday party at her home in Chicago. The
neighborhood surrounding her home is primarily residential and is
recognized as an area in which several gangs are active. The
party was attended almost exclusively by members of neighborhood
gangs, including the Titanic Black P-Stones (TBPS) and its rival
gangs, the Conservative Vice Lords (CVL) and the Renegade Vice
Lords. During the party, a member of TBPS and a member of CVL
bumped into each other inside the house and exchanged words. Two
or more CVL members then left the party, stating something to the
effect, "we'll be back." Shortly thereafter, between two and
four people dressed in black arrived at the area outside the
party and began firing guns. Fifteen-year-old Raymond Malone, an
alleged TBPS member who was sitting on a car with other TBPS
members, was fatally shot. After the shooters fled the scene,
two TBPS members took Malone to a hospital, where he was
pronounced dead as a result of a gunshot wound of the chest.
Williams and Hodby were indicted for Malone's murder, and the
matter proceeded to simultaneous jury trials.
At trial, eight witnesses testified on behalf of the State.
Four of those eight were eyewitnesses to the shooting incident
and three of those four eyewitnesses were members of TBPS. The
first eyewitness to testify was Scott Tyler, who stated that he
attended the birthday party at 1 a.m. on August 28, 1994, along
with his girlfriend, who was Raymond Malone's sister. Tyler
testified that, while standing near the car on which Malone and
others were sitting, he saw four people emerge from a nearby
alley and start shooting. He stated that, although the lighting
was dark, he identified Williams and Hodby as two of the gunmen.
Tyler then stated that the shooters subsequently ran back into
the alley from which they came. He later accompanied others to
the hospital where Malone was taken. At the hospital, he spoke
with police about the incident. He continued to discuss the
matter with police back at the scene of the crime, but he never
identified Williams as a shooter during those conversations with
police. Tyler later identified Williams as one of the shooters
at a police lineup and testified that his initial reservations
were caused by his concern for relatives that lived in the area,
which he feared was plagued by the CVL.
Next, the State called Demetrius Adams, a TBPS member who
also witnessed the shooting. Adams testified that he saw the
bumping incident that occurred indoors between the TBPS and CVL
gang members. He stated that neither Williams nor Hodby was a
party to that altercation. Adams testified that, later that
night, he was with Malone and others near a parked car when
Williams and Hodby came out of the alley and began to shoot at
TBPS members. After the shooting, Adams helped take Malone to
the hospital. Adams remained at the hospital only momentarily,
however, and gathered a small group of people to search for
Williams and Hodby to no avail.
Another TBPS member, Henry Golden, also testified that,
while sitting on the hood of his car with Malone and Adams, he
heard gunshots coming from the nearby alley. He stated that he
saw Williams and Hodby firing at them and pushed Malone down.
When he saw that Malone was shot, he summoned others for
assistance and helped take the victim to the hospital. Golden
testified that, immediately thereafter, he, Adams, and another
TBPS member got their guns and searched for Williams and Hodby.
He stated that the search was made with the intention of killing
Williams and Hodby if they were found.
TBPS member Gregory Spence arrived at the party at
approximately 11:45 p.m. and remained outside due to the
overcrowding indoors. He testified that he witnessed Williams
and Hodby, along with two other males, leave the party. Spence
stated that, approximately 30 minutes later, he heard gunshots
and saw two people firing guns. He testified that he was not
"100% sure" that Williams was a shooter, but he stated that one
shooter had the same height, weight, and clothing as Williams.
Spence later identified Williams as one of the gunmen at a police
lineup.
Diana McGhee, defendant's girlfriend and mother of his
children, was the sole witness called to testify on behalf of
defendant. She testified that, at approximately 11:30 p.m. on
the night of the party, defendant came to her home. She stated
that, at approximately 12:30 a.m., Williams received three to
four telephone calls on his pager and that he returned at least
one of those calls while at her house. McGhee testified that she
did not know with whom Williams spoke on the telephone, and she
said that, following his conversation, Williams proceeded to
leave the house sometime after 1 a.m. She asked him what had
happened, and Williams replied that there had been a shooting.
In January 1996, the jury found Williams guilty of first-
degree murder. Defendant then filed a motion for a new trial
arguing that the State failed in its burden to prove defendant
guilty beyond a reasonable doubt and that newly discovered
evidence warranted a new trial.
In May 1996, the trial court conducted a hearing and heard
argument on Williams' and Hodby's separate posttrial motions.
Defendants presented five witnesses at that hearing.
First, Jerome Hunt, defendant's fellow CVL member, testified
that he had attended the party and witnessed the indoor incident
between his gang and the TBPS. Hunt stated that two unidentified
people left the party, stating that they would "be back." Hunt
also testified that neither defendant was present during that
incident and that he believed that they had left the party before
the two unidentified men stated that they would return. Hunt
stated that, when the shooting began, he was standing in front of
the house from where he saw shots come from the alley. He
testified that he saw one of the shooters turn around and that he
only made out the gunman's shadow as he ran back towards the
alley. Although he was approximately one-quarter of a block away
from the figure he saw, Hunt stated that the gunman was "husky,"
about 190 pounds, and 5 feet 11 inches tall. He testified that
he had known Williams for nearly six years and that he was
positive that Williams was not the same body type as the shooter.
Hunt also testified that he had not come forward sooner for fear
of gang retaliation. On cross-examination, the State questioned
Hunt about a statement in his own affidavit in which he
positively identified two men other than defendants who were
involved in the bumping incident and who left the party promising
to return. Hunt testified that the statement in the affidavit
was not his own and maintained that he could not identify the two
men in that incident.
Next, Turonica Williams, who hosted the party on the night
of the shooting, testified that she observed the bumping incident
in her living room. She stated that defendants were not a part
of that altercation and identified the two individuals involved
as Ed Young of TBPS and "Prune" of CVL. Ms. Williams stated that
it was CVL member Dorian Jefferson who stated, "we'll be back,"
and that he and CVL member Charles McDavid then left the party
together. Ms. Williams also testified that approximately one
hour after the bumping incident, she saw a tall, dark-skinned man
about 6 feet tall and weighing about 185 pounds emerge from a
nearby alley. She stated that this person was about 10 feet from
her at the time and that he was alone. Ms. Williams testified
that the gunman she saw fit Charles McDavid's physical
description and that she was absolutely certain that the shooter
she saw was not defendant. She also stated that, after the
shooting, she received threats and learned that defendant's
brother's house had been burned down. Ms. Williams testified
that she became fearful for her life and moved out of her
neighborhood within weeks. She further testified that it was
this fear that kept her from coming forward with her information
earlier. Prior to her testimony, Ms. Williams did tell the
police that defendant did not commit the shooting and that
McDavid was the gunman.
Defendant's brother, Levelle Williams, who was a top-ranking
member of TBPS, also testified at defendant's posttrial hearing.
He testified that, during defendant's trial, he spoke with Scott
Tyler and fellow TBPS members Henry Golden and Gregory Spence
outside the courtroom and that Golden and Spence discussed how
they planned to testify during the trial. Levelle Williams
stated that Golden admitted that he was uncertain that defendants
committed the shooting but that he wanted to get even with the
CVL.
Next, Lamar Williams testified on behalf of defendant. He
is the brother of defendant and Levelle Williams and testified
that he was not at the party during the shooting but was sitting
on the front porch of his house. He stated that, sometime after
midnight, codefendant and CVL member Hodby came to his house,
followed by TBPS members Henry Golden and Ed Young. Lamar
Williams testified that Young and Golden arrived with news that
one of their friends had been shot and that someone would have to
do the time for it. Lamar Williams further testified that Golden
saw Hodby at Lamar Williams' house at that time but took no
action regarding Hodby. He further explained that the reason why
he failed to reveal this information before the posttrial hearing
was that his house had been burned down and he was concerned
about the well-being of his family. On cross-examination, Lamar
Williams was impeached by his prior inconsistent statement
regarding his whereabouts on the night of the party. In a prior
statement during direct examination, Lamar Williams had stated
that codefendant Hodby had been at his home for approximately 30
minutes when Ed Young and Henry Golden arrived with news that
their friend had been shot. Lamar Williams then testified during
cross-examination that he had visited Turonica Williams' house
but that he returned home to drink with friends before her party
began. He testified that, during a subsequent trip to a store to
get more liquor, a TBPS member jumped on top of his car
exclaiming that someone had been shot.
Finally, Ed Young testified at the hearing that he was a
general in the TBPS and that he was one of the people involved in
the bumping incident. He stated that, at the time of the
altercation with a CVL member, defendants were outside the house.
Young testified that he was in front of the house when gunshots
were fired and that, based on the "stocky" physique of the two
distant figures he observed, neither defendant could have been a
gunman. He admitted, however, that he did not see the shooters'
faces.
At the conclusion of the hearing, the trial court denied
defendant's motion for a new trial based on newly discovered
evidence and thereafter sentenced defendant to 40 years'
imprisonment.
ANALYSIS
I
Defendant first contends that the trial court erred in
denying his motion for a new trial based upon newly discovered
evidence. Defendant argues that the five witnesses who testified
at the posttrial hearing presented evidence that conclusively
exculpates defendant and inculpates other individuals. The
State, however, contends that the new witnesses' testimony was
vague and impeached and could have been discovered prior to trial
by the exercise of due diligence.
In Illinois, newly discovered evidence warrants a new trial
when: (1) it has been discovered since the trial; (2) it is of
such a character that it could not have been discovered prior to
the trial by the exercise of due diligence; (3) it is material to
the issue but not merely cumulative; and (4) it is of such a
conclusive character that it will probably change the result on
retrial. People v. Molstad, 101 Ill. 2d 128, 134 (1984), quoting
People v. Baker, 16 Ill. 2d 364, 374 (1959); People v. Kolb, 273
Ill. App. 3d 485, 489, 653 N.E.2d 39, 41 (1995); People v.
Cunningham, 267 Ill. App. 3d 1009, 1017, 642 N.E.2d 781, 786-87
(1994). Motions for new trial on grounds of newly discovered
evidence are not looked upon favorably by the courts and should
be subject to the closest scrutiny. People v. Cooper, 164 Ill.
App. 3d 734, 741, 518 N.E.2d 260, 265 (1987). Moreover, the
denial of a motion for a new trial based on newly discovered
evidence will not be disturbed on appeal absent an abuse of
discretion. Kolb, 273 Ill. App. 3d at 489, 653 N.E.2d at 41.
In the case sub judice, the trial court's denial of
defendant's motion for a new trial was based on several factors.
The trial court found Jerome Hunt's testimony regarding his
observations and description of the shooters to be incredible and
entirely suspect, as it was based on Hunt's perception of vague
and distant figures. The trial court was even less persuaded by
Turonica Williams' testimony, which the court found to be replete
with contradictions when considered against her previous
statements to police. The trial court made no detailed findings
with respect to the testimony of Levelle Williams. However, the
court did find the testimony of defendant's other brother, Lamar
Williams, to be unbelievable based on his courtroom demeanor,
which the trial court stated included smirking and smiling. The
court also found that the testimony of Ed Young, like that of
nearly all of defendant's witnesses, could have been presented at
trial with the exercise of due diligence. The court was equally
unimpressed by the witnesses' claims that their delay was due to
fear of gang retaliation. The court found that such claims
lacked credibility and that the witnesses were more likely
motivated to testify at that point because defendant had been
found guilty. While the trial court did find that the witnesses'
testimony was material to the critical issue of identification,
it concluded that, based on the foregoing findings and reasons
and the suspicious timing of their testimony, that evidence would
not change the outcome of the trial and was, therefore,
insufficient to justify a new trial based on newly discovered
evidence.
On appeal, defendant nevertheless relies on Molstad and
People v. Villareal, 201 Ill. App. 3d 223, 559 N.E.2d 77 (1990),
to establish that the testimony of the witnesses at his posttrial
hearing should be considered to be newly discovered. In Molstad,
the Illinois Supreme Court granted a new trial based on the newly
discovered evidence of affidavits executed by the codefendants of
the defendant. In that case, following a guilty verdict but
prior to the sentencing of four convicted defendants, defense
counsel offered affidavits of four convicted codefendants and one
acquitted codefendant that stated that the defendant had not been
present at the scene of the crime. The supreme court concluded
that those affidavits would create new issues to be considered by
the trier of fact. Molstad, 101 Ill. 2d at 135. The court
reasoned that the evidence in that case likely would have
produced a different result, because the testimony of the sole
prosecution witness placing the defendant at the scene of the
crime would have to have been weighed against the defendant's own
corroborated alibi testimony as well as the testimony of the five
codefendants. Molstad, 101 Ill. 2d at 135-36. The court further
held that the new affidavits could not have been discovered with
the exercise of due diligence, since "no amount of diligence
could have forced the codefendants to violate their fifth
amendment right to avoid self-incrimination [citation] if the
codefendants did not choose to do so." Molstad, 101 Ill. 2d at
135.
In Villareal, the newly discovered evidence at issue
consisted of the testimony of a firearms expert. At the
defendant's trial for aggravated battery of a police officer, the
officer testified that, during a struggle for his gun, the
officer held the gun's cylinder, causing it to misfire. The
officer believed that this misfiring saved his life, and he
attributed this fortunate malfunction to a dimple mark that he
caused when holding the gun during his struggle with the
defendant. The officer's testimony was the first time that the
misfiring incident had been raised in the case. The firearms
expert later stated, however, that the dimple mark had actually
been caused during the gun's manufacture and could not possibly
have been created in the manner that the officer had testified.
The appellate court in Villareal held that this newly discovered
evidence could not have been revealed prior to trial by due
diligence, since the officer's evidence of misfire had been
introduced for the first time at trial. Villareal, 201 Ill. App.
3d at 230, 559 N.E.2d at 82. The court further held that,
because the State's case rested mainly on the officer's testimony
and the firearms expert's testimony so contradicted the officer's
accounting of events, the new evidence was likely to change the
result of the trial. Villareal, 201 Ill. App. 3d at 229-30, 559 N.E.2d at 81-82.
We believe Molstad and Villareal to be inapposite to the
instant case. In those cases, facts showing that the newly
discovered evidence could not have been previously revealed
through due diligence were more compelling than the facts before
us. We agree with the trial court that the facts belie
defendant's witnesses' initial fears of coming forward. We also
find no error in the trial court's ruling with respect to the
conclusive nature of defendant's witnesses' testimony. We agree
that Jerome Hunt's and Ed Young's testimony that defendant was
not the same body type as the shooters was inconclusive, as their
statements were based on shadows and figures they observed from a
considerable distance, and they were unable to positively
identify any shooter in the incident.
The trial court's finding that the testimony of Turonica
Williams was inconclusive is also supported by the record.
Although she may have rightly concluded that defendant was not
one of the two individuals involved in the bumping incident in
her house during the party, that fact does not exonerate
defendant of the subsequent shooting incident. Significantly,
Turonica Williams' testimony directly contradicted statements she
made to detectives days after the shooting incident.
Furthermore, after she moved from her neighborhood, she was aware
that defendant was in custody on murder charges but never
contacted anyone with the information that she presented at the
posttrial hearing.
We also agree with the trial court that Levelle Williams'
testimony that he observed the State's witnesses coordinating
their testimony during a recess at trial is suspect. The
transcript of the trial proceedings indicates that no such recess
took place on the day that Levelle Williams claims to have been
present in court. Likewise, we find no error with the trial
court's finding that Lamar Williams' testimony lacked
credibility. In light of his statements made during the
posttrial hearing that contradicted his own testimony and
contradicted statements he had made to the police, we agree that
Lamar Williams' testimony was unreliable.
Therefore, in our view, the trial court did not err in
finding that the testimony of the defense witnesses was
inconclusive and impeached and could have been discovered prior
to trial through the exercise of due diligence. Accordingly, we
hold that the trial court did not abuse its discretion by denying
defendant's posttrial motion to grant a new trial based on newly
discovered evidence.
II
Next, defendant contends that the trial court erred when it
failed to inquire during voir dire if the venire members would be
prejudiced by knowledge of defendant's membership in a gang.
Defendant claims that the trial court had a duty to make such an
inquiry sua sponte. The State argues that the court did not
abuse its discretion in the instant case. The contention of the
State is well founded.
Generally, Illinois courts are afforded broad discretion in
determining questions and procedures for voir dire based on the
necessities of each case. People v. Washington, 104 Ill. App. 3d
386, 390, 432 N.E.2d 1020, 1024 (1982). The standard for
determining whether the trial court abused its discretion in this
matter is whether the means employed to test juror impartiality
have created a reasonable assurance that prejudice would be
discovered if present. People v. Lanter, 230 Ill. App. 3d 72, 75,
595 N.E.2d 210, 213 (1992); People v. Bunch, 159 Ill. App. 3d
494, 510, 512 N.E.2d 748, 759 (1987).
In the instant case, the trial court informed both parties
of its procedures for conducting voir dire. The court's voir
dire examination that followed consisted of numerous general
questions regarding the venire members' predispositions toward
fundamental principals of law, burden of proof, the importance of
following instructions and the law, and their ability to render a
fair and impartial verdict. The court also ascertained whether
any venire member had been the victim of a crime, and when
answered affirmatively, the court conducted further questioning
into the nature of those crimes and whether the experiences of
those venire members would affect their ability to be fair. As a
result of voir dire, defendant struck a potential juror based on
her possible prejudice against gang members due to a crime
perpetrated against her brother. In addition, the trial court
excused a venire member who indicated that she had previously
served as a juror in a murder case. At no time did either party
tender further questions for the trial court to include in voir
dire. Moreover, defense counsel failed to make an objection
regarding this issue during voir dire and failed to raise the
issue in defendant's posttrial motion for a new trial.
Nevertheless, defendant cites People v. Jimenez, 284 Ill.
App. 3d 908, 672 N.E.2d 914 (1996), for the proposition that,
during voir dire, a court has an affirmative duty to make an
inquiry to prevent possible jury bias against gang members.
However, we find Jimenez to be inapposite. Jimenez involved the
trial court's refusal to pose questions tendered by defense
counsel. Although the court held that the trial court erred by
failing to question venire members as to possible bias against
gang members, its ruling was based on the fact that the questions
were properly tendered by defense counsel and improperly refused
by the trial court. Jimenez, 284 Ill. App. 3d at 913, 672 N.E.2d
at 917. In our view, the trial court in the case at bar
committed no error. We hold that the trial court had no duty to
make inquiries sua sponte regarding gang bias. See People v.
Porter, 111 Ill. 2d 386, 401-02 (1986) (trial court's failure to
pose voir dire questions regarding racial bias not error since
defense counsel failed to request such questioning); People v.
Diggs, 243 Ill. App. 3d 93, 96, 612 N.E.2d 83, 85 (1993) (trial
court had no duty to question venire sua sponte as to racial
prejudice).
III
Defendant also argues that he was denied his right to a fair
trial by statements made by the prosecutor during closing
argument that were improper, inflammatory, and included evidence
not presented at trial. We disagree.
Generally, the prosecution is given considerable latitude in
closing argument, provided the remarks are based on the evidence
and reasonable inferences therefrom. People v. Cisewski, 118 Ill. 2d 163, 175-76 (1987). Nonetheless, repeated acts of
prosecutorial misconduct during closing argument may warrant a
new trial. People v. Ray, 126 Ill. App. 3d 656, 660-61, 467 N.E.2d 1078, 1081-82 (1984). In reviewing claims of
prosecutorial misconduct, the closing arguments of both parties
must be examined in their entirety with allegedly improper
comments being placed in the proper context. Cisewski, 118 Ill. 2d at 175-76. To constitute reversible error, the complained-of
argument must have resulted in a substantial prejudice to the
defendant, such that, absent those comments, the result would
have been different. Cisewski, 118 Ill. 2d at 175.
Defendant complains of portions of the State's closing
argument in which the prosecutor stated:
"This is a case about good and evil.
***
This is evil. This is Raymond Malone after he
encountered Michael Williams and [Hodby], after they
brutally in cold blood executed him ***.
That's the value they placed on human life ***.
***
***[Y]ou know from what happened out there on
August 28 that we are dealing with evil, wicked,
vicious people, and [Scott Tyler] would have been
remiss if he didn't make sure that his loved ones were
safe before he took that act of courage and came
forward and identified the killers in this case.
***
What your duty in this case is to [sic] decide--to
send a message to the likes of Michael Williams and to
say we are governed by the rule of law. We do believe
in a society where things are decided in courtrooms and
not on the street.
***
[Defendant] didn't do it on LaSalle Street, and he
didn't do it in the suburbs. He did it in Russell
Square Park *** at a party that had a lot of gang
members present, and he did it at a time of night when
the gang members are taking over the street.
And there are nice people in that neighborhood.
*** But those people are under their beds at 1:25 in
the morning.
They're watching for the bullets to come through
the windows because you don't even have to go out on
the street to get shot *** and there's nine hundred
murders in this city every year, and about seven
hundred of them are just like this, and the witnesses
aren't a heck of a lot better than the guys who pull
the triggers."
In our view, the prosecution flirts with error when its
closing arguments depict defendants as being evil persons and
victims as being good persons. Although we disapprove of the
State's characterization of defendant as evil, when examined in
the context of the entire closing arguments, in our view, the
complained-of statements did not constitute reversible error. See
People v. Jackson, 84 Ill. 2d 350, 360 (1981); People v. Burnett,
27 Ill. 2d 510, 517 (1963).
While we also disapprove of the prosecutor's comment to the
jury asking them to send a message, we believe that this comment
was harmless. The prosecutor is allowed considerable latitude in
closing argument so long as his comments are based on evidence or
reasonable inferences, and any improprieties therein do not
warrant reversal unless they are so prejudicial as to constitute
a material factor in the conviction or otherwise deprive
defendant of a fair trial. See People v. Evans, 173 Ill. App. 3d
186, 205, 527 N.E.2d 448, 461 (1988). See also People v. Hope,
116 Ill. 2d 265, 277-78 (1986), and People v. Jackson, 84 Ill. 2d
at 360.
Defendant's additional claim that the State committed error
in commenting that its witness, Scott Tyler, did not come forward
immediately due to defendant's acts of intimidation is without
support. The prosecution stated that Tyler "would have been
remiss if he didn't make sure that his loved ones were safe
before he took that act of courage and came forward." Contrary
to defendant's argument, the prosecution, by this statement, did
not remark that defendant had engaged in any acts of
intimidation.
IV
Lastly, defendant claims that he was denied his right to
effective assistance of counsel. Defendant bases this argument
on the fact that his attorney failed to tender supplemental voir
dire questions and failed to object to the complained-of remarks
by the prosecution during closing argument. The State contends
that defendant fails to satisfy the test for a claim of
ineffectiveness and that defense counsel's failure to object to
the complained-of closing arguments constituted harmless error.
We agree.
Claims of ineffective assistance of counsel are decided in
accordance with the two-part test delineated in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), and adopted by the Illinois Supreme Court in People v.
Albanese, 104 Ill. 2d 504 (1984). Under this test, a defendant
must establish that counsel's representation fell below an
objective standard of reasonableness and that there was a
reasonable probability that, but for the attorney's
unprofessional errors, the result of the trial would have been
different. People v. Whitehead, 169 Ill. 2d 355, 380 (1996),
citing Albanese, 104 Ill. 2d at 525. Illinois courts have noted
that the standard for judging a claim of ineffectiveness must be
whether counsel's conduct so undermined the operation of the
adversarial process that the trial cannot be relied upon as
having achieved justice. Albanese, 104 Ill. 2d at 525, quoting
Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct.
at 2064. A claim of ineffectiveness which arises from a matter
of defense strategy will not support the claim. People v. Orange,
168 Ill. 2d 138, 153 (1995); People v. Flores, 128 Ill. 2d 66,
106 (1989).
In the case at bar, defendant asserts that an attorney's
failure to submit supplemental questions for voir dire can
support a claim of ineffectiveness. As the supreme court
recently held in People v. Lear, 175 Ill. 2d 262, 270 (1997),
however, the issue of tendering supplemental voir dire questions
is a matter within the protected realm of defense strategy.
Although defendant may question the strategic value of deciding
not to tender such questions, we hold that defense counsel's
inaction in this matter fell within the broad range of defense
tactics that Illinois courts have long considered to be an
improper basis for supporting a claim of ineffective assistance
of counsel. People v. Guest, 166 Ill. 2d 381, 394 (1995); Flores,
128 Ill. 2d at 106; People v. Hillenbrand, 121 Ill. 2d 537, 548
(1988) (mistakes in trial strategy or in judgment alone do not
render representation incompetent); People v. Madej, 106 Ill. 2d 201, 214 (1985). Indeed, it is plausible that defense counsel
chose not to tender supplemental questions in order to avoid
having a jury that might place more credence in the State's
occurrence witnesses, as most of them were gang members.
In addition, defendant's claim of ineffectiveness based on
defense counsel's failure to object to the prosecutor's remarks
during closing argument is unpersuasive for reasons previously
stated.
Accordingly, we affirm the decision of the trial court.
Affirmed.
TULLY and RAKOWSKI, JJ., concur.
JUSTICE RAKOWSKI, specially concurring:
I part company with the majority's statement that:
"***[t]he prosecution flirts with error when its
closing arguments depict defendants as being evil
persons and victims as being good persons."
I would think that most reasonable people would agree that
this senseless murder was evil, brutal, and in cold blood as
depicted by the State. Moreover, to call the defendant evil,
wicked, and vicious is completely proper. Webster defines "evil"
as "morally reprehensible"; "sinful [and] wicked"; "arising from
actual or imputed bad character or conduct"; "causing discomfort
or repulsion"; "offensive"; "disagreeable"; "causing harm";
"something that brings sorrow, distress, or calamity". Webster
Collegiate Dictionary 402 (10TH ed. 1995). All of these terms
aptly portray defendant's conduct.
Nor do I find anything improper in the prosecution's charge
to the jury that it is their duty "to send a message to the likes
of Michael Williams and to say that we are governed by the rule
of law."
I agree in all other respects with the majority opinion. I
write separately only to express my opinion that the prosecu-
tion's argument and remarks were completely proper under the
facts of this case.
MARCH 3, 1998
1-96-2496
THE PEOPLE OF THE STATE OF ILLINOIS, ) APPEAL FROM THE
) CIRCUIT COURT OF
Plaintiff-Appellee, ) COOK COUNTY
)
v. ) No. 94-CR-2496
)
MICHAEL WILLIAMS, ) THE HONORABLE
) JOSEPH KAZMIERSKI,
Defendant-Appellant. ) JUDGE PRESIDING.
JUSTICE COUSINS delivered the opinion of the court:
Defendant, Michael Williams, and codefendant, Buford Hodby,
were convicted of first-degree murder in simultaneous jury trials
for the shooting death of a rival gang member. On appeal,
defendant seeks a new trial on the grounds that: (1) the trial
court abused its discretion in denying defendant's motion for a
new trial when newly discovered evidence exculpated defendant and
inculpated two other individuals; (2) the trial court committed
plain error by failing to inquire during voir dire if the
potential jurors would be prejudiced by knowledge that defendant
was a gang member; (3) the State's closing argument was improper,
inflammatory, and included evidence not presented at trial; and
(4) defendant was denied his right to effective assistance of
counsel because his attorney failed to tender questions to the
trial court during voir dire regarding juror bias toward gangs
and failed to object to the State's improper closing argument.
We affirm.
BACKGROUND
On the night of August 27, 1994, into the early morning of
August 28, Turonica Williams (a friend and no relation to
defendant) held a birthday party at her home in Chicago. The
neighborhood surrounding her home is primarily residential and is
recognized as an area in which several gangs are active. The
party was attended almost exclusively by members of neighborhood
gangs, including the Titanic Black P-Stones (TBPS) and its rival
gangs, the Conservative Vice Lords (CVL) and the Renegade Vice
Lords. During the party, a member of TBPS and a member of CVL
bumped into each other inside the house and exchanged words. Two
or more CVL members then left the party, stating something to the
effect, "we'll be back." Shortly thereafter, between two and
four people dressed in black arrived at the area outside the
party and began firing guns. Fifteen-year-old Raymond Malone, an
alleged TBPS member who was sitting on a car with other TBPS
members, was fatally shot. After the shooters fled the scene,
two TBPS members took Malone to a hospital, where he was
pronounced dead as a result of a gunshot wound of the chest.
Williams and Hodby were indicted for Malone's murder, and the
matter proceeded to simultaneous jury trials.
At trial, eight witnesses testified on behalf of the State.
Four of those eight were eyewitnesses to the shooting incident
and three of those four eyewitnesses were members of TBPS. The
first eyewitness to testify was Scott Tyler, who stated that he
attended the birthday party at 1 a.m. on August 28, 1994, along
with his girlfriend, who was Raymond Malone's sister. Tyler
testified that, while standing near the car on which Malone and
others were sitting, he saw four people emerge from a nearby
alley and start shooting. He stated that, although the lighting
was dark, he identified Williams and Hodby as two of the gunmen.
Tyler then stated that the shooters subsequently ran back into
the alley from which they came. He later accompanied others to
the hospital where Malone was taken. At the hospital, he spoke
with police about the incident. He continued to discuss the
matter with police back at the scene of the crime, but he never
identified Williams as a shooter during those conversations with
police. Tyler later identified Williams as one of the shooters
at a police lineup and testified that his initial reservations
were caused by his concern for relatives that lived in the area,
which he feared was plagued by the CVL.
Next, the State called Demetrius Adams, a TBPS member who
also witnessed the shooting. Adams testified that he saw the
bumping incident that occurred indoors between the TBPS and CVL
gang members. He stated that neither Williams nor Hodby was a
party to that altercation. Adams testified that, later that
night, he was with Malone and others near a parked car when
Williams and Hodby came out of the alley and began to shoot at
TBPS members. After the shooting, Adams helped take Malone to
the hospital. Adams remained at the hospital only momentarily,
however, and gathered a small group of people to search for
Williams and Hodby to no avail.
Another TBPS member, Henry Golden, also testified that,
while sitting on the hood of his car with Malone and Adams, he
heard gunshots coming from the nearby alley. He stated that he
saw Williams and Hodby firing at them and pushed Malone down.
When he saw that Malone was shot, he summoned others for
assistance and helped take the victim to the hospital. Golden
testified that, immediately thereafter, he, Adams, and another
TBPS member got their guns and searched for Williams and Hodby.
He stated that the search was made with the intention of killing
Williams and Hodby if they were found.
TBPS member Gregory Spence arrived at the party at
approximately 11:45 p.m. and remained outside due to the
overcrowding indoors. He testified that he witnessed Williams
and Hodby, along with two other males, leave the party. Spence
stated that, approximately 30 minutes later, he heard gunshots
and saw two people firing guns. He testified that he was not
"100% sure" that Williams was a shooter, but he stated that one
shooter had the same height, weight, and clothing as Williams.
Spence later identified Williams as one of the gunmen at a police
lineup.
Diana McGhee, defendant's girlfriend and mother of his
children, was the sole witness called to testify on behalf of
defendant. She testified that, at approximately 11:30 p.m. on
the night of the party, defendant came to her home. She stated
that, at approximately 12:30 a.m., Williams received three to
four telephone calls on his pager and that he returned at least
one of those calls while at her house. McGhee testified that she
did not know with whom Williams spoke on the telephone, and she
said that, following his conversation, Williams proceeded to
leave the house sometime after 1 a.m. She asked him what had
happened, and Williams replied that there had been a shooting.
In January 1996, the jury found Williams guilty of first-
degree murder. Defendant then filed a motion for a new trial
arguing that the State failed in its burden to prove defendant
guilty beyond a reasonable doubt and that newly discovered
evidence warranted a new trial.
In May 1996, the trial court conducted a hearing and heard
argument on Williams' and Hodby's separate posttrial motions.
Defendants presented five witnesses at that hearing.
First, Jerome Hunt, defendant's fellow CVL member, testified
that he had attended the party and witnessed the indoor incident
between his gang and the TBPS. Hunt stated that two unidentified
people left the party, stating that they would "be back." Hunt
also testified that neither defendant was present during that
incident and that he believed that they had left the party before
the two unidentified men stated that they would return. Hunt
stated that, when the shooting began, he was standing in front of
the house from where he saw shots come from the alley. He
testified that he saw one of the shooters turn around and that he
only made out the gunman's shadow as he ran back towards the
alley. Although he was approximately one-quarter of a block away
from the figure he saw, Hunt stated that the gunman was "husky,"
about 190 pounds, and 5 feet 11 inches tall. He testified that
he had known Williams for nearly six years and that he was
positive that Williams was not the same body type as the shooter.
Hunt also testified that he had not come forward sooner for fear
of gang retaliation. On cross-examination, the State questioned
Hunt about a statement in his own affidavit in which he
positively identified two men other than defendants who were
involved in the bumping incident and who left the party promising
to return. Hunt testified that the statement in the affidavit
was not his own and maintained that he could not identify the two
men in that incident.
Next, Turonica Williams, who hosted the party on the night
of the shooting, testified that she observed the bumping incident
in her living room. She stated that defendants were not a part
of that altercation and identified the two individuals involved
as Ed Young of TBPS and "Prune" of CVL. Ms. Williams stated that
it was CVL member Dorian Jefferson who stated, "we'll be back,"
and that he and CVL member Charles McDavid then left the party
together. Ms. Williams also testified that approximately one
hour after the bumping incident, she saw a tall, dark-skinned man
about 6 feet tall and weighing about 185 pounds emerge from a
nearby alley. She stated that this person was about 10 feet from
her at the time and that he was alone. Ms. Williams testified
that the gunman she saw fit Charles McDavid's physical
description and that she was absolutely certain that the shooter
she saw was not defendant. She also stated that, after the
shooting, she received threats and learned that defendant's
brother's house had been burned down. Ms. Williams testified
that she became fearful for her life and moved out of her
neighborhood within weeks. She further testified that it was
this fear that kept her from coming forward with her information
earlier. Prior to her testimony, Ms. Williams did tell the
police that defendant did not commit the shooting and that
McDavid was the gunman.
Defendant's brother, Levelle Williams, who was a top-ranking
member of TBPS, also testified at defendant's posttrial hearing.
He testified that, during defendant's trial, he spoke with Scott
Tyler and fellow TBPS members Henry Golden and Gregory Spence
outside the courtroom and that Golden and Spence discussed how
they planned to testify during the trial. Levelle Williams
stated that Golden admitted that he was uncertain that defendants
committed the shooting but that he wanted to get even with the
CVL.
Next, Lamar Williams testified on behalf of defendant. He
is the brother of defendant and Levelle Williams and testified
that he was not at the party during the shooting but was sitting
on the front porch of his house. He stated that, sometime after
midnight, codefendant and CVL member Hodby came to his house,
followed by TBPS members Henry Golden and Ed Young. Lamar
Williams testified that Young and Golden arrived with news that
one of their friends had been shot and that someone would have to
do the time for it. Lamar Williams further testified that Golden
saw Hodby at Lamar Williams' house at that time but took no
action regarding Hodby. He further explained that the reason why
he failed to reveal this information before the posttrial hearing
was that his house had been burned down and he was concerned
about the well-being of his family. On cross-examination, Lamar
Williams was impeached by his prior inconsistent statement
regarding his whereabouts on the night of the party. In a prior
statement during direct examination, Lamar Williams had stated
that codefendant Hodby had been at his home for approximately 30
minutes when Ed Young and Henry Golden arrived with news that
their friend had been shot. Lamar Williams then testified during
cross-examination that he had visited Turonica Williams' house
but that he returned home to drink with friends before her party
began. He testified that, during a subsequent trip to a store to
get more liquor, a TBPS member jumped on top of his car
exclaiming that someone had been shot.
Finally, Ed Young testified at the hearing that he was a
general in the TBPS and that he was one of the people involved in
the bumping incident. He stated that, at the time of the
altercation with a CVL member, defendants were outside the house.
Young testified that he was in front of the house when gunshots
were fired and that, based on the "stocky" physique of the two
distant figures he observed, neither defendant could have been a
gunman. He admitted, however, that he did not see the shooters'
faces.
At the conclusion of the hearing, the trial court denied
defendant's motion for a new trial based on newly discovered
evidence and thereafter sentenced defendant to 40 years'
imprisonment.
ANALYSIS
I
Defendant first contends that the trial court erred in
denying his motion for a new trial based upon newly discovered
evidence. Defendant argues that the five witnesses who testified
at the posttrial hearing presented evidence that conclusively
exculpates defendant and inculpates other individuals. The
State, however, contends that the new witnesses' testimony was
vague and impeached and could have been discovered prior to trial
by the exercise of due diligence.
In Illinois, newly discovered evidence warrants a new trial
when: (1) it has been discovered since the trial; (2) it is of
such a character that it could not have been discovered prior to
the trial by the exercise of due diligence; (3) it is material to
the issue but not merely cumulative; and (4) it is of such a
conclusive character that it will probably change the result on
retrial. People v. Molstad, 101 Ill. 2d 128, 134 (1984), quoting
People v. Baker, 16 Ill. 2d 364, 374 (1959); People v. Kolb, 273
Ill. App. 3d 485, 489, 653 N.E.2d 39, 41 (1995); People v.
Cunningham, 267 Ill. App. 3d 1009, 1017, 642 N.E.2d 781, 786-87
(1994). Motions for new trial on grounds of newly discovered
evidence are not looked upon favorably by the courts and should
be subject to the closest scrutiny. People v. Cooper, 164 Ill.
App. 3d 734, 741, 518 N.E.2d 260, 265 (1987). Moreover, the
denial of a motion for a new trial based on newly discovered
evidence will not be disturbed on appeal absent an abuse of
discretion. Kolb, 273 Ill. App. 3d at 489, 653 N.E.2d at 41.
In the case sub judice, the trial court's denial of
defendant's motion for a new trial was based on several factors.
The trial court found Jerome Hunt's testimony regarding his
observations and description of the shooters to be incredible and
entirely suspect, as it was based on Hunt's perception of vague
and distant figures. The trial court was even less persuaded by
Turonica Williams' testimony, which the court found to be replete
with contradictions when considered against her previous
statements to police. The trial court made no detailed findings
with respect to the testimony of Levelle Williams. However, the
court did find the testimony of defendant's other brother, Lamar
Williams, to be unbelievable based on his courtroom demeanor,
which the trial court stated included smirking and smiling. The
court also found that the testimony of Ed Young, like that of
nearly all of defendant's witnesses, could have been presented at
trial with the exercise of due diligence. The court was equally
unimpressed by the witnesses' claims that their delay was due to
fear of gang retaliation. The court found that such claims
lacked credibility and that the witnesses were more likely
motivated to testify at that point because defendant had been
found guilty. While the trial court did find that the witnesses'
testimony was material to the critical issue of identification,
it concluded that, based on the foregoing findings and reasons
and the suspicious timing of their testimony, that evidence would
not change the outcome of the trial and was, therefore,
insufficient to justify a new trial based on newly discovered
evidence.
On appeal, defendant nevertheless relies on Molstad and
People v. Villareal, 201 Ill. App. 3d 223, 559 N.E.2d 77 (1990),
to establish that the testimony of the witnesses at his posttrial
hearing should be considered to be newly discovered. In Molstad,
the Illinois Supreme Court granted a new trial based on the newly
discovered evidence of affidavits executed by the codefendants of
the defendant. In that case, following a guilty verdict but
prior to the sentencing of four convicted defendants, defense
counsel offered affidavits of four convicted codefendants and one
acquitted codefendant that stated that the defendant had not been
present at the scene of the crime. The supreme court concluded
that those affidavits would create new issues to be considered by
the trier of fact. Molstad, 101 Ill. 2d at 135. The court
reasoned that the evidence in that case likely would have
produced a different result, because the testimony of the sole
prosecution witness placing the defendant at the scene of the
crime would have to have been weighed against the defendant's own
corroborated alibi testimony as well as the testimony of the five
codefendants. Molstad, 101 Ill. 2d at 135-36. The court further
held that the new affidavits could not have been discovered with
the exercise of due diligence, since "no amount of diligence
could have forced the codefendants to violate their fifth
amendment right to avoid self-incrimination [citation] if the
codefendants did not choose to do so." Molstad, 101 Ill. 2d at
135.
In Villareal, the newly discovered evidence at issue
consisted of the testimony of a firearms expert. At the
defendant's trial for aggravated battery of a police officer, the
officer testified that, during a struggle for his gun, the
officer held the gun's cylinder, causing it to misfire. The
officer believed that this misfiring saved his life, and he
attributed this fortunate malfunction to a dimple mark that he
caused when holding the gun during his struggle with the
defendant. The officer's testimony was the first time that the
misfiring incident had been raised in the case. The firearms
expert later stated, however, that the dimple mark had actually
been caused during the gun's manufacture and could not possibly
have been created in the manner that the officer had testified.
The appellate court in Villareal held that this newly discovered
evidence could not have been revealed prior to trial by due
diligence, since the officer's evidence of misfire had been
introduced for the first time at trial. Villareal, 201 Ill. App.
3d at 230, 559 N.E.2d at 82. The court further held that,
because the State's case rested mainly on the officer's testimony
and the firearms expert's testimony so contradicted the officer's
accounting of events, the new evidence was likely to change the
result of the trial. Villareal, 201 Ill. App. 3d at 229-30, 559 N.E.2d at 81-82.
We believe Molstad and Villareal to be inapposite to the
instant case. In those cases, facts showing that the newly
discovered evidence could not have been previously revealed
through due diligence were more compelling than the facts before
us. We agree with the trial court that the facts belie
defendant's witnesses' initial fears of coming forward. We also
find no error in the trial court's ruling with respect to the
conclusive nature of defendant's witnesses' testimony. We agree
that Jerome Hunt's and Ed Young's testimony that defendant was
not the same body type as the shooters was inconclusive, as their
statements were based on shadows and figures they observed from a
considerable distance, and they were unable to positively
identify any shooter in the incident.
The trial court's finding that the testimony of Turonica
Williams was inconclusive is also supported by the record.
Although she may have rightly concluded that defendant was not
one of the two individuals involved in the bumping incident in
her house during the party, that fact does not exonerate
defendant of the subsequent shooting incident. Significantly,
Turonica Williams' testimony directly contradicted statements she
made to detectives days after the shooting incident.
Furthermore, after she moved from her neighborhood, she was aware
that defendant was in custody on murder charges but never
contacted anyone with the information that she presented at the
posttrial hearing.
We also agree with the trial court that Levelle Williams'
testimony that he observed the State's witnesses coordinating
their testimony during a recess at trial is suspect. The
transcript of the trial proceedings indicates that no such recess
took place on the day that Levelle Williams claims to have been
present in court. Likewise, we find no error with the trial
court's finding that Lamar Williams' testimony lacked
credibility. In light of his statements made during the
posttrial hearing that contradicted his own testimony and
contradicted statements he had made to the police, we agree that
Lamar Williams' testimony was unreliable.
Therefore, in our view, the trial court did not err in
finding that the testimony of the defense witnesses was
inconclusive and impeached and could have been discovered prior
to trial through the exercise of due diligence. Accordingly, we
hold that the trial court did not abuse its discretion by denying
defendant's posttrial motion to grant a new trial based on newly
discovered evidence.
II
Next, defendant contends that the trial court erred when it
failed to inquire during voir dire if the venire members would be
prejudiced by knowledge of defendant's membership in a gang.
Defendant claims that the trial court had a duty to make such an
inquiry sua sponte. The State argues that the court did not
abuse its discretion in the instant case. The contention of the
State is well founded.
Generally, Illinois courts are afforded broad discretion in
determining questions and procedures for voir dire based on the
necessities of each case. People v. Washington, 104 Ill. App. 3d
386, 390, 432 N.E.2d 1020, 1024 (1982). The standard for
determining whether the trial court abused its discretion in this
matter is whether the means employed to test juror impartiality
have created a reasonable assurance that prejudice would be
discovered if present. People v. Lanter, 230 Ill. App. 3d 72, 75,
595 N.E.2d 210, 213 (1992); People v. Bunch, 159 Ill. App. 3d
494, 510, 512 N.E.2d 748, 759 (1987).
In the instant case, the trial court informed both parties
of its procedures for conducting voir dire. The court's voir
dire examination that followed consisted of numerous general
questions regarding the venire members' predispositions toward
fundamental principals of law, burden of proof, the importance of
following instructions and the law, and their ability to render a
fair and impartial verdict. The court also ascertained whether
any venire member had been the victim of a crime, and when
answered affirmatively, the court conducted further questioning
into the nature of those crimes and whether the experiences of
those venire members would affect their ability to be fair. As a
result of voir dire, defendant struck a potential juror based on
her possible prejudice against gang members due to a crime
perpetrated against her brother. In addition, the trial court
excused a venire member who indicated that she had previously
served as a juror in a murder case. At no time did either party
tender further questions for the trial court to include in voir
dire. Moreover, defense counsel failed to make an objection
regarding this issue during voir dire and failed to raise the
issue in defendant's posttrial motion for a new trial.
Nevertheless, defendant cites People v. Jimenez, 284 Ill.
App. 3d 908, 672 N.E.2d 914 (1996), for the proposition that,
during voir dire, a court has an affirmative duty to make an
inquiry to prevent possible jury bias against gang members.
However, we find Jimenez to be inapposite. Jimenez involved the
trial court's refusal to pose questions tendered by defense
counsel. Although the court held that the trial court erred by
failing to question venire members as to possible bias against
gang members, its ruling was based on the fact that the questions
were properly tendered by defense counsel and improperly refused
by the trial court. Jimenez, 284 Ill. App. 3d at 913, 672 N.E.2d
at 917. In our view, the trial court in the case at bar
committed no error. We hold that the trial court had no duty to
make inquiries sua sponte regarding gang bias. See People v.
Porter, 111 Ill. 2d 386, 401-02 (1986) (trial court's failure to
pose voir dire questions regarding racial bias not error since
defense counsel failed to request such questioning); People v.
Diggs, 243 Ill. App. 3d 93, 96, 612 N.E.2d 83, 85 (1993) (trial
court had no duty to question venire sua sponte as to racial
prejudice).
III
Defendant also argues that he was denied his right to a fair
trial by statements made by the prosecutor during closing
argument that were improper, inflammatory, and included evidence
not presented at trial. We disagree.
Generally, the prosecution is given considerable latitude in
closing argument, provided the remarks are based on the evidence
and reasonable inferences therefrom. People v. Cisewski, 118 Ill. 2d 163, 175-76 (1987). Nonetheless, repeated acts of
prosecutorial misconduct during closing argument may warrant a
new trial. People v. Ray, 126 Ill. App. 3d 656, 660-61, 467 N.E.2d 1078, 1081-82 (1984). In reviewing claims of
prosecutorial misconduct, the closing arguments of both parties
must be examined in their entirety with allegedly improper
comments being placed in the proper context. Cisewski, 118 Ill. 2d at 175-76. To constitute reversible error, the complained-of
argument must have resulted in a substantial prejudice to the
defendant, such that, absent those comments, the result would
have been different. Cisewski, 118 Ill. 2d at 175.
Defendant complains of portions of the State's closing
argument in which the prosecutor stated:
"This is a case about good and evil.
***
This is evil. This is Raymond Malone after he
encountered Michael Williams and [Hodby], after they
brutally in cold blood executed him ***.
That's the value they placed on human life ***.
***
***[Y]ou know from what happened out there on
August 28 that we are dealing with evil, wicked,
vicious people, and [Scott Tyler] would have been
remiss if he didn't make sure that his loved ones were
safe before he took that act of courage and came
forward and identified the killers in this case.
***
What your duty in this case is to [sic] decide--to
send a message to the likes of Michael Williams and to
say we are governed by the rule of law. We do believe
in a society where things are decided in courtrooms and
not on the street.
***
[Defendant] didn't do it on LaSalle Street, and he
didn't do it in the suburbs. He did it in Russell
Square Park *** at a party that had a lot of gang
members present, and he did it at a time of night when
the gang members are taking over the street.
And there are nice people in that neighborhood.
*** But those people are under their beds at 1:25 in
the morning.
They're watching for the bullets to come through
the windows because you don't even have to go out on
the street to get shot *** and there's nine hundred
murders in this city every year, and about seven
hundred of them are just like this, and the witnesses
aren't a heck of a lot better than the guys who pull
the triggers."
In our view, the prosecution flirts with error when its
closing arguments depict defendants as being evil persons and
victims as being good persons. Although we disapprove of the
State's characterization of defendant as evil, when examined in
the context of the entire closing arguments, in our view, the
complained-of statements did not constitute reversible error. See
People v. Jackson, 84 Ill. 2d 350, 360 (1981); People v. Burnett,
27 Ill. 2d 510, 517 (1963).
While we also disapprove of the prosecutor's comment to the
jury asking them to send a message, we believe that this comment
was harmless. The prosecutor is allowed considerable latitude in
closing argument so long as his comments are based on evidence or
reasonable inferences, and any improprieties therein do not
warrant reversal unless they are so prejudicial as to constitute
a material factor in the conviction or otherwise deprive
defendant of a fair trial. See People v. Evans, 173 Ill. App. 3d
186, 205, 527 N.E.2d 448, 461 (1988). See also People v. Hope,
116 Ill. 2d 265, 277-78 (1986), and People v. Jackson, 84 Ill. 2d
at 360.
Defendant's additional claim that the State committed error
in commenting that its witness, Scott Tyler, did not come forward
immediately due to defendant's acts of intimidation is without
support. The prosecution stated that Tyler "would have been
remiss if he didn't make sure that his loved ones were safe
before he took that act of courage and came forward." Contrary
to defendant's argument, the prosecution, by this statement, did
not remark that defendant had engaged in any acts of
intimidation.
IV
Lastly, defendant claims that he was denied his right to
effective assistance of counsel. Defendant bases this argument
on the fact that his attorney failed to tender supplemental voir
dire questions and failed to object to the complained-of remarks
by the prosecution during closing argument. The State contends
that defendant fails to satisfy the test for a claim of
ineffectiveness and that defense counsel's failure to object to
the complained-of closing arguments constituted harmless error.
We agree.
Claims of ineffective assistance of counsel are decided in
accordance with the two-part test delineated in Strickland v.
Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052
(1984), and adopted by the Illinois Supreme Court in People v.
Albanese, 104 Ill. 2d 504 (1984). Under this test, a defendant
must establish that counsel's representation fell below an
objective standard of reasonableness and that there was a
reasonable probability that, but for the attorney's
unprofessional errors, the result of the trial would have been
different. People v. Whitehead, 169 Ill. 2d 355, 380 (1996),
citing Albanese, 104 Ill. 2d at 525. Illinois courts have noted
that the standard for judging a claim of ineffectiveness must be
whether counsel's conduct so undermined the operation of the
adversarial process that the trial cannot be relied upon as
having achieved justice. Albanese, 104 Ill. 2d at 525, quoting
Strickland, 466 U.S. at 686, 80 L. Ed. 2d at 692-93, 104 S. Ct.
at 2064. A claim of ineffectiveness which arises from a matter
of defense strategy will not support the claim. People v. Orange,
168 Ill. 2d 138, 153 (1995); People v. Flores, 128 Ill. 2d 66,
106 (1989).
In the case at bar, defendant asserts that an attorney's
failure to submit supplemental questions for voir dire can
support a claim of ineffectiveness. As the supreme court
recently held in People v. Lear, 175 Ill. 2d 262, 270 (1997),
however, the issue of tendering supplemental voir dire questions
is a matter within the protected realm of defense strategy.
Although defendant may question the strategic value of deciding
not to tender such questions, we hold that defense counsel's
inaction in this matter fell within the broad range of defense
tactics that Illinois courts have long considered to be an
improper basis for supporting a claim of ineffective assistance
of counsel. People v. Guest, 166 Ill. 2d 381, 394 (1995); Flores,
128 Ill. 2d at 106; People v. Hillenbrand, 121 Ill. 2d 537, 548
(1988) (mistakes in trial strategy or in judgment alone do not
render representation incompetent); People v. Madej, 106 Ill. 2d 201, 214 (1985). Indeed, it is plausible that defense counsel
chose not to tender supplemental questions in order to avoid
having a jury that might place more credence in the State's
occurrence witnesses, as most of them were gang members.
In addition, defendant's claim of ineffectiveness based on
defense counsel's failure to object to the prosecutor's remarks
during closing argument is unpersuasive for reasons previously
stated.
Accordingly, we affirm the decision of the trial court.
Affirmed.
TULLY and RAKOWSKI, JJ., concur.
JUSTICE RAKOWSKI, specially concurring:
I part company with the majority's statement that:
"***[t]he prosecution flirts with error when its
closing arguments depict defendants as being evil
persons and victims as being good persons."
I would think that most reasonable people would agree that
this senseless murder was evil, brutal, and in cold blood as
depicted by the State. Moreover, to call the defendant evil,
wicked, and vicious is completely proper. Webster defines "evil"
as "morally reprehensible"; "sinful [and] wicked"; "arising from
actual or imputed bad character or conduct"; "causing discomfort
or repulsion"; "offensive"; "disagreeable"; "causing harm";
"something that brings sorrow, distress, or calamity". Webster
Collegiate Dictionary 402 (10TH ed. 1995). All of these terms
aptly portray defendant's conduct.
Nor do I find anything improper in the prosecution's charge
to the jury that it is their duty "to send a message to the likes
of Michael Williams and to say that we are governed by the rule
of law."
I agree in all other respects with the majority opinion. I
write separately only to express my opinion that the prosecu-
tion's argument and remarks were completely proper under the
facts of this case.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
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