People v. Love

Opinion

FIRST DIVISION November 5, 2007

No. 1-06-0446

THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the ) Circuit Court of Plaintiff-Appellee, ) Cook County. ) v. ) ) RODNEY LOVE, ) Honorable ) Marjorie C. Laws, Defendant-Appellant. ) Judge Presiding.

JUSTICE WOLFSON delivered the opinion of the court:

Following a jury trial, defendant Rodney Love was found

guilty of first degree murder and sentenced to a 30-year prison

term. Defendant’s sentence was enhanced an additional 25 years

because a firearm was used to commit the offense. On appeal,

defendant contends: (1) he received ineffective assistance of

trial counsel; (2) he was prejudiced by the prosecutor’s improper

comments; (3) the trial court erred in allowing the State to

present evidence of “Major Case” prints, which created an

inference of significant criminal history; and (4) the trial

court coerced the jury into reaching a verdict. We affirm the

defendant’s conviction and sentence.

FACTS

On August 28, 2002, Lyphus Pouncy stopped his car at a

traffic light at 51st Street and Morgan. A male rode a bicycle

up to the passenger side window and fired two shots into the car, 1-06-0446

killing Pouncy.

On September 7, 2002, Chicago Police Officers Lori Bechina

and Carolyn Keating were conducting on-street interviews

regarding several murders in the area when they saw defendant

remove a black object from his waistband, drop it to the ground,

and run. Officer Bechina chased after him. When Officer Keating

went to where defendant had been standing, she recovered a .45

caliber semi-automatic handgun. After chasing defendant to his

grandmother’s house, Officer Bechina placed him in custody. The

officers recovered a clear plastic sandwich baggie from

defendant’s pocket. The bag held 20 small knotted packets, each

containing a white rock-like substance. The handgun recovered by

Officer Keating was determined to have been used in the victim’s

shooting.

Chris Young, the victim’s cousin, testified at trial that he

could see the 51st Street and Morgan intersection from his third

floor apartment window. At around 3:15 p.m., he was looking out

the window when he saw the victim drive up to the traffic light

in a green car. Young saw a dark-skinned male with braided hair

ride a girl’s bicycle towards the passenger side of the victim’s

car. Young had never seen the person before. Although Young had

an unobstructed view of the person’s face, he could not tell the

person’s height or weight. Young saw the male on the bike pull a

gun from his waistband and fire two shots at the victim. Young

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identified defendant in a lineup as the person who shot the

victim. Young also identified defendant at trial. Young

identified a girl’s bike in a photograph as similar to the bike

he saw defendant riding during the shooting. Young admitted he

saw the bike in the photograph at the police station on the day

he participated in the lineup. The photograph, which was

admitted as People’s Exhibit 18, depicts a purple girl’s bicycle

with white tires. Young was on house arrest for a weapon charge

when he witnessed the murder. Young admitted defendant was the

only individual in the lineup with braided hair.

Ronald Neal, a friend of the defendant, testified he and

defendant sold drugs out of the defendant’s grandmother’s house

on West 51st Street. Defendant was a member of the Black P Stone

gang, which was feuding with the Bar None Stones. In July 2002,

a Bar None gang member shot defendant’s cousin in the foot.

Defendant pointed out the victim to Nash once or twice after his

cousin's shooting, saying “stay away from the Bar Nones.” Neal

said he did not know the victim; however, on cross-examination he

admitted serving time with the victim in the juvenile department

of corrections.

On August 28, 2002, Neal, defendant, and Derek Nash were

hanging out at the defendant’s grandmother’s house playing video

games and selling drugs. Nash, who was the defendant’s cousin,

was dark-skinned and had braided hair. At around 3:15 p.m.,

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defendant told Neal he was leaving to buy drugs. He left the

house on a purple girl’s bicycle with white tires while wearing a

white t-shirt, blue jean shorts, and his hair in braids. Neal

saw the defendant tuck a .45 caliber handgun into his waistband.

A few minutes later Neal heard two gunshots. Defendant returned

a few minutes later sweating and shaking. He brought the bike

into the house. Defendant told Neal he shot the victim. When

Neal said he did not know who defendant meant, defendant said

“the guy in the green car.” Nash was shot and killed later that

evening. Neal identified the bike depicted in People’s Exhibit

18 as the bike he saw defendant riding on August 28.

Forensic scientist Kent Murray testified that he compared

the recovered handgun with two shell casings recovered from the

street where the shooting occurred. He concluded the shells were

fired from the same gun. He could not determine whether the

bullet recovered from the door of the victim’s car had been fired

from defendant’s gun. A bullet core recovered from the victim’s

body was not suitable for comparison.

Defendant denied killing the victim. He testified that on

August 28, 2002, he was at home all day with his grandmother, his

father, his infant daughter, his infant daughter’s mother, and a

friend named Stephanie. Defendant said Nash and Neal came to his

house around 2 p.m. After defendant gave them money to buy

drugs, Neal and Nash left together. Neal came back alone a few

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moments after defendant heard gunshots. Neal told defendant Nash

had shot someone. According to defendant, Nash told him he shot

the victim. Defendant did not go to the police because Nash was

shot and killed later that night.

Defendant testified the handgun recovered by the police

belonged to Neal. According to defendant, he was trying to buy

the handgun from Neal when the police arrived. When Neal saw the

police officers, he placed the gun between defendant’s legs and

let it fall to the ground. Defendant ran because he was afraid

of getting caught with drugs.

The jury found defendant guilty of first degree murder. The

jury also found defendant personally discharged the firearm that

caused the victim’s death. Following a sentencing hearing, the

trial court sentenced defendant to a 30-year prison term for

first degree murder. Defendant was sentenced to an additional

25-year prison term pursuant to the sentencing enhancement.

Defendant appeals.

DECISION

I. Ineffective Assistance

A defendant’s claim for ineffective assistance of counsel

has two components:

"First, the defendant must show that

counsel’s performance was deficient. This

requires showing that counsel made errors so

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serious that counsel was not functioning as

the ‘counsel’ guaranteed the defendant by the

Sixth Amendment. Second, the defendant must

show that the deficient performance

prejudiced the defense. This requires

showing that counsel’s errors were so serious

as to deprive the defendant of a fair trial,

a trial whose result is reliable."

Strickland v. Washington, 466 U.S. 668, 687,

80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984).

A finding that one component has not been satisfied is fatal

to defendant’s claim as a whole. Strickland, 466 U.S. at 687, 80

L. Ed. 2d at 693, 104 S. Ct. at 2064. We first address the

prejudice prong. The defendant must show there is a reasonable

probability, that is "a probability sufficient to undermine

confidence in the outcome," (Strickland, 466 U.S. at 693-94, 80

L. Ed. 2d at 698, 104 S. Ct. at 2068), that the result of the

proceeding would have been different, but for defense counsel’s

errors. People v. Stewart, 141 Ill. 2d 107, 118-19, 565 N.E.2d

968 (1990). To prevail on an ineffectiveness claim for failure

to file a motion to suppress, "defendant bears the burden of

showing that the motion would have been granted and that the

trial outcome would have been different if the evidence had been

suppressed." People v. Kelley, 304 Ill. App. 3d 628, 636, 710

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N.E.2d 163 (1999). Providing effective legal assistance does not

require defense counsel to make losing motions. Kelley, 304 Ill.

App. 3d at 636.

In a motion to suppress identification testimony, the

defendant bears the burden of proving a pretrial identification

was impermissibly suggestive. People v. Enis, 163 Ill. 2d 367,

398, 645 N.E.2d 856 (1994). "Only where a pretrial encounter

resulting in an identification is ‘unnecessarily suggestive’ or

‘impermissibly suggestive’ so as to produce ‘a very substantial

likelihood of irreparable misidentification’ is evidence of that

and any subsequent identification excluded by law under the due

process clause of the 14th amendment." People v. Moore, 266 Ill.

App. 3d 791, 796-97, 640 N.E.2d 1256 (1994), citing Neil v.

Biggers, 409 U.S. 188, 196-97, 34 L. Ed. 2d 401, 93 S. Ct. 375

(1972). Participants in a lineup are not required to be

physically identical. People v. Saunders, 220 Ill. App. 3d 647,

666, 580 N.E.2d 1246 (1991).

Illinois courts have consistently held a lineup is not

impermissibly suggestive simply because the defendant was the

only person in the lineup with braided hair.

In People v. Trass, 136 Ill. App. 3d 455, 483 N.E.2d 567

(1985), the defendant argued he was not proved guilty beyond a

reasonable doubt because the lineup was impermissibly suggestive.

Defendant was the only person in the lineup with braided hair.

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The court found the lineup was not impermissibly suggestive

because the police did not force the defendant to wear his hair

in braids, and the braided hair was not such a distinguishing

characteristic as to make the lineup "grossly suggestive."

Trass, 136 Ill. App. 3d at 463.

In People v. Washington, 182 Ill. App. 3d 168, 175, 537

N.E.2d 1354 (1989), the court upheld the denial of defendant’s

motion to suppress where defendant was the only person in the

lineup with braided hair. The court noted the police did not

force the defendant to wear his hair in braids, and the witnesses

provided accurate descriptions of the defendant beyond his hair.

Washington, 182 Ill. App. 3d at 175. One witness correctly

described the defendant’s height and weight, while another

accurately described defendant’s facial hair. Washington, 182

Ill. App. 3d at 175.

In People v. Hartzol, 222 Ill. App. 3d 631, 642-43, 584

N.E.2d 291 (1991), the court applied the point from Trass and

Washington to say that where the "defendant is not forced to wear

his hair in braids and there are no other significant physical or

racial differences among the participants," the lineup is not

impermissibly suggestive. The court noted defendant’s argument

was especially weak because the witnesses testified the

defendant’s braids were styled differently in the lineup than

they were at the time of the crime. Hartzol, 222 Ill. App. 3d at

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643. The court upheld the trial court’s denial of defendant’s

motion to suppress. Hartzol, 222 Ill. App. 3d at 642-43.

Here, defendant’s lineup is somewhat different from the

lineups in the cases because in Washington and Hartzol the

witnesses provided a description of the criminal that was more

complete and detailed than Young’s. Nevertheless, it is not

reasonably probable that a court would find defendant’s lineup

impermissibly suggestive based on defendant’s hair.

Here, the facts indicate there was not a "substantial

likelihood of irreparable misidentification." There is no

evidence defendant was forced to wear braids at the lineup. All

the participants in the lineup shared a similar skin tone and

wore neutral clothing. Defendant does not claim any significant

physical or racial differences existed, beyond his braided hair.

Additionally, Young was able to see the criminal’s face at the

time of the crime; his identification of the defendant was not

based solely on defendant’s hair.

We have carefully reviewed the photographs of the lineup in

question. We find no evidence of an attempt to focus the

witness’s attention on the defendant. We also note defense

counsel made strategic use of the fact the defendant was the only

one in the lineup with braids. Counsel used it to make the claim

that Nash, not the defendant, was the shooter, since the evidence

showed Nash also was dark-skinned and wore braids. The strategy

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was unsuccessful, but it was sound.

We find the lineup was not impermissibly suggestive. There

is no need to inquire into the admissibility of the in-court

identification of the defendant by Young.

II. Prosecutorial Misconduct

Defendant contends the prosecutor made several improper

comments during rebuttal closing arguments, including shifting

the burden of proof, minimizing the burden of proof, improperly

bolstering the credibility of the forensic witness, arguing

defense counsel tried to mislead the jury, and arguing

defendant’s “flight” during his arrest could be considered

consciousness of guilt. Defendant also contends the prosecution

made an improper comment regarding other crimes evidence during

his cross-examination.

Initially, the State contends any objection to the

prosecutor’s statements during closing argument and cross-

examination was forfeited due to defendant’s failure to properly

raise the issues in his post-trial motion.

“To preserve claimed improper statements during closing

argument for review, a defendant must object to the offending

statements both at trial and in a written post-trial motion.”

People v. Wheeler, 226 Ill. 2d 92, 122, 871 N.E.2d 728 (2007),

citing People v. Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124

(1988). After reviewing defendant’s post-trial motion, we find

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defendant failed to properly preserve several of the

prosecutorial misconduct issues he raises on appeal. Contrary to

the State’s contention, however, we find defendant properly

preserved two of his prosecutorial misconduct issues--whether

defense counsel was accused of trying to mislead the jury and

whether the prosecution made an improper comment regarding other

crimes evidence during his cross-examination.

Defendant contends we should review all of the prosecutorial

misconduct issues under the plain-error doctrine. The plain-

error doctrine allows us to address an unpreserved error when

“either (1) the evidence was closely balanced, regardless of the

seriousness of the error, or (2) the error is serious, regardless

of the closeness of the evidence.” People v. Herron, 215 Ill.

2d 167, 178, 830 N.E.2d 467 (2005). Defendant contends both

theories are applicable here. We disagree.

Here, Young identified defendant as the shooter in a lineup

and at trial. Officer Keating testified she recovered a handgun

defendant dropped to the ground before running from the police;

the gun later was identified as the murder weapon. Neal

testified defendant told him he shot the victim. We find the

evidence was not closely balanced in this case. We also find the

alleged instances of prosecutorial misconduct were not so serious

that they denied defendant a fair trial. We therefore focus our

attention on the statements properly preserved for appeal. See

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Wheeler, 226 Ill. 2d at 122.

Prosecutors are afforded wide latitude in closing argument.

Wheeler, 226 Ill. 2d at 123. “The trial court’s determination

that closing arguments were proper will be upheld absent an abuse

of discretion.” People v. Williams, 228 Ill. App. 3d 981, 997,

593 N.E.2d 968 (1992). Prosecutorial misconduct warrants

reversal only if it “caused substantial prejudice to the

defendant, taking into account the content and context of the

comments, its relationship to the evidence, and its effect on the

defendant’s right to a fair and impartial trial.” People v.

Johnson, 208 Ill. 2d 53, 115, 803 N.E.2d 405 (2004). A

prosecutor’s comments during rebuttal argument will not be deemed

improper, however, if they were invited by defense counsel’s

closing argument. People v. Bakr, 373 Ill. App. 3d 981, 990, 869

N.E.2d 1010 (2007); People v. Watson, 342 Ill. App. 3d 1089,

1093, 796 N.E.2d 1087 (2003).

A. Defense Counsel Tried to Mislead the Jury

Defendant contends the prosecutor improperly accused defense

counsel during rebuttal argument of acting “ridiculous” and

focusing on “nonsense” instead of facts or evidence. Defendant

also contends the prosecutor’s comment that “[the defense]

want[s] to distract you” improperly suggested defense counsel was

trying to free his client through deception and trickery.

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“Unless predicated on evidence that defense counsel behaved

unethically, it is improper for a prosecutor to accuse defense

counsel of attempting to create reasonable doubt by confusion,

misrepresentation, or deception.” People v. Johnson, 208 Ill. 2d

53, 82, 803 N.E.2d 405 (2003). However, “a prosecutor may

comment on the persuasiveness of the defense theory of the case

as well as any supporting evidence and reasonable inferences

drawn therefrom.” People v. Abadia, 328 Ill. App. 3d 669, 678,

767 N.E.2d 341 (2001). “[W]here the complained-of remarks are in

response to opposing counsel’s own statements contradicting the

credibility of a witness, there is no prejudicial error.” People

v. Carson, 238 Ill. App. 3d 457, 468, 606 N.E.2d 363 (1992).

We find the prosecutor’s comments were invited by defense

counsel’s closing argument. Each of the challenged comments

directly responded to defense counsel’s attempts to impeach

certain witnesses or comment on the persuasiveness of the defense

theory of the case. Accordingly, we find the prosecutor’s

challenged comments were not improper. See Watson, 342 Ill. App.

3d at 1093.

B. Other Crimes Evidence

Defendant contends the prosecutor insinuated uncharged other

crimes evidence during the defendant’s cross-examination when he

questioned defendant regarding whether he had talked with his

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father about the content of his father’s testimony prior to

testifying. Although defendant recognizes an objection to the

question was sustained, he contends the State erred by making no

effort to perfect the impeachment or demonstrate a crime

occurred.

After the trial court sustained the objection and instructed

the jury to disregard the question, the State was precluded from

pursuing the line of impeachment any further. In light of the

trial court’s ruling and instruction to the jury, we find the

defendant was not harmed by the alleged error.

III. Major Case Prints

Defendant contends the evidence of "major case prints" was

prejudicial because it implied he had an extensive criminal

background and a propensity to commit serious crimes. Evidence

of other crimes for which a defendant is not on trial is

inadmissible if its only relevance is to show the defendant’s

propensity to commit crime. People v. Jackson, 372 Ill. App. 3d

112, 121, 865 N.E.2d 195 (2007). It tends to overpersuade the

jury, which might convict the defendant because it thinks

defendant is a bad person deserving of punishment. Jackson, 372

Ill. App. 3d at 121.

Defendant has forfeited this issue by failing to object to

the evidence at trial and failing to include the issue in his

post-trial motion. People v. Enoch, 122 Ill. 2d 176, 186-87, 522

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N.E.2d 1124 (1988). Even if the issue were not forfeited, we

would disagree with defendant’s characterization of the evidence

as inadmissible "other crimes" evidence.

Forensic scientist and latent print examiner Christi Fischer

testified she received ten latent print lifts and eight major

case print cards marked with defendant’s name. She compared six

of the latent fingerprint impressions to the inked major case

print cards and concluded the prints did not match. Fingerprint

technician Stanley Mocadlo testified he received an order for

major case prints of defendant. He explained major case prints

"entail not only taking a set of fingerprints by rolling a

person’s fingers in ink and then on a contrasting card. But also

entails taking the tips, the sides of the fingers, and the joint

in the fingers and also the palm." Mocadlo said once the prints

were completed, they were taken to the lab.

Defendant says the evidence of eight major case print cards

implied defendant’s involvement in seven previous major cases.

There was no testimony the term "major case prints" referred

to the severity of any prior criminal convictions. Additionally,

the testimony referred to eight "cards," not eight "cases." The

fair inference from Mocadlo’s testimony is that the eight cards

were from the current case. There was no fingerprint match. The

State introduced into evidence his two prior criminal

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convictions. We conclude there was no error in the court’s

allowance of the testimony concerning defendant’s major case

prints.

IV. Coercion of Minority Jurors

Defendant contends the trial court misled and coerced the

minority jurors into reaching a verdict when it responded, "keep

deliberating" to the jury’s notes. The jury retired to

deliberate at 1:30 p.m. on Monday, November 7, 2005. At 2:15

p.m., the jury sent the judge a note with three questions: (1)

"May we see the copy of Officer Keating and Bechina’s arresting

report 9-7-02? (2) Was the gun ever dusted for prints after

arrest on 9-7-02? (3) Was the bike dusted for prints? When and

where was the bike recovered?" After discussion with the

parties, the court responded at 2:41 p.m., "You have all of the

evidence as to these questions. Please continue with your

deliberations." At 3:32, the jury sent a note requesting the

transcript from the court reporter. The court asked the jury to

clarify which transcript. The jury asked for Young’s and Neal’s

testimony. The transcripts were tendered at 3:47 p.m. At 5:05

p.m., the jury sent two notes to the judge stating, "If all the

people do not feel the same, what happen [sic]," and "We have 3

Not guilty and the rest guilty." Defense counsel suggested the

court respond that the jury is hung. Counsel then agreed to the

response, "keep deliberating." The court answered both questions

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at 5:22 p.m.: "Keep deliberating." At 5:50 p.m., the jury

requested to see "all the defense evidence." The court responded

at 6:30 p.m.: "You have received the evidence. Continue to

deliberate." The defense made a motion for a hung jury. The

court denied the motion. The jury returned its verdict at 7:20

p.m.

Defendant contends the responses, "keep deliberating," to

the jury’s notes sent at 5:05 p.m. were particularly coercive

because the judge knew one of the jurors was scheduled for

surgery the following day and would be unable to continue the

deliberations.

During voir dire, juror Denise Engler informed the court she

had surgery scheduled for Tuesday, November 8, 2005. The jury

began deliberations at 1:30 p.m. on Monday, November 7, 2005, and

reached its verdict at 7:20 p.m.

Defense counsel agreed to respond "keep deliberating" to

both notes. Where a defendant acquiesces in a trial court’s

answer to a jury’s question, he cannot later complain that the

trial court abused its discretion. People v. Reid, 136 Ill. 2d

27, 38, 554 N.E.2d 174 (1990); People v. Sutton, 252 Ill. App. 3d

172, 182, 624 N.E.2d 1189 (1993). Defense counsel also agreed to

allow the juror who was scheduled for surgery to remain on the

jury and did not object to dismissal of the alternate. We do not

know where she stood at the time the jury sent out its notes.

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We see no error in the trial court’s response to the jury’s

notes. A trial court may not "hasten" a verdict by giving an

instruction intended to coerce jurors into surrendering their

views. People v. Boyd, 366 Ill. App. 3d 84, 851 N.E.2d 827

(2006); People v. Gregory, 184 Ill. App. 3d 676, 680-81, 540

N.E.2d 854 (1989). "A court’s instruction to a jury to continue

deliberating should be simple, neutral, and not coercive" and

should avoid implying that the majority view is the correct one.

Gregory, 184 Ill. App. 3d at 681. "[T]he test is whether, upon

examination of the totality of circumstances, the language used

actually coerced or interfered with the deliberations of the jury

to the prejudice of the defendant." People v. Branch, 123 Ill.

App. 3d 245, 462 N.E.2d 868 (1984).

Defendant also contends the trial court should have

instructed the jury consistent with the suggested instruction in

People v. Prim, 53 Ill. 2d 62, 75-76, 289 N.E.2d 601 (1972):

"Your verdict must be unanimous. It is your

duty, as jurors, to consult with one another

and to deliberate with a view to reaching an

agreement, if you can do so without violence

to individual judgment*** In the course of

your deliberations, do not hesitate to

reexamine your own views and change your

opinion if convinced it is erroneous. But do

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not surrender your honest conviction as to

the weight or effect of evidence solely

because of the opinion of your fellow jurors,

or for the mere purpose of returning a

verdict***"

The mere failure to give a Prim instruction is not

reversible error. Gregory, 184 Ill. App. 3d at 681. The aim of

the suggested instruction in Prim was to avoid instructing jurors

to "heed the majority" as a means of securing a verdict.

Gregory, 184 Ill. App. 3d at 681. The trial judge’s instruction

to "keep deliberating" was simple, neutral, and non-coercive. It

did not imply to minority jurors that the majority view was the

correct one. There was no error in the judge’s instruction or in

the failure to give a Prim instruction. We note defense counsel

did not ask for a Prim instruction.

Citing People v. Santiago, 108 Ill. App. 3d 787, 439 N.E.2d

984 (1982), defendant contends the court’s instruction was

particularly coercive where the jury volunteered the number of

jurors favoring conviction and acquittal. In Santiago, the trial

court repeatedly called the jury into open court and asked the

numerical division of the jury, then ordered the jury to continue

deliberations. Here, the jury volunteered the information a

single time, and the court responded, "keep deliberating."

The defendant contends the court abused its discretion in

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failing to answer the jury’s question, "If all the people do not

feel the same, What happen [sic]." The trial court has a duty to

provide instruction to the jury where it has posed an explicit

question or requested clarification on a point of law arising

from facts about which there is doubt or confusion. People v.

Childs, 159 Ill. 2d 217, 228-29, 636 N.E.2d 534 (1994). A trial

court may exercise its discretion and properly decline to answer

a jury’s inquiries where the instructions are readily

understandable and sufficiently explain the relevant law; where

further instructions would serve no useful purpose or would

potentially mislead the jury; when the jury’s inquiry involves a

question of fact; or if providing an answer would cause the court

to express an opinion likely to direct a verdict. People v.

Pulliam, 176 Ill. 2d 261, 285, 680 N.E.2d 343 (1997).

The jury was instructed: "Your agreement on a verdict must

be unanimous." We believe the instruction sufficiently explained

the relevant law. Defendant has not shown he was prejudiced by

the trial court’s failure to explicitly answer the jury’s

question. See Pulliam, 176 Ill. 2d at 284-85 (no error in

court’s response, "You have your instructions. Keep deliberating"

in response to jury’s question, "What happens if we cannot reach

a unanimous decision?")

CONCLUSION

We affirm the defendant’s conviction and sentence.

Affirmed.

GARCIA, and R. GORDON, JJ., concur.

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