People v. Aliwoli, 1-89-1052

Citation606 N.E.2d 347,179 Ill.Dec. 515,238 Ill.App.3d 602
Decision Date12 November 1992
Docket NumberNo. 1-89-1052,1-89-1052
Parties, 179 Ill.Dec. 515, 61 USLW 2375 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jamaljah ALIWOLI, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Jack O'Malley, State's Atty. of Cook County, Richard J. Daley Center, Chicago (Renee Goldfarb, David Stabrawa, of counsel), for plaintiff-appellee.

Rita A. Fry, Public Defender of Cook County, Chicago (Lisa S. Ottenfeld, of counsel), for defendant-appellant.

Presiding Justice GREIMAN delivered the opinion of the court:

Jamaljah Aliwoli was found guilty but mentally ill on three counts of attempted first degree murder in the shooting of three Chicago police officers. He was sentenced to 60 years, 30 years and 30 years to run consecutively.

Defendant argues that the trial court erred: (1) in allowing the prosecutor to incorrectly state the law, introduce inadmissible evidence, make personal attacks on the defendant and defense counsel, and incite the jury's passion with religious and racial prejudice; (2) in rejecting defendant's tendered instructions which states the consequences of a not guilty by reason of insanity (NGRI) verdict and included the offense of attempted second degree murder; (3) in allowing the jury to hear the "911" tape without proper foundation where the tape was partially unintelligible and the contents were irrelevant and inflammatory; and (4) in abusing its discretion in sentencing defendant to 120 years in prison.

On March 29, 1988, defendant was arrested in connection with the shooting of Chicago Police Officers Daniel Duffy, Gregory Matura and Dennis Mertz. On that day, Officers Duffy and Matura were in their marked squad car when Duffy observed a taxi pass a stopped school bus that had its red lights on and its stop sign extended. When the officers attempted to curb the driver, defendant Jamaljah Aliwoli, he initially refused to stop but finally pulled over after two blocks.

Upon Officer Duffy's request, defendant exited the cab and stood behind it to stay out of the way of traffic. Officer Duffy informed the defendant that he had been stopped for unlawfully passing a school bus and asked to see defendant's driver's license. Defendant then reached into his jacket in a manner that led both officers to believe he was drawing a weapon from a shoulder holster. The officers drew their guns, ordered defendant to remove his hand from his coat and he complied. As Officer Duffy began a body search, defendant yanked his right arm away, pushed Duffy and then began punching Officer Matura in the head. Officer Duffy grabbed defendant from behind and directed Officer Matura to call for assistance.

As Officer Matura called for help, he saw the defendant withdraw a chrome-plated revolver from a shoulder holster he wore underneath his jacket. Officer Matura then attempted to restrain defendant and retrieve defendant's gun while Officer Duffy still held defendant from behind. Defendant shot Officer Matura and the bullet passed through the officer's hand. Defendant then lifted Duffy off his feet and Duffy saw that defendant still had a gun pointed at Officer Matura, approximately one foot away from his head. Officer Duffy grabbed defendant's wrist as he fired, averting a second shot from hitting Officer Matura, but defendant then wrested himself away from Duffy, spinning and shooting Duffy once in the chest as Duffy attempted to withdraw his own revolver.

After Officer Duffy, who was wearing a safety vest, fell to the ground on all fours and dropped his gun, defendant then shot Duffy two times in the lower back and buttocks as Duffy attempted to run to safety. Defendant picked up Duffy's gun, exchanged more shots with Officer Matura, then chased Matura down the street. Officer Duffy drew a second gun and fired five shots at defendant, who returned two shots. Officer Matura had reloaded his gun and fired more shots at defendant, who then ran back towards Duffy. Officer Duffy had then run to the intersection of 69th and Elizabeth Streets and fell in front of Ann Claxton, a passerby, who told him to stay down between two parked cars. A moment later, defendant reappeared, going from one side of the street to the other, with his gun pointed, looking for Duffy. Ms. Claxton got his attention and pointed, falsely indicating that Duffy had gone in the opposite direction. Defendant then reentered his taxi, again looked at Ms. Claxton, who repeated her earlier indication and defendant drove off in that direction.

Another police car gave chase while a second car attempted to block defendant's path. Defendant drove past the second police car, firing shots at Officer Mertz and wounding him in the hand and leg. After defendant's car veered into a park, crashed into a building and came to a stop, defendant continued to fire at police who approached. Defendant then slumped over, having been shot four times in the arms, neck and chest. Officer Martinez disarmed defendant and observed that he wore a black shoulder holster and carried a chrome-plated revolver.

Dr. Phyllis Amabile testified for defendant, stating that she conducted an examination of him and in her opinion, he suffered from a delusional disorder of a persecutory type focusing on the Chicago Police Department and, to a lesser extent, his co-workers at the cab company. Dr. Amabile described the condition, which she estimated defendant had had for approximately 12-14 years, as a persistent but not bizarre belief that he is being followed, maligned and persecuted or harassed in some way, despite the fact that there is no reasonable evidence to support that belief. Dr. Amabile based her opinion on psychological tests and reports and an interview with defendant. The doctor testified that reports indicated that defendant became estranged from his family when he became a Black Muslim. While the doctor did not ask defendant if his beliefs as a Black Muslim had an impact on his dealings with police, she found that his paranoia was not instilled in him by his religious beliefs. Dr. Amabile believed defendant to be insane at the time of the shooting but fit to stand trial.

Drs. Steven Patt and Robert Reifman also testified for defendant and formed substantially the same opinion as Dr. Amabile. They believed that defendant was not creating a mental illness in order to escape responsibility for his actions. They both found defendant legally insane at the time of the shooting.

Dr. Henry Lahmeyer, a physician and psychiatrist, testified for the prosecution, stating that he examined defendant and heard defendant describe the same incidents with the police that the other doctors related, but that he did not believe defendant was insane at the time of the shooting, despite defendant's concern about the police. Dr. Lahmeyer based his opinion on the fact that defendant had never before acted upon his supposed delusions of persecution. The doctor thought it significant that defendant had, at various times prior to the shootings, gone to the police for aid, such as when his car was stolen. Dr. Lahmeyer further noted as important that defendant had no prior psychiatric history and that the hospital which held him for observation after the shootings never reported any evidence of psychotic behavior or thought patterns.

At trial, defendant acknowledged the shootings but denied that he was insane at the time. He testified that there existed a conspiracy among some police officers to kill him. He believes that the conspiracy began in 1970 when he shot at two officers. Defendant believes that police have broken into his house, stolen his car and slashed his tires, even though he did not see these acts committed. Defendant acknowledged that he served six years in prison for shooting at police officers.

Defendant first contends that the prosecutor misrepresented the law to the jury in his closing argument by inferring that an NGRI verdict would allow defendant to "walk out the door a free man." The prosecutor stated, "What they are trying to do ladies and gentlemen is flimflam you so that he can go laughing out that door of this courtroom." When defense counsel objected, the court overruled the objection.

Upon rebuttal, the State further argued,

"I am not going to tell you that the defendant will walk out the door at any point because I don't think you'll get that far in your deliberations.

* * * * * *

To buy the defense of mental disorder in this case would basically say that all you have to do is commit an outrageous crime, such as the attempted murder of three Chicago police officers, find one or more psychiatrists who are willing to believe it and you are home free."

Defendant contends the State knowingly misstated the law, and such misstatement was exacerbated by the court's refusal to instruct the jury on the consequences of an NGRI verdict.

A prosecutor is given great latitude in making closing arguments and the trial court's determination of the propriety of the argument will stand absent a clear abuse of discretion. (People v. Cisewski (1987), 118 Ill.2d 163, 175, 113 Ill.Dec. 58, 514 N.E.2d 970.) While a prosecutor may not make arguments or assumptions which have no basis in evidence, improper comments or remarks are not reversible error unless they are a material factor in the conviction or result in substantial prejudice to the accused. People v. Tipton (1990), 207 Ill.App.3d 688, 699-700, 152 Ill.Dec. 665, 566 N.E.2d 352.

Where there are allegations of prosecutorial misconduct, arguments of both the prosecutor and defense counsel must be reviewed in their entirety, and complained-of comments must be placed in their proper context. Tipton, 207 Ill.App.3d. at 701, 152 Ill.Dec. 665, 566 N.E.2d 352.

We first find that defendant has waived argument regarding the prosecutor's remarks upon rebuttal since he failed to object to them during trial. People v. Reid (1990), 136 Ill.2d 27, 38...

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