People v. Fluker

• Decision Date: 26 December 2000
• Docket Number: No. 1-98-3648.,1-98-3648.
• Citation: 252 Ill.Dec. 261,742 N.E.2d 799,318 Ill.App.3d 193
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Roy FLUKER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

742 N.E.2d 799

318 Ill.App.3d 193

252 Ill.Dec. 261

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Roy FLUKER, Defendant-Appellant.

No. 1-98-3648.

Appellate Court of Illinois, First District, First Division.

December 26, 2000.

Rita Fry, Public Defender of Cook County(Emily Eisner, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County(Renee Goldfarb, James E. Fitzgerald and Nancy Colletti, of counsel), for Appellee.

Presiding Justice McNULTYdelivered the opinion of the court:

Once again we must decide whether a prosecutor's closing argument requires reversal of a murder conviction.We find that the argument here improperly directed the jury's attention away from the issues.Because we find the evidence closely balanced, we cannot consider the error harmless.Thus, we reverse and remand for a new trial.

Around 10 p.m. on November 15, 1995, Charinida Willford sat on the steps of a house near her home, talking with Tasha Stinson and some other friends from the neighborhood.A bullet from across the street passed close by Stinson's head, and a shotgun blast killed Willford.Stinson told police she saw two black men dressed in black in a gangway across the street.She did not further describe the men.Police found spent cartridges in the gangway, but not outside the gangway.

About a month later Detective Richard Curley interviewed Tyrone Baldwin concerning an unrelated matter.Following that interview, Curley went to see Stinson.She told him she saw the two shooters come out of the gangway before they began shooting.She had seen one of the men several times in the neighborhood.When Curley showed her an array of photographs, she chose a picture of defendantRoy Fluker.Later, she identified defendant in a lineup as the person she saw shooting a handgun on November 15, 1995.Police then charged defendant with the first-degree murder of Willford and the attempted murder of Stinson.

In discovery defense counsel learned that, before Curley went to interview Stinson, Baldwin had identified defendant as the shooter.Some months later Baldwin went to the office of the public defender, where he wrote out a statement concerning his conversation with Curley.He denied making any identification of the shooter, saying that he did not see who shot the guns.He said Curley asked him if he knew that defendant had shot Willford, and Baldwin told Curley he did not know that.

At trial Stinson testified that she, Baldwin and Willford were talking with Donald and Derrick Acker and two other persons outside on November 15, 1995.When she saw a red beam land on her she immediately got down to the floor of the porch, just as the shooting began.She said she did not look to see where the beam came from.But later during the questioning she said that, before she got down, she looked up and saw two men dressed in black, one holding a handgun, in the gangway across the street.She admitted that she told Curley she had seen defendant shooting.

Stinson testified that after the shooting she and Baldwin saw a white Oldsmobile less than a block away.She had previously seen defendant driving that car.At first she said that she never told police the man she had seen in the car was the same as the man she saw shooting, but later she contradicted that testimony.She said she did tell police the man she had seen in the car was the same as the man she saw shooting.

The prosecuting attorney, Laura Morask, asked Stinson whether she had refused to come to court at an earlier stage of the proceedings.Stinson admitted that she had not come, because her "life could be in danger."Some peopleshe saw on the street asked her if she was going to testify against defendant.She told them she would not.She testified that she told the truth in her written statement to police; in that statement she said she saw defendant shoot at her group.

At the conclusion of cross-examination, the court asked for clarification:

"Q.To be clear, is it your testimony today that you saw or did not see the defendantRoy Fluker at or in the gangway where the shooting came from?

A.Did not see.

Q.Did not see.Secondly, is it your testimony today that you saw or did not see the defendantRoy Fluker at or in the white Oldsmobile on the night of the shooting?

A.I did not see him in the white Oldsmobile, true, or did not shoot."

But on further examination by the prosecutor, Stinson reiterated that she told Curley the truth.She said she saw defendant outside on the night of the shooting, but she did not remember where.The prosecutor reminded her of what she told Curley.Stinson answered that she could not say whether she saw defendant shooting.The court asked her why.She said, "I have kids that live there."

An assistant State's Attorney testified that he spoke with Stinson before trial.She said she told Curley the truth, but she said that she would not identify defendant at trial as the shooter because, in the assistant State's Attorney's words, "she has three children; two of the children from three separate fathers, and two of the fathers have been killed already from gang violence and there is no way that she was going to jeopardize the life of her other children to identify [defendant] in court."The assistant State's Attorney clarified that Stinson said she"was afraid of Roy Fluker or the people that he knows and associates with directly coming to her family and putting harm to her family."

A police officer testified that in November 1995 the Unknown Vice Lords were rivals of the Four Corner Hustlers in a struggle for control of areas for sales of narcotics.

Baldwin testified that he and the Acker brothers belonged to the Unknown Vice Lords, rivals of the Four Corner Hustlers.He saw the red beam coming from the gangway, then he saw two men in the gangway.One man looked like defendant, but Baldwin said that the man was "just a look alike."He saw the man come out of the gangway holding a handgun, along with another man holding a shotgun.Baldwin ran, looking back, as the men started shooting.On cross-examination Baldwin agreed that the man he saw holding a handgun "looked like Roy but wasn't Roy."

On direct examination Baldwin swore that about a half hour after the shooting he and Stinson saw a white Oldsmobile parked in the area.Defendant and another man approached the car.The other man broke the window, then defendant got in the car and drove off.Baldwin had never seen defendant drive that car before.

Baldwin admitted that he spoke to Curley about a month after the murder.After Curley finished interviewing him about another matter, Baldwin volunteered that he witnessed Willford's murder.Baldwin picked defendant's picture from a photo array, and later he identified defendant in a lineup as the person he saw shooting a handgun on November 15, 1995.The prosecutor asked Baldwin about the statement he wrote out for the public defender.Baldwin said he went to the defender's office in response to a subpoena, and he stayed in the office for two hours because the attorneys would not let him leave.They treated him as though he were on trial.He wrote what the attorney wanted so he could leave.Baldwin admitted that he did not have the subpoena.His mother received it and told him about it.

Toward the end of his testimony he reiterated that he did not know who shot at him, but the man looked like defendant.He admitted that he told police he saw defendant shooting the handgun on November 15, 1995.

Curley corroborated most of Baldwin's trial testimony concerning their discussion in the police station.Curley added that Baldwin told him he knew defendant was a member of the Four Corner Hustlers, and Baldwin recognized the white Oldsmobile as defendant's car.

Curley also recounted his interview with Stinson.She told Curley she recognized one of the shooters as a member of the Four Corner Hustlers.When Curley showed her the photo array she immediately selected defendant's photograph, and she identified him in the lineup as the shooter she saw.She also told Curley she saw defendant by the white Oldsmobile about a half hour after the shooting.

Following the lineup, Curley asked defendant if he had any tattoos.Defendant showed him a tattoo of the number 4.Curley testified that the symbol indicated membership in the Four Corner Hustlers.

Donald and Derrick Acker both testified that they ran once the shooting began.They both looked back toward the source of the gunfire but saw no one—the shots came from inside the gangway.They were both members of the Unknown Vice Lords, and Donald admitted that the Four Corner Hustlers sometimes counted as their rivals.

An attorney working for the public defender testified that office records showed the office sent Baldwin no subpoena.The attorney spoke with Baldwin at length when he came to the office.Baldwin did not ask to leave, no one told Baldwin he could not leave, and all doors remained unlocked.Baldwin told the attorney that the police report misrepresented his conversation with Curley.In particular, Baldwin never said he could recognize either shooter, and he never said he saw defendant shooting.

In closing argument defense counsel suggested that Baldwin may have decided to lead police to suspect defendant, a member of a rival gang, as a shooter here both to hurt the rival gang and to curry favor with police.Baldwin then needed only to persuade Stinson to help him with the plan.Stinson feared not only defendant's gang, but Baldwin's gang, too.Baldwin recanted at trial because his conscience bothered him.

The prosecutor argued in rebuttal:

"The only issue in this case is not is this a mistaken identity; do we have the right guy?That is not the issue.The only issue is who do you want to control our criminal justice system?"

The court overruled defense counsel's objection.The prosecutor continued:

"Who do you want to control our society?Who do you

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