People v. Smith

• Citation: 292 Ill.Dec. 789,357 Ill. App.3d 73,826 N.E.2d 1225
• Decision Date: 31 March 2005
• Docket Number: No. 1-02-1931.,1-02-1931.
• Parties: The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Antoine SMITH, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

826 N.E.2d 1225

357 Ill. App.3d 73

292 Ill.Dec. 789

The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Antoine SMITH, Defendant-Appellant.

No. 1-02-1931.

Appellate Court of Illinois, First District, Fourth Division.

March 31, 2005.

Rehearing Denied May 6, 2005.

Office of the State Appellate Defender, Chicago (Michael J. Pelletier, Deputy Director, Samuel Algozin, Assistant Appellate Defender, of counsel), Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb, Kathryn Schierl and Amy Watroba Kern, Assistant State's Attorneys, of counsel), for Appellee.

Justice QUINN delivered the opinion of the court:

Defendant Antoine Smith was charged with three counts of first degree murder (720 ILCS 5/9-1(a)(1) through (a)(3) (West 2000)), as well as attempted armed robbery (720 ILCS 5/8-4, 18-2 (West 2000)), in connection with a botched robbery at the Citgo gas station on Green Bay Road in Evanston, Illinois. During the attempted armed robbery, the cashier, James Pappas, was killed. After a jury trial, defendant was convicted of both first degree murder and attempted armed robbery, and sentenced to a term of natural life imprisonment. On appeal, defendant argues (1) the circuit court erred in denying his request to call an eyewitness during his motion to suppress the identification testimony of that witness; (2) the evidence at trial was insufficient to support either conviction; (3) the State improperly used a codefendant's prior consistent statement as substantive evidence; (4) the circuit court misinstructed the jury as to how it was to consider identification evidence; (5) the prosecutor elicited irrelevant testimony at trial and made improper and inflammatory comments during closing argument; (6) the circuit court failed to instruct the jury as to the definition of "wanton cruelty"; (7) the State failed to prove beyond a reasonable doubt that the murder was committed in a brutal and heinous manner, indicative of wanton cruelty; and (8) the circuit court's imposition of a life sentence was excessive. For the following reasons, we affirm defendant's convictions and sentence.

BACKGROUND

Before trial, defendant sought to suppress the identification testimony of eyewitness Dawn Lockhart. Instead of attempting to secure Lockhart's presence at the suppression hearing through procedures set out in the Uniform Act to Secure the Attendance of Witnesses from Within or Without a State in Criminal Proceedings (725 ILCS 220/3 (West 2000)) (the Witness Attendance Act) because Lockhart had moved out of state, one of defendant's investigators tried to serve her with a subpoena. The State filed an emergency motion to quash defendant's subpoena, arguing that the subpoena was invalid because defendant failed to follow the procedures under the Witness Attendance Act, and Lockhart's testimony was not relevant for the issues raised in defendant's motions. The State noted that Lockhart had moved out of state because of her fear of defendant. The circuit court quashed the subpoena, but postponed ruling on whether the State had to produce Lockhart for the suppression hearing.

After calling six police officers during the suppression hearing, defense counsel renewed his "request to have Dawn Lockhart produced." Though noting that "[a]t this point there's been no evidence of any suggestive identification," the circuit court said that it would allow defendant to call Lockhart on the next court date, strictly limiting any questioning, however, to "the identification process, the photographs she was shown, the lineup she was shown."

On that next court date, the State renewed its objection to defendant calling Lockhart during the suppression hearing. Characterizing defendant's request as "unprecedented," the State argued that "[g]enerally, the law is that civilians do not testify at motions to suppress identification unless there has been a preliminary showing there is some sort of suggestiveness at the lineup procedure." In support of this proffered statement of law, the prosecutor cited People v. Strong, 274 Ill.App.3d 130, 210 Ill.Dec. 743, 653 N.E.2d 938 (1995), as "exactly on point." The circuit court sustained the State's objection, finding:

"At this point I see no reason to call Dawn Lockhart. If the testimony of Dawn Lockhart, on direct and cross examination should give rise, the jury will be removed from the room and you will be allowed to, defense, to reopen the motion to suppress identification based on both suggestive identification and photographic identification. Based on what I heard to this point of the several days of testimony that we have heard on this case and the officer from [North Regional Major Crimes Task Force] and Evanston and so on, at this point I think that the movant has failed to sustain their burden and those motions will be denied."

The court reiterated, however, that "[i]f I hear any evidence to the contrary, I'll reopen."

At trial, Maria Pappas, the victim's sister, testified that the last time she saw her brother alive was at her house on Palm Sunday, the night before his murder. She stated that he slept there that night so that he could open up the gas station for his godfather, Dean Hasapis, the next morning.

Dawn Lockhart testified that, on April 13, 1998, at approximately 6:35 a.m., as her mother was driving her to work, they stopped at the Citgo gas station so she could buy a pack of cigarettes. When she went inside the store, she did not see the cashier. Peering behind the cashier's counter, she saw defendant bent down on his knees, moving his right fist up and down, hitting a man who was lying on the floor.

Lockhart testified that she had seen defendant sporadically on "Howard Street, sometimes, off Church Street, Dempster" for a period of about a year prior to April 1998. Though she and defendant were not friends and she would not necessarily say hello to him, she testified that she recognized him. She also testified that she believed her aunt was dating a man who was related to defendant. She further testified that, though she might not have known defendant's name, she "knew his face" from the streets.

She stated that she saw something in defendant's hand, but could not tell what it was. After hearing a noise, she and defendant looked at each other. She stated that even though defendant was wearing a nylon across his face, she could see his eyes, nose, upper cheekbones, and forehead. After they looked at each other, she ran outside to her mother's car.

As she was leaving the store, she saw a Hispanic couple drive into the gas station. After motioning to them not to enter the store, she and her mother drove away. As they drove and as she told her mother what she had seen, she noticed defendant running "kitty-corner right across from where [they] were driving." She then saw a police officer parked on the side of the road. After explaining to the officer what she had seen, she went home. Though her mother told her not to get involved, she agreed to go to the Evanston police department. While at the station, she looked through various mug books, but she did not see defendant's photo. She also described the man she had seen to a police sketch artist, but she testified that she did not "fully cooperate with the making of that sketch" or the investigation because she "really didn't want to be involved with any of this." She testified that she was not "completely candid with the police" because she "wanted them to leave [her] alone."

On April 22, 1998, eight days after the murder, she was asked to view a lineup at the Evanston police department. Though she saw defendant in that lineup, she testified that she did not identify him because she was nervous and scared. She stated that when she saw defendant, she told the officers present in the room that she "wanted to go home," that she would not cooperate, and that she would not "tell them anything." She testified that she subsequently saw defendant on the streets of Evanston several times after the murder.

In March 2000, Detectives Glenn Cannon and Jim Hutton came to her home and asked her to "get involved again" in the investigation. Though initially she refused, a few days later she went to the Evanston police department but left inexplicably. The next day, she returned to the police station and met with Cannon and Evanston Police Chief Frank Kaminski, telling them that she wanted to cooperate. After viewing a series of photographs, she identified defendant as the man she had seen in the gas station. She was also shown a photo of the lineup conducted on April 22, 1998, and, again, identified defendant. Jose Cruz Torres testified that on April 13, 1998, at approximately 6:35 a.m., he and his wife were driving down Green Bay Road in Evanston when they pulled into the Citgo gas station to buy some coffee. As he was walking towards the front door of the store, two women came out "in a hurry." One of the women, whom he later learned was Lockhart, looked afraid and signaled to him not to enter the store. The women then got into a car and drove off. A few seconds later, a man dressed in "black pants, black [Nike] shoes, black sweatshirt with a hoodie and blue ski mask" came out of the store.

Torres testified that the man was between 5 feet 6 inches and 5 feet 8 inches, about 165 to 185 pounds, and had a husky build. Torres testified that the man was wearing black gloves and that his right hand was tucked inside his sweatshirt. He stated that it looked like he was "pulling something or hiding something" in his right hand. Because the man was wearing the ski mask, however, all Torres could see was the man's eyes. The man looked at him and then ran across Green Bay Road toward Ashbury Street. When Torres went inside the store, he found Pappas lying against a file cabinet inside the cashier's area. Seeing this, Torres ran outside to a pay phone and called 911. As he was dialing, he saw a police officer...