People v. Cox

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People v. Cox

State: Illinois

Court: 1st District Appellate

Docket No: 1-05-3436 Rel

Case Date: 11/21/2007

Preview:FOURTH DIVISION November 21, 2007

No. 1-05-3436

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. QUENTIN COX, Defendant-Appellant.

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Appeal from the Circuit Court of Cook County, Illinois

No. 04 CR 283

Honorable Lawrence P. Fox, Judge Presiding

Justice Murphy delivered the opinion of the court: Defendant, Quentin Cox, was convicted of first-degree murder after a jury trial and sentenced to 40 years' imprisonment for the murder and a 25-year enhancement for personally discharging a firearm. On appeal, defendant contends that (1) the State failed to prove him guilty beyond a reasonable doubt because the identification evidence was unreliable; (2) the State improperly bolstered identification testimony by introducing hearsay; (3) the State made an argument in closing that was unsupported by the evidence; and (4) his sentence is excessive. For the reasons that follow, we affirm. I. BACKGROUND On October 3, 2003, 17-year-old James Davis died from a single gunshot wound to the back. Defendant was charged with first-degree murder, and four occurrence witnesses testified at his trial: Clifford Jones, Jeremy Jones, Dominique Bullitt, and Charles Lewis.

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A. Clifford Jones Clifford Jones testified that on October 3, 2003, he planned to attend a high-school football game with his brother, Jeremy Jones, and his cousin, James Davis. Just before 7 p.m., when the streetlights were on, he left his grandmother's house at 99th and Charles to pick up his friend Lance Flowers, whose house was on the next block at 99th and Malta. When he arrived at 99th and Malta, he saw a man walking toward him on 99th Street, across from Beverly, which was located one "house yard" further down. Although it was warm out, the man was wearing a jacket and a skull cap with a red symbol on the front. Clifford identified the man in court as defendant. After Clifford picked up Lance, he saw defendant for a second time at 99th and Beverly. Defendant crossed the street with his hand in his coat, then pulled out a gun and started waving it around. At that time, Dominique Bullitt, Kelly, and Charles Lewis turned the corner and began to run away. When defendant began running toward Clifford and his group, they turned and ran. Clifford turned into an alley, heard two shots, and ran to his grandmother's house. Neither James nor Jeremy had returned to his grandmother's, so he went back to 99th Street, where he discovered his cousin being put into an ambulance. Clifford testified that on the night of the shooting, he described the shooter to the police as 17 or 18 years old, 5 feet 7 inches, 150 pounds, and dark-skinned, wearing a black jacket, black hat, black pants, and white shirt. The next morning, the police showed Clifford a black-and-white

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1-05-3436 photo array, but he told the police that the shooter was not in the array. 1 On October 20, 2003, the police showed Clifford a color photo array containing six pictures. He picked out the second picture as the person that was the "most similar" to the shooter, but told the police he would need to see him in person or in a lineup. The "most similar" person turned out not to be defendant, who was pictured in the third photo of the array. However, Clifford testified that the photo was too dark and he could "not really" see defendant's face. At trial, he still could not decipher whether the third photo pictured defendant because it is "black on black." Clifford's older brother, Jeremy, was present when he viewed the photo array and also had an opportunity to view it, but Jeremy identified someone else. On December 1, 2003, Clifford went with his brother to the police station to view a lineup. He sat in a room with his mother and a detective, who told him that the shooter may or may not be in the lineup. He identified defendant, "no. 4 in lineup," as the shooter. After viewing the lineup, he went into a different, bigger room, which contained a television. He denied talking to anyone else before the lineup or telling anyone that day whom to pick out of the lineup. B. Jeremy Jones Jeremy Jones testified that on October 3, 2003, at 7 p.m., he, Clifford, and James walked from his grandmother's to Lance Flowers's house in anticipation of going to a football game. The streetlights were on but it was not yet dark. On the way, he noticed a man two or three houses from Beverly who was wearing a black jacket and skullcap with a red logo and walking toward

Pretrial proceedings revealed that this photo array was not inventoried. The police reproduced three of the pictures that were used in the array, but defendant's photo was not included in the attempted reproduction. -3-

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1-05-3436 them. Jeremy identified the man in court as defendant. Jeremy found defendant's attire unusual because it was hot out and he was wearing shorts and a short-sleeved shirt. They went to Lance's house, and when they got to the intersection of Malta and Beverly, he saw defendant at the corner of 99th and Beverly, walking in the middle of the intersection with his hand in his pocket. He pulled a long, silver revolver out of his jacket pocket, waved it in the air, and pointed it at Jeremy's group. Jeremy noticed Dominique, Charles, and Kelly turn the corner at the intersection of 99th and Beverly and start running toward him. When defendant began following Dominique, Charles, and Kelly, Jeremy and his group also began to run. As he was running, he looked back to see that defendant stopped running and began firing the gun. When Jeremy arrived at the alley between Malta and Charles, he turned around and saw his cousin falling to the ground and defendant running in the opposite direction. The night of the shooting, Jeremy talked to the police and described the shooter as a black, dark-skinned male between 17 and 18 years old who weighed about 155 pounds and was wearing a quilt jacket with white lining, black pants, a black skullcap with a red emblem, and a white T-shirt. He testified that he did not give the police an exact height; however, Detective Alejandro Almazan, a Chicago police detective, interviewed Jeremy Jones on the night of the shooting and testified that Jeremy described the shooter as weighing approximately 155 pounds. The next morning, Jeremy viewed an array of four black-and-white photos. He was unable to identify the shooter from the photos, but he did identify someone who "had a similar face to the shooter." The person he identified as looking similar to the shooter was not defendant.

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1-05-3436 On October 20, 2003, when the police showed him a color photo array, he identified defendant but told the police he would need to see him in person. He denied discussing the photo array with his brother. On December 1, 2003, Jeremy went to the police station to view a lineup. He was placed in a small room with his mother and brother. Clifford left the room to view the lineup first, then Jeremy went. Jeremy identified defendant and told the detective "that was the guy, unless he had a twin brother." Jeremy denied speaking to Clifford between the time Clifford left to view the lineup and when Jeremy left to view the lineup. After viewing the lineup, he was placed with his brother in a different room containing a television. There, he saw Charles Lewis, Dominique Bullitt, and Lance Flowers. The five discussed that they were there to view a lineup but did not discuss whom they picked out. C. Dominique Bullitt Dominique Bullitt testified that on October 3, 2003, at 7 p.m., he was at a bus stop on the corner of 99th and Beverly Street, near his home. It was getting dark, but the streetlights were not on yet. He was with Charles Lewis and Kelly, whose last name he did not know. While they were standing at the bus stop, a man wearing a black jacket and black hat approached them from the east. The man was approximately 15 feet away when he reached into his coat and withdrew a silver handgun and aimed it in their direction. Dominique moved behind a tree, and when he saw the man walk down the street a little, the three ran toward Charles Street. He encountered Jeremy Jones, Clifford Jones, and James Davis on 99th and Malta, and that group also started running toward Charles Street. He heard about three gunshots from behind, so he turned into an

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1-05-3436 alley and waited there until the gunshots stopped. When he returned to 99th Street, he found James Davis on the ground. Dominique did not speak to the police until they sought him out a couple of weeks after the shooting. He testified that he told the police that he was not present at the time of the shooting. Dominique testified at trial that he had not seen the gunman's face. However, he admitted that on December 18, 2003, he testified before a grand jury, where he identified defendant as the gunman. He further admitted that he identified defendant in the lineup that occurred on December 1, 2003. He testified at trial that while waiting to view the lineup, he spoke with Charles, Clifford, Jeremy, and Lance. When Charles returned to the conference room that they were in, he told Dominique that he had identified the person standing in position number 4. Dominique thought Clifford also said that number 4 was the shooter. Dominique identified the same person because others picked him out, even though he did not see the gunman's face on the night of the shooting. He testified that he further identified defendant at the grand jury because it was the same man he had identified in the lineup. Dominique admitted that he was arrested for failing to appear at court for this case. D. Charles Lewis Charles Lewis testified that on October 3, 2003, at 7 p.m., he was at the bus stop at 99th and Beverly talking to his cousin Kelly and Dominique Bullitt. He saw a man with a gun and began running; as he ran, he heard gunshots. When he got to his house, someone called him on his cellular phone and told him that Little James was on the ground, so he ran outside the house,

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1-05-3436 where he found the victim. Although Charles identified defendant at the lineup on December 1, 2003, and before the grand jury on December 11, 2003, he testified at trial that he did not see the shooter's face. He also testified that he does not have good eyesight and he "didn't even have glasses at this time." Charles testified at trial that the police harassed him into viewing the lineup and appearing before the grand jury; however, his grand jury testimony was that he was treated well and no threats or promises were made. In addition, he was out on bond because a warrant had been issued for his failure to appear for an earlier court date for this case pursuant to subpoena. His family still lived at 99th and Charles, and he received mail there but was not there on a day-to-day basis. He testified that before the lineup, police detectives showed him a picture of defendant. He identified defendant in the lineup because other witnesses said that the person in position number 4 was the shooter. E. Detective Timothy Bagdon Detective Timothy Bagdon was a police detective assigned to investigate the shooting. He testified that when Clifford and Jeremy arrived at the police station on December 1, 2003, they were placed in a back room with their mother, separate from Dominique, Charles, and Lance, who were in a different room, which contained vending machines. Each of the witnesses viewed the December 1 lineup separately. Clifford first viewed the lineup and returned to the room, then Jeremy did the same. Next, Charles individually viewed the lineup and went to the television room, and the process was repeated for Dominique and Lance

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1-05-3436 Flowers. All five witnesses identified defendant, who was in position number 4, as the shooter. After 10 or 15 minutes, Jeremy, Clifford, and their mother went to the television room to wait for the assistant State's Attorneys. F. Detective Sylvia Van Witzenburg Detective Sylvia Van Witzenburg was present when each of the witnesses viewed the lineup. She testified that Jeremy and Clifford's mother was with each of them when they viewed the lineup, but she did not tell either boy whom to pick. G. Conviction and Sentencing The jury found defendant guilty of first-degree murder. After hearing arguments, the trial court sentenced defendant to 40 years' imprisonment for the murder and an enhancement of 25 years for personally discharging a firearm. This appeal followed. II. ANALYSIS A. Sufficiency of Identification Evidence Defendant first contends that the State failed to prove him guilty beyond a reasonable doubt because the identification evidence was unreliable when two of the four occurrence witnesses identified someone other than defendant in photo arrays before identifying him in a lineup, and the other two denied at trial that they saw the shooter's face. "It is the jury's function to determine the accused's guilt or innocence, and this court will not reverse a conviction unless the evidence is so improbable as to justify a reasonable doubt of defendant's guilt." People v. Frieberg, 147 Ill. 2d 326, 359 (1992). When a defendant challenges the sufficiency of the evidence, the relevant inquiry is whether, after viewing the evidence in the

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1-05-3436 light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime proven beyond a reasonable doubt. People v. Woods, 214 Ill. 2d 455, 470 (2005). A court of review will not overturn the fact finder's verdict unless "the proof is so improbable or unsatisfactory that there exists a reasonable doubt as to the defendant's guilt." People v. Maggette, 195 Ill. 2d 336, 353 (2001). The prosecution has the burden of proving beyond a reasonable doubt the identity of the person who committed the crime. People v. Slim, 127 Ill. 2d 302, 307 (1989). "A single witness's identification of the accused is sufficient to sustain a conviction if the witness viewed the accused under circumstances permitting a positive identification." Slim, 127 Ill. 2d at 307. However, an identification will be insufficient to support a conviction if it is vague and doubtful. Slim, 127 Ill. 2d at 307. The reliability of a witness's identification of a defendant is a question for the jury. People v. Cosme, 247 Ill. App. 3d 420, 428 (1993). Furthermore, it is the function of the jury, as the trier of fact, to assess the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. People v. Tenney, 205 Ill. 2d 411, 428 (2002). The jury must also resolve conflicts or inconsistencies in the evidence. Tenney, 205 Ill. 2d at 428. Circumstances to be considered in evaluating an identification include the following: (1) the opportunity the witness had to view the criminal at the time of the crime; (2) the witness's degree of attention; (3) the accuracy of the witness's prior description of the criminal; (4) the level of certainty demonstrated by the witness at the identification confrontation; and (5) the length of time between the crime and the identification confrontation. Slim, 127 Ill. 2d at 307-08.

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1-05-3436 Defendant contends that there was little opportunity to view the offender at the time of the shooting because it was dark out and the witnesses were running. However, Jeremy and Clifford testified that they saw defendant not only before the shooting, but also a few minutes earlier, when they were on their way to Lance's house. Although Jeremy and Clifford may not have seen defendant for an extended period of time, they saw him long enough the first time to note his unseasonable attire, distinctive hat, and location. They saw him long enough the second time to observe that defendant put his hand in his coat, pulled out a gun, and began waving it around. This court has previously rejected claims that the brevity of a witness's description undermines his identification testimony. People v. Barnes, 364 Ill. App. 3d 888, 894 (2006); People v. Negron, 297 Ill. App. 3d 519, 531 (1998). Furthermore, their ability to describe the shooter refutes defendant's argument that Jeremy and Clifford were not close enough to make an accurate identification of the shooter because Clifford described their distance from the shooter as "one house yard" away. In addition, Jeremy, Clifford, and even Dominique testified that it was not dark out yet. Even if it had been dark, we have held that testimony based on night observations illuminated only by artificial light may serve as proof of identification beyond a reasonable doubt. Barnes, 364 Ill. App. 3d at 894. Defendant also claims that Jeremy's and Clifford's previous descriptions of defendant diminished the reliability of their identifications. Clifford testified that he described the shooter to the police as 17 or 18 years old, 5 feet 7 inches, 150 pounds, and dark-skinned, wearing a black jacket, black hat, black pants, and white shirt. The night of the shooting, Jeremy described the

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1-05-3436 shooter as a black, dark-skinned male between 17 and 18 years old who weighed about 155 pounds and was wearing a quilt jacket with white lining, black pants, a black skull cap with a red emblem, and a white T-shirt. He testified that he did not give the police an exact height; however, Detective Almazan testified that Jeremy described the shooter as being 5' 10". Defendant argues that he is "much shorter." To the extent that defendant is in fact "much shorter" than 5' 10", it should be noted that "[c]onsidering that very few persons are trained or keen observers and considering the stress under which, in criminal cases particularly, impressions of witnesses have been formed, discrepancies of this character are not uncommon." Slim, 127 Ill. 2d at 311. See also People v. Curtis, 262 Ill. App. 3d 876, 881 (1994) (although the witness described the defendant as 5 feet 8 inches to 6 feet and 150 pounds when in fact he was 5 feet 4 inches and 135 pounds, identification was not unreliable). Jeremy and Clifford were able to provide specific details about defendant's clothing and appearance, and any discrepancies as to height or weight do not render their identifications unreliable. See Slim, 127 Ill. 2d at 312. Defendant contends that the only witness to "express any certainty" about his identification was Jeremy. To the contrary, Clifford unequivocally identified defendant at the lineup. In addition, Jeremy told the police that defendant was the shooter "unless he had a twin brother." Defendant, however, relies on Clifford's and Jeremy's uncertainty during the two photo arrays. Neither was able to identify anyone in the first, black-and-white photo array, although Jeremy pointed out someone who looked similar to the shooter. The police did not inventory this photo array, and only three photos, none of which was defendant's, could be obtained when the

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1-05-3436 police attempted to reconstruct it. The record is unclear as to whether defendant's picture was even included in the first photo array. When he viewed the second, color photo array, Jeremy identified defendant but told the police he would need to see him in person. Clifford picked out someone who looked the "most similar" to the shooter; however, the picture was not of defendant. Clifford testified that the photo was too dark and he could "not really" see defendant's face. At trial, he still could not tell whether the third photo pictured defendant because it was "black on black." The picture of defendant in the color photo array does indeed have a dark background as well as a dark shading over the entire picture, which renders an identification difficult. Furthermore, although Jeremy and Clifford each pointed out people who were not defendant in the first and second photo arrays, respectively, it is significant that they only pointed out people who looked similar to the shooter; Jeremy and Clifford did not state that they identified the shooter himself. As for the final factor, the length of time between the crime and the confrontation, the lineup occurred two months after the shooting. Where two-year lapses of time between the crime and the identification have been upheld (Slim, 127 Ill. 2d at 313-14; People v. Wardell, 230 Ill. App. 3d 1093, 1098 (1992)), the passage of two months between the date of the crime and the date of the lineup does not adversely affect the identification. While defendant suggests that the reliability of the lineup identifications is questionable since the lineup occurred after the failed identifications at the photo arrays, we found in Curtis that lineups "from which the defendant is identified as the perpetrator are not rendered inadequate merely because the defendant is the only person in the lineup whose photograph was previously shown to the person viewing the lineup."

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1-05-3436 Curtis, 262 Ill. App. 3d at 883-84. Dominique and Charles also identified defendant at the lineup and before the grand jury. At trial, they disavowed those identifications2 and claimed that they never saw the shooter's face. Charles testified that he did not have good eyesight, that the police harassed him into viewing the lineup and appearing before the grand jury, and that police detectives showed him a picture of defendant before the lineup. Defendant also suggests that the lineup was suggestive because witnesses told each other which subject to choose. We note, however, that the police, Jeremy, and Clifford testified that everyone viewed the lineup separately and the witnesses did not have an opportunity to tell each other whom to choose. In addition, both Charles and Dominique had been arrested for failing to appear for court for this case pursuant to subpoena. Defendant, citing People v. Arcos, 282 Ill. App. 3d 870 (1996), and People v. Parker, 234 Ill. App. 3d 273 (1992), argues that because Charles and Dominique disavowed their earlier testimony, the court must look to corroborative evidence to support the conviction. In Parker, the defendant's conviction was reversed because the prior inconsistent statements of three recanting witnesses were the only evidence against the defendant and the statements were so seriously impeached at his trial as to case doubt on their authenticity. Parker, 234 Ill. App. 3d at 280. In Arcos, the trial judge erred in a bench trial when he convicted the defendant despite finding that the sole witness, who recanted his earlier statements, was a " `thoroughly disreputable person who cannot be believed.' " Arcos, 282 Ill. App. 3d at 871. On appeal, the court

Defendant does not take issue with the admissibility of Charles's and Dominique's prior inconsistent statements. -13-

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1-05-3436 concluded that, in light of the trial judge's assessment of the witness, corroborating evidence would be required to remove all reasonable doubt of the defendant's guilt. Arcos, 282 Ill. App. 3d at 876. Here there is testimony from two additional eyewitnesses, who identified defendant in a lineup and at trial. Furthermore, this court has since held that recanted prior inconsistent statements can be sufficient to support a conviction, even without corroborating evidence. People v. Thomas, 354 Ill. App. 3d 868, 880 (2004); People v. Craig, 334 Ill. App. 3d 426, 439 (2002); People v. Curtis, 296 Ill. App. 3d 991, 999 (1998). By its verdict, the jury determined that Charles and Dominique were telling the truth when they testified before the grand jury and were lying at trial. People v. Morrow, 303 Ill. App. 3d 671, 676-77 (1999). Considering the evidence in the light most favorable to the State, we conclude that the eyewitness testimony in this case is sufficient to uphold defendant's conviction. B. Hearsay Testimony Defendant next contends that the State improperly bolstered the identification testimony of its witnesses by introducing hearsay evidence that Lance Flowers identified defendant as the shooter and that an elderly woman named Dorothy identified defendant as the shooter in a phone call to police. Hearsay evidence, an out-of-court statement offered to establish the truth of the matter asserted, is generally inadmissible unless an exception applies. People v. Sullivan, 366 Ill. App. 3d 770, 779 (2006). "The problem with hearsay evidence is that the defendant has no opportunity to cross-examine the declarant." Sullivan, 366 Ill. App. 3d at 779. Inadmissible hearsay exists

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1-05-3436 where a third party testifies to statements made to him by another nontestifying party that identify the accused as the perpetrator of a crime. Sullivan, 366 Ill. App. 3d at 779. We review the evidentiary hearings of a trial court deferentially and reverse only if the trial court abuse its discretion, resulting in manifest prejudice to the accused. People v. Tolliver, 347 Ill. App. 3d 203, 222 (2004). 1. Dorothy's Phone Call The first instances of purported improper hearsay that defendant complains of include the State's comments during its opening and Van Witzenburg's testimony regarding a phone call from a woman named Dorothy. During its opening statement, the State commented that "another call was received by an elderly lady who was living there on the south side. The elderly lady being--." The trial court had a sidebar and sustained defendant's hearsay objection. The State continued, "[A] few weeks after the first photos were shown to Jeremy and Clifford, a phone call was received by Chicago Police by an elderly lady, a resident in that south side community. After that phone call, police had an opportunity to meet with Jeremy and Clifford again." During the trial, Van Witzenberg testified that she received a phone call from a woman who would only identify herself as Dorothy: "Q. After speaking with Dorothy who were you looking for in connection with the shooting that happened on October 3rd of 2003? A. For an individual with the nickname of `Scooter' also known as Quention [sic] Cox. ***

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1-05-3436 Q. After receiving the phone call from Dorothy prior to October 20th of 2003 did you request that anything be generated with regards to this case? A. Yes. Q. What did you request be generated? A. An investigative alert. *** Q. Was anything else generated? A. A photo array." On cross-examination, Van Witzenberg admitted that Dorothy was not an eyewitness to the shooting and was never asked to view a lineup. Van Witzenberg continued, "Dorothy remained anonymous. She said she was a senior citizen who refused to give her address or return phone calls." Defendant argues that informing the jury that the police learned information from a caller that led police to create another photo array indicated to the jury "that the caller identified Quentin" as the shooter. The State responds that the testimony was properly elicited to explain the circumstances of defendant's identification and arrest. Defendant waived the alleged error by failing to object to the testimony at trial. People v. Pinkney, 322 Ill. App. 3d 707, 715 (2000). Waiver notwithstanding, however, we find that the testimony was properly admitted. Where testimony of an out-of-court statement is offered, not for the truth of the matter asserted, but for the limited purpose of explaining the reason the police conducted their

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1-05-3436 investigation as they did, the testimony is not objectionable on the grounds of hearsay. People v. Rodriguez, 312 Ill. App. 3d 920, 929 (2000). As one court recognized, " `In criminal cases, an arresting or investigating officer should not be put in the false position of seeming just to have happened upon the scene; he should be allowed some explanation of his presence and conduct.' " People v. Cameron, 189 Ill. App. 3d 998, 1004 (1989), quoting E. McCormick, Evidence

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