People v. Middleton

JUSTICE LAVIN delivered the judgment of the court, with opinion.

Decision Under Review Appeal from the Circuit Court of Cook County, No. 12-CR-12617; the Hon. Charles P. Burns, Judge, presiding. Judgment Reversed and remanded. Counsel on Appeal Stephen L. Richards, of Chicago, for appellant. Kimberly M. Foxx, State's Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Phyllis Warren, Assistant State's Attorneys, of counsel), for the People. Panel JUSTICE LAVIN delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith and Howse concurred in the judgment and opinion.

¶ 1 Following a jury trial, defendant Keith Middleton was found guilty of first degree murder while personally discharging a firearm and sentenced to 53 years in prison. Defendant appeals, arguing that he was not proved guilty beyond a reasonable doubt because he was identified by a single occurrence witness, whose description of defendant was severely impeached. Namely, there was conflicting evidence as to whether defendant wore a full or half-ski mask and whether the single occurrence witness could see defendant's face. Defendant also contends the State improperly introduced a demonstrative exhibit during closing arguments depicting defendant with a half-ski mask superimposed over his arrest photograph, but the State neglected to introduce this exhibit at trial. In addition, defendant contends the State elicited improper hearsay statements at trial, the court erred in overruling certain objections, the court erred in admitting video evidence, his trial counsel was ineffective, the State offered improper closing argument, and the court erred in sustaining objections to defense counsel's arguments. While we hold the evidence was sufficient to prove defendant guilty beyond a reasonable doubt, we conclude the State's first-time presentation of the altered arrest photograph during closing rebuttal argument resulted in prejudicial error requiring a new trial.

¶ 3 Defendant was arrested and then charged with murder after allegedly shooting to death his girlfriend's brother Ricky Brown, then age 30, on March 21, 2012, on the sidewalk outside Brown's home. At trial, the victim's neighbor Toryion Conner testified that he was standing on his front porch around 8:30 a.m. on March 21 at 739 West 61st Street, between South Halsted Street and South Union Avenue, when he saw defendant near the sidewalk across the street and several houses east from where 13-year-old Conner stood. Conner testified that there was nothing blocking his view and he described defendant as an African-American male, with long dreads half pinned back, who was wearing black jogging pants and a gray hoodie bearing black writing and the hood was hanging down. Defendant wore a ski mask that covered only the lower half of his face, which Conner described as going up "right here to the nose." Conner saw defendant look in his direction as he drew a silver revolver from his hoodie. Conner said he saw defendant as he "rammed up on" Brown, who was standing on the sidewalk. Conner knew the victim lived nearby at 720 West 61st Street. Conner heard the victim plead with defendant not to shoot but defendant fired at his chest, causing the victim to fall to the ground. Defendant returned to his car but "came back like he wasn't *** finished with him," and shot the victim again in his upper body. Conner then saw defendant get into a white car and drive off toward Halsted Street. Conner moved from his porch to the hallway and looked out the window, noting he could see the whole block from that vantage point. He saw defendant, still wearing the half-ski mask as he drove west past his house. Conner could see defendant's whole upper body and from his nose "all the way up." The prosecutor clarified for the record that Conner "was moving his hand upward towards his forehead and the top of his head." The State, ¶ 18 As stated, the jury found defendant guilty of the first degree murder. The defense filed a motion for a new trial or judgment of acquittal and presented supporting testimony. The trial court denied the motion, and defendant filed this appeal.

¶ 20 Defendant first challenges the sufficiency of the evidence to sustain his conviction, arguing Conner's identification was so vague or doubtful that there exists a reasonable doubt of defendant's guilt. Where a defendant challenges on appeal the sufficiency of the evidence, we ask whether, after viewing all the evidence in the light most favorable to the prosecution, a rational trier of fact could have found the elements of the offense beyond a reasonable doubt. People v. Beauchamp, 241 Ill. 2d 1, 8 (2011). As such, in a case like the present, 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 positive identification by a single witness who had a sufficient opportunity to observe the defendant is enough to support a conviction while a doubtful or vague identification is not. Id.; People v. Johnson, 114 Ill. 2d 170, 189 (1986). We may not substitute our judgment for that of the trier of fact on questions involving the weight of the evidence, the credibility of the witnesses, or the resolution of conflicting testimony. People v. Campbell, 146 Ill. 2d 363, 375 (1992). And, the judgment will not be set aside unless the proof is so unsatisfactory, improbable, or implausible as to justify a reasonable doubt as to the defendant's guilt. Slim, 127 Ill. 2d at 307. ¶ 21 Defendant argues the judgment must be set aside because the only proof that he committed the crime was Conner's testimony. He asserts that Conner could not have made a positive identification where he could only see the upper part of defendant's face, Conner only briefly viewed defendant, and Conner's degree of attention was insufficient as belied by the lack of detail regarding defendant's physical description. Defendant also claims Conner was severely impeached by the defense witnesses who testified that Conner did not see the shooter's face and that the shooter wore a full, rather than half, ski mask. ¶ 22 As defendant notes, Illinois courts consider five factors, commonly known as the Biggers factors, when determining whether a witness's identification is reliable. People v. Piatkowski, 225 Ill. 2d 551, 567 (2007); Neil v. Biggers, 409 U.S. 188, 199-200 (1972). These include (1) the witness's opportunity to view the offender at the time of the offense, (2) the witness's degree of attention at the time of the offense, (3) the accuracy of the witness's earlier description of the offender, (4) the level of certainty shown by the witness when confronting the alleged offender, and (5) the length of time between the offense and the identification confrontation. Biggers, 409 U.S. at 199-200; Slim, 127 Ill. 2d at 307-08. In addition to these specific factors, courts also consider the totality of the circumstances when reviewing the reliability of an identification. People v. Smith, 299 Ill. App. 3d 1056, 1062 (1998). Identifications are usually based on overall impressions rather than on specific features. Slim, 127 Ill. 2d at 309. ¶ 23 While the evidence in this case was certainly not overwhelming, examining it in a light most favorable to the prosecution, as we must, we conclude that a rational fact finder could have found beyond a reasonable doubt that it was defendant who shot Brown dead. See People v. Wheeler, 226 Ill. 2d 92, 116 (2007) (a reviewing court must give the State the benefit of all reasonable inferences). As to identification, the evidence shows that Conner had ample opportunity to view defendant because Conner was standing only several houses down and proving the error was harmless beyond a reasonable doubt, and the court abused its discretion in both allowing the State to utilize the undisclosed demonstrative exhibit in rebuttal and also in denying defense counsel's motion for a mistrial. See Thurow, 203 Ill. 2d at 363 (noting in a harmless error analysis, the State must prove beyond a reasonable doubt that the jury verdict would have been the same absent the error). ¶ 37 In reaching this conclusion, we find the State's argument that the use of the exhibit was "invited" comment on rebuttal is palpably offensive, as this specific argument was surely expected given the defense theory of the case, announced in opening statement, as being all "about identification" and that "no one could have actually seen the face of the person who shot Ricky Brown." Almost all of the evidence related to the identification issue. If such an argument was unanticipated, the State would have had no opportunity to spring this doctored exhibit on the court because they would not have been on notice. Instead, it is clear that the prosecution knew the defense would focus on the eyewitness identification, so they prepared this exhibit ahead of time and displayed it without disclosing it and without ever laying a foundation for it. This patently improper tactic would surely be highly prejudicial to defendant's right to a fair trial. The gravity of the error resulted in a denial of fundamental fairness. See Nelson, 235 Ill. 2d at 435. ¶ 38 While we reverse and remand for a new trial on the basis of the improper admission of the altered arrest photo, because we find the evidence was sufficient to convict defendant beyond a reasonable doubt, there are no double jeopardy concerns in remanding the case for a new trial. See Piatkowski, 225 Ill. 2d at 566-67. ¶ 39 Defendant raises a number of other contentions on appeal, most of which will not likely recur on retrial. We would note, however, in regards to his claim that the State improperly attempted to repeatedly question witnesses in an effort to elicit hearsay statements, the trial court properly sustained objections to these questions, and the State should be mindful not to repeat the pattern upon retrial. See People v. Larry, 218 Ill. App. 3d 658, 663 (1991) (noting it is improper for a prosecutor to persist in repeating the same questions after objections have been sustained). We note likewise that defendant did not challenge on appeal the admission of Parker's testimony that defendant threatened the victim some 10 days before the shooting. To the extent that Parker testified the victim appeared nervous or agitated upon seeing defendant, those were not out-of-court statements or hearsay, contrary to defendant's suggestion, but proper and relevant testimony as to Parker's observations. See People v. Jackson, 250 Ill. App. 3d 192, 198 (1993) (a witness may testify that another person was scared if the fact is relevant); People v. Peter, 220 Ill. App. 3d 626, 630 (1991) (a nonexpert witness may summarize sensory perceptions or express an opinion based upon observation).

¶ 41 For the reasons stated, we reverse the judgment of the trial court and remand the cause for a new trial. ¶ 42 Reversed and remanded.

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