worms THE STATE OF ILLINOIS,
Plaintiff~Appelle.,

Appeal from the Circuit A
Court of Cook County. '3
V. NO, 93 CR 25151 

JOSE CRUZ 
Defendant rAppellant.

Honorable STUART PALMER,
Judge Presiding.

 



Jose cruz (defendant) was charged With two counts of first--degree
murder, attempted firstedegree murder, aggravated battery with a firearm,
three counts of armed violence, and three counts of aggravated battery.
After a jury trial, defendant was found guilty of murder, attempted murder,'
and aggravated battery with a firearm The trial court imposed a sentence
of 60 years for first-degree murder, consecutive with 30 years for
attempted murder. The Court further ruled that these sentences were to by 
served consecutively to a lsvyear imprisonment tor a separate conviction (e
for attempted first-degree murder under case number 93CR13478. Defendant:
filed a timely notice of appeal and raises the following issues: (1)
whether reversible error occurred as a result of ineffective assistance of
counsel and prosecutorial misconduct when other crimes evidence was
presented to the jury; (2) whether defendant was denied his due process

right to a fair trial when the State repeatedly sought to bolster the

1-96-0575

testimony of its eyewitness; (3) whether the prosecutor's closing argumf.nts
denied defendant his right to a fair trial; and (4) whether the trial
court's consideration of certain victim impact evidence violated section
1 2 0 / 3 ( a ) ( 3 ) o f t h e C o d e o f C r i m i n a l P r o c e d u r e { 7 2 5 I L C S 1 2 0 / 3 ( a ) ( 3 ) ( We s t
1994)).
S TAT E M E N T

OF

FACTS

Ve r n o n M e a d o r s ( M e a d o r s ) t e s t i fi e d t h a t h e i s 4 2 y e a r s o l d a n d
e m p l o y e d a s a l e a d j a n i t o r. H e i s m a r r i e d a n d h a s t h r e e c h i l d r e n . O n

October 6, 1993, he lived at 1318 North Kedzie, approximately two blocks
from the intersection of North Avenue and Kedzie Avenue. At that time, he

also owned another building in the area which he was rehabilitating.
M e a d o r s t e s t i fi e d t h a t h e n o l o n g e r l i v e s a t 1 3 1 8 N o r t h K e d z i e a n d t h a t h e

"had to give *** up" the other building. At this point of Meadors'
t e s t i m o n y, d e f e n s e c o u n s e l m o v e d f o r a m i s t r i a l a n d t h e t r i a l c o u r t d e n i e d
the

motion.

Meadors.further testified chat he worked the 5 a.m. to l:30-p.mishift. He stated that he usually woke up at 3:30 a.m. and walked three

blocks to the bus stop on North Avenue. On the morning of October 6, 1993,
Meadors was at the bus stop at approximately 3:30 a.m. He stated that
there is a 24-hour gas station located on the corner and the area is well

lit. While waiting for the bus that morning, Meadors saw a young black mr.-i
p u l l i n t o t h e g a s s t a t i o n i n h i s c a r . T h i s m a n w a s l a t e r i d e n t i fi e d a s
Antoine Douglas. The car stopped running and Douglas got out of the car

and approached Meadors and asked him if he knew where he could get a jump.
Meadors suggested that Douglas ask the gas station attendant if he could

leave the car there and come back later in the morning. As Douglas walked
a w a y, a c a r p u l l e d i n t o t h e s t a t i o n a n d s t o p p e d i n f r o n t o f h i m ,
- 2 -

 1-96-0575

Meadors testified that he was about 15 feet away from the car and saw
four people inside the car. His attention was drawn to the front seat
passenger who was crouched down in the car. Meadors stated that the car

window was open and the front seat passenger began speaking to Douglas.
Meadors made an in-court identification of Jose Cruz (defendant) as the

front seat passenger. Meadors stated that he saw defendant's face very
clearly and that the area was extremely well lit. Meadors heard defendant
ask Douglas what gang he was in and whether he was a Disciple. Meadors
heard Douglas respond that he was not a Disciple; he was a Vice Lord.

Meadors then saw defendant and the rest of the men in the car start to exit

the car. Meadors stated that he did not see the faces of any of the other
men. As the men began to exit zhe car, Douglas began to run away and the
men brought out weapons and started to shoot in Douglas' direction.

Meadors testified that defendant was using a "bright, shiny, automatic-type
of weapon" to shoot at Douglas. The others were using "little round
tubular-type guns."

When the shooting began, M;adors dove onto the ground. Meadors stated
that he heard at least 20 shot;? and then it became silent and he heard

somebody holler, "Witness!" Meadors stated that he was shot in the arm and

then he heard additional clicks of the gun. On cross-examination, Meadors 1
stated that he does not know if it was defendant who shot him. At the tims' ■

of Meadors' testimony, the bullet was still lodged in his arm. After bein«^  

shot, Meadors heard the car pull away. He made sure the men were gone and iS
then he walked to the gas station. The attendant would not let Meadors in I:
but told Meadors that he called the police.

Meadors testified that approximately one-and-a-half minutes later,

police and an ambulance arrived on the scene. While the paramedics were %

 1-96-0575

that he
felt threat'
' anything."
Meadors testified::
felt threatened
and d
was
extremely frightened.
Meadors went to St. Elizabeth Hospital and was treated for the .

-und. hospital, Meadors spo.e with a detective n. ^
person he saw in the fron^ tective and described the ,

7
—
Meadors recognized one of the .en in th h
oiiivea

ac

nis

house

with

oc

-

u

'

because he "was still afraid d ^ ■

^eopardi. .is. .amU; r ri" ^

in a Latin King neighborhood. 'Concerned because he lived
Meadors testified that nn

niorning of October 7 1993 ^ .
the newspaper that he was identified
as a witn !
were listed. He became very upset and f " h address

spoke to his father and his wif. about whether he h ' "
contacted police
the and
police
and came
the Tto his
^ forward.
the police
home The He
noi• ?

Meadors. apartment until his wife and
th.

,..n,

" <■

to

"»

"..y

~v=<,

tter his family was secure, Meadors went to th»
...

.

pl„u„

Of

th.

.ioot„.

H.

recognized earlier. He identified th Person he
identified picture
a picture
of the
^ from the qroun of v, .
Of the same
person

<»

".a ...n .t M. ho„. 0„0otob.„
„„ „ , P Ptologr,pto ,1
' ■ !■»=»*<' a«i.na.M out :i

 ^ -Line-up.
«

,

.

1-96-0575

Meadors testified that prior to th« v,

victim. He identified a picture of the

•^^at the victi.3 „a.e „as ;.oi„e noug.as "

On cross-examination, Meadors testified that h
^adbeen„i theoarbecauseh^

the xncxdent happened so quci kyl. „eadors estn
i ,at^
feet away fro,n hi™ „.en th .

h
tatheremembereddee
fndantbecausedee
fLH
lT

Meadors estimated that the conversation b
Douglas lasted about four or five 'J^f-ndant and Antoine
-arted

shooting.

-n

exited

the

car

antf

netective Kevin McDonald testified that he • '

Meadors had been ta.en to the hospital T ^ —
-e sidewal. on Ked.ie. ..e polic. found al^ °-J
-^chn
i dciatedhsi name,.cug.aswaswear.„T.
Blue Devils shirt and purple pants. ^ jacket, a ,

Detective McDonald spoke with Meadors at the h . ■ ^

a lot Of pain, was visibly shaken, scared t ^ ^

-.ors descrb
i ed the ofender to DeZ;e

years Old, about five feet four inch i " approximately 25 ^
assailants.

«..::r: rrrr

there

were

three

• v U e n c . " "r• i«' r» rd - P^« « 'i i•S S »
& i«
^ i .i a. 5.  i 

 1-96-0575

Larry Sims, a deputy medical examiner with the Cook County Medical
E x a m i n e r ' s o f fi c e , t e s t i fi e d t h a t h e p e r f o r m e d a n a u t o p s y o n D o u g l a s o n
October 6, 1993. The external examination revealed several gunshot wounds
t o t h e l e f t s h o u l d e r , l e f t fl a n k a n d m i d d l e o f t h e b a c k . T h e i n t e r n a l
examination showed that the bullet that entered the back went through the
liver, stomach and heart. Sims further stated that the cause of death was
multiple gunshot wounds.

F r a n k P e t r o n e t e s t i fi e d t h a t h e i s a fi e l d s e r v i c e s t r a i n i n g
specialist with the Cook County Adult Probation Department. Petrone
t e s t i fi e d a s a n e x p e r t i n g a n g i d e n t i fi c a t i o n . H e s t a t e d t h a t t h e r e a r e
two main "umbrella" gang organizations; one is called "People" and the
o t h e r i s c a l l e d " F o l k s . " N i n e t y - fi v e p e r c e n t o f t h e s t r e e t g a n g s i n
C h i c a g o a r e a f fi l i a t e d w i t h e i t h e r o n e . L a t i n K i n g s a r e P e o p l e a n d t h e y
a r e i d e n t i fi e d w i t h t h e c o l o r s y e l l o w a n d b l a c k . H e t e s t i fi e d t h a t t h e

rivalry between the Latin Kings and the Disciples is one of the worst and
longest. Disciples are Folks am": their colors are blue and black. He

testified that the area of Nort.i Avenue and Kedzie Avenue is Latin King
t e r r i t o r y. P e t r o n e a l s o t e s t i fi e d t h a t Vi c e L o r d s a r e P e o p l e a n d t h e y a r e
in the same alliance with Latin Kings.

P e t r o n e t e s t i fi e d t h a t s o m e i r r e f u t a b l e e v i d e n c e o f g a n g a f fi l i a t i o n
are tattoos, sweaters, hand signals and business cards. He stated that it

is also common for gang members to wear sports paraphernalia to identify
their gang and that Duke University clothing is the most common. Duke

symbolizes the Disciples gang. He further stated that anyone wearing Duke
clothing in Latin King territory would be in serious trouble. Petrone

testified that based on Douglas* tattoos and the clothing he was wearing
w h e n h e w a s m u r d e r e d , D o u g l a s w a t ' a D i s c i p l e . P e t r o n e a l s o t e s t i fi e d t h a t

 1 - 9 6 - 0 5 7 5

based on defendant's attire at the time of his arrest, defendant is a La^in
King.

S e r g e a n t M i n e y, a C h i c a g o p o l i c e o f fi c e r, t e s t i fi e d t h a t o n O c t o b e r 6 ,
1993, he went to the Meadors residence with about 21 photographs. He

stated that Meadors appeared to be scared and his hands were trembling.
Sergeant Miney showed Meadors the photos and Meadors did not make an

identification. On October 8, 1993, Detective Tony Wojcik asked Sergeant
Miney for the photos that had been shown to Meadors. Meadors was at th«

police station and Detective Wojcilc showed Meadors the pictures. Sergeant
M i n e y s t a t e d t h a t M e a d o r s i d e n t i fi e d d e f e n d a n t .

Detective Tony Wojcik testified that on October 8, 1993, he went to
Meadors' residence at approximiately 10 a.m. Meadors told him that he would
be able to identify the shooter. Wojcik stated that Meadors was scared and
he could see that Meadors was shaking. Meadors told Wojcik he was scared
because his name was listed in the paper as a witness. Meadors also told

him that after the incident, "a Hispanic individual had walked up and stood'
over him, kind of stared at hijn, scared him, and he took it to mean he
should not *** say anything." Meadors further told him that he believed

the offenders were from his neighborhood. Wojcik gave Meadors his card and

told Meadors to discuss the situation with his family and to call him when
he felt comfortable. Meadors asked him to tell other officers not to comr

to his house because he did not want people to think he was cooperating
with the police.

At approximately 4:30 that same afternoon, Wojcik was paged and told
to go to Meadors' house. Meadors told him that when he viewed the . '

photographs the first time, he saw a picture of the shooter, Meadors also
told Wojcik about something thac had happened after Wojcik left earlier

 1-96-0575

that day. Upon hearing this, Wojcik arranged for officers to guard
Meadors• home and made plans for an emergency relocation for Meadors and
his family. Wojcik testified that after being relocated to a relative's
home, Meadors never returned to his residence on Kedzie Avenue.

wojcik brought Meadors to the police station and showed him a photc
album containing about 500 arrest photographs. Meadors identified
defendant from the photographs. The photograph was different from the
photograph that Sergeant Miney showed Meadors but it was of the sai.ie

person. Wojcik then showed Meadors the photographs that were shown to him
on the day of the shooting. Meadors again identified defendant.

After returning Meadors to his relocated residence, Wojcik began
looking for Jose Cruz, the defendant. Defendant was arrested on October 9
1993, brought to the police station and advised of his Miranda rights.
Defendant was searched and Wojcik recovered a piece of paper which said
"Latin King Constitution" and a photograph of defendant making the Latin
King gang sign with his hands wh-lie holding a baby.

D-aring questioning, defenc.ant told Wojcik that he was a Latin King.
wojcik asked defendant what he would do if any Folks came through the
neighborhood and defendant responded that he "would have to move on them."
wojcik asked him to explain what that meant and defendant stated he would

have to "Chase him, beat him, stab him, shoot him, whatever it takes to ge,
him out of there."

wojcik testified that defendant had asked why he was there. Wojcik
responded that he was brought there for an investigation of a shooting. '
Defendant told Wojcik that the las!: shooting he had done was at the "blue '

boys" in the park and that he was already investigated for that shooting '
wojcik testified that "blue boys" .as a street term which referred to a

 1-96-0575

uniformed patrol officer. Wojcik left the room to pull the case report on
the "blue boys" incident. He pulled the report and returned to the room,

wojcik asked defendant what had happened with that case and defendant told
him he was out on bond. Wojcik informed defendant that he was not there in
relation to that incident. Wojcik told defendant he was being investigated
concerning the shooting of Antoine Douglas which occurred on October 6,
1993, on the corner of Kedzie Avenue and North Avenue. Defendant denied

involvement in the shooting and told Wojcik that he did not want to speak
to him anymore. As Wojcik and Detective Ricchio began to leave the room,
defendant called them back in and said that he was out on the night of
October 5 and that he had arrived home at about 12:30 a.m. on October 6.
Defendant also said that three of his relatives were awake when he arrived
home that night and that he went to sleep at about 1:30 a.m. Two of the
relatives were subsequently interviewed.

wojcik further testified that on October 9, 1993, he picked up Meadors

at his new residence and brought him to the-police station where a line-up
was conducted. Wojcik stated that "[Meadors] identified Mr. Cruz as the

individual. He said, that's the guy. He says, I'll never forget him. "
After the testimony of Detective Wojcik, the People rested. The trial
court denied defendant's motion for directed finding. The defense rested.

The jury found defendant guilty of first-degree murder, attempted first- '
degree murder, and aggravated battery with a firearm. The trial court
denied defendant's motion for new counsel and for a new trial.

Defendant was sentenced to 60 years imprisonment for murder,
consecutive to 3 0 years imprisonment for attempted murder, consecutive to a
sentence of 15 years imprisonment for attempted murder under case number
93CR13478.

 l « 9 6 - 0 5 7 5

A . O T H E R C R I M E S E V I D E N C E A N D I N E F F E C T I V E A S S I S TA N C E O F C O U N S E L

D e f e n d a n t ' s fi r s t c o n t e n t i o n i s t h a t t h e a d m i s s i o n o f e v i d e n c e t h a t

d e f e n d a n t c o n f e s s e d t o h a v i n g fi r e d s h o t s a t p o l i c e o f fi c e r s i n a n

unrelated incident and evidence that defendant had previously been arrested
a n d w a s k n o w n b y p o l i c e w a s r e v e r s i b l e e r r o r. D e f e n d a n t f u r t h e r c o n t e n f ^ s
that defense counsel's failure to object to the admission of other crimes
evidence constitutes ineffective assistance of counsel. The State contend?!
that defendant is estopped from complaining about the introduction of t,-ie

evidence where he first commented on it in his opening statement and,
f u r t h e r, t h a t d e f e n s e c o u n s e l ' s f a i l u r e t o o b j e c t t o a d m i s s i o n o f o t h e r

crimes' evidence was a matter of trial strategy which did not prejudice the
defendant. We agree with the State.

It is well-settled that evidence of crimes for which the accused is
not on trial is inadmissible if relevant merely to establish defendant's

propensity to commit crime. People v. Thingvold, 145 111. 2d 441 (1991).
However, where a defendant procr.res, invites, or acquiesces in the

admission of evidence, even whore it is improper, he is estopped from

arguing its admissibility. People v. Ocasio, 205 111. App. 3d 157 (1990);
People

V.

Payne,

98

111 .

2d

45

(1983).

The State directs this court to People v. Kovacivich, 10 111. App. 3d
797 (1973). In Kovacivich, defendant was found guilty of burglary. At
trial, defense counsel made it known during opening statements that

defendant had been involved in another trial for burglary but had been
acquitted. Kovacivich, 10 111. App. 3d at 798. On direct, examination of a

codefendant, the State elicited evidence of defendant's prior burglaries.
Kovacivich, 10 111.- App. 3d at 798-99. On cross-examination of the same

witness, defense counsel further elicited evidence of defendant's prior
- 1 0 -

 1-96-0575

burglaries. Kovacivich, 10 111. App. 3d at 799. On appeal, defendant
argued that the State committed reversible error when it produced evidence

of defendant's other crimes. Kovacivich. 10 111. App. 3d at 799. The
Third District held:

"It is true that the State on direct examination of

their witnesses also brought forth testimony as to the
defendant's participation in other crimes but such
testimony was not objected to by the defendant's
counsel. Not only are we of the opinion that the

defendant is estopped from complaining about testimony
concerning a subject matter which his counsel first

introduced to the jury, but in addition our reviewing
courts have held that the unobjected testimony of State

witnesses which had the effect of disclosing to the

jury that the defendant had committed a robbery other

than the one for which h- was on trial was properly
received and any error,.• was waived because of- failure to

object. [Citation.]" Kovacivich. 10 111. App. 3d at
7 9 9 .

We find that Kovacivich is analogous to the case at bar. in the

instant case, defense counsel introduced defendant's prior criminal hiBtor>'
in his opening statement. He stated:

"When my client was arrested, he denied to the

police that he did this. When he was arrested, he
admitted that he was a gang member.
*

*

★

He may have admitted to the police certain other

 1-96-0575

i l l e g a l a c t i v i t y, b u t h e d e n i e d t h i s . "

A d d i t i o n a l l y, d e f e n s e c o u n s e l s t a t e d i n c l o s i n g a r g u m e n t :
"[H]e makes a statement to the police♦ He tells
t h e p o l i c e h e ' s a g a n g m e m b e r. H e a d m i t s i t . H e
allegedly makes some statement about coming onto other
gangs or other gang members. And he admits to even
another

crime,

when

he

doesn^t

have

to

admit

to

anything. But he denies this.
★

★

★

If you are going to lie to protect your ass, why
say anything? Why admit you're a gang member? Why
a d m i t t o d o i n g a n o t h e r c r i m e , y o u k n o w, a f e w w e e k s
e a r l i e r ?

They said, we're arresting you for shooting
somebody. He said, listen, I haven't shot anyone since
two weeks ago. Why admit to that? That case is still
.going.,___unless_you are willing_to—tell them-the—t-ruth^
and then deny this. Doesn't make any sense. It
doesn't make any sense. So much so that his statement

shows that he's not guilty of this offense.

His telling that authorities where he was with,
denying the crime, saying that, yes, I committed this

other crime; yes, I'm a gang member. All that goes to
reasonable

doubt."

D u r i n g i t s d i r e c t e x a m i n a t i o n o f D e t e c t i v e Wo j c i k , t h e S t a t e
the evidence of the other crime. Defense counsel not only failed
exclusion of the other crimes evidence, but his cross-examination

- 1 2 -

 1-96-0575

Detective Wojcik served to emphasize defendant's involvement in the prior
shooting.

Accordingly, we find that defendant is estopped from asserting that
the other crimes evidence was improperly admitted.

Likewise, we reject defendant's argument that mentioning the other

crimes evidence in opening statement and failing to object to the testimony
of Detective Wojcik constitutes ineffective assistance of counsel. To

prevail on a claim of ineffective assistance of counsel, a defendant mu.^t
meet both prongs of the Strickland test. See Strickland v. Washington. 466

U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 {1984) (which was adopted by
Illinois in People v. Albanese, 104 111. 2d 504 (1984)). First, trial
counsel's performance must fall below an objective standard of

reasonableness. Strickland, 466 U,S. at 687-88, 80 L. Ed. 2d at 693, 104
S. Ct. at 2064. An objective standard of reasonableness under the

prevailing professional norms is judged by whether the attorney gave

reasonable assistance within th> range of competence demanded of attorneys
in criminal cases. People v. CJaballero, 126 111. 2d 248 (1989). Second,
even if defendant meets the first: requirement, he must also establish that

there exists a reasonable probability that but for counsel-s unprofessional
performance, the result of the petitioner's trial would have been

different. When applying the Strickland test, the reviewing court must
view the totality of counsel's conduct in light of all the circumstances.
People V. Jackson, 195 111. App. 3d 104, 119 (1990) .

Defendant argues that his counsel's failure to seek exclusion of his
admission to the previous shooting was objectively unreasonable and since :

there was no justifiable basis for admitting this evidence, counsel should
have moved to exclude it. We disagree. Based upon review of defense

 1 - 9 6 - 0 5 7 5

counsel's opening and closing arguments and his cross-examination of
Detective Wojcik, his theory of the case is clear: since defendant

admitted to being a gang member and admitted to committing another
shooting, his assertion of innocence in the instant case is credible and
should

be

believed.

T h e S t a t e d i r e c t s t h i s c o u r t t o t h e c a s e o f P e o p l e v. G r o v e s , 2 8 7 111 .

App. 3d 84 (1997). In Groves, defendant was convicted of first-degree
murder and possession of a stolen vehicle. Groves, 148 ill, App. 3d at 93. .

Defendant argued on appeal that his counsel was incompetent for allowing
the defendant to testify that he sold drugs for a gang. Groves, 287 111.

App. 3d at 93. This court found that based on a review of the record, it

was evident that defense counsel's trial strategy was to persuade the jury,
that the defendant was a drug dealer but not a murderer. Groves, 287 111.

App. 3d at 94. Moreover, this court found that the strategy was not

unreasonable or prejudicial to the defendant. Groves, 287 111. App. 3d at
94 .

The instant case is analocyous. Like Groves, the defense counsel's
strategy was not unreasonable or prejudicial. In the case at bar, defense

counsel's theory was that defendant had admitted to a shooting in the past, ■■
so his denial of the present crime should be believed. This goes to
defendant's credibility and is certainly not an unreasonable argument.
Defendant also contends that defense counsel's failure to move for a

mistrial and his failure to request a limiting instruction to ensure that.
the jury would not consider the previous shooting as evidence of

defendant's guilt {see Illinois Pattern Jury Instruction, Criminal, No.
3.14 {3d ed. 1992)) also constitutes ineffective assistance of counsel.
However, as the State points out, the decision to ask for a mistrial is

 1-96-0575

m a t t e r o f t r i a l s t r a t e g y w h i c h m u s t b e g i v e n g r e a t d e f e r e n c e . P e o p l e v.
S h l i m o n , 2 3 2 111 . A p p . 3 d 4 4 9 , 4 5 8 ( 1 9 9 2 ) . A l s o , w h e r e t h e d e c i s i o n n o t t o

request a limiting instruction is obviously a tactical decision, there is

no ineffective assistance. People v. Sizemore, 226 111. App. 3d 956, :)59
(1992) .

A c c o r d i n g l y, s i n c e t h e a b o v e c o n s t i t u t e s t r i a l s t r a t e g y a n d s i n c e
counsel's performance does not fall below an objective standard of
reasonableness, we reject defendant's claim of ineffective assistance cf

c o u n s e l . D e f e n d a n t ' s f a i l u r e t o s a t i s f y t h e fi r s t p r o n g o f t h e S t r i c k l a n d
t e s t i s f a t a l t o h i s c l a i m o f i n e f f e c t i v e a s s i s t a n c e o f c o u n s e l ( P e o p l e v.
R a n d l e , 2 7 7 111 . A p p . 3 d 7 8 8 , 7 9 6 ( 1 9 9 5 ) ) a n d w e n e e d n o t a d d r e s s t h e
second prong.
B.

BOLSTERING

OF

S TAT E

WITNESS

Defendant's next contention is that the State improperly bolstered the
testimony of Meadors. Defendant asserts that he was denied his right to a

fair trial by: (1) admission of testimony that an unidentified Hispanic
male attempted to intimidate M'iadors into not testifying; (2) admission of
evidence that Meadors and his family were relocated after the shooting; ajid
(3) admission of testimony that Meadors made out-of-court statements
c o n s i s t e n t w i t h h i s t r i a l s t r a t e g y.
1.

Evidence

of

Attempt

to

Intimidate

Meadors

At trial. Detective Wojcik testified that two days after the shooting,
h e w e n t to Me a d o rs' h o me to i n te r v i e w h i m a n d M e a d o r s w a s s c a r e d a n d

visibly shaken. When asked if Meadors explained why he was afraid.
D e t e c t i v e W o j c i k t e s t i fi e d :

" H e s a i d s e v e r a l r e a s o n s w h y. H e s a i d t h e m a i n
reason why was that his name had showed up in the

- 1 5 -

 1 - 9 6 - 0 5 7 5

p a p e r, a n d t h a t p e o p l e w o u l d b e a b l e t o k n o w t h a t h e
was

a

witness

in

the

case.

He also told me on the night of the incident, a

Hispanic individual had walked up to him and stood over
him, kind of stared at him, scared him, and he took it

to mean he should not, he should not say anything in
the

sense

he

should

not

be

a

witness

***."

Defendant argues this testimony constitutes inadmissible hearsay.
H e a r s a y i s d e fi n e d a s t e s t i m o n y o f a n o u t - o f - c o u r t s t a t e m e n t o f f e r e d f o r

t h e t r u t h o f t h e m a t t e r a s s e r t e d . P e o p l e v. S i m s , 2 8 5 111 . A p p . 3 d 5 9 8
(1996) . vn:iere the testimony ia not offered for the truth of the matter

a s s e r t e d , b u t f o r s o m e o t h e r p u r p o s e , i t i s a d m i s s i b l e . P e o p l e v. C l a r k ,
1 6 0 111 . A p p . 3 d 8 7 7 , 8 8 5 ( 1 9 3 7 ) .

The State contends that Detective Wojcik's testimony was not offered

for the truth of the matter asserted, but rather this testimony was used to
show why Detective Wojcik reloca'^ed Meadors and was not able to get an
i d e n t i fi c a t i o n f r o m M e a d o r s u n t i l a f t e r t h e r e l o c a t i o n . W e a g r e e w i t h t h e
S t a t e a n d fi n d t h a t t h i s e v i d e n c e w a s a d m i s s i b l e t o e s t a b l i s h a b a s i s f o r
M e a d o r s ' f e a r a n d r e l u c t a n c e t o t e s t i f y.

The State relies primarily on People v. Perez, 258 111. App. 3d 753
(1994) . In Perez, defendant was convicted of aggravated battery and armed

violence. Perez, 258 111. App. 3d at 754. On appeal, defendant argued
t h a t a p o l i c e o f fi c e r ' s t e s t i m o n y a t t r i a l t h a t h e d i d n o t d i s c l o s e t h e

identity of a citizen because of the citizen's fear of gang retaliation was,
p r e j u d i c i a l e r r o r. P e r e z , 2 5 8 111 . A p p . 3 d a t 7 5 9 . T h e c o u r t s t a t e d t h a t . ,

" [ t l h e a n s w e r o f [ t h e o f fi c e r ] e s t a b l i s h e d o n l y t h a t t h e u n k n o w n w i t n e s s

was afraid of gangs in general, not the defendant." Perez, 258 111. App.
- 1 6 -

 1-96-0575

3d at 759. This court found that the error did not prejudice the defendant
to the point that the testimony constituted reversible error. Perez, 258
111 . A p p . 3 d a t 7 5 9 .

Similarly, the testimony regarding the threats in the instant case
served as a basis for Meadors' fear and subsequent relocation. There was

no evidence which in any way linked the unidentified Hispanic male to
defendant. Rather, the evidence supported Meadors' fear of gangs in
general. Moreover, there was no evidence that Meadors feared or was
i n t i m i d a t e d b y t h e d e f e n d a n t i n p a r t i c u l a r.

Accordingly, for the foregoing reasons we find that the evidence was
properly admitted and did not prejudice defendant.
2.

Relocation

Evidence

Defendant next argues that admission of evidence about the relocation
of Meadors and his family was prejudicial error. The State asserts that

Meadors' testimony was relevant to explain the inconsistency in his
i d e n t i fi c a t i o n t e s t i m o n y .

The admission of evidence is within the sound discretion of the trial
court and its ruling should not be reversed absent abuse of that

discretion. People v. Ward, 101 111. 2d 443 (1984). Evidence of a

witness' fears is relevant and admissible where it tends to prove a
material fact in issue and its probative value outweighs its prejudicial
effect. People v. Eyler, 133 111. 2d 173 (1989).

In the instant case, defense counsel stated in opening statement:
"The evidence about the identification, and this
is the important, going to the important issue in the

case, is not whether a person believes that my client
did it, but the accuracy of that belief. That this
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 1 - 9 6 - 0 5 7 5

occurred, yes, in a very well-lit area, but it was a
shocking situation.
As I said before, no exact description was given.
T h a t t h i s i s a n i d e n t i fi c a t i o n w h e r e t h e d e s c r i p t i o n

that was given could fit hundreds or thousands of young
Hispanic

men

who
*

look
*

like

my

client.

;•

*

The evidence is not going to show that there is a
s u f fi c i e n t d e g r e e o f r e l i a b i l i t y a n d a c c u r a c y i n t h e
i d e n t i fi c a t i o n t o a s s u r e t h a t t h e e v i d e n c e i s g u i l t y
beyond a reasonable doubt."
Based on the above statement, it was not unreasonable to assume that
defense counsel would attack Meadors' ability to identify defendant.

Likewise, it was not unreasonable to assume that defense counsel would

emphasize the fact that Meadors initially failed to identify defendant when
fi r s t s h o w n d e f e n d a n t ' s p h o t o . I n f a c t , d e f e n s e c o u n s e l d i d q u e s t i o n
Meadors about his ability to identify defendant and the gap between the

time Meadors was shown the first photo array and the time Meadors first
i d e n t i fi e d d e f e n d a n t , t w o d a y s l a t e r. I t w a s n o t u n t i l a f t e r t h e S t a t e
relocated Meadors and his family that Meadors identified defendant. The
fact that Meadors feared for his own safety and that of his family in
addition to the fact that he was forced to relocate due to his cooperation

with the State was properly admitted to illustrate his failure to identify
d e f e n d a n t w h e n fi r s t g i v e n t h e o p p o r t u n i t y.

A c c o r d i n g l y, w e fi n d th a t th e r e l o c a ti o n e v i d e n c e w a s p r o p e r l y
a d m i t t e d .

3, Prior Consistent Statements of Meadors
- 1 8 -

4

 1-96-0575

Defendant's next contention is that admission of evidence of

statements that Meadors made to police which were consistent with his trial
testimony was improper and prejudicial.
A prior consistent statement is hearsay and is only admissible to r
r e f u t e a n i n f e r e n c e o f m o t i v e t o t e s t i f y f a l s e l y, o r t o r e b u t a s h o w i n g o f
r e c e n t f a b r i c a t i o n . P e o p l e v. B r o w n , 1 2 2 111 . A p p . 3 d 4 5 2 , 4 5 8 - 4 5 9 ( 1 9 8 4 ) . 4
H o w e v e r , t h i s r u l e d o e s n o t a p p l y t o i d e n t i fi c a t i o n t e s t i m o n y . B r o w n , 1 2 2

111. App. 3d at 459; see also People v* Rogers, 81 111. 2d 571, 582 (1980) ,
Out-of-court statements are admissible to corroborate a witness' in-court

testimony where the statements relate to identification, and where the
i d e n t i fi c a t i o n i s p a r t o f e s t a b l i a h i . n g c o n d u c t p u r s u a n t t o p o l i c e

procedures. People v. Shum, 117 111. 2d 317, 342 (1987),
I n P e o p l e v. B r o w n , 1 2 2 111 . A p p . 3 d 4 5 2 ( 1 9 8 4 ) , t h e S e c o n d D i s t r i c t
noted the following:
"The Illinois Supreme Ccurt clearly enunciated our
State' s "position on the issue-in-chief in the case of
P e o p l e V. R o g e r s , 8 1 111 . 2 d 5 7 1 ( 1 9 8 0 ) . I n s u b s t a n c e ,
the

court

decreed

that

evidence

of

out-of-court

i d e n t i fi c a t i o n s b y a n i d e n t i f y i n g w i t n e s s , a n d a n y
t h i r d - p e r s o n w h o s a w o r h e a r d t h e i d e n t i fi c a t i o n # i s
admissible for the purpose of corroborating an in-court
i d e n t i fi c a t i o n .

Such

corroboration

is

j u s t i fi e d

to

rebut the notion that 'by the time of trial the
witness'

mind

has

become

so

conditioned

that

there

is

little likelihood that he would not identify the person
in court.' [Citation.] Thus, where the identifying
witness herself is testifying, she may in fact be
- 1 9 -

 1-96-0575

repeating an out-of-court assertion for the truth of
the matter asserted, yet the opportunity for
cross-examination is present and therefore the
rationale for hearsay exclusion is absent.

[Citations.]" Brown, 122 111. App. 3d at 457-58.

Both cases cited by defendant for the proposition that the

Identification testimony of the detectives constitutes reversible error

distinguishable on their facts. See People v. Wheeler. 186 111. App. 3^
422 (1989); People v. Sommervile, 193 111. App. 3d 161 (1990). Moreover,
in its reply brief, defendant essentially acquiesces that the police
testimony of Meadors• identification is admissible under People v. Rodcr..

81 111. 2d 571 (1980) . We find that the testimony of the police officer is
admissible under Rodgers as proper corroboration of an in-court
i d e n t i fi c a t i o n .

Nevertheless, defendant goes on to argue that even if the testimony
was admissible, the officer's testimony that Meadors said he would never
rorget the man's face does not constitute a prior statement of

Identification and the State's reiteration of the remark in closing
arguments constitutes improper bolstering. We agree that the police

testimony regarding Meadors' statement that he would never forget
defendant's face does not constitute a prior statement of identification
and was inadmissible. However, we do not find that it rises to the level

Of prejudicial error. In addition, with respect to the State's comments in
closing arguments, the judge properly tempered any prejudice when he
instructed the jury that closing arguments were not evidence. People y.
Lasley, 158 111. App. 3d 614 (1987).
C. PROSECUTOR'S CLOSING ARGUMENT

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 1 - 9 6 - 0 5 7 5

Defendant's next contention is that the prosecutor made improper and
i n fl a m m a t o r y r e m a r k s i n c l o s i n g a r g u m e n t . S p e c i fi c a l l y , d e f e n d a n t p o i n t s
to the prosecutor's statements that Meadors v^as a credible witness, that
defendant was a "teacher'' of "his ways of the world," that Meadors was
their "ace in the hole," that defendant was a "Latin Killer," and that
defendant was smiling when he shot Douglas.

We must decide whether the complained-of remarks rose to the level of
depriving defendant of a fundamentally fair trial while bearing in mind the
following. When a court reviews allegations of prosecutorial misconduct,
the closing arguments of both the State and the defendant must be examined

in their entirety and the comments complained of must be placed in their
p r o p e r c o n t e x t . P e o p l e v. C i s e w s k i , 11 8 111 . 2 d 1 6 3 , 1 7 5 - 7 6 ( 1 9 8 7 ) . I t
must also be remembered that prosecutors are afforded wide latitude in

c l o s i n g a r g u m e n t . P e o p l e v. W i l l i a m s , 1 4 7 111 . 2 d 1 7 3 , 2 3 1 ( 1 9 9 1 ) . T h e
prosecutor has a right to comment upon the evidence presented and make any
rea^on^l^_inferences arising tl-.erefrom, even if those inferences are

u n f a v o r a b l e t o d e f e n d a n t . P e o p l e v. H o f f s t e t t e r , 2 0 3 111 . A p p . 3 d 7 5 5 , 7 7 8

(1990). And if the trial court instructs the jury that closing arguments
are not evidence, any error resulting from the prosecutor's remarks is
c o n s i d e r e d c u r e d . C a m d e n , 2 1 9 111 . A p p . 3 d a t 1 4 1 . R e v e r s a l i s n o t

warranted unless the argument as a whole is so prejudicial to the defendant

so as to deprive him of a fair trial. People v. Morgan, 112 111. 2d 111,
132 (1986). The trial court's determination regarding the propriety of an,
argument will not be overturned absent a clear abuse of discretion. People
V. S t u c k e y, 2 3 1 111 . A p p . 3 d 5 5 0 , 5 6 3 ( 1 9 9 2 ) .

The following are the complained-of comments made by the prosecutor
during closing argument:

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 1-96-0575

"The day, that night, at 3:30 in the morning,

violence, crime and gangs met up with honesty, hard
w o r k , a n d c o u r a g e . Ve r n o n M e a d o r s .

Whatever you thought of Mr. Meadors, folks, that

man is a hero. He's a citizen beyond all citizens, and
most of all, he is a pure, pure victim in this case.

And his intimidation and his fear and his gang and his
kingism lasted for a couple of hours, because Vernon
Meadors was scared for his life and scared for his

family, but the man's character came through. His
conscience came through in this case.
*

*

*

[Vernon Meadors] is the most credible,
straightforward, honest witness, you will ever hear

from. The sacrifices that that man made that night,
and the rest of his li'e. He had to get police
protection. His wife comes home with his two kids.
They had to get relocated, leave his home because of
this guy and his buddies.
*

It

It

[Meadors] hesitates, initially, to pick this man
out, but his conscience and character, conscience and

his character came through. And out of hundreds,
hundreds of photos in an album, he picks out Jose Cruz.
It

it

*

And isn't it fitting that a gang member shooter

like this guy, isn't it ritting that the person who
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 1 - 9 6

brings him to justice is a citizen like Vernon Meadors?

Who's got the courage to come forward and tell you, in
the same room, of an executioner, a gang member? To

tell you what happened there? Isn't it fitting for
guys like Jose Cruz to be brought to justice by a man

of that character? Vernon Meadors, you are never going
to meet a man like that again. You will never see a

guy like that. That man's duty that he fulfilled here
will never be equalled."

In rebuttal, the prosecutor asserted the following:
"[Y]ou have heard from the evidence that Jose

Cruz, he's not only a killer, but I'll tell you what
else he is. He's a teacher. That's what Jose Cruz is

about. He's a teacher. He's the guy that [the gang
expert] described as 'crafile to the grave.'
DEFENSE COUNSEL CJHN:. Objection -again. - -it-t-g
irrelevant.

T H E C O U R T: O v e r r u l e d .

ASSISTANT STATE'S ATTORNEY BYRNE:

He's a cradle-to-the-grave gang member, and he's
teaching other people his ways of the world."
He

further

stated:

"There's only one way to beat a king and that's

with an ace, and that's what Vernon Meadors is. He's
our ace in the hole. He's not lying, he's not

mistaken. [Jose Cruz is] a Latin King. He's a Latin
Killer."

^

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 1-96-0575

We find that these comments, while unnecessarily repetitious, did not

deprive defendant of a fair trial. We agree that is highly improper for a
prosecutor to vouch for a witness' credibility (see People v. Fields. 258

111. App. 3d 912 (1994)) or to give his personal opinion of the veracity of
People V. Schaefer, 217 111. App. 3d 566 (1991). However, that

did not occur in the instant case. The prosecutor stated that Meadors was
"the most credible, straightforward, honest witness, you will ever hear

from" and that his "conscience and his character came through." Further,
he stated "[y]ou are never going to meet a man like that again" and
referred to him as their "ac« in the hole." These comments were all
properly based upon the evidence at trial and Meadors' presence on the

witness stand. Meadors was at a bus stop early that morning on his way to
work. He was supporting a family. He was afraid to testify but did so

anyway. There was evidence that Meadors made a big sacrifice in coming
forward and certainly that reflects upon his character.

Defendant directs _ou^attea,i:ion tO-People v. Valdery-.-oS-m : App; sd"
375, 378 (1978), in which the prosecutor argued:
"[Tlhe equality [sic] and integrity of the three

witnesses *** have never been higher. I have never had
contact with people who have come forward and testified

as witnesses who have had the level of integrity and
character of those people and I'm particularly
impressed."

The appellate court held that these comments were highly prejudicial

because the prosecutor placed the integrity of the State's Attorneys
Office behind the credibility of the State's witnesses. Valderv. 65 111
App. 3d at 378. That is not what occurred in the instant case. The
- 2 4 -

 1-96-0575

'A

prosecutor's comments were based upon Meadors' testimony and the particular J
facts of the incidents Moreover, the prosecutor never referred to his

o f fi c i a l t i t l e o r t h e p o w e r s o f h i s o f fi c e .
Second, defendant argues that it was highly improper for the

prosecutor to refer to defendant as a "Latin Killer" and a "teacher" of
" h i s w a y s o f t h e w o r l d . " W e fi n d , h o w e v e r , t h a t t h e s e r e m a r k s w e r e b a s e d

upon the evidence. As the State points out, when defendant was arrested,
he was carrying the Latin King Constitution in his wallet. Defendant was
also carrying a photograph of himself holding a baby while making the Latin
King hand sign. In addition, it was defendant who questioned the victim
a b o u t h i s g a n g s t a t u s . M o r e o v e r, d e f e n d a n t t o l d p o l i c e t h a t h e w o u l d d o

whatever it took to get a rival gang member of out his gang's territory.
Thus, it is not an unreasonable inference that defendant was a "teacher" of
"his ways of the world." Also, the prosecutor's reference to defendant as

a "Latin Killer" was not a derogr.Lory racial comment but rather a play on
the~~gang' s name "Latin Kings . "
F i n a l l y, w e a g r e e w i t h d e f e n d a n t t h a t t h e r e w a s n o b a s i s i n t h e

evidence that any of the shooters, including defendant, were smiling as
they shot at Douglas. This argument violated the well-established

principle that it is improper for the prosecutor to argue assumptions or I
facts without basis in the evidence or to advance what amounts to his own

unsworn testimony. People v. Vfhitlow, 89 111. 2d 322 (1982). However, any
error committed by the prosecutor in closing arguments was cured when the

trial court instructed the j\xry that closing arguments are not evidence. /
P e o p l e v. L a s l e y, 1 5 8 111 . A p p . 3 d 6 1 4 ( 1 9 8 7 ) . M o r e o v e r , i n v i ^ w o f t h e

entire record and evidence of defendant's guilt, we cannot say that the
improper comment either constituted a material factor in defendant's
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 1 - 9 6 - 0 5 7 5

convictions or otherwise prevented him from receiving a fair trial so as to
require reversal.

A c c o r d i n g l y , w e fi n d t h a t t h e p r o s e c u t o r ' s c l o s i n g a r g u m e n t d i d n o t
prejudice defendant.
D.

VICTIM

I M PA C T

S TAT E M E N T S

D e f e n d a n t ' s fi n a l a r g u m e n t i s t h a t t h e t r i a l c o u r t i m p r o p e r l y
considered three victim impact statements, one written by the decedent's
g r a n d m o t h e r, i n v i o l a t i o n o f t h e R i g h t s o f C r i m e V i c t i m s a n d W i t n e s s e s A c t »
725 ILCS 120/1-9 (West 1994).

A victim impact statement is a statement pursuant to a statutory

right, prepared by a "crime victim" together with the State's Attorney's
Office, explaining the impact that the defendant's conduct had upon the
victim. 725 ILCS 120/6 (West 1994). This statement is to be considered as
one factor among many taken into consideration by the trier of fact in
s e n t e n c i n g d e f e n d a n t . 7 2 5 I L C S 3 2 o / 6 { W e s t 1 9 9 4 ) . T h e d e fi n i t i o n o f a

''crime~victi"m"" "include'^a sinc^le repre^ntatTiv'e who may be the spou~s~e7~
parent, child or sibling of a person killed as the result of a violent

c r i m e p e r p e t r a t e d a g a i n s t t h e p e r s o n k i l l e d . " 7 2 5 I L C S 1 2 0 / 3 ( a ) ( We s t
1994) .

I n t h e c a s e a t b a r, t h e t r i a l c o u r t r e c e i v e d a n d c o n s i d e r e d t h r e e

victim impact statements, one of which was written by decedent's
g r a n d m o t h e r w h o d o e s n o t f a l l w i t h i n t h e s t a t u t o r y d e fi n i t i o n .

Nevertheless, the Rights of Crime Victims and Witnesses Act specifically
states; "Nothing in this Act shall create a basis for vacating a
conviction or a ground for appellate relief in any criminal ease;" 725
ILCS 120/9 (West 1994). As this court has previously recognized;
"[T]he title of the Act suggests that [the Act] was
- 2 6 -

 m

.
■

f

••

••

intended as a shield to protect the rights of victims

and witnesses forced, through no fault of their ovm, to
participate in the criminal justice system. The

language quoted above, delineating the scope of the
Act, expressly reveals that its provisions may not be
used as a sword by criminal defendants seeking

appellate relief." People v. Benford. 295 111. App. 3d
695 (1998).

we find that defendant cannot rely upon the Act as a basis for having
his sentence vacated and, therefore, reject his contention.

We also find that defendant failed to establish that he was prejudiced
by the consideration of more than one statement, therefore, defense

counsel's failure to object does not constitute ineffective assistance of
c o u n s e l .

C o n c l u s i o n

For the aforementioned recssons, the decision of the circuit court of
Cook County is hereby affirmed.
AFFIRMED.

BUCKLEY, P.J., with O'BRIEN and GALLAGHER, JJ. , concurring.
V ••••■ ty

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