                                               FIRST DIVISION
                                               February 19, 2008




No. 1-06-0450

THE PEOPLE OF THE STATE OF ILLINOIS,      )    Appeal from the
                                          )    Circuit Court of
     Plaintiff-Appellee,                  )    Cook County.
                                          )
          v.                              )
                                          )
ROOSEVELT CLAY,                           )    Honorable
                                          )    James B. Linn,
     Defendant-Appellant.                 )    Judge Presiding.



     JUSTICE WOLFSON delivered the opinion of the court:

     Nearly thirty-three years have passed since the murders of a

doctor and two of his patients, committed in the course of a

kidnapping.    Defendant Roosevelt Clay has twice been tried for

and convicted of these murders.    In this appeal, the defendant

seeks a third trial.    While we are troubled by some of the issues

he raises, we conclude the overwhelming weight of the evidence

requires us to affirm his convictions and sentences for murder

and kidnapping.

     A jury convicted the defendant of three counts of murder.

He was sentenced to concurrent indeterminate terms of 60 to 120

years in prison.    On appeal, defendant contends the trial court

erred in allowing the State to impeach defendant’s trial

testimony with his prior murder conviction.    Defendant also

contends he received ineffective assistance of trial counsel, in
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violation of his Sixth Amendment rights.

     Because prejudice to the defendant is a central issue raised

by his ineffective assistance claim, we find it necessary to set

out the relevant facts in some detail.

FACTS

     Defendant was convicted in 1988 for the 1975 murders of Dr.

Lawrence Gluckman and two of Dr. Gluckman’s patients, Minnie and

Tressie Harris.   In 2004, defendant filed a post-conviction

petition, alleging newly discovered evidence disclosed that Frank

Love, a key witness for the prosecution, had lied about his

motive for testifying at defendant’s trial.   The trial court

granted defendant’s post-conviction petition and ordered a new

trial.   The second trial took place in December of 2005.

     Prior to re-trial, defense counsel filed a motion in limine

to bar the State from impeaching defendant’s testimony with his

1989 murder conviction in Wisconsin.   The trial court denied the

motion, finding the prejudicial impact of the conviction was

outweighed by its probative value.

     At the second trial in 2005, the evidence established that

at around 6:20 p.m. on April 25, 1975, Chicago police found the

bodies of Dr. Lawrence Gluckman and two of his patients, Minnie

and Tressie Harris, in Dr. Gluckman’s car.    The car was parked in

the middle of an alley at 10526 S. Lowe in Chicago.   Dr.


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Gluckman’s body was found in the trunk, and the women’s bodies

were found partially covered with green plastic garbage bags in

the back seat.   The rear window of the car was shattered.   An

autopsy indicated Dr. Gluckman sustained a blunt force trauma to

the head and died of a heart attack.   Minnie and Tressie Harris

both died as a result of gunshot wounds to the head.

     The parties stipulated that Dr. Gluckman, Minnie Harris, and

Tressie Harris left Dr. Gluckman’s clinic at Warren and Western

at around 4 p.m. on April 25.   Three phone calls were made to Dr.

Gluckman’s wife between 6:30 and 7:20 that evening, each

demanding $100,000 be paid or Dr. Gluckman would be killed.

     On April 27, 1975, Detective Anthony Katalinic arrested

Frank Love after Delores Townsend named him in a statement.

According to Detective Katalinic, Love implicated six people in

the kidnapping and murders: Roosevelt Clay, David Clay, Harold

Smith, Matthew Williams, Michael Wilson, and Willie Carter.    When

Detective Katalinic went to Annie Clay’s--defendant’s mother’s--

home, he was given permission to search the garage.    He recovered

glass shards from the floor and green plastic bags similar to the

type found covering the victim’s bodies in Dr. Gluckman’s car.

Detective Katalinic testified that Franklin Scott identified

defendant in a lineup as being one of the people he saw standing

behind Dr. Gluckman’s clinic on the afternoon of the abduction.


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     The prior testimony of a deceased witness, Frank Scott, was

published to the jury.   Scott testified that he owned a

restaurant directly behind Dr. Gluckman’s clinic.    At around 3:30

p.m. on April 25, 1975, Scott saw seven or eight men talking in

the alley behind Dr. Gluckman’s clinic.    The men were standing

near a car that had its trunk hood open.    Scott identified

defendant and Harold Smith in court as two of the men he saw in

the alley.

     Scott Jennings testified that, in 1983, he worked as an FBI

agent in the Chicago office.   On June 13, 1983, Jennings met

defendant in the Cook County Jail after defendant told him he had

information regarding a murder.    After being advised of his

Miranda rights, defendant signed a waiver of his rights and gave

an oral statement regarding his involvement in a triple murder in

1975.   Jennings testified he told defendant he could be

prosecuted for the murders, and that no threats or promises were

made to induce defendant to confess.    Jennings denied telling

defendant to “beef up” the story and make himself an eyewitness

because hearsay “wasn’t good enough.”    Jennings contacted

Detective Katalinic and arranged for him to interview defendant.

     Detective Katalinic testified defendant gave him details

during his confession that he was not able to get from anyone

else questioned, including Love and Scott.    Defendant told


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Detective Katalinic that sometime in April 1975 he went to his

brother David’s house and walked in on a meeting.     His brother,

Willie Carter, Frank Love, Matthew Williams, and Michael Wilson

were discussing a plan to kidnap Dr. Gluckman.     Defendant

insisted on being included in the plan.     Defendant told Detective

Katalinic that he brought the gun and drove to the clinic in a

separate car.   When Dr. Gluckman came out of the back door of the

clinic with two women, defendant gave the gun to Smith.        They

both approached the doctor with the gun drawn.     They ordered Dr.

Gluckman to get into the trunk of his car.     When Dr. Gluckman

refused because he had a bad heart, Smith and Carter picked him

up and put him in the trunk.   After Williams forced the two women

into the car, Williams drove the car to defendant’s aunt’s house.

     Defendant told Detective Katalinic that when he discovered

Dr. Gluckman was dead, he and Carter went into the house to talk

to David Clay and Wilson.   They decided to shoot the two women.

When defendant and Carter got into the car with the two women,

Carter asked, “Which one of you bitches wanna die first?”        Carter

then shot the women.   Williams and defendant abandoned Dr.

Gluckman’s car at 106th and Lowe.     When Williams got into

defendant’s car, defendant noticed Williams was wearing Dr.

Gluckman’s gold ring and gold watch with an orange face.        After

defendant told Williams to get rid of the jewelry because it


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could link them to the murders, he drove Williams to a gas

station where Williams left the jewelry in a bathroom.

Defendant told Detective Katalinic that everyone involved in the

kidnapping, except for Love, was a Vicelord.     Defendant said some

Vicelords visited Love at jail after he was arrested.     They

threatened to kill him if he cooperated with the police.     Dr.

Gluckman’s daughter testified Dr. Gluckman was wearing a gold

watch when he went to work on April 25, 1975.

     Frank Love testified he became Dr. Gluckman’s patient in

1974 or early 1975.   Love became a friend of Delores Townsend,

Dr. Gluckman’s office manager.    Five days before the murders,

Townsend called Love and asked him if he knew anyone who would

kidnap Dr. Gluckman for ransom.    Love contacted David Clay, a

leader of the Vicelord gang, because he knew David Clay had

previously kidnapped a drug dealer.     David Clay said he was

interested and helped plan the kidnapping.

     When Love and David Clay met at a pool hall on April 25,

1975, David told Love the kidnapping was in progress.     When they

drove by Dr. Gluckman’s clinic, Love saw defendant and Michael

Wilson waiting behind the clinic in the alley.     Love and David

Clay arrived at defendant’s aunt’s house later that day.

Defendant told them Dr. Gluckman was dead and the two girls were

still in the car.   Love then left with David Clay and Wilson to


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pick up Townsend because she had the phone numbers for the

Gluckman family.

     Following his arrest, Love gave a statement implicating

defendant and David Clay.    While Love was at Cook County Jail

awaiting trial, defendant and David Clay were transferred to the

same tier.   Love testified defendant and David Clay told Love to

“keep his mouth shut and do the time, take the weight.”    Love did

not testify against either defendant or David Clay in the 1970s.

In 1988, however, Love testified against defendant at his first

trial.   Shortly after defendant was sentenced, the prosecutor

appeared before the parole board to support Love’s parole

request.    Love testified he had hoped he would be released from

prison after testifying against defendant, but denied being

promised anything in exchange for his testimony.

     Alan Pollikoff testified he represented defendant on April

30, 1975, and was present when Franklin Scott identified

defendant in a lineup.   Pollikoff testified that after Scott

identified defendant and a second man, Scott said “[t]hose two

are the ones that most closely resemble the ones.”

     Defendant testified.    He denied any involvement in the

kidnapping or murders.   In 1983, defendant had contacted the FBI

after he was arrested for two armed robberies and was put in

touch with Agent Jennings.    He offered to provide Jennings with


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information about Mike Switek, a leading mob figure.    In exchange

for help in the armed robbery cases, defendant agreed to wear a

wire when he went to repay Switek for a cocaine debt.

     Defendant contacted Jennings again after he was convicted of

armed robbery.   According to defendant, Jennings said he would

try to get defendant out of jail because he wanted more

information on Switek.   Because defendant was in State custody,

Jennings told him he had to “give the State something.”

Defendant told Jennings he had information regarding a murder.

When Jennings said he needed “eyewitness stuff,” defendant lied

and said he was present when the murder occurred.   Jennings and

another agent came to the jail to interview him.    Defendant gave

them information about Dr. Gluckman’s kidnapping that he had

learned from various sources–-including the media, Love, Willie

Carter, Fast Black, and Michael Wilson.   Defendant testified he

and Love had talked a lot about the offense while they were in

jail together.   Defendant said that when he gave his statement to

Detective Katalinic, he included things he had heard from others

and things he had made up.

     In rebuttal, the State presented a certified copy of

defendant’s 1989 murder conviction in Wisconsin.    The trial court

instructed the jury that “[e]vidence of a defendant’s previous

conviction may be considered by you only as it may affect his


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believability as a witness and must not be considered by you as

evidence of his guilt for the offense for which he is charged.”

     Defendant was found guilty of three counts of murder and

sentenced to concurrent 60 to 120-year prison terms.

DECISION

I. Prior Murder Conviction

     Defendant contends the trial court erred in allowing the

State to impeach his testimony with a prior murder conviction in

Wisconsin.    Defendant contends the prior conviction’s unfair

prejudicial effect far outweighed any probative value it may have

had regarding defendant’s credibility.

     In People v. Montgomery, 47 Ill. 2d 510, 515, 268 N.E.2d 695

(1971), our supreme court provided trial courts with discretion

to allow impeachment of a witness’ testimonial credibility by

admitting a prior conviction.    In Illinois, a prior conviction

may be used to impeach a defendant where: (1) the prior

conviction was for a crime punishable by death or imprisonment in

excess of one year, or a crime involving dishonesty or false

statement; (2) the witness’ conviction or release from

confinement, whichever date is later, occurred less than 10 years

from the date of trial; and (3) the danger of unfair prejudice

does not substantially outweigh the probative value of the

conviction.    Montgomery, 47 Ill. 2d at 518; People v. Cox, 195


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Ill. 2d 378, 383, 748 N.E.2d 166 (2001).    In performing the

balancing test, courts consider:

            “ ‘the nature of the prior crimes, *** the

            length of the criminal record, the age and

            circumstances of the defendant, and, above

            all, the extent to which it is more important

            to the search for truth in a particular case

            for the jury to hear the defendant’s story

            than to know of a prior conviction.’ ”

            Montgomery, 47 Ill. 2d at 518, quoting Fed.

            R. Evid. 609 advisory committee notes.

     The trial court uses its discretion when conducting the

balancing test to determine whether a witness’ prior conviction

is admissible for impeachment.     Cox, 195 Ill. 2d at 383; People

v. Phillips, 371 Ill. App. 3d 948, 949, 864 N.E.2d 823 (2007).

Absent an abuse of discretion, we will not reverse a trial

court’s determination.    People v. Reid, 179 Ill. 2d 297, 313, 688

N.E.2d 1156 (1997).    However, the failure to conduct a

“meaningful” balancing test violates Montgomery and requires

reversal.    People v. McGee, 286 Ill. App. 3d 786, 793, 676 N.E.2d

1341 (1997).    An earlier conviction has probative value if it can

aid in destroying a defendant’s credibility.    People v.

McKibbibs, 96 Ill. 2d 176, 188, 449 N.E.2d 821 (1983); People v.


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Barner, 374 Ill. App. 3d 963, 971, 871 N.E.2d 849 (2007).

     The fact that the past and present offenses are of the same

or similar nature does not bar their admissibility as

impeachment.    Barner, 374 Ill. App. 3d at 971.    However,

“[c]onvictions for the same crime for which the defendant is on

trial should be admitted sparingly.”     Cox, 195 Ill. 2d at 384,

citing People v. Williams, 161 Ill. 2d 1, 38, 641 N.E.2d 296

(1994).

     In this case, defense counsel filed a motion in limine to

bar the State from impeaching defendant’s testimony with his 1989

murder conviction in Wisconsin.     Denying the motion, the trial

court held:

            “if [defendant] does want to testify, which

            he surely has the right to do, he brings his

            baggage on himself, and it is part of who he

            is, and the jury has a right to know who he

            is, and I find this problem extremely

            probative, by far more probative than

            prejudicial. *** He is a convicted murderer,

            and that is a fact.   If he wants to testify,

            the jury will know about that up front.”

     In response to the trial court’s ruling, defense counsel

noted the conviction should be probative “as to whether defendant


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is a liar, not whether he is a killer.”   The trial court agreed,

noting: “The jury will be instructed to only consider that

information as it may impact his credibility and not to consider

it as evidence for the charge for which he is accused.”    The

trial court denied defendant’s motion to reconsider its ruling.

     In People v. Williams, 173 Ill. 2d 48, 82-83, 670 N.E.2d 638

(1996), the supreme court held admissible the defendant’s prior

conviction for aggravated battery to impeach his credibility at

his trial for attempt murder, murder, and aggravated battery with

a firearm.   The court found a review of the transcript showed the

judge was fully aware of the Montgomery standard and the

balancing test it requires.   Williams, 173 Ill. 2d at 83.

Although the trial judge did not expressly state he was balancing

the opposing interests, the court held there was no reason to

suppose he disregarded the familiar, well-established Montgomery

standard in determining the impeachment was proper.     Williams,

173 Ill. 2d at 83.   The supreme court also noted its prior

decisions regarding the Montgomery standard should not be

construed as leaving only convictions for offenses involving

dishonesty or false statement as eligible grounds for

impeachment.   Williams, 173 Ill. 2d at 82-83, citing Williams,

161 Ill. 2d at 39.

     Here, as in Williams, we find the trial court did not abuse


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its discretion in admitting defendant’s prior murder conviction

for the purpose of impeaching his credibility.    Contrary to

defendant’s contentions, nothing in the record suggests the trial

court failed to properly weigh the probative value of the

impeachment against its possible prejudicial effect.    Defendant

suggests the trial court’s statements that “he brings his baggage

on himself, and “it is part of who he is, and the jury has a

right to know who he is” indicates the trial court found the

prior murder conviction probative of defendant’s murderous

propensity, not his credibility.    We might agree if the trial

court had not said the jury would “be instructed to only consider

that information as it may impact his credibility and not to

consider it as evidence for the charge for which he is accused.”

     While we recognize the trial court did not specifically

articulate the Montgomery standard when it denied defendant’s

motion in limine, we find the record indicates it did not

disregard the well-established standard in determining

impeachment was proper.   See Williams, 173 Ill. 2d at 83.      In

denying defendant’s motion to reconsider, the trial court made

clear “the ultimate criteria is one of weighing the prejudicial

value against probative value.”    The trial court’s comments go

beyond the comments held sufficient in Williams.

     We also recognize that when the conviction was admitted as


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rebuttal evidence, the trial court instructed the jury that

“[e]vidence of a defendant’s previous conviction may be

considered by you only as it may affect his believability as a

witness and must not be considered by you as evidence of his

guilt for the offense for which he is charged.”    We find it

important to note, however, that whether the use of the

instruction under these circumstances actually eliminates the

risk of misuse is a matter open to question.   Several studies

indicate “jurors use evidence regarding convictions as an

indicator of guilt rather than to determine the credibility of

statements made by the defendant, despite judicial instructions

to the contrary.”   See J. Liberman, Understanding the Limits of

Limiting Instructions, 6 Psychol. Pub. Pol’y & L. 677, 686

(2000); R. Wissler & M. Saks, On the Inefficacy of Limiting

Instructions, 9 Law & Hum. Behav. 37, 47 (1985).

     We do not discount defendant’s claim that the prior murder

conviction has little to do with “defendant’s truthfulness as a

witness.”   See Cox, 195 Ill. 2d at 384, citing Williams, 161 Ill.

2d at 39.   Nor do we minimize the great risk that a murder trial

jury would misuse a prior murder conviction as proof of the

defendant’s propensity to commit that crime.   Still, considering

the strength of the State’s case and the binding authority of

Williams, we are unable to say the trial court abused its


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discretion when it allowed the use of the prior murder conviction

to impeach the defendant’s credibility.

II. Ineffective Assistance of Counsel

     Defendant contends he was denied his Sixth Amendment right

to the effective assistance of trial counsel when his trial

attorney: (1) characterized him as a “gangbanger” and a “bad

person” who had committed several unrelated felonies and had ties

to organized crime; (2) failed to utilize prior testimony to

impeach a key witness; (3) elicited inflammatory testimony that

defendant’s family may have tried to firebomb Frank Love’s house

prior to trial; (4) did not move to strike prejudicial testimony

that was volunteered by Love on cross-examination; and (5) failed

to object to two instances of prosecutorial misconduct during

closing argument.    Defendant contends his trial counsel’s

deficient performance prejudiced him and resulted in a

fundamentally unfair trial.    Each of defendant’s contentions will

be addressed in turn.

     In order to prevail on a claim of ineffective assistance of

counsel, a defendant must show his attorney’s actions constituted

errors so serious as to fall below an objective standard of

reasonableness, and that, without those errors, there was a

reasonable probability his trial would have resulted in a

different outcome.    People v. Ward, 371 Ill. App. 3d 382, 434,


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862 N.E.2d 1102 (2007), citing Strickland v. Washington, 466 U.S.

668, 687-94, 104 S. Ct. 2052, 2064-68, 80 L. Ed. 2d 674, 693-98

(1984).   Courts “must indulge a strong presumption that counsel’s

conduct falls within the wide range of reasonable professional

assistance.”   Strickland, 466 U.S. at 689, 104 S. Ct at 2065, 80

L. Ed. 2d at 694; People v. Edwards, 195 Ill. 2d 142, 163, 745

N.E.2d 1212 (2001).   Mistakes in strategy or tactics alone do not

amount to ineffective assistance of counsel; nor does the fact

that another attorney may have handled things differently.     Ward,

371 Ill. App. 3d at 434, citing People v. Palmer, 162 Ill. 2d

465, 476, 643 N.E.2d 797 (1994).

     Because a defendant’s failure to satisfy either prong of the

Strickland test will defeat an ineffective assistance claim, we

are not required to “address both components of the inquiry if

the defendant makes an insufficient showing on one.”   Strickland,

466 U.S. at 697, 104 S. Ct at 2069, 80 L. Ed. 2d at 699.

Accordingly, we need not determine whether counsel’s performance

was actually deficient if we determine defendant suffered no

prejudice as a result of his counsel’s alleged deficiencies.

Edwards, 195 Ill. 2d at 163, citing Strickland, 466 U.S. at 697,

104 S. Ct. at 2069, 80 L. Ed. 2d at 699.

     A. Defense Counsel’s Opening Statements

     Defendant contends his trial counsel’s opening statement


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needlessly informed the jury that defendant was a “gangbanger”

and a “bad guy” who had committed several unrelated felonies and

had ties to organized crime.     Defendant contends defense

counsel’s statements cast him in an extremely negative light, and

allowed the State to elicit irrelevant and prejudicial references

to his gang affiliation at trial.

     During its opening statement, the State argued the case

involved a botched kidnapping for ransom in which three victims

were murdered.    The State did not discuss defendant’s gang

affiliation or prior criminal history.      In his opening statement,

defense counsel said:

            “My client is a bad guy.    I might as well

            tell you that up straight because you’re

            going to find out.   My client probably hasn’t

            done six months work, of legitimate work in

            his whole life.   He’s 50 plus years old.

            Hasn’t done it.   My client is what police or

            you or I *** would call a gangbanger.    He’s a

            member of a street gang. *** He stole cars,

            used dope, probably ran guns.    He did all of

            the things that gang members do, but he’s not

            on trial for being a gang member.    He’s on

            trial for a very serious crime that he didn’t


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            do.”

      We recognize an attorney’s decision to mitigate the impact

of harmful evidence by disclosing it during opening statements

has been deemed proper trial strategy in certain cases.    See

People v. Wright, 294 Ill. App. 3d 606, 614-15, 691 N.E.2d 94

(1998) (“David’s trial counsel chose to dispute, [by opening the

door to gang-related evidence] in her opening statement, the

issue of David’s possible motive for shooting Smith and Rockett.

This decision fell squarely within the tactical province of an

attorney.”)    However, we find defense counsel’s references to

defendant as a “gangbanger” and as a “bad guy *** who did all of

the things that gang members do” crossed the line into

objectively unreasonable prevailing professional norms.

     Even if we were to excuse defense counsel’s references to

defendant as a “gangbanger” and a “bad guy” as a matter of trial

strategy, defense counsel being desperately in need of a

strategy, we see no advantage in informing the jury that

defendant “stole cars, used dope, [and] probably ran drugs.”

Accordingly, we find defense counsel’s comments were objectively

unreasonable under Strickland.

     However, we find defendant’s claim fails because he is

unable to establish the comments had impact on the outcome of his

trial.   The evidence against the defendant was overwhelming.


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Agent Jennings and Detective Katalinic both testified defendant

confessed his involvement in the 1975 triple murder while in

prison for unrelated armed robbery charges.     Frank Scott

identified defendant in court and in a lineup as one of the men

he saw in the alley behind Dr. Gluckman’s clinic on the day of

the kidnapping.   An accomplice, Love, testified about defendant’s

role in the crimes.   While defendant testified he lied to Agent

Jennings and Detective Katalinic regarding his involvement in the

murders and simply relayed information he had overheard from

Love, Detective Katalinic testified defendant gave specific

details regarding the murders that he was not able to get from

anyone else who was questioned, including Love.

     Moreover, defendant’s own testimony mitigated the

prejudicial impact of several of defense counsel’s comments.

Defendant testified at trial that he was cooperating with the FBI

while awaiting trial for armed robbery.     According to defendant,

he agreed to wear a wire for the FBI when he went to pay back a

cocaine debt he owed to Mike Switek, “a leading mob figure.”

Defendant admitted that when he saw Switek, he did not give him

the money the FBI had provided.   Instead, defendant kept the

money and “smoked it up in dope.”     Defendant’s own testimony

established the veracity of several of defense counsel’s

allegedly improper opening comments–-that defendant “used dope,”


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dealt drugs, and associated with people involved in organized

crime.

     Because of the overwhelming evidence of defendant’s guilt in

this case, defendant cannot show a reasonable probability that

the outcome of the case would have been different had defense

counsel not made the references to gang activity and unrelated

crimes in his opening statement.   See People v. Williams, 368

Ill. App. 3d 616, 622, 858 N.E.2d 606 (2006).

     B. Failure to Impeach Love by Omission

     Defendant contends his trial counsel was ineffective for

failing to impeach Love by omission.    Defendant contends that

given the importance of Love’s testimony, counsel’s failure to

impeach him was objectively unreasonable and prejudicial to

defendant’s case.   See People v. Williams, 329 Ill. App. 3d 846,

769 N.E.2d 518 (2002); People v. Mejia, 247 Ill. App. 3d 55, 65,

617 N.E.2d 799 (1993).

     At defendant’s second trial, Love testified David Clay and

defendant approached him in Cook County Jail in 1975 or 1976

while they all were on the same tier.    Defendant and David Clay

told Love he “needed to keep [his] mouth shut and do the time,

take the weight” for them.   Love testified he initially kept

quiet regarding defendant’s involvement in the murders because he

was scared.   Later in his testimony, Love again said defendant


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and David Clay approached him in jail and intimidated him into

not implicating them in the crime.     In defendant’s first trial,

however, Love did not say defendant and David Clay tried to

intimidate him.   Defendant contends his trial counsel’s failure

to impeach Love with this alleged omission amounted to

ineffective assistance.

     Under the rule for impeachment by omission, it is

permissible to use a witness’ prior silence to discredit his or

her testimony if: “(1) it is shown that the witness had an

opportunity to make a statement, and (2) under the circumstances,

a person normally would have made the statement.”     Williams, 329

Ill. App. 3d at 854; People v. Conley, 187 Ill. App. 3d 234, 244,

543 N.E.2d 138 (1989).    The decision whether to cross-examine or

impeach a witness is generally a matter of trial strategy that

will not support a claim of ineffective assistance.     Williams,

329 Ill. App. 3d at 854.

     In this case, nothing in the transcript from defendant’s

first trial indicates Love was specifically questioned about

whether he was intimidated by defendant and David Clay while in

jail.   During cross-examination, defense counsel asked: “And

while you were at the County Jail some time during that fall of

1975 you saw [defendant]?”   After respondent answered yes and

said he was on the same tier as defendant, defense counsel asked


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Love whether he told defendant he made a statement implicating

him.    Love responded that defendant “knew already.”   Neither the

State nor the defense questioned Love regarding whether David

Clay was present, or whether defendant attempted to intimidate

Love from testifying.    Contrary to defendant’s contention, we

find nothing in the record of the first trial that concretely

suggests Love had an opportunity to make a statement indicating

David Clay and defendant intimidated him.

       Because large portions of Love’s testimony in defendant’s

first and second trial were consistent, impeachment by omission

would have been difficult and potentially counter productive.      We

find defense counsel was not ineffective for failing to attempt

to impeach Love by omission.

       C. Inflammatory Testimony

       Defendant contends defense counsel was ineffective for not

moving to strike Love’s non-responsive and inflammatory testimony

on two occasions during his cross-examination.

       Prior to jury selection, the prosecutor disclosed that Frank

Love, a key State witness, had informed the State that his

neighbor’s house had been firebombed with a “Molotov cocktail”

the night before.    After the State said there was no evidence

linking defendant to the act, the trial court admonished the

State not to bring it up in its case-in-chief.    The trial court


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also cautioned defense counsel not to “open the door” by cross-

examining Love regarding what benefits he might be receiving by

testifying.

     During Love’s cross-examination, however, the following

colloquy occurred:

                 “Q [defense counsel].      Do you have some animosity

            toward Mr. Clay, Roosevelt Clay?

                                    ***

                 A.     Well, I’ll tell you this since you asked that

            question.    A firebomb was thrown in the house next door

            to me last night, early morning, and I believe his

            family had something to do with that.     I believe that.

            If somebody is firing to firebomb you and your family,

            would you have any animosity?

                 Q.     Do you think Mr. Clay --

                 A.     Yes, I do believe that.

                                    ***

                 Q.     Does that incident have anything to

            do with your testimony here today?

                 A.     No.

                 Q.     Nothing?   It has no effect on it?

                 A.     You asked me did I have animosity.    That’s

            what you asked me.


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                 Q.   So you have animosity?

                 A.   I believe that family tried to harm

            me and my family this morning.

                 Q.   But you have no evidence of this?

                 A.   I’m just telling you my thoughts.

                                   ***

                 Q.   Was it your house that was

            firebombed?

                 A.   It was my neighbor.

                 Q.   Your neighbor’s house?

                 A.   I think they got the wrong house.

                 Q.   Oh, I see.

                 A.   Let me just say this since we

            talking about this.    That’s one of the gang’s

            intimidation things that they doing in the

            city of Chicago now, firebombing witnesses.”

     Defendant contends his trial counsel was ineffective for

failing to move to strike Love’s non-responsive answers regarding

the firebombing incident during trial.

     Defendant also contends his trial counsel was ineffective

for failing to move to strike Love’s testimony on cross-

examination that David Clay had tried to intimidate him at

gunpoint.


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1-06-0450

     During direct examination, Love testified that he was

contacted by “the Clay family” over the years.        The trial court

overruled a defense objection to the testimony but instructed

Love to be more specific.     Love said “David Clay and his thug

friends” had come to his house several times, wanting him to sign

an affidavit saying that the information defendant had given in

his statements regarding the triple murders had come from

conversations with Love.     On cross-examination, the following

occurred:

                 “Q [defense counsel].    These--you

            testified that you were threatened by David

            Clay or you perceived some of David Clay’s

            conduct as a threat, is that correct?

                 A.   Anytime someone come to your house

            with a pistol.

                                   ***

                 Q.   You didn’t say that during direct

            examination --

                 COURT: Objection sustained.    He’s only

            answering questions.    Ask a different

            question.”

     While we recognize defense counsel did not move to strike

Love’s testimony regarding the firebombing incident, we note he


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1-06-0450

did move for a mistrial following Love’s dismissal as a witness,

noting Love seemed “like he was chomping at the bit to get out

this firebombing of his house.”   Denying the motion, the trial

court held that defense counsel had “opened that door” with an

open-ended question, and that “[t]he jury never would have known

about [the firebombing] but for the question you asked.”

Regardless of whether a motion to strike would have been

successful, the jury had heard the testimony.   The damage was

done.

     Even if we were to assume defense counsel’s actions were

objectively unreasonable, we find there was no reasonable

probability that, but for counsel’s failure to move to strike the

allegedly inflammatory testimony, the result of defendant’s trial

would have been different.   While Love indicated he believed

defendant’s family was responsible for the firebombing of his

neighbor’s house, he admitted he had no evidence linking

defendant to the crime.    Love had already testified extensively

regarding David Clay’s attempts to intimidate him into not

testifying.   Because the evidence adduced against defendant in

this case was overwhelming, we find Love’s volunteered testimony

regarding the gun and the firebombing incident did not effect the

outcome of the trial.

     D. Closing Argument


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1-06-0450

     Defendant contends trial counsel was ineffective for failing

to object to the prosecutor’s improper closing arguments.

     Specifically, defendant contends counsel failed to object

when the prosecutor improperly attacked the credibility of Alan

Pollikoff, a defense witness.    Defendant contends the

prosecutor’s arguments amounted to a thinly veiled accusation

that Pollikoff was lying because he was paid money--without

evidence to support the accusation.

     Although prosecutors enjoy a wide latitude in closing

arguments (People v. Bakr, 373 Ill. App. 3d 981, 990, 869 N.E.2d

1010 (2007)), a prosecutor’s statement that a witness was lying

is improper if it is not based on evidence (People v. Johnson,

114 Ill. 2d 170, 199, 499 N.E.2d 1355 (1986)).      Whether we

consider a prosecutor’s statements reversible error depends on

whether the errors were so fundamental as to deny defendant a

fair trial.    People v. Nunn, 357 Ill. App. 3d 625, 638-39, 829

N.E.2d 796 (2005).

     During rebuttal closing argument, the prosecutor said:

            “Franklin Scott, somebody who had nothing to

            do with nothing, identifies Roosevelt Clay.

            Now, Mr. Pollikoff, being paid by the

            Vicelords, and Mr. Clay, when he viewed the

            lineup, he had to come up with something for


                                -27-
1-06-0450

            his client.”

     We find the prosecutor’s statements that Pollikoff was

“being paid by the Vicelords” and “had to come up with something

for his client” were not supported by the evidence presented at

trial.   It was error to make that argument.     Still, we find the

prosecutor’s comments did not deny defendant the right to a fair

trial.   As we have noted above, the evidence against the

defendant was overwhelming.      The judge also instructed the jury

that “closing arguments are not evidence.”     Accordingly, we find

defendant is not able to establish he was prejudiced by defense

counsel’s failure to object to the prosecutor’s statement.     See

Nunn, 357 Ill. App. 3d at 639.

     Defendant also contends his trial counsel failed to object

when the prosecutor misstated the presumption of innocence.

     During rebuttal argument, the prosecutor said:

            “[defendant] has had a fair trial,

            overwhelming evidence has been amassed

            against him, he’s had the full benefits of

            his rights, and now the presumption of

            innocence is gone.   It’s time to make him

            responsible for the pain and tragedy that

            he’s wreaked on people just because he wanted

            to make a fast buck.”


                                  -28-
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     Following closing arguments, the trial court instructed the

jury that:

            “The defendant is presumed to be innocent of

            the charges against him.   This presumption

            remains with him throughout every state of

            the trial and during your deliberations on

            your verdict and is not overcome unless from

            all the evidence in the case you are

            convinced beyond a reasonable doubt that he

            is guilty.”

     While we agree the statement that defendant’s “presumption

of innocence is gone” was a misstatement of law, we find it did

not affect defendant’s substantial rights.     The State made only

one reference to the presumption of innocence, and the trial

court extensively explained the presumption of innocence in its

closing comments to the jury.    See Nunn, 357 Ill. App. 3d at 638-

39; People v. Brooks, 345 Ill. App. 3d 945, 952, 803 N.E.2d 626

(2004).

     We find defendant was not prejudiced by his trial counsel’s

failure to object to the prosecutor’s arguments.

     E. Cumulative Effect of Errors

     Defendant contends the cumulative effect of defense

counsel’s errors rendered his trial fundamentally unfair.    While


                                -29-
1-06-0450

individual errors may have the cumulative effect of denying a

defendant the right to a fair trial, “no such accumulated error

occurs where none of the separate claims amounts to reversible

error.”   People v. Dresher, 364 Ill. App. 3d 847, 863, 847 N.E.2d

662 (2006).   Because we find defendant was not prejudiced by any

of his trial counsel’s conduct, we also reject his cumulative

error argument.   See Dresher, 364 Ill. App. 3d at 863.

CONCLUSION

     We affirm defendant’s convictions and sentences.

     Affirmed.

     GARCIA, and R. GORDON, JJ., concur.




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