In the
United States Court of Appeals
For the Seventh Circuit

No. 93-3724

JOSEPH RODRIGUEZ,

Plaintiff-Appellant,

v.

HOWARD A. PETERS, III, DIRECTOR, DEPARTMENT
OF CORRECTIONS, STATE OF ILLINOIS,

Defendant-Appellee.


Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 91 C 6563--John A. Nordberg, Judge.


ARGUED DECEMBER 8, 1994--DECIDED AUGUST 15, 1995


   Before POSNER, Chief Judge, and REAVLEY* and
COFFEY, Circuit Judges.


   COFFEY, Circuit Judge. Joseph Rodriguez, a juvenile of
fifteen years of age, was charged in a delinquency peti-
tion with two counts of murder, filed on December 16,
1981, in the Juvenile Division of the Circuit Court of Cook
County, Illinois. The State's Attorney filed a motion to
transfer jurisdiction to the Criminal Division of the Cir-
cuit Court, permitting prosecution under the criminal laws
of Illinois pursuant to Ill. Rev. Stat. ch. 37, par. 702-7./1
On February 3, 1982, the Juvenile Court authorized the
transfer of the defendant for trial as an adult in the Crim-
inal Division of the Circuit Court of Cook County. He was
charged with and convicted before a jury of murdering
Joseph and Theresa Palmer, also juveniles, in violation
of Ill. Rev. Stat. 1981, ch. 38, par. 9-1(a)(1). Because
Rodriguez was found guilty of committing more than one
murder, he was sentenced to the mandatory natural life
sentence, without the possibility of parole, as provided in
Ill. Rev. Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(C). The Illi-
nois appellate court affirmed his conviction and sentence/2
and the Illinois Supreme Court denied his Petition for
Leave to Appeal. Rodriguez's Petition for Writ of Cer-
tiorari was denied by the United States Supreme Court
and he thereafter filed a Petition for Writ of Habeas
Corpus, 28 U.S.C. sec. 2254, in the U.S. District Court for
the Northern District of Illinois. The district court denied
his petition. Rodriguez appeals. We AFFIRM.

I.  FACTUAL BACKGROUND

   Renaldo Hernandez and Joseph Rodriguez were mem-
bers of a Chicago, Illinois street gang known as the Kool
Gang. In 1981, a dispute arose between this gang and the
Villalobos, another Chicago street gang, allegedly because
the Villalobos had one of the Kool Gang's jerseys in their
possession./3 Representatives of the two gangs met to dis-
cuss the return of the jersey and they agreed that the
Kool Gang would buy it back from the Villalobos for $5
to $10. The membership of two gangs failed to consum-
mate the agreed upon return of the jersey with the cash
payment for, as Hernandez explained, each gang was
afraid to enter the other gang's territory. Rodriguez met
with Charles Palmer, a member of the Villalobos, later
in the summer, after Palmer had agreed to inquire of his
gang concerning the whereabouts of the jersey, he subse-
quently advised Rodriguez that the jersey had been sold.

   Sometime thereafter, on December 12, 1981, around 5:30
p.m., Rodriguez and Hernandez saw Joseph and Theresa
Palmer, Charles Palmer's younger brother and sister,
walking towards their home and mistook Joseph for his
brother, Charles. Rodriguez asked Hernandez if he wanted
to kill them, and Hernandez responded that it was "up
to you" (Rodriguez). Rodriguez then asked Hernandez to
get the gun from his house that he was holding for Rod-
riguez. Hernandez returned with the weapon and handed
it to the defendant. Thereafter, Rodriguez and Hernandez
waited in a nearby park for Theresa and Joseph to walk
past them, and after the Palmers had passed, Rodriguez
and Hernandez snuck down an alley and waited for Theresa
and Joseph behind the Palmer's house. As they approached,
Rodriguez entered a vacant lot on the east side of the
Palmer's house, positioned himself, raised his gun, and
fired, mortally wounding Joseph in the back of his head.
Theresa began to scream; Rodriguez fired again and si-
lenced her with three shots to the head. Hernandez stated
that he and Rodriguez then fled from the scene leaving
Joseph and Theresa both lying on the sidewalk, dying
from the gunshot wounds.

   Hernandez was arrested three days later, on December
15, 1981, at one of his friend's houses, and Rodriguez
turned himself in to the authorities five days thereafter,
on December 20, 1981. On December 16, while Hernandez
was in custody, the State's Attorney questioned him about
his involvement in the murders. Originally he denied that
he and Rodriguez were responsible for the murders to
the police, but approximately one month before Rodri-
guez's trial, Kathleen McGury, a State's Attorney, asked
him if he would be willing to testify against Rodriguez
in exchange for a plea to a lesser crime. At that time,
Hernandez's attorney advised him that if he were con-
victed of the double homicide he would be sentenced to
a mandatory term of natural life in prison without the
possibility of parole. After having been advised of this,
Hernandez decided to accept the plea bargain and enter
a plea to the lesser charge of obstructing justice, agree-
ing to testify for the state against Rodriguez, in exchange
for the State's Attorney's recommendation that he receive
a sentence of four years of imprisonment for obstruction
of justice./4

   In addition to Hernandez, the State also called Theresa
Santana to testify at trial. Santana lived in an apartment
across the street from the victims and had known Rodri-
guez for several years, having attended both grade and
high school with him. Santana testified that as she was
walking down a staircase on the outside of her apartment
building on December 12, 1981, she saw Joseph and Theresa
Palmer walking toward their home, and at the same time
observed Rodriguez, wearing black pants and a black leather
jacket, across the street. Testifying about Rodriguez, she
stated that "he just kept on walking and then he stopped
and looked at me," but before she could speak with him,
he turned and jogged back across the street toward a vacant
lot. Santana continued to watch Rodriguez as he unzipped
his jacket, pulled out a gun, and aimed and fired gunshots
at the Palmers. As the Palmers lay fatally wounded on
the sidewalk, Santana continued to watch and observed
Rodriguez run across a vacant lot, enter a red car, and
drive off.

   At trial, Santana also testified that she spoke to the
police on the evening of the shootings and gave them a
description of the murderer, but Santana explained that
she did never mentioned the name of the killer/5 because
she was afraid of retaliation from members of the Kool
Gang; in fact, she remained inside her house for approx-
imately four weeks after the shooting and did not attend
school because she was fearful of facing any members of
Rodriguez's gang at school. The day after the killing, the
police spoke with Santana again and handed her a police
photo album containing pictures of members of the Kool
Gang./6 Rodriguez's photograph was in the book, and al-
though Santana did not I.D. him at that time, Officer
McKenna testified that he observed that as she saw the
defendant's picture, she appeared to be "very nervous,
visibly shaken."

   After observing her reaction, Officer McKenna was con-
vinced that Santana could identify the killer. Thus, the
police returned to her house two days later with a year-
book containing a picture of her high school class. She
looked through the pictures in the yearbook and pointed
to and identified Rodriguez as the assailant, within seventy-
two hours of the homicides. Later that month, she also
identified the defendant in a police lineup in the presence
of Rodriguez's attorney. Once the identifications were
made, the State of Illinois placed Santana into a witness
relocation program and moved her out of state. The de-
fense made a motion in limine to preclude the prosecu-
tion from referring to the fact that Santana had been re-
located and the court ruled that the prosecution could not
discuss the fact of relocation unless the defense mentioned
the information first.

   Danny O'Neal Morris, a twenty-four year old resident
of the neighborhood where the murders took place, also
testified for the prosecution. He stated that he was sit-
ting on a couch, near a window in his second floor apart-
ment, at about 5:45 p.m. on December 12, 1981, when he
heard four gunshots. He looked out the window of his
apartment, which overlooks an alley adjoining the street
where Joseph and Theresa were killed, and "directly be-
low the window," he saw two young men running through
the alley immediately after he heard the gunshots. Morris
described one of the persons as "a little dark complected,
kind of medium" in skin tone, about 5 feet8 inches tall, approx-
imately 160 lbs., having an afro hairstyle, and wearing
a "brown jacket," and described the second man as being
5 feet6 inches tall, weighing about 135 lbs., Latino, with a
lighter complexion than the other man, black hair parted in the
middle, wearing a black leather jacket, and carrying a gun
in his right hand. Morris testified that he had an oppor-
tunity to observe the second man's face for a "couple
seconds."

   Prior to Morris's testimony at trial, the defense, at a
sidebar conference, made a motion in limine to preclude
Morris from making an in-court identification of Rodriguez
on the ground that it would be unduly suggestive because
Morris had previously observed a picture with five Latino
men in it, including the defendant,/7 and Rodriguez would
be seated at the defense table while such identification
was being made. The government responded that it in-
tended to have Morris identify the defendant from a
photograph of five young Latino men in a lineup and ad-
vised the court that Morris had made no previous formal
identification of the defendant before the trial. The court,
over the objection of defense counsel, allowed the in-court
photographic identification./8 When Morris was shown the
photo of the five young Latino men, he immediately iden-
tified Rodriguez as the person he saw in the alley, run-
ning with a gun in hand.

   Margaret Anderson, the victims' mother, testified that
at about 5:45 p.m. on December 12, 1981, she heard gun-
shots and went downstairs to discover her daughter, lay-
ing bleeding and motionless on the sidewalk in front of
their house, and her son Joseph was also lying on the
sidewalk in a pool of blood but still conscious. When she
asked him who shot him, Joseph responded that he did
not know.

   Robert Beseth, a private investigator retained by the
defense, testified that on December 19, 1981, he inter-
viewed the fifteen year old Theresa Santana at her home,
out of the presence of her parents or any relatives, and
claimed that she stated that she did not identify Rod-
riguez as the murderer the first time she was shown a
picture of him. Beseth stated that Santana told him she
did not immediately identify Rodriguez because "she
wasn't positive that was Joe in the photographs, the hair
she said was different [longer and unshaved] . . . she's
familiar with Joe having . . . puffy bags under his eyes
[and] . . . she did not see them," and that she was afraid
of retaliation from the Kool Gang. Investigator Beseth tes-
tified that he wrote out a report of the interview immedi-
ately after he spoke with Santana, had it typed up and
two days later, he returned to Santana's house, and asked
her to sign the report. Beseth testified that although she
read the report, she declined to sign it, stating that the
police and her mother told her not to sign anything.

   On cross-examination, Santana admitted speaking with
Beseth, but denied ever explaining to Beseth why she did
not identify Rodriguez. She testified that she told Beseth
that sometimes Rodriguez had "puffs" under his eyes, and
that he had his head shaved before the murders, but de-
nied telling Beseth that these were reasons why she did
not identify Rodriguez for the police. She stated that the
only reason she gave Beseth for not identifying Rodriguez
was her fear of retaliation. Santana denied that either the
police or her mother told her not to communicate with
anyone from the defense about the case and furthermore,
she denied that she ever made such a statement to Beseth.
Finally, during re-direct examination, Santana testified
that although she observed Beseth writing, presumably
taking notes of his meeting with her, she contradicted
him, stating that he never showed the notes to her nor
did he read them to her, nor did he return to her apart-
ment to present her with a copy of any written or typed
statement to sign, much less was she given an opportunity
to review them, at any time.

   After the jury had heard the closing arguments and the
court's instructions, it returned verdicts of guilty on the
two murder counts and the trial judge accepted them, en-
tered judgments of guilty on the verdicts, and sentenced
Rodriguez to a single sentence of life imprisonment for
both murders without parole in conformity with Ill. Rev.
Stat. 1981, ch. 38, par. 1005-8-1(a)(1)(c). The defendant ap-
pealed and the Illinois appellate court affirmed his con-
viction and sentence. After Rodriguez filed petitions for
Leave to Appeal to the Supreme Court of Illinois, and
for a Writ of Certiorari to the United States Supreme
Court which were denied, he filed a petition for a Writ
of Habeas Corpus in the United States District Court
which was also denied. He appeals.


II.  ISSUES

   Rodriguez argues that: (1) his right to due process was
violated by Morris's in-court identification; (2) he was de-
nied due process because of the following remarks made
by the two prosecutors during their closing and rebuttal
arguments:

(a) the prosecutors violated an in limine order when
they informed the jury that Santana was in a witness
relocation program; (b) defense counsel was called a
"liar" because of certain remarks he made during his
closing arguments; (c) the prosecutor's comment that
he "didn't know what the defense is" amounted to
an impermissible comment on Rodriguez's failure to
testify; (d) the prosecutor misstated the law of ac-
complice liability in Illinois in order to bolster Her-
nandez's credibility before the jury; (e) the prosecutor
improperly vouched for the credibility of Morris and
Santana; (f) victim impact statements were made
which improperly evoked sympathy from the jury;
and (g) the prosecutor speculated that if Rodriguez
was acquitted, he would commit further murders;

and (3) the mandatory natural life sentence imposed on
him, a juvenile offender tried as an adult, violated his due
process rights because the State of Illinois meant to exempt
juveniles from life sentences, and the sentence imposed
violated his Eighth Amendment right to be free from
cruel and unusual punishment because he was not allowed
to present mitigating evidence at his sentencing hearing.

III.  DISCUSSION

   "A prisoner is entitled to a writ of habeas corpus if he
is being held under a state court judgment obtained in
violation of the Constitution." 28 U.S.C. sec. 2254; see also
Del Vecchio v. Illinois Dept. of Corrections, 31 F.3d 1363,
1370 (7th Cir. 1994), cert. denied, __ U.S. __, 115 S.
Ct. 1404, 131 L. Ed. 2d 290 (1995). When considering a
district court's decision to grant or deny a petition for
a writ of habeas corpus, we review questions of law de
novo, but "[f]actual issues that have been decided by the
state trial or appellate courts are presumptively correct."
Montgomery v. Greer, 956 F.2d 677, 680 (7th Cir.), cert.
denied, __ U.S. __, 113 S. Ct. 460, 121 L. Ed. 2d 368
(1992) (citing 28 U.S.C. sec. 2254(d)). "The constitutionality
of an identification procedure is a mixed question of law
and fact that is not governed by the statutory presump-
tion of section 2254(d)." Id. (citing Sumner v. Mata, 455
U.S. 591, 597, 102 S. Ct. 1303, 1306, 71 L. Ed. 2d 480
(1982)).

In deciding this question, [of the constitutionality of
an identification procedure], the federal court may
give different weight to the facts as found by the
state court and may reach a different conclusion in
light of the legal standard [used to determine the con-
stitutionality of the identification]. But the questions
of fact that underlie this ultimate conclusion are gov-
erned by the statutory presumption. . . . Thus, whether
the witnesses . . . had an opportunity to observe the
crime or were too distracted; whether the witnesses
gave a detailed, accurate description; and whether the
witnesses were under pressure . . . are all questions
of fact as to which the statutory presumption applies.

Id. (emphasis in original).

A.  IDENTIFICATION

   Rodriguez argues that his due process rights were vio-
lated when Morris identified him in-court from a photo-
graph of a lineup of five young, male Latinos, while he
(Rodriguez) was sitting at the defense table, and after
Morris had previously inadvertently seen this same line-
up photograph on a desk in the State's Attorney's office./9
The defendant argues that this identification procedure
was unduly suggestive. Rodriguez also argues that he was
denied due process when the prosecutor failed to disclose
that Morris had, in fact, seen Rodriguez in the lineup
photograph used at trial in the State's Attorney's office
three weeks prior to the trial.

   During cross-examination, Morris testified that when he
was in the State's Attorneys' office three weeks prior to
trial, he inadvertently in passing through the office did
see a copy of a photograph of five Latino young men rest-
ing on the desk of one of the prosecutors. He observed
the photo on the desk and, in his own mind, identified
one of the young men in the lineup as the person he saw
running through the alley with a gun in his hand the eve-
ning of December 12, 1981, immediately after having heard
the gun shots. Morris further stated that he told no one,
much less anyone in the State's Attorney's office, that
he saw and recognized one of the young men in the photo-
graph as being the person with a gun in hand running
through the alley. Rodriguez attempts to rely on Brady
v. Maryland, 373 U.S. 83, 83 S. Ct. 1194, 10 L. Ed. 2d
215 (1963) in support of his argument that he was denied
due process because the state failed to notify him that
Morris viewed a photograph of the lineup in the State's
Attorney's office three weeks prior to trial. Because Mor-
ris never advised anyone in the State's Attorney's office
that he saw the photograph, the prosecutor could not be
expected to tell the defense that Morris had inadvertently
seen the photograph for he had no such knowledge to con-
vey to the defendant.

   Furthermore, the defendant Rodriguez failed to raise
the issue of the pre-trial identification in the state appel-
late proceedings, Rodriguez, 480 N.E.2d 1147, and thus it
is waived and will only be reviewed in "extraordinary instances
when a constitutional violation probably has caused
the conviction of one innocent of the crime." McClesky
v. Zant, __ U.S. __, 111 S. Ct. 1454, 1470 (1991). We
require habeas petitioners to bring their claims in state
court because "state courts must have a fair opportunity
to consider the petitioner's constitutional claims before the
federal courts may address those claims." Jones v. Wash-
ington, 15 F.3d 671, 674 (7th Cir. 1994), cert. denied, __
U.S. __, 114 S. Ct. 2753, 129 L. Ed. 2d 870 (1994) (cita-
tions omitted).

Before considering the merits of a petition for habeas
corpus, a federal court must ensure that the peti-
tioner has overcome two procedural hurdles: exhaus-
tion and procedural default. Failure to exhaust all
state remedies bars consideration of the petition.
Failure to raise all claims during the course of the
state court proceedings bars consideration of those
claims not raised.

Id. (citations omitted); see also Wainwright v. Sykes, 433
U.S. 72, 89, 97 S. Ct. 2497, 2506, 53 L. Ed. 2d 594 (1977).
"Failure to 'fairly present' . . . federal [constitutional]
claims to the state courts will result in procedural default
of those claims unless the petitioner can show cause and
prejudice," and Rodriguez has failed to do so. Jones, 15
F.3d at 675; see also U.S. ex rel. Simmons v. Gramley,
915 F.2d 1128, 1136 (7th Cir. 1990) ("a defendant may
not raise on collateral attack even constitutional claims
that could have been raised on appeal unless the defen-
dant establishes 'cause and prejudice' for his omission").
Rodriguez has not afforded the Illinois state courts "any
opportunity, much less a 'fair opportunity,' to consider the
claim." Id.

   Rodriguez has failed to offer an explanation for his fail-
ure to present the pre-trial identification issue to the state
court either in his brief or during oral argument. In fact,
when his counsel was questioned during his appellate oral
argument about the failure to raise this issue in the State
appellate proceedings, Rodriguez's attorney acknowledged
that the issue of Morris's viewing the lineup photograph
before the trial was not raised on appeal in Illinois, with-
out any explanation. Thus, based on the record, we con-
clude that Rodriguez has failed to demonstrate "cause"
for not bringing this issue to the attention of the Illinois
court and, as we discuss infra, this case does not pre-
sent an "extraordinary instance" in which a "constitutional
violation probably has caused the conviction of one inno-
cent of the crime," McClesky, 111 S. Ct. at 1470; "there-
fore, the claim concerning the pre-trial viewing of the
photograph is procedurally defaulted and is barred from
federal review." Id./10

   Rodriguez's next contention is that Morris's in-court
identification violated his right to due process because it
was unduly suggestive in that he (Rodriguez) was seated
at the defense table, and because Morris previously had
an opportunity to view the lineup photograph on the desk
in the State's Attorney's office. The admissibility of a chal-
lenged in-court identification is subject to a two part test.
Initially, we must decide if the identification procedure
was unduly suggestive. United States v. Rutledge, 40 F.3d
879, 889 (7th Cir. 1994), cert. granted, 63 U.S.L.W. 3906
(U.S. June 26, 1995) (citing Manson v. Brathwaite, 432
U.S. 98, 107-14, 97 S. Ct. 2243, 53 L. Ed. 2d 140 (1977)).
If the threshold determination that an identification was
suggestive is made, we then examine whether the identifi-
cation was "so reliable, in view of the totality of the cir-
cumstances, as to prevent a substantial likelihood of mis-
identification." Id.; see also United States v. Larkin, 978
F.2d 964, 970 (7th Cir. 1992), cert. denied, __ U.S. __,
113 S. Ct. 1323, 122 L. Ed. 2d 709 (1993).

   Both the Illinois appellate court and the district court
held that the in-court identification procedure was sug-
gestive; but on the other hand, both courts agreed that
the degree of suggestiveness did not rise to the level of
a due process violation because there was no "substan-
tial likelihood of irreparable misidentification." Neil v. Big-
gers, 409 U.S. 188, 198, 93 S. Ct. 375, 34 L. Ed. 2d 401
(1972) (quotation omitted). The Illinois appellate court
stated that a defendant is not denied due process "when
a witness identifie[s] him for the first time at trial when
he was seated at the counsel table," if there is "an inde-
pendent basis for the identification." Rodriguez, 480 N.E.2d
at 1151.

[A]n in-court identification of itself does not deprive a
defendant of due process. Similarly, this court has re-
peatedly held that a defendant has no absolute right
to avoid identification at trial, suggestive circum-
stances notwithstanding. In our view, suggestiveness
at trial, absent the taint of extra-judicial suggestive-
ness, does not offend due process because the trial
itself affords the defendant adequate protection. The
defendant receives the full benefit of a trial by jury,
under the guidance of an impartial judge, with repre-
sentation by counsel and witnesses subject to oath
and cross-examination. We stress cross-examination,
"the greatest legal engine ever invented for the dis-
covery of truth." (V J. Wigmore, Evidence sec. 1367
(Chadbourne rev. 1974)). Where a witness first iden-
tifies the defendant at trial, defense counsel may test
the perceptions, memory and bias of the witness, con-
temporaneously exposing weaknesses and adding per-
spective in order to lessen the hazards of undue
weight or mistake. We emphasize, too, that the jury
is capable of observing and weighing the suggestive-
ness of an in-court identification, if that identification
is unaffected by extra-judicial suggestiveness. (See IV
J. Wigmore, Evidence sec. 1130 (Chadbourne rev. 1972)).

Id. (citations omitted).

   We also wish to note that this court has previously held
that if the mere fact that the defendant is seated at the
defense table while an in-court identification is made is
"[t]he only suggestive circumstance identified by defen-
dant," then this "circumstance alone is not enough to es-
tablish a violation of due process." United States v. Bush,
749 F.2d 1227, 1232 (7th Cir.), cert. denied, 470 U.S. 1058,
105 S. Ct. 1771, 84 L. Ed. 2d 831 (1985); accord U.S. ex
rel. Haywood v. O'Leary, 827 F.2d 52, 59 (7th Cir. 1987)
(the fact that the defendant, the only black man in the
court room, was seated at the defense table during an
in-court identification, was not violative of due process
because there was sufficient indicia that the identification
was reliable); see also Love v. Young, 781 F.2d 1307, 1311
(7th Cir.), cert. denied, 476 U.S. 1185, 106 S. Ct. 2923,
91 L. Ed. 2d 551 (1986).

   Factual findings made in the state courts which underlie
the determination of the reliability of in-court identifica-
tions, as with factual findings in habeas cases, are consid-
ered to be "presumptively correct" in the federal courts,
28 U.S.C. sec. 2254(d); Greer, 956 F.2d at 680, and are evalu-
ated in light of the following factors:

(1) the opportunity of the witness to view the criminal
at the time of the crime, (2) the witness's degree of
attention, (3) the accuracy of the witness's prior de-
scription of the criminal, (4) the level of certainty
demonstrated by the witness at the time of the con-
frontation, and (5) the length of time between the
crime and the confrontation.

Greer, 956 F.2d at 680-81 (quotations omitted).

   The Illinois appellate court found that the following
facts, when considered in their totality, supported the
reliability of Morris's in-court identification, and as is man-
dated by 28 U.S.C. sec. 2254(d), we agree with and defer
to their findings:

Morris saw the face of the person who carried the
gun for only a couple of seconds, but he testified that
his attention was drawn by the gunshots. He described
two men to the police that evening, and the descrip-
tions fit defendant and Hernandez. He positively iden-
tified defendant in court nine months later. . . . At
trial, Morris identified defendant from a photograph
of a lineup, and after asking defendant to remove his
eyeglasses, identified him at counsel table. Defense
counsel cross-examined Morris concerning lapse of
time since the shooting, and commented in closing
argument about the suggestiveness of the identifica-
tion. Defendant was not deprived of a fair trial simply
because the testimony was imperfect. Just as the jury
could consider the imperfect testimony of Hernandez
and Santana, we believe that the jury was entitled
to hear Morris' testimony. We trust that the jury
reached its verdict based on all of the evidence.

Rodriguez, 480 N.E.2d at 1152. Furthermore, although
Rodriguez questions the reliability of the in-court iden-
tification because there were nine months between the
murders and Morris's identification at trial, in Larkin we
approved an identification even though there were ten and
twenty-six month time lapses between witnessing a rob-
bery and identifying the perpetrator holding that at the
time of the robbery the witness had ample opportunity
to view the robbers and was paying close attention. 978
F.2d at 970.

   The jury, because of the overpowering quantum of evi-
dence presented as to the defendant's guilt, as well as
the prosecution and defense attorneys' thorough direct and
cross-examination, was made fully cognizant of any and
all possible deficiencies in Morris's identification, yet after
weighing it and applying the evidence to the judge's in-
structions, they came to the conclusion that Joseph Rod-
riguez was the murderer of the Palmers. On the night
of the murders, Morris provided a detailed description to
the police of the person he saw running in the alley. Fur-
thermore, the jury heard Santana, who was Rodriguez's
schoolmate through grammar and high school, testify that
she observed Rodriguez shoot Theresa and Joseph Palmer.
Santana and Morris both stated under oath that the defen-
dant was wearing a black leather jacket at the time of
the Palmers' murders, and Santana, an eyewitness to the
murders, corroborated Hernandez's (the defendant's co-
conspirator) account of the double homicide in as much
as to state that she heard and saw Rodriguez fire the
one shot at Joseph's head, and three at Theresa's head,
and then saw Rodriguez and Hernandez flee the murder
scene in a red car.

   After reviewing the record, we are convinced that based
upon all the facts in the record, including Morris's specific
and detailed description of the defendant immediately after
the event, as well as his previously having seen Morris's
picture on the desk in the State's Attorney's office and
identified him in his own mind at that time, the in-court
identification procedure could not have been prejudicially
suggestive, and furthermore, there was no "likelihood of
misidentification," Rutledge, 40 F.3d at 889. The defen-
dant was not denied his right to due process./11

B.  PROSECUTORIAL MISCONDUCT

   Rodriguez's second basis for appeal is that he was de-
nied a fair trial because the prosecutor: 1) violated the
trial court's in limine order by telling the jury that San-
tana was relocated after witnessing the murders; 2) called
defense counsel a liar; 3) commented that he did not know
"what the defense is" thereby commenting on his deci-
sion not to testify; 4) misstated the law of accountability
when he stated that Hernandez was not guilty of murder
in order to bolster Hernandez's credibility; 5) vouched for
the credibility of Santana and Morris; 6) evoked sympathy
for the victims and their mother; and 7) speculated on
what Rodriguez would do if he were acquitted.

   In order for his claim concerning the prosecutor's alleged
misconduct to succeed, Rodriguez "must demonstrate that
'the prosecutor's comments so infected the trial with un-
fairness as to make the resulting conviction a denial of
due process.' " United States v. Reed, 2 F.3d 1441, 1450
(7th Cir. 1993), cert. denied, __ U.S. __, 114 S. Ct.
898, 127 L. Ed. 2d 90 (1994) (quoting Darden v. Wain-
wright, 477 U.S. 168, 181, 106 S. Ct. 2464, 91 L. Ed. 2d
144 (1986)).

When analyzing allegations of prosecutorial miscon-
duct during argument, we look at the disputed re-
marks in isolation to determine if they are proper.
If the statements are proper, our analysis ends. If
the statements are improper our second step is to
look at the remarks in light of the entire record to
determine if the defendants were deprived of a fair
trial.

Id. "To carry this burden, [the defendant] must show that
it is at least likely that the misconduct complained of af-
fected the outcome of his trial--i.e., caused the jury to
reach a verdict of guilty when otherwise it might have
reached a verdict of not guilty." United States ex rel.
Shaw v. DeRobertis, 755 F.2d 1279, 1281, n. 1 (7th Cir.
1985). This court considers five factors when weighing the
prejudicial nature of a prosecutor's comments:

(1) the nature and seriousness of the prosecutorial
misconduct, (2) whether the prosecutor's statements
were invited by conduct of defense counsel, (3) whether
the trial court instructions to the jury were adequate,
(4) whether the defense was able to counter the improper
arguments through rebuttal, and (5) the weight
of the evidence against the defendant.

Reed, 2 F.3d at 1450 (citations omitted).

   These five factors are not applied in a rigid manner,
but rather "carry varying weight depending on the facts
of each case." United States v. Badger, 983 F.2d 1443,
1450 (7th Cir.), cert. denied, __ U.S. __, 113 U.S.
2391, 123 L. Ed. 2d 293 (1993). "The most important fac-
tor to be considered in determining whether the closing
statement violated [the defendant's] rights is . . . the proof
of . . . guilt. . . . [S]trong evidence of guilt eliminates any
lingering doubt that the prosecutor's remarks unfairly
prejudiced the jury's deliberations." United States v. Gon-
zalez, 933 F.2d 417, 431-32 (7th Cir. 1991).


   1.  Relocated Witness

   During his closing argument, Assistant State's Attorney
Timothy McMahon told the jury that it was understandable
that Santana was reluctant to identify Rodriguez to the
police because of her fear of retaliation, and remarked that
"after the police and her mother and her relatives re-
assure her not to be afraid, you will be protected, she
tells the police [defendant's name]." During the defense
counsel's closing argument, he responded with a comment
that the prosecutor's statement about Santana being
afraid to testify was not supported by the evidence. In
rebuttal, Assistant State's Attorney Brian Telander ar-
gued that Santana was so fearful that the State decided
she should be relocated to another state. After Telander
made this statement to the jury concerning her reloca-
tion, defense counsel promptly objected and the judge im-
mediately advised the jury that the fact of Santana's
relocation was "not the evidence" and that "where [San-
tana] is . . . now has nothing to do with the case, ladies
and gentlemen of the jury." Rodriguez claims that his
right to due process was violated when Telander violated
the in limine order and informed the jury of Santana's
relocation.

   The Illinois appellate court found that the prosecutor's
remarks were "improper, inflammatory and not based on
evidence." Rodriguez, 480 N.E.2d at 1153. However, the
court continued by stating that "these comments were not
a material factor in defendant's conviction" because "the
evidence of defendant's guilt, considered, in toto, was
overwhelming," and the trial judge "admonished the jury
that the prosecutors [sic] comments were irrelevant and
unsupported in the evidence." Id. Similarly, the federal
district court found that the evidence of Rodriguez's guilt
was "overwhelming," and although the "prosecutor's com-
ments at trial were unprofessional, . . . those poorly
chosen comments did not affect the outcome of the trial"
because they bolstered Santana's credibility "only tangen-
tially," and the trial judge "took the curative measure
of admonishing the jury that the prosecutor's comments
were irrelevant and unsupported by the record." Rod-
riguez v. Peters, No. 91 C 6563 (N.D. Ill. July 20, 1993).

   We agree that the prosecutor's reply was ill-advised and
improper in light of the trial judge's order, but it was
far from inflammatory and does not rise to the level of
preventing Rodriguez from receiving a fair trial; in fact,
the problem probably would not have arisen if the defense
counsel had not argued that the record did not support
the prosecutor's comments that Santana was afraid of re-
taliation if she testified./12

   As soon as Telander informed the jury that Santana was
relocated, Rodriguez's attorney objected to the comment.
When the judge overruled his objection, he nonetheless
issued a contemporaneous limiting and clarifying instruc-
tion to the jury stating, "that's not the evidence," and
that Santana's location at the time of the trial "has noth-
ing to do with the case." Additionally, during the final
jury instructions, after arguments, the judge informed the
jury that:

[c]losing arguments are made by the attorneys to
discuss the facts and circumstances in the case, and
should be confined to the evidence and to reasonable
inferences to be drawn from the evidence. Neither
opening statements nor closing arguments are evi-
dence, and any statement or argument made by the
attorneys which is not based on the evidence should
be disregarded.

(Emphasis added). "Jurors are presumed to follow . . .
[all] instructions" from the court. Doe v. Johnson, 52 F.3d
1448, 1458 (7th Cir. 1995) (quotation omitted); see also
United States v. Davis, 15 F.3d 1393, 1402 (7th Cir.), cert.
denied, __ U.S. __, 115 S. Ct. 250, 130 L. Ed. 2d 171
(1994) ("We rely on our belief that juries heed the instruc-
tions"). 

   Finally, it is clear that the weight of the evidence against
Rodriguez was not only convincing, but it was overwhelm-
ing. See, supra, Section A. Such "strong evidence of guilt
eliminates any lingering doubt that the prosecutor's re-
marks unfairly prejudiced the jury's deliberations." Gon-
zales, 933 F.2d at 431-32. We hold that the prosecutors'
comments concerning Santana's relocation did not "so in-
fect the trial with unfairness as to make the resulting con-
viction a denial of due process." Reed, 2 F.3d at 1450.


   2.  Comments About Defense Counsel

   Rodriguez's next contention is that the prosecutor called
his attorney a liar and stated that the defense counsel's
job was "to get his client off," thereby denying him a
fair trial. During defense counsel's closing argument, he
implied that one of the investigating police officers, Of-
ficer McKenna, acted improperly when investigating the
Palmer murders because he failed to record a written memo-
randum of the fact that Santana was shown pictures of
Rodriguez, but did not identify him. Rodriguez's attorney
claimed that he only found out about Santana's failure to
name the defendant in the early stages of the investiga-
tion because he retained a private investigator to speak
with her. When Assistant State's Attorney Telander gave
his rebuttal argument, he responded to the defense's ac-
cusation that the police engaged in misconduct when they
did not memorialize Santana's failure to identify Rodriguez
as the murderer during the initial stage of the investigation.
Telander informed the jury that the prosecution turned
over "every police report, every photo, everything we
have" to the defense and stated that the defense counsel
was "lying to you" when he said that he did not know
that Santana did not identify Rodriguez right away, un-
til after his private investigator, Beseth, spoke with her.

   Although we do not reverse [Rodriguez's] convic-
tion, neither do we approve of the prosecutor's con-
duct in closing argument. We strongly suggest that
prosecuting attorneys thoroughly prepare their clos-
ing arguments before delivery and thus avoid such
reckless and unsupportable comments and/or sup-
posed legitimate inferences. The prosecutor's office
is an entity [of the government] and as such it is the
spokes[person] for the Government. . . . It is well
understood in the realm of ethical and proper con-
duct of a criminal trial, that the prosecutor may pros-
ecute with earnestness and vigor--indeed, he should
do so. But, while he may strike hard blows, he is
not at liberty to strike foul ones. Prosecutors must
remember to live up to the code of professional ethics
and fair play at all times or the American system
of justice cannot endure, and ultimately our nation
will lose confidence and trust in its rendering of
justice, but, we refuse to reverse a conviction when
we are convinced that the improper argument did not
rise to the level of a constitutional violation of the
defendant's rights.

Gonzalez, 933 F.2d at 432-33.

   Thus, while we urge prosecutors, as officers of the court
and representatives of the government, to use more tem-
perate language when rebutting allegations of prosecu-
torial and/or police misconduct, we refuse to conclude that
in the context of this case that the remarks had any prej-
udicial effect in light of the Reed factors. 2 F.3d at 1450
(the seriousness of the misconduct, invited response, ade-
quate jury instructions, whether the defense counsel could
rebut the statements, and the great weight of evidence
against the defendant). The jury was presented with more
than sufficient evidence of Rodriguez's guilt beyond a
reasonable doubt, see, supra, Section A, and the judge
explicitly instructed the jury that the attorneys' closing
arguments were not evidence, that they were to base
their verdict solely on the evidence received, not on the
closing arguments, and that they should return a verdict
of guilty only if they found "from [their] consideration of
all the evidence that each one of [the elements of the
crime of murder had] been proved beyond a reasonable
doubt." In light of the overwhelming evidence of guilt and
the instructions given, it is clear that Rodriguez was not
prejudiced by the prosecutor's remarks about defense
counsel "lying to you" concerning Santana's identification
of Rodriguez.

   Rodriguez also contests statements made by State's At-
torney McMahon in which he advised the jury of the re-
sponsibilities of the lawyers and the judge in the case.
He told them that it was the State's responsibility to pros-
ecute the case, and the defense counsel's responsibility
"to try to get his client off." Rodriguez's attorney ob-
jected to the comment about his duty "to get his client
off," and the court immediately ruled: "objection sustained
as to that is his job." Furthermore, it is obvious that
defense counsel did rebut the objectionable comment in
his closing argument, Reed, 2 F.3d at 1450, when he told
the jury that his task was not to "get Rodriguez off,"
but rather to:

prevent [the prosecution] or anyone else from just
telling you that what Theresa, if Theresa Santana
says it was Joey Rodriguez, that it's the gospel, it's
etched in granite somewhere, it's not.

   And what I say and what he says or they say is
not evidence. You know what the evidence is.

(Emphasis added).

   We also note that the allegedly prejudicial comments
concerning the defense counsel's duty did not involve a
disputed issue in this case; namely, whether Santana, Mor-
ris and Hernandez credibly identified Rodriguez as the
murderer. As we have previously held, "[i]f the prosecu-
tor attacked defense counsel's truthfulness only as to an
undisputed issue, then it is unlikely that the jury's de-
cision was affected." Pierson v. O'Leary, 959 F.2d 1385,
1388 (7th Cir.), cert. denied, __ U.S. __, 113 S. Ct.
168, 121 L. Ed. 2d 115 (1992). The allegedly offensive com-
ment about the defense attorney's responsibilities in the
trial related neither to a disputed nor a relevant issue,
such as identification. Thus, it is most "unlikely that the
jury's decision was affected" by the remark, id., and we
hold that Rodriguez suffered no prejudice from any of the
State's Attorney's statements about defense counsel.


   3.  Lack of a Defense

   Rodriguez's next argument is that Telander improperly
commented on his decision not to testify, in violation of
his Fifth Amendment right to be free from self-incrimina-
tion, when he remarked to the jury, "What was the de-
fense? The defense was the Defendant's investigator . . .
and a Chicago police officer would testify that he sur-
rendered himself." When Telander made these statements,
Rodriguez's attorney promptly said "objection." However,
after his objection was properly overruled, he gave no spe-
cific reasons for his objection nor did he make an offer
of proof as to why the objection should be sustained.

   The remarks of the prosecutor fall far short of a state-
ment that could reasonably be considered as referring to
Rodriguez's failure to testify. We first note that the law
is clear that an attorney, when making an objection, must
"make a clear statement of the specific grounds for ob-
jection[s]." O.K. Gravel & Sand v. Martin Marietta Tech-
nologies, 36 F.3d 565, 568 (7th Cir. 1994). "[G]eneral ob-
jections [at trial] do not preserve an issue for appellate
review because they do not alert the court or [the] op-
posing party as to the specific grounds for the objections."
Doe, 52 F.3d at 1457 (citation omitted); cf., Prymer v. Gor-
don, 29 F.3d 1208, 1214 (7th Cir.), cert. denied, __ U.S.
__, 115 S. Ct. 665, 130 L. Ed. 2d 599 (1994) (general
objections to evidence do not preserve an issue for re-
view). Thus, defense counsel has procedurally defaulted
on this issue and we are "barred" from reviewing the
propriety of this comment unless Rodriguez can meet the
"cause and prejudice" test. Jones, 15 F.3d at 675; see also
Freeman v. Lane, 962 F.2d 1252, 1256 (7th Cir. 1992)
(citing Sykes, 433 U.S. at 89).

   Rodriguez's counsel has offered no explanation for his
failure to make a specific objection and "we refuse to
search and comb the record in search of" an explanation
for the defendant's "cause" for waiving this issue on
direct review. United States v. Adamo, 882 F.2d 1218,
1230 (7th Cir. 1989) (citation omitted); see also United
States v. Brown, 899 F.2d 677, 679 (7th Cir. 1990) ("it
is not the obligation of this court to research and con-
struct the legal arguments open to parties, especially
when they are represented by counsel").

   The right against self-incrimination is violated only when
"1) it was the prosecutor's manifest intention to refer to
the defendant's silence, or 2) the remark was of such a
character that the jury would 'naturally and necessarily'
take it to be a comment on the defendant's silence." United
States v. Donovan, 24 F.3d 908, 916 (7th Cir.), cert. de-
nied, __ U.S. __, 115 S. Ct. 269, 130 L. Ed. 2d 187
(1994); see also United States v. Tipton, 964 F.2d 650, 657
(7th Cir. 1992); United States v. DiCaro, 852 F.2d 259,
263 (7th Cir. 1988) (quotation omitted). In DiCaro, we held
that because "the essence of the defendant's theory was
that the government's witnesses were not reliable, the
prosecutor was entitled to 'imply that the failure of the
defense to present available evidence (other than the de-
fendant's testimony) in opposition to the government's wit-
nesses supports a conclusion that the government's wit-
nesses are reliable.' " Id. State's Attorney Telander merely
commented on the less than compelling nature of the de-
fense by pointing out that it consisted of the investigator's
report of his conversation with Santana and that a police
officer would have testified that Rodriguez surrendered
himself. 

   The overwhelming evidence as to the guilt of Rodriguez,
see, supra, Section A, and the judge's explicit instruction
to the jury in this case that "[t]he fact that the defen-
dant did not testify should not be considered by you in
any way in arriving at your verdict," are further proof
that the jury would have no reason to interpret the prose-
cutor's statements, in the normal course of his argument,
regarding the weakness of the defense as a comment on
Rodriguez's failure to testify on his own behalf because
"jurors are presumed to follow . . . instructions." Doe,
52 F.3d at 1458; see also Davis, 15 F.3d at 1402 ("[w]e
rely on our belief that juries heed the instructions").
Therefore, we hold that Rodriguez suffered no prejudice,
nor did State's Attorney Telander engage in any miscon-
duct, when he merely commented in passing on the sparse
defense Rodriguez presented at trial.


   4.  The Law of Accountability

   In defense counsel's closing argument, he argued to the
jury that Hernandez's credibility was open to doubt be-
cause he too was involved in the murders, that his testi-
mony was procured through a plea bargain, and as a re-
sult of his cooperation with the state, he was charged with
and convicted of a lesser crime than murder. During his
rebuttal, State's Attorney Telander responded to the at-
tack on Hernandez's credibility and told the jury:

TELANDER:  I want to talk about Mr. Hernandez
just for a minute. Now, you may not like Mr. Her-
nandez; I don't. It is my decision of what happened
to Mr. Hernandez. If you don't like it, hold it against
me. I would have liked Mr. Hernandez to be sitting
with his buddy right there where he belongs, but you
have heard all the evidence. Is Mr. Hernandez guilty
of murder?

   Did Theresa Santana say Mr. Hernandez shot any-
body? She said it was another guy back there.

DEFENSE:  Objection.

COURT:  Overruled.

* * *

TELANDER:  No one says Hernandez killed any-
body. 

   At the outset, as in criminal trials both state and fed-
eral, prosecutors have "the responsibility of evaluating
evidence and other pertinent factors and determining
what, if any, offense may be charged. The prosecutor is
vested with wide discretion in enforcing the criminal
laws." People v. Williams, 588 N.E.2d 983, 1017 (Ill.), cert.
denied, __ U.S. __, 113 S. Ct. 218, 121 L. Ed. 2d 156
(1991) (emphasis added) (citing People v. Rhodes, 231
N.E.2d 400 (1967); Marcisz v. Marcisz, 357 N.E.2d 477
(1976)); see also Jarrett v. United States, 822 F.2d 1438,
1443 (7th Cir. 1987) (quoting Wayte v. United States, 470
U.S. 598, 606, 105 S. Ct. 1524, 84 L. Ed. 2d 547 (1985))
(noting that:

The government retains broad discretion in exercising
its decision as to whom it prosecutes and when it de-
cides to prosecute. So long as the prosecutor has proba-
ble cause to believe that the accused committed an
offense defined by statute, the decision whether or
not to prosecute, and what charge to file or bring
before a grand jury, generally rests entirely in his
or her discretion)./13

   Rodriguez argues that Telander misstated the law of
accountability (accomplice liability) in Illinois in order to
impermissibly bolster Hernandez's credibility in the eyes
of the jury and that such a misstatement denied him his
right to due process. The Criminal Code of Illinois at the
time of Rodriguez's conviction provided that a person was
legally accountable for the conduct of another person
when: "[e]ither before or during the commission of an of-
fense, and with the intent to promote or facilitate such
commission, he solicits, aids, abets, agrees or attempts to
aid, such other person in the planning or commission of
the offense." Ill. Rev. Stat. 1977, ch. 38, par. 5-2(c), Prin-
ciples of Criminal Liability, Parties to Crime, When Ac-
countability Exists. "Evidence that a defendant voluntarily
attached himself to a group bent on illegal acts with knowl-
edge of its design supports an inference that he shared
the common purpose and will sustain his conviction as a
principal for a crime committed by another in furtherance
of the venture." People v. Ruiz, 447 N.E.2d 148, 151 (Ill.
1982), cert. denied, 462 U.S. 1112, 103 S. Ct. 2465, 77 L.
Ed. 2d (1983).

   The Illinois appellate court found that Telander did "mis-
stat[e] law in order to minimize the impact of the plea
bargain with Hernandez." Rodriguez, 480 N.E.2d at 1153.
The court continued, however, and stated that "these
comments were fleeting and oblique, and in view of the
strength of the evidence, we do not believe that they af-
fected the jury's deliberations." Id. The district court also
concluded that "these poorly chosen comments did not af-
fect the outcome of the trial" because of the "overwhelm-
ing" evidence of guilt, and the comments bolstered Her-
nandez's credibility "only tangentially."

   We agree with the appellate and district courts's com-
ments and in light of the "entire record," Telander's state-
ment about Hernandez's culpability did not influence the
jury's verdict nor violate his right to due process of law.
Reed, 2 F.3d at 1450. The evidence presented against
Rodriguez established his guilt beyond a reasonable doubt,
see, supra, Section A.

   Furthermore, we refuse to second-guess the State's At-
torney's exercise of discretion in deciding not to prosecute
Hernandez for murder. A prosecutor is frequently put in
the position of being forced to offer a plea bargain in
order to obtain testimony which will aid the prosecution
in the presentation of its case against the more culpable
conspirator in a criminal act. The State of Illinois's main
target in the prosecution was Rodriguez, the person who
formulated the plan to murder the Palmers, ordered the
gun be delivered to the scene, and fired the shots which
ended Joseph and Theresa's lives./14 Hernandez's testi-
mony aided the State in its prosecution of Rodriguez and
in our opinion, and even though we might not have offered
the plea had we been the prosecutor, it was a proper ex-
ercise of prosecutorial discretion to offer a plea bargain
to a lesser charge.


   5.  Vouching for the Credibility of Prosecution
Witnesses

   Rodriguez's next assignment of error is that the State's
Attorney Telander improperly vouched for Morris's and
Santana's credibility. During defense counsel's closing
argument, he stated that Santana's "identification [of
Rodriguez] stinks," and that Morris's identification was
also less than credible because of the suggestive nature
in which it was procured. Telander responded with the
following statements:

   Now, either Theresa Santana is correct or she's ly-
ing. . . . Now what motive would Theresa Santana
have to try to put a double murder on one of her
friends? . . . Is she a liar? . . . If you believe that
she's a liar, then this is a frame and you've got to
believe that he is guilty, framed for a double murder.

* * *

   You've also got to believe the State's Attorney's
Office, he doesn't want to say it, but you have to
believe it that we are in on it, that the police are
in on it, that we made Danny Morris come in here
and he didn't want to identify him;

* * *

   You can't decide the case on police reports, you got
to decide the case on what's right and what's wrong,
and when you think of that, think of Danny Morris.
Think of what does he have to gain? Think of Theresa
Santana, what does she have to gain?

   They both have everything to lose. Danny Morris
lives in that house today right in the center of the
Kool Gang territory. He's back there right now wait-
ing for you to decide. Are you going to send him back
out, he's going to come home tonight, thanks, Dan,
we appreciate it.

   In order to preserve a question for review in the Illi-
nois courts, both a trial objection and a written post-trial
motion about the claim are required. Ill. Ann. Stat. ch.
38, para. 116-1. Because defense counsel failed to object
to these comments at trial, the issue of whether the prose-
cutor prejudicially vouched for the credibility of the wit-
nesses was procedurally defaulted, not properly preserved
for review, and we refuse to review this issue absent a
show of "cause and prejudice." Jones, 15 F.3d at 674. The
State of Illinois has not had "a fair opportunity to con-
sider the petitioner's constitutional claims before the fed-
eral courts may address those claims," id. (citations omitted),
and was not afforded an opportunity to correct the per-
ceived errors.

   We note that Rodriguez has failed to offer any explana-
tion for his failure to object to these remarks at trial, and
therefore, has not demonstrated "cause" for the procedural
default and we are "barred" from reviewing this issue.
Jones, 15 F.3d at 675. Further, although it "is never prop-
er for any attorney to vouch for the truthfulness of a wit-
ness's testimony because the determination of credibility
is a task left exclusively to the jury," Davis, 15 F.3d at
1401, the law does allow the prosecution to comment on
the credibility of a witness within certain limitations: "the
government is allowed to comment on the credibility of
a witness . . . as long as the comment reflects reason-
able inferences from the evidence adduced at trial rather
than personal opinion." United States v. Goodapple, 958
F.2d 1402, 1410 (7th Cir. 1992). As Telander stated, San-
tana had nothing to gain by testifying against Rodriguez,
except performing her duty as a good law abiding citizen,
for she feared retaliation, but with encouragement from
her family and the government, she agreed to testify
against the defendant in spite of her fear. Thus, "[t]he
prosecutor's remarks merely related to the inferences to
be drawn from the evidence." Tipton, 964 F.2d at 656.

   Additionally, in order to preserve the integrity of the
jury process, the court carefully instructed the jury that:

You are the sole judges of the believability of the
witnesses and of the weight to be given to the testi-
mony of each of them. In considering the testimony
of any witness, you may take into account his abil-
ity and opportunity to observe, his memory, his man-
ner while testifying, any interest, bias or prejudice
he may have, that the reasonableness of his testi-
mony in light of all the evidence in this case.

In Davis, this court held that jury "instructions effectively
address[ ] the risk the vouching presented and sufficient-
ly dispelled any prejudicial effect the vouching may have
had. We rely on our belief that juries heed the instruc-
tions." 15 F.3d at 1402 (quotation omitted). In the case
at hand, we believe that the jury was properly instructed
not only that closing arguments were not evidence for
them to consider in reaching a verdict, but they were also
clearly informed that they were the sole arbiters of credi-
bility of the witnesses. We hold that Rodriguez suffered
no prejudice from the prosecutor's remarks for the evi-
dence of Rodriguez's guilt was staggering, see, supra, Sec-
tion A, and the jury was properly instructed. Reed, 2 F.
3d at 1450.


   6.  Evoking Sympathy

   Rodriguez argues that State's Attorney Telander made
improper "victim impact" statements, i.e., statements
about how the murders affected the Palmer family, most
particularly their mother, and remarks about the nature
of the crime, which prejudiced his right to a fair trial.

   Because defense counsel failed to object to these com-
ments at trial, the issue of whether the prosecutor prej-
udicially evoked sympathy from the jury was waived for
our review, Ill. Ann. Stat. ch. 38, para. 116-1, and we
refuse to review this issue absent a show of "cause and
prejudice." Jones, 15 F.3d at 674. Further, we note that
Rodriguez has failed to offer any explanation whatsoever
for his failure to object to these remarks at trial.

   In spite of Rodriguez's waiver of this issue, we will sum-
marily dispose of the prejudice prong of the analysis as
well. The allegedly objectionable statements are the
following:

   You know, did he ask Theresa or Joe, "Would you
like to live maybe a few more years?"

   Did he ask them, you know, "Would you like some-
day to grow up and to marry and to fall in love and
have kids?"

   Did he think about that when he did it? Did he say,
"Well, maybe you'd like to have, you know, a few
more moments of your life. Kiss you mother good-
bye, say goodbye to your brother."

   Did he care? Don't forget, don't let the crime get
lost in the garbage on the side. You can't forget and
don't forget what he did to that woman.

   Three people died that night, and you know it. Her
life is over, his mother's life is over. She will never
be the same again. It is over. She will carry this her
whole life, and he did it and I want you to be angry
with him because you should be.
* * *

   This case, ladies and gentlemen, is the worse [sic]
crime I have ever seen as a prosecutor.

   The Illinois appellate court stated that these comments
were "inflammatory and improper," but that "it is likely
that the jury was outraged by the nature of the crime
and sympathetic to the victims and their mother long be-
fore any of the closing arguments." Rodriguez, 480 N.E.2d
at 1156. The court further noted that "[t]he jury was in-
structed to decide the case based on the evidence, and
not on the basis of counsel's arguments or their individual
sympathies. We trust that the jury followed instructions,
and we adhere to our opinion that improper comments
were not a material factor in defendant's conviction." Id.

   Indeed, as we noted in Pierson, "[e]very criminal case
involving a victim will create some sympathy. In this case,
there was substantial evidence strongly tending to prove
murder and the victim impact [argument] constituted a
relatively small part of the total [argument]." 959 F.2d
at 1391 (prosecutor's remarks which were one and one-
half pages out of a twenty-seven page closing argument
were not so great as to render the trial fundamentally
unfair). In this case, the "victim impact" statements con-
stituted but one page out of thirty-five pages of the clos-
ing argument transcript, an even smaller ratio than the
one we held was harmless in Pierson. Additionally, when
the jury is instructed that sympathy should not influence
its verdict, the chance of error is further reduced, Id. at
1390-91, and the trial judge specifically stated to the jurors
that "[n]either sympathy nor prejudice should influence
you."

   With respect to Rodriguez's protestations that the pros-
ecutors improperly commented on the vicious nature of
the crime, "as a general rule, the prosecutor may com-
ment on the evils of crime." Williams, 593 N.E.2d at 981
(citations omitted). When "the evidence at trial indeed re-
vealed the offenses to be horrific and defendant never
took issue with such evidence, choosing instead to con-
test the issue of identification," Williams, 588 N.E.2d at
1005, there is no prejudicial error. Rodriguez never took
issue with the prosecutor's remarks about the nature of
the crime, and in fact, his own attorney stated during his
closing argument that "[w]hat happened to these two kids
is the most brutal, disgusting, senseless, ugly crime that
was ever committed." As the Illinois appellate court con-
cluded, "[w]e do not condone the prosecutor injecting his
personal assessment or professional judgment of the sever-
ity of a crime into the trial, but we think it is unrealistic
to hold the prosecutor to a standard of sterile analysis
in response to defense counsel's touching show of humanity."
Rodriguez, 480 N.E.2d at 1156. From our review of the
record, we are of the opinion that the "victim impact"
statements fall far short of demonstrating any prejudice
toward Rodriguez, and thus, he was not denied his right
to due process.


   7.  Speculation About the Defendant's Actions

   Rodriguez's final allegation of prosecutorial misconduct is
that Telander made the following speculative and inflam-
matory remarks about what the defendant would do if ac-
quitted: 

Today is the day it catches up to him for creeping
around the gangways and the alleys of our city with
a gun, for stalking his victims, for killing two inno-
cent people indiscriminately without mercy, without
concern, whether it's a girl or a boy, a young man
or an old man, and then for scurrying off into the
night to do it again.

   As we noted above, in Illinois, a trial objection is neces-
sary to preserve an issue for review, Ill. Ann. Stat. ch.
38, para. 116-1, but Rodriguez's counsel made no such ob-
jection to these comments. Thus, the issue of whether
these comments were prejudicially inflammatory has been
procedurally defaulted unless Rodriguez can demonstrate
"cause and prejudice" for his waiver. Jones, 15 F.3d at
674. His attorney had not even acknowledged the failure
to preserve this issue, let alone offer an explanation for
why it was waived. Thus, we are barred from reviewing
this claim as a basis for habeas relief. Id.

   Furthermore, Rodriguez also fails the prejudice test.
The Illinois court held that "this comment was aimed at
defendant's conduct at the time of the crime, and did not
amount to a prediction of the consequence of an acquit-
tal." Rodriguez, 480 N.E.2d at 1156. This comment,
however, like others made by the prosecutors during their
closing and rebuttal arguments, was somewhat inflamma-
tory, and we urge restraint in the future so that the
"American system of justice can[ ] endure" without our
"nation [losing] confidence and trust in its rendering of
justice[.]" Gonzalez, 933 F.2d at 433. "The government
may not attempt to obtain a conviction by appealing to
jurors to prevent future crimes by finding present guilt."
United States v. Cunningham, 54 F.3d 295, 300 (7th Cir.
1995) (citation omitted). "But while we agree with the de-
fendant that the prosecution acted improperly [by specu-
lating on the defendant's future conduct if acquitted], we
must further determine if prejudice to the defendant re-
sulted." Id. at 301. We look "at the remarks in light of
the entire record to determine if the defendant [was] de-
prived of a fair trial." Reed, 2 F.3d at 1450.

   We stress, once again, that the jury was properly in-
structed not to consider the closing arguments as evi-
dence, in arriving at their verdict, Doe, 52 F.3d at 1548
("Jurors are presumed to follow limiting instructions");
Davis, 15 F.3d at 1402 ("We rely on our belief that juries
heed the instructions"), and the evidence against Rodri-
guez was overwhelming. See, supra, Section A. Thus, the
defendant was not denied due process and his right to
a fair trial was not prejudiced by the prosecutor's pass-
ing remark "scurrying off into the night to do it again."


C.  SENTENCING

   Rodriguez's final argument is that his natural life sen-
tence without possibility of parole violates the Eighth
Amendment's prohibition against "cruel and unusual
punishment." Because the Illinois statute mandates a
natural life sentence for those convicted of more than one
murder, a sentencing court has no discretion but to im-
pose such a sentence. Thus, any mitigating evidence in
support of a reduced sentence would be of no value. He
also argues that because the Illinois state legislature ex-
empted minors from eligibility for the death penalty, it
could not have rationally intended for minors to be sen-
tenced to natural life sentences which have "the same ir-
revocable quality as a death sentence," and thus, his right
to due process was violated because he was only fifteen
years of age at the time he committed the dual murders.

   Both of Rodriguez's contentions are premised on his
mistaken belief that the death penalty and life in prison
without the possibility of parole are qualitatively the
same. This analogy is flawed. In Harmelin v. Michigan,
501 U.S. 957, 995, 111 S. Ct. 2680, 115 L. Ed. 2d 836
(1991), the Supreme Court stated that:

the penalty of death differs from all other forms of
criminal punishment, not in degree but in kind. It
is unique in its total irrevocability. It is unique in
its rejection of rehabilitation of the convict as a basic
purpose of criminal justice. As it is unique, finally,
in its absolute renunciation of all that is embodied
in our concept of humanity.

(quoting Furman v. Georgia, 408 U.S. 238, 306, 92 S. Ct.
2726, 33 L. Ed. 2d 346 (1972) (Stewart, J., concurring).

   It is precisely because the death penalty as applied is
so "unique in its total irrevocability" in our system of
criminal justice that sentencing courts are required to con-
sider mitigating factors when imposing the death penalty;
however, a court is not required to, and in Illinois is not
permitted to, consider mitigating circumstances when im-
posing a natural life sentence because of the "qualitative
difference between death and all other penalties." Harme-
lin, 501 U.S. at 995 (citations omitted); see also Rummel
v. Estelle, 445 U.S. 263, 272, 100 S. Ct. 1133, 63 L. Ed.
2d 382 (1980) ("Because a sentence of death differs in kind
from any sentence of imprisonment, no matter how long,
our decisions applying the prohibition of cruel and unusual
punishments to capital cases are of limited assistance in
deciding the constitutionality" of non-capital punishment)
(emphasis added). Thus, we reject Rodriguez's argument
that his sentence was "cruel and unusual" because he was
not permitted to present mitigating evidence before he
was sentenced to natural life in prison.

   Rodriguez also argues that the Illinois legislature could
not have exempted minors from the death penalty yet in-
tended to sentence them to natural life sentences. Once
again, he premises this argument on his flawed analogy
between the death penalty and a natural life sentence.
In Harmelin, Justice Kennedy, in a concurring opinion,
made it clear that the determination of criminal penal-
ties is one that should be left to the states. He commented
that the Court's "decisions recognize that the Cruel and
Unusual Punishments Clause encompasses a narrow pro-
portionality principle," 111 S. Ct. at 2702, and that there
are "some common principles that give content to the uses
and limits of proportionality review." Id. at 2703.

The first of these principles is that the fixing of
prison terms for specific crimes involves a substan-
tive penological judgment that, as a general matter,
is properly within the province of legislatures, not
courts. . . . The efficacy of any sentencing system
cannot be assessed absent agreement on the purposes
and objectives of the penal system. And the respon-
sibility for making these fundamental choices and im-
plementing them lies with the legislature. . . . Thus,
reviewing courts . . . should grant substantial defer-
ence to the broad authority that legislatures neces-
sarily possess in determining the types and limits of
punishments for crimes. . . . The function of the legis-
lature is primary, its exercises fortified by presump-
tions of right and legality, and is not to be interfered
with lightly, nor by any judicial conception of their
wisdom or propriety. . . . Our federal system recog-
nizes the independent power of a State to articulate
societal norms through criminal law.

Id. at 2703-04.

   The Illinois courts have previously held that the natural
life statute is constitutional even when applied to fifteen
year old juveniles because "the fact that the defendant
was fifteen years old at the time that he committed the
two murders is irrelevant." People v. Wages, 633 N.E.2d
855, 864-65 (Ill. App. 1 Dist.), appeal denied, 642 N.E.2d
1299 (Ill. 1994); People v. Taylor, 464 N.E.2d 1059 (Ill.
1984). In so holding, the courts have stated that "[t]he
legislature has the power to declare and define conduct
constituting a crime and to determine the nature and ex-
tent of punishment for it. Such legislation will not be
nullified by courts unless it violates a constitutionally
assured right." Wages, 633 N.E.2d at 864; see also Taylor,
464 N.E.2d at 1062 (the goal of rehabilitation of criminals

should not and does not prevent the legislature from
fixing mandatory minimum penalties where it has
been determined that no set of mitigating circum-
stances could allow a proper penalty of less than
natural life for the crimes of two or more murders.
It is within the legislative province to define offenses
and determine the penalties required to protect the
interests of our society.)

   The legislative determination that juvenile offenders who
are found guilty of having committed more than one murder
and are tried as adults should not be subjected to the
death penalty does not imply that they cannot be sen-
tenced to life in prison, especially when the statute in
question contains no language whatsoever to suggest that
an exemption from life in prison was contemplated for
juvenile murderers tried as adults. We have often said
that "the plain language of a statute is the most reliable
indicator of Congressional intent," Central States, et al.
v. Cullum Companies, 973 F.2d 1333, 1339 (7th Cir. 1992),
and we adhere to that view with respect to the Illinois
State Legislature as well. Legislatures are presumed to
have understood the laws they enacted, and thus would
have exempted juveniles from natural life sentences if
they saw fit to do so. Oberg v. Allied Van Lines, Inc.,
11 F.3d 679, 683 (7th Cir. 1993), cert. denied, __ U.S.
__, 114 S. Ct. 2104, 128 L. Ed. 2d 665 (1994). "[C]ourts
must presume that a legislature says in a statute what
it means and means in a statute what it says." Id.
(quoting Connecticut Nat'l. Bank v. Germain, __ U.S.
__, 112 S. Ct. 1146, 1149, 117 L. Ed. 2d 391 (1992).

   Rodriguez has provided us with no case law, statutory
language, or legislative history, to suggest, much less man-
date, that we conclude that the Illinois legislature in-
tended to exempt juveniles from natural life sentences.
Moreover, we live in a world where juvenile offenders are
committing violent crimes with increasing frequency. It
has often been said that a bullet fired from a gun of a
juvenile, at the head of another, is just as fatal as one
fired from a weapon of an adult. Society is overwhelmed
and angry with the consequences of such violence and the
Illinois state legislature took an affirmative step toward
deterring violent juvenile offenders in its state; it pro-
vided for natural life sentences for all who are found
guilty of committing more than one murder, including ju-
venile offenders, tried as adults. We refuse to substitute
our judgment for that of the Illinois legislature.

   States are free to make their own determinations about
punishment, subject only to the Eighth Amendment's re-
quirement that they be based on objective factors. Rum-
mel, 445 U.S. at 283. The State of Illinois has adopted
legislation mandating that a person found guilty of com-
mitting two or more murders must be incarcerated for
the rest of his or her natural life. This penalty is based
on sufficiently objective criteria, i.e., the commission of
more than one murder, and it can be rationally applied to
juvenile offenders who are tried as adults without offend-
ing the Eighth Amendment's prohibition against cruel and
unusual punishment.

   The district court is AFFIRMED.


FOOTNOTES




*
   Hon. Thomas M. Reavley, Judge of the United States
Court of Appeals for the Fifth Circuit, is sitting by
designation.


/1
   Ill. Rev. Stat. ch. 37, par. 702-7 of the Juvenile Court
Act provided:

(3) If a petition alleges commission by a minor 13 years
of age or over of an act which constitutes a crime
under the laws of this State, and, on motion of the
State's Attorney, a Juvenile Judge, designated by the
Chief Judge of the Circuit to hear and determine such
motions, after investigation and hearing but before
commencement of the adjudicatory hearing, finds that
it is not in the best interest of the minor or the public
to proceed under this Act, the court may enter an
order permitting prosecution under the criminal laws.


/2
   People v. Rodriguez, 480 N.E.2d 1147 (Ill. App. 1 Dist.
1988).

/3
   When one gang is in possession of a jersey from
another gang, the gangs refer to it as "flying somebody
else's colors." Hernandez testified that the gangs consider
this action an extreme insult and it is reason to kill the
members of the other gang.


/4
   Hernandez was charged with obstruction of justice
because immediately after arrest he denied, to the police,
that he was involved in the murders. Furthermore, when
he was taken before the grand jury on February 8, 1982,
some six months before Rodriguez's trial, he continued
his denial and even testified falsely under oath when he
stated that he and Rodriguez were at a friend's house
at the time of the murders, and that they had never
discussed killing Charles Palmer.



/5
   There is no indication in the record that the police
specifically asked her if Rodriguez was the murderer.


/6
   Officer John McKenna testified that he showed San-
tana the Kool Gang photos because the murders occur-
red on the "Kool Gang's turf."


/7
   Morris was never asked to identify Rodriguez before
trial, but during cross-examination, Morris revealed that
three weeks before the trial, he inadvertently saw a
photograph of five Latino men resting on a desk in the
State's Attorney's office. Morris testified that when he
saw the picture of the five young men, he recognized, and
was sure, in his own mind, that one of the young men
in the photo was the young Latino man, who was about
5 feet6 inches tall, 135 lbs., with black hair parted in the
middle, wearing a black leather jacket, and carrying a gun, he
saw running from the scene of the murders. He further
testified that he never informed anyone that he saw this
photo on the desk or that he recognized one of the in-
dividuals in the photograph.


/8
   After Morris had completed his testimony, the defense
moved for a mistrial based on the suggestive nature of
the in-court identification procedure. The judge denied the
motion based on the fact that the defendant was seated
at the defense table stating, "[h]ow can that be suggestive
when it's done before the jury and the jury can weigh
their own conclusion to whether it was suggestive? . . .
Your motion will be denied at this time because I do not
think of any better identification. . . ."


/9
   See, supra, n. 7.


/10
   We also note that even if Rodriguez had convinced
us that "cause and prejudice" did exist, we would still
refuse to grant relief based on the alleged Brady viola-
tion. Brady mandates that the prosecution present the
defendant with all the exculpatory evidence in its posses-
sion, upon request from the defendant. 373 U.S. at 87-88.
Because the witness's identification of Rodriguez was in-
culpatory evidence in that it was further evidence of the
defendant's guilt, it is not covered by Brady. See also
Jones, 15 F.3d at 676 ("A successful Brady claim requires
that the petitioner show that favorable evidence was sup-
pressed by the prosecution and that the evidence was
material to guilt or punishment.") (emphasis added).


/11
   Rodriguez relies on Moore v. Illinois, 434 U.S. 220,
98 S. Ct. 458, 54 L. Ed. 2d 424 (1977) and Foster v.
California, 394 U.S. 440, 89 S. Ct. 1127, 22 L. Ed. 2d
402 (1969) to support his argument that the identification
procedures used in this case violated his due process
rights but the present case is readily distinguishable from
both Foster and Moore. In Foster, when the witness iden-
tified the defendant in the first lineup, he said that he
was not sure that he selected the correct person. Fur-
thermore, the identification was made after the witness
had seen a previous lineup and the defendant was the only
person who participated in both lineups. 394 U.S. at
441-42. In Moore, the victim identified the defendant after
she was told that she was going to view a suspect, after
she was told his name, and after she heard him called
as the suspect was led before the bench. Additionally, she
heard the prosecutor describe the evidence he believed
implicated the suspect. 434 U.S. at 322-23.


/12
   The prosecutor would have been well-advised to ask
for a sidebar conference and request that the court
withdraw its previous in limine order concerning the
relocation, arguing that defense counsel opened the door
when he stated that there was no evidence that Santana
was afraid to identify Rodriguez and testify against him.



/13
   In Wayte, the Court goes on to state that:

This broad discretion rests largely on the recognition
that the decision to prosecute is particularly ill-suited
to judicial review. Such factors as the strength of the
case, the prosecution's general deterrence value, the
Government's enforcement priorities, and the case's
relationship to the Government's overall enforcement
plan are not readily susceptible to the kind of analysis
the courts are competent to undertake. . . . Examin-
ing the basis of a prosecution delays the criminal pro-
ceeding, threatens to chill law enforcement by subjec-
ting the prosecutor's motives and decisionmaking to
outside inquiry, and may undermine prosecutorial effec-
tiveness by revealing the Government's enforcement
policy.

470 U.S. at 607.


/14
   Further, we note that there is no indication in the
record that Hernandez had any prior criminal record,
although we agree with the defense counsel's comment
that there was sufficient evidence of Hernandez's culpabili-
ty for the State to prosecute him for murder. However,

the defendant might prefer a rule requiring all govern-
ment witnesses to be pillars of their communities, .
. . [but] in this imperfect world, a litigant must often
take the witness as he or she is, imperfections and
all. We cannot expect that witnesses will possess the
credibility of people of the cloth, such as rabbis,
[ministers], priests, and nuns.

United States v. Rose, 12 F.3d 1414, 1425 (7th Cir. 1994).

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