APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
540 N.E.2d 473, 184 Ill. App. 3d 539, 132 Ill. Dec. 733 1989.IL.835
Appeal from the Circuit Court of Cook County; the Hon. Michael B. Getty, Judge, presiding.
PRESIDING JUSTICE MURRAY delivered the opinion of the court. PINCHAM and COCCIA, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MURRAY
Defendant Willie Mullen appeals his conviction for murder and his sentence of 24 years' imprisonment, arguing that (1) he was denied a fair trial because the State, in "defiance" of a specific ruling of the trial court, commented in closing argument that a witness was afraid to testify and (2) the trial court erred in entering judgment and sentence on two counts of murder since there was only one victim. For the reasons set forth below, we reverse and remand the cause for a new trial.
In the early morning hours of August 19, 1985, Ernest Jones was fatally shot. Defendant, James Crockett, and Manuel Rios were charged with Jones' murder. On April 24, 1986, Crockett pleaded guilty to the murder and was sentenced to 22 years' imprisonment. Defendant and Rios were tried by separate juries during a simultaneous trial.
At trial, the State presented three eyewitnesses to the shooting; Cortez (Keith) Lee, age 15; Tyrone Carr, age 14; and Michael Howard, age 15. Lee testified that on August 18, 1985, at approximately 7:30 p.m., he, Carr and Howard went together to a roller-skating rink located on Pulaski Road in Chicago. They left the rink at midnight and went to a tavern located at Ohio and St. Louis Streets. Lee saw Willie (Lee Lee) Ford at the tavern; he knew him "from around the neighborhood." Ford appeared nervous. Lee then heard a gunshot, turned to a gangway where it appeared to have come from, and saw Manuel Rios and Ernest Jones. Jones was walking or running when Lee saw Rios shoot him "two more times." Lee then ran to Tyrone Carr's house, which was nearby. Lee further stated on cross-examination that he saw a car turn out of an alley and that after Rios shot Jones he jumped into Mullen's (defendant's) car. On objection by defense counsel, the jury was told to disregard these statements since there had been no testimony on direct examination concerning a car.
Tyrone Carr's testimony mirrored Lee's concerning the roller-skating rink, except for his further testimony that James Rios was also with them. Immediately after this testimony, Carr refused to testify further. As a result, the court, outside the presence of the jury, appointed a public defender to advise Carr of the consequences of his continuing refusal to testify. After Carr consulted with the public defender, the court held an in-chambers conference during which Carr stated he was afraid to testify. The court then explained the Witness Protection Program to him and continued the case until he could consult with his father. When Carr agreed to testify the next day, the court instructed counsel not to ask Carr any questions or make any reference concerning his reluctance to testify and, if they did, it would grant any motion for a mistrial.
Carr subsequently testified that he left the roller-skating rink on foot with Lee and Michael Howard, intending to go to a friend's house at St. Louis and Ohio Streets. While in the area of that intersection, he saw Ernest Jones coming out of the alley between St. Louis and Drake Streets; Rios was in a crouching position behind Jones; Rios said something to Jones and Jones stopped walking and turned around; he heard Jones say "Forget about it" and start to walk away; Rios then shot Jones; Jones started to run and Rios fired again; Rios and Lee Lee Ford then ran to a blue Chevy, which had pulled up, and, as the car drove off, he ran to his home.
Carr further stated he had known Rios from around the neighborhood for three to four years; he had seen the blue Chevy in the neighborhood 10 or 30 times; he had seen several different people driving the car, including defendant, and that the car belonged to defendant; and that he did not see defendant driving the car on the night of the shooting. Carr also admitted that he lied about the incident to the police on August 19 because he was afraid to get involved, but that he told the police the truth on August 21.
Michael Howard testified that he and Carr went to the roller-skating rink together, met Keith Lee there, and the three of them left the rink on foot for Carr's house at midnight. As they were walking down Ohio Street approaching St. Louis, he saw Rios in the alley between St. Louis and Drake Streets on the same side of the street as a tavern. (Howard also stated on cross-examination that he did not see Rios until after he heard a gunshot.) At the same time, he also saw a blue Chevy in the alley, but he was 15 feet away from it and could not see who was in it. He then slowed down because he was afraid of Rios; he heard a gunshot and turned around; he saw Rios standing with a gun in his hand next to a body; he then saw defendant standing next to Rios; Rios handed the gun to defendant and he saw a flash and heard two more shots; and that Rios, defendant, and a third person whom he did not know drove off in the Chevy, the driver of which was defendant. Howard then ran to Carr's house.
Howard's testimony also indicated that his friends ran away after hearing the first shot, but he only continued walking and then turned around to look; he did not begin to run until after the third shot; when Rios handed the gun to defendant, he (Howard) was 35 feet away from him; he saw Lee Lee Ford, whom he knew from around the neighborhood, standing in front of a tavern on the corner; and he did not see Ford get into the Chevy but had told the police on August 20 that he saw someone else enter the car.
Also testifying for the State was Detective James Elliot. He stated that he interviewed four youths at the scene of the shooting and subsequently obtained arrest warrants for defendant, Rios, and Crockett. With respect to his interview with Michael Howard, Elliot stated that his police report contained "pretty much everything" Howard reported on August 20 about the August 19 shooting; Howard told him that he saw both Rios and defendant at the scene, but he did not say that Rios passed the gun to defendant and that he would have included such information in his police report; Howard told him that Lee Lee Ford entered the car with defendant and Rios after the shooting; he did not think that ...