APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY, CRIMINAL DIVISION. THE HONORABLE THOMAS J. CONDON, JUDGE PRESIDING.
Presiding Justice Scariano delivered the opinion of the court: DiVITO and McCORMICK, JJ., concur.
The opinion of the court was delivered by: Scariano
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
Defendant, Eugene Martin, was convicted by a jury of the murder of Byron Jones ("Jones") under an accountability theory and was sentenced to a term of 25 years in the custody of the Department of Corrections.
Defendant now appeals claiming that: he was not proved guilty beyond a reasonable doubt; the voir dire at his trial was inadequately conducted; gang evidence was improperly admitted; the State improperly questioned him regarding the veracity of other witnesses; the prosecution misstated evidence in closing argument; and that failure to instruct the jury properly amounted to either reversible error or ineffective assistance of counsel.
At trial Enona Mason ("Mason") testified that on the afternoon of April 28, 1991, she purchased cocaine from defendant and Tyrice Hubbard ("Hubbard"). Later that afternoon, Mason looked out of her window and noticed a gathering of people on the street. The police had pulled over a "burnt orange"-colored car, a photo of which Mason identified at trial, and they were talking to defendant and Hubbard. After speaking with the officers, defendant and Hubbard "stayed out and [talked] with some girls across the street."
Still later that afternoon when, again through her window, Mason saw defendant and Hubbard arguing with Jones amidst a gathering of 50 or 60 neighbors, she left her apartment to help diffuse the situation. According to her, the argument was about "the girls and them *fn1 being in that neighborhood." It was then that someone, either defendant or Hubbard, pulled out a semi-automatic pistol and held it in his hand. At trial, Mason identified a semi-automatic pistol as the one she saw that afternoon, and testified that Jones told the holder of the gun, "If you're going to pull the gun you'd better use it." However, after the gun was displayed, the crowd backed off and defendant and Hubbard drove away.
Around midnight of that same day, Jones whistled up to Mason's apartment and asked her if she wanted some drugs. When she told him that she did not, he walked across the street into the building of one of his girlfriends. Soon thereafter, Mason heard several shots fired in the street. Upon looking out her window she saw two people in the same "burnt orange"-colored car she had seen earlier that afternoon; she stated, however, that she could not identify either of the two people in the car.
Mason also testified that she bought drugs from defendant and Hubbard on the day of the shooting. Cross-examination revealed that she was convicted in 1993 of theft and in 1991 of possession of a controlled substance. She admitted that she recognized Jones as a "dope dealer," and that she had purchased cocaine from him when she was a cocaine addict.
The day after the shooting, Mason was a passenger in a car that was pulled over by police. The police found "paraphernalia" and took her to the station. It was then that she gave her first statement to Detective Peter Satriano ("Satriano") regarding the shooting. At that time she failed to inform the detective that defendant and Hubbard had sold her drugs on the day of the shooting.
Larry Yates ("Yates") testified that he had been convicted of possession of a controlled substance as well as for the unlawful use of weapons. He also stated that he and Jones were members of the Blackstone gang which controlled drug sales in the area surrounding the shooting.
At trial, Yates identified the defendant and the same photo of the car that Mason had testified to. He also testified that on the afternoon before the shooting he witnessed Jones arguing with defendant and Hubbard near that car. According to Yates, the three were arguing about drug sales. Walking up to the scene, he heard Jones say: "You can't sell out here." Defendant responded: "I can sell wherever I want to." Defendant then withdrew a gun from under the car seat, clicked it back, pointed it at Jones and kept repeating he could sell drugs wherever he wanted. Yates testified that Jones responded: "If you pull the gun out, you'd better use it." Yates then heard Hubbard say: "Naw, it's too many people out here. Let's go." Thereafter, defendant and Hubbard got in the car and drove away.
Yates also testified that in 1991, at a Blackstone party, defendant greeted him with a Blackstone gang sign, signifying that he was a fellow Blackstone. Thereafter, however, he heard that defendant had left the Blackstones. Cross-examination revealed that at Hubbard's trial, Yates testified that he had never seen defendant before the day of the shooting. Yates explained that at the time of Hubbard's trial he did not know defendant by his real name but only by his nickname: "Newkie."
Officer Michael Horn ("Horn") testified, consistent with Mason's testimony, that on April 28, 1991, just after 4:00 p.m., he pulled over a car because there was no evident registration, spoke with both Hubbard (the driver) and defendant (the passenger), and recorded the information according to standard procedure. He did not issue a citation because there was a temporary registration tag in the back window. At trial, he also identified a photo of the car, and testified that he spoke with Detective Satriano regarding the traffic stop.
Detective Satriano testified that he was assigned to investigate Jones' death and spoke with both Yates and Mason. Mason told him that a car pulled over by the police about eight or nine hours before the incident was involved in the shooting. Detective Satriano pulled the police log for that day and reviewed the information contained in officer Horn's report. He next proceeded to Gang Crimes South, a police division specializing exclusively in gang activity, and spoke with officer David Snethen ("Snethen"). Together, they then proceeded to Apartment 908 on 3519 South Federal, the address recorded in officer Horn's report, and arrested defendant and Hubbard. At that time, defendant told Satriano that he was a Blackstone.
Officer Snethen testified that a gang known as the Gangster Disciples controlled the building in which defendant and Hubbard were arrested. Furthermore, when asked whether the Gangster Disciples and the Blackstones were either allies or rivals, Snethen responded: "They wouldn't be too friendly to each other, no sir."
The identical photo of a car identified by Mason and Yates and which matched officer Horn's description in his police report, was identified at trial by Satriano as having been the one that was located outside the building at 3519 South Federal. A later search of that car uncovered a Cobra 9mm semi-automatic pistol, which was also identified at trial by both Mason and Yates. Furthermore, shell casings and projectiles retrieved at the scene of Jones' murder were determined to have been fired from that same pistol.
After his arrest, defendant was interviewed by Assistant State's Attorney Colleen McSweeney Moore and made a voluntary written statement consisting of the following information: Defendant and Hubbard drove a maroon car with gold rims owned by Hubbard, and were on their way to Mason's apartment to collect some money she owed Hubbard when they were stopped by police. Thereafter, they encountered another woman on the street who informed them that: "[Jones] said [you] better not come to [this area] anymore to sell drugs because he sells drugs [here]." Soon, there was yelling and screaming, and a crowd, including friends of Jones who were Blackstone members, gathered around them. Defendant "got the Tech-9 out of the car and showed it the [the crowd] and they backed away." Defendant and Hubbard then left.
Next, they went to defendant's mother's house, then to get something to eat, and subsequently met four other men: Chili, Big "D", Junior, and Antoine. After discussing the earlier incident, they decided to return to that area and "see what was going on." They drove in two cars: defendant went in a car with Big "D", Junior, and Antoine; Hubbard drove his car, and Chili was his passenger. Defendant's car first drove through the area of the shooting while Hubbard and Chili ...