APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE FRED G. SURIA, JUDGE PRESIDING.
As Modified on Denial of Rehearing July 25, 1995. As Corrected August 3, 1995.
Presiding Justice Scariano delivered the opinion of the court: Hartman and McCORMICK, JJ., concur.
The opinion of the court was delivered by: Scariano
AS MODIFIED UPON DENIAL OF PETITION FOR REHEARING
PRESIDING JUSTICE SCARIANO delivered the opinion of the court:
Defendant Christopher Askew was found guilty by a jury of first degree murder (Ill. Rev. Stat. 1990, ch. 38, par. 9-1, now codified at 720 ILCS 5/9-1 (West Supp. 1994)), and two counts of armed robbery (Ill. Rev. Stat. 1990, ch. 38, par. 18-2, now codified at 720 ILCS 5/18-2 (West 1993)), and was sentenced to natural life and 60 years, respectively, to be served concurrently. He now appeals.
The following evidence was adduced at trial: Irma Gutierrez ("Irma") testified that after midnight on September 9, 1990, she pulled her car to the side of the road and spoke with her passenger, Juan Magallanes ("Juan"), about their son. The area was well lighted, and shortly after she stopped, four men walked by and peered into the car. One of the men, later identified as defendant, rushed over to Irma's side of the car, and as Juan pushed Irma's head towards the floor, defendant fired his pistol through the open window on the driver's side, wounding Juan.
Defendant then ordered Irma and Juan out of the car. After Juan was searched by one of the four men, he fell to the ground, and as Irma ran over to Juan, she saw her car being driven away, stop to let someone into the back seat, and then resume its course. Juan's wounds proved fatal.
On September 20, 1990, Irma was called to Area Two police headquarters where, after viewing a line-up for "a couple of seconds," she misidentified a Tony Clark as the man who shot Juan. On October 2, 1990, she returned to Area Two and informed a detective that she had previously identified the wrong man. Subsequently, after viewing a second line-up, she identified defendant as the man who shot Juan.
At trial, Irma identified defendant as the man who fired a pistol over her head and ordered her and Juan out of the car. She further testified that her purse, which was in the back seat of her car, contained only $20, and that a "shop vac" (a small vacuum) was in the trunk.
Another State's witness, Dnardo Mack ("Dnardo"), testified that during the evening in question, he, Willie Reavers ("Willie"), Gary Henry ("Gary"), and defendant agreed to "go tear off some money," meaning to rob someone. After Gary opened a "gym bag," revealing a sawed-off shotgun, a .22 caliber pistol, a .32 caliber pistol, and a pair of rubber gloves, all four men started toward a neighborhood which was composed mainly of Mexicans. According to Dnardo, they proceeded in that direction because defendant stated that he "only robbed Mexicans *** because they didn't speak the language[,] [and] wouldn't tell nobody."
Dnardo further testified that upon passing Irma's car, defendant announced that "he was fitting to get the Mexicans," and ran over to the driver's side, where Irma was sitting. Defendant pointed the .22 into the car, told the occupants to "get the fuck out the car," and seconds later fired the pistol. Meanwhile, Willie "grabbed the gloves out of the bag and put them on," and Gary aimed the shotgun at Juan.
Responding to defendant's command, Juan and Irma exited the vehicle and Willie searched Juan, who was bleeding out of his neck and fell to the ground during the search. After the search, Willie joined Gary and defendant in the car and they drove away, stopping to pick up Dnardo, who had fled the scene. Two other witnesses testified that they had heard the shooting. One, who ran outside to help Irma, observed her car turn on 81st street and pick up a man who appeared to be wearing a red jacket; Dnardo testified that he was wearing a red T-shirt on the night of the incident.
Dnardo continued, stating that after the incident they parked the car in an alley, grabbed the purse, and ran away, while Willie took off and threw away his gloves. According to Dnardo, they divided the $20 in Irma's purse, and, remembering that they had neglected to remove their fingerprints from the car, they returned to the alley. There, defendant searched the trunk, carried away a "car-vac," and threw the keys in the alley. When the police discovered Irma's car that night, it was in an alley, along with her keys and a rubber glove.
Sometime later, the police arrested Dnardo and charged him with first degree murder and armed robbery for his role in this incident, as well as with armed robbery in an unrelated case. In exchange for his testimony and his guilty plea to having committed the armed robberies, the State agreed to drop the murder charge and recommend that he receive the minimum of 6 years for each robbery charge, to be served consecutively.
After defense counsel cross-examined Dnardo regarding his agreement with the State, the prosecutor was permitted, on re-direct and over objection, to elicit testimony from Dnardo showing that on the night of his arrest, he gave a statement taken by a court reporter which substantially tracked his testimony at trial. Dnardo's testimony regarding his statement was corroborated by Assistant State's Attorney Tim Joyce.
On re-cross, defense counsel introduced two affidavits defendant signed while incarcerated in Cook County Jail, each indicating that his statement was not true but made out of fear of the police. On re-direct, the State questioned Dnardo concerning the impact his gang membership had on his signing the affidavits. Dnardo responded that Gary and defendant told him that if he refused to sign the "jail house" affidavits he would be ...