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09/18/97 PEOPLE STATE ILLINOIS v. CHRISTOPHER

September 18, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
CHRISTOPHER THOMAS, APPELLANT.



Appeal from the Circuit Court of Lake County, the Hon. Charles F. Scott, Judge, presiding.

The Honorable Justice Nickels delivered the opinion of the court:.

The opinion of the court was delivered by: Nickels

The Honorable Justice NICKELS delivered the opinion of the court:

After a jury trial in the circuit court of Lake County, defendant, Christopher Thomas, was convicted of murder arising from the shooting death of Rafael Gasgonia. Defendant waived a jury for his capital sentencing hearing. The trial judge found defendant eligible for the death penalty based upon the statutory aggravating factor that the murder occurred during the course of a felony. 720 ILCS 5/9-1(b)(6) (West 1994). After a hearing in aggravation and mitigation, the trial judge found that there were no mitigating factors sufficient to preclude imposition of the death penalty. The trial judge accordingly sentenced defendant to death. Defendant's death sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, ยง 4(b); 134 Ill. 2d Rs. 603, 609(a). We affirm.

BACKGROUND

At about 8:30 p.m. on October 25, 1994, Rafael Gasgonia died after he was shot once in the forehead at close range. The shooting occurred outside the Olan Mills studio in Waukegan, where Gasgonia worked as a delivery driver. A police investigation resulted in the arrests of defendant, Ricky Powers and Leon Tyler. Defendant was tried separately from Powers and Tyler.

Prior to trial, defendant's attorneys sought to suppress statements defendant made implicating himself in the shooting death of Gasgonia. Defendant contended that his statements were the result of physical and psychological coercion and therefore involuntary. After a hearing, the trial judge denied the motion to suppress and the case proceeded to trial.

The State first presented the testimony of four witnesses who were at the Olan Mills studio at the time of the shooting. Adela Lopez testified that she was working at the studio about 8:15 p.m., when Gasgonia left the studio through the back door to smoke a cigarette. Gasgonia immediately returned and interrupted her while she was on the phone, complaining that someone had tampered with his car. As Lopez ended her phone call, Gasgonia again left the store out the back door. Shortly thereafter, the back door burst open and Lopez observed a black man with his arm around Gasgonia's neck pulling him outside. Others at the studio attempted to assist Gasgonia, but the door was pulled shut from the outside and they could not force the door open. Lopez testified she then called the police while others ran out the front door to assist Gasgonia. While she was on the phone, she heard one loud pop.

Zulma Rivera testified that she was working at the Olan Mills studio when the back door burst open and she observed Gasgonia in a struggle with a black man. After unsuccessfully attempting to open the back door with the other employees, Rivera followed another employee, Erik Daniels, out the front door and around to the back of the building. Rivera testified that she saw Gasgonia leaning against his car with his hands in the air. Rivera further testified that she observed one man on Gasgonia's left, holding him down against the car and another standing directly in front of Gasgonia holding a gun. Rivera then heard a pop and saw Gasgonia slump to the ground. Rivera then ran back into the studio. Rivera testified that she gave the police a general description of the assailants, but she was unable to identify them.

Erick Daniels testified that he was working at the Olan Mills store when he heard a bang at the back door and Gasgonia call for help. After trying to open the back door, Daniels exited through the front door and ran around to the back of the building. Daniels testified that he observed one man holding the back door, another standing next to Gasgonia, and a third pointing a gun at Gasgonia's head. Daniels heard a pop and ran back inside the studio until the police arrived.

Daniels further testified that shortly after the shooting, the police brought two suspects to the police car in which he was sitting. Daniels testified that one suspect was too big, but he believed the second suspect was the shooter. Daniels testified that he did not remember the assailant's face, but he made that identification based on the black and white striped shirt the suspect was wearing and because the suspect's body build matched the shooter.

Karen Santiago testified that she was working at the store when she heard noises and saw the commotion at the back door. After unsuccessfully trying to push open the back door with the other employees, she followed Daniels out the front door and around to the back of the building. In the back of the building, Santiago saw one man hold Gasgonia while another man shot him. Santiago could not identify the shooter, but described him as having a thin or medium build, curly hair and wearing a blue, black and white shirt.

The State also presented the testimony of Steve Gonyo, who worked at the Jewel store across from the Olan Mills studio. Gonyo testified that on the night of the shooting at about 8:15 p.m., he saw three people standing around a grey Oldsmobile as he unloaded milk crates behind the Jewel store. One person approached him and asked for a screwdriver. Gonyo testified that he recognized one of the three as Ricky Powers, a person he knew from high school. The State further linked the Oldsmobile to Ricky Powers through Marcus Jenkins, who testified that he sold that Oldsmobile to Powers about two weeks prior to the shooting.

Rhonda Powers, Ricky's fiancee at the time of the murder, was also called by the State. Rhonda testified that sometime after 9 p.m. on October 25, 1994, both defendant and Tyler arrived at her home out of breath and red in the face. Upon further questioning by the State, Rhonda denied that defendant made any statements to her. The State then impeached Rhonda with handwritten, typed and videotaped statements which she admitted to making just days after the murder. In those statements, Rhonda told the police that defendant told her that their car ran out of gas at the Olan Mills store behind the Jewel and that he had shot a man in the face.

Rhonda also testified that Ricky arrived home shortly after the defendant and Tyler. Rhonda testified that Ricky noticed she was upset and he became irritated. Rhonda further testified that Ricky had an argument with defendant, but she denied knowing the subject matter of the argument. The State then impeached Rhonda with her prior statements in which she told the police that the reason Ricky was upset with defendant was because defendant told her about the shooting. The trial judge then gave a limiting instruction concerning the use of Rhonda's prior statement regarding what her husband said, which the defendant challenges on appeal.

On cross-examination, Rhonda claimed that the statements she made to the police were lies. Rhonda claimed that she told the police that defendant made those statements because she was angry with the defendant and wished to frame him for the murder. Additional facts concerning the use of Rhonda's prior inconsistent statements at trial will be provided as necessary to address defendant's challenges on appeal.

The State also presented the testimony of Detective James McCarthy, who identified photographs of the crime scene. The photographs showed Gasgonia lying next to his car with his wallet next to his chin. The photographs also depicted a light blue and grey Oldsmobile parked close to Gasgonia's car. Detective McCarthy described a search he conducted of the Oldsmobile and identified a cellular phone and radar detector he discovered in the trunk. Another witness testified that those items belonged to Gasgonia.

Delanda Ewing testified that she was with her boyfriend at about 8:30 p.m. on October 24, 1994, when he received a page. Her boyfriend returned the page and they both drove to a laundromat near the Jewel store and picked up Ricky, who was carrying a gas can. Ewing and her boyfriend then took Ricky to his home, where they found defendant and Tyler. Defendant, Tyler and Ricky then left with Ewing and her boyfriend. Ewing testified that during the drive defendant stated that "he smoked that mog" and that he threw the gun near Cinnamon Lake Towers.

Detective Kerkorian testified about obtaining statements from the defendant. Detective Kerkorian testified that he gave defendant his Miranda warnings and obtained a waiver of those rights. Defendant then gave an oral statement and also prepared a handwritten statement. Defendant also subsequently signed a typewritten statement that the police prepared from his oral statement. After obtaining the handwritten and typed statements, Detective Kerkorian and another officer also videotaped defendant identifying those statements.

Detective Kerkorian then read the typed statement to the jury. Defendant's statement provides that Ricky Powers and Tyler picked him up in a blue Oldsmobile. The three were cruising around when the car ran out of gas near the Jewel store. They attempted to get a screwdriver to steal another car, but they could not get one at Jewel. They walked around Jewel and discovered an unlocked red car near the Olan Mills studio. Tyler opened the door to the red car and removed a phone and they took it back to the Oldsmobile, placing it in the trunk. The three then returned to the red car and Thomas took the cord for the phone.

At the car, Tyler came up with a plan to rob someone and they hid in some nearby bushes waiting for a victim. At this time, a man came out of the Olan Mills store and walked to the red car. The man returned to the store, and then came out again. The man confronted defendant and demanded the return of his belongings. Tyler then jumped out of the bushes and grabbed the man as Ricky pulled the door to the Olan Mills store closed from the outside. Tyler pushed the man against his car and demanded money. The man gave Tyler the cash out of his wallet and Tyler handed it to defendant.

Defendant's statement then provides that he pulled a gun out in an effort to scare the man into giving more money, but the gun went off and they all ran. Ricky stayed by Jewel, but defendant and Tyler ran to Ricky's home, where they found Rhonda. Ricky arrived there a short time later, having been driven from Jewel to his home by Delanda Ewing and her boyfriend. Defendant later retrieved the gun from where he threw it after the shooting and sold it for $100.

The jury was instructed on involuntary manslaughter and first degree murder. The jury returned guilty verdicts on four counts of first degree murder, including felony murder based on the predicate offenses of burglary and robbery. Defendant waived his right to be sentenced by a jury at the capital sentencing hearing. The trial judge found defendant eligible for the death penalty because the murder occurred during the course of a felony and defendant was over 18 years of age when the murder was committed.

The defendant's capital sentencing hearing then proceeded to a hearing in aggravation and mitigation. In aggravation, the State first presented evidence from defendant's juvenile court records. Defendant's juvenile records contained evidence that he stole items from a Salvation Army drop box and took a purse from inside a school bus. The State also presented evidence from his juvenile records that when he was 15 years old he attacked and fondled a 13-year-old girl and took a chain off another girl's neck. The State also presented evidence that defendant had pleaded guilty to aggravated discharge of a firearm and possession of a stolen vehicle.

The State also presented affidavit evidence from several psychiatrists. In these affidavits, the psychiatrists concluded that defendant had an antisocial personality disorder. Several probation officers and corrections officials testified that defendant did not cooperate with his past sentences of probation and that he was disruptive and combative while in jail.

In mitigation, the defense first presented the testimony of Derrick Bankston, who worked in the juvenile probation division of Lake County. Bankston testified that he observed defendant during his detention and that he was likable and nonviolent, but had trouble staying focused in school and during work. Bankston further testified that defendant's mother was incarcerated during his detention in Lake County and that defendant lived in a very poor section of Chicago.

Defendant's mother, Martese Thomas, also testified in mitigation. Martese testified that she was 15 years old when defendant was born and shortly after his birth she began to use heroin. Martese also testified that defendant usually stayed with relatives during his youth because she was unable to take care of him. Defendant's father did not care for or support him.

Against the advice of his attorneys, defendant also testified during the mitigation phase of his capital sentencing hearing. Defendant testified that his statements to police were false and that he did not commit the murder. Defendant also asked the judge to spare his life.

After closing arguments, the trial judge found that there were no mitigating factors sufficient to preclude imposition of the death penalty. Accordingly, the trial judge sentenced defendant to death for the murder of Gasgonia. Defendant's post-trial and post-sentencing motions were denied. Defendant now appeals from his conviction and sentence.

ISSUES

Defendant raises several challenges to his conviction for the murder of Gasgonia. Defendant first argues the State failed to prove him guilty beyond a reasonable doubt. Defendant also raises three challenges to the State's use of Rhonda Powers' prior inconsistent statements at his trial. Defendant argues that: (1) the trial court erred in admitting as substantive evidence Rhonda's prior inconsistent statement that defendant confessed to the murder; (2) the trial court violated defendant's right under the sixth amendment to confront witnesses where it allowed the State to impeach Rhonda's trial testimony with her prior statements concerning what her husband, a nontestifying codefendant, said to the defendant after the murder; and (3) this impeachment of Rhonda was further improper because her husband's statements were collateral and not impeaching of Rhonda's in-court testimony.

Defendant also challenges his death sentence. Defendant first raises three challenges to the introduction of evidence at his sentencing hearing that he suffers from an antisocial personality disorder. Defendant argues that: (1) the trial court violated the eighth amendment in considering defendant's antisocial personality disorder as aggravating evidence; (2) he was denied the right to cross-examine witnesses at his sentencing hearing where psychiatric evidence was presented solely by affidavit; and (3) his trial counsel was ineffective for failing to present expert testimony to counter the State's affidavits claiming defendant had an antisocial personality disorder.

Defendant also argues that he should be given a new sentencing hearing because: (1) the trial court erred in sentencing him to death in light of the significant mitigation evidence presented; (2) the trial court erroneously considered in aggravation that the murder occurred during the course of a burglary, where the burglary was over by the time of the murder; (3) the trial court erred in excluding evidence that a codefendant did not receive the death penalty; and (4) the Illinois death penalty statute is unconstitutional.

ANALYSIS

Trial Issues

Reasonable Doubt

Defendant first contends that his conviction for murder should be reversed because the State failed to prove him guilty beyond a reasonable doubt. Defendant notes that the occurrence witnesses gave conflicting descriptions of the shooter and none identified defendant in court. Rivera described the shooter as a dark-complected 18- or 19-year-old black male about 5 feet 8 inches tall with a medium build. Santiago described the shooter as light-skinned, with a thin or medium build and short curly hair. Daniels testified that when he observed the shooting the lighting was poor and he focused mostly on the gun, but described the shooter as between 5 feet 6 inches and 6 feet tall and weighing between 180 and 200 pounds. Gonyo was unable to identify defendant as one of the two individuals he saw with Ricky Powers behind Jewel.

Defendant also notes that both Daniels and Santiago apparently made misidentifications. Daniels testified that the police brought him a suspect shortly after the shooting who he was 99% sure was the shooter. However, Daniels also testified that this identification was based only on that person's clothing and body build. In addition, Santiago testified that she identified a person from a police photo array who "looked just like" the shooter, but she was not sure if it was him.

Defendant also challenges the testimony of Rhonda Powers and Delanda Ewing. Defendant argues that Rhonda's prior inconsistent statement that defendant confessed to the shooting is inadmissible. In addition, Delanda Ewing's testimony should not be believed because she did not want to be cross-examined and because her original ...


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