APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 94-CR-2496 THE HONORABLE JOSEPH KAZMIERSKI, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Cousins
Defendant, Michael Williams, and codefendant, Buford Hodby, were convicted of first-degree murder in simultaneous jury trials for the shooting death of a rival gang member. On appeal, defendant seeks a new trial on the grounds that: (1) the trial court abused its discretion in denying defendant's motion for a new trial when newly discovered evidence exculpated defendant and inculpated two other individuals; (2) the trial court committed plain error by failing to inquire during voir dire if the potential jurors would be prejudiced by knowledge that defendant was a gang member; (3) the State's closing argument was improper, inflammatory, and included evidence not presented at trial; and (4) defendant was denied his right to effective assistance of counsel because his attorney failed to tender questions to the trial court during voir dire regarding juror bias toward gangs and failed to object to the State's improper closing argument.
On the night of August 27, 1994, into the early morning of August 28, Turonica Williams (a friend and no relation to defendant) held a birthday party at her home in Chicago. The neighborhood surrounding her home is primarily residential and is recognized as an area in which several gangs are active. The party was attended almost exclusively by members of neighborhood gangs, including the Titanic Black P-Stones (TBPS) and its rival gangs, the Conservative Vice Lords (CVL) and the Renegade Vice Lords. During the party, a member of TBPS and a member of CVL bumped into each other inside the house and exchanged words. Two or more CVL members then left the party, stating something to the effect, "we'll be back." Shortly thereafter, between two and four people dressed in black arrived at the area outside the party and began firing guns. Fifteen-year-old Raymond Malone, an alleged TBPS member who was sitting on a car with other TBPS members, was fatally shot. After the shooters fled the scene, two TBPS members took Malone to a hospital, where he was pronounced dead as a result of a gunshot wound of the chest. Williams and Hodby were indicted for Malone's murder, and the matter proceeded to simultaneous jury trials.
At trial, eight witnesses testified on behalf of the State. Four of those eight were eyewitnesses to the shooting incident and three of those four eyewitnesses were members of TBPS. The first eyewitness to testify was Scott Tyler, who stated that he attended the birthday party at 1 a.m. on August 28, 1994, along with his girlfriend, who was Raymond Malone's sister. Tyler testified that, while standing near the car on which Malone and others were sitting, he saw four people emerge from a nearby alley and start shooting. He stated that, although the lighting was dark, he identified Williams and Hodby as two of the gunmen. Tyler then stated that the shooters subsequently ran back into the alley from which they came. He later accompanied others to the hospital where Malone was taken. At the hospital, he spoke with police about the incident. He continued to discuss the matter with police back at the scene of the crime, but he never identified Williams as a shooter during those conversations with police. Tyler later identified Williams as one of the shooters at a police lineup and testified that his initial reservations were caused by his concern for relatives that lived in the area, which he feared was plagued by the CVL.
Next, the State called Demetrius Adams, a TBPS member who also witnessed the shooting. Adams testified that he saw the bumping incident that occurred indoors between the TBPS and CVL gang members. He stated that neither Williams nor Hodby was a party to that altercation. Adams testified that, later that night, he was with Malone and others near a parked car when Williams and Hodby came out of the alley and began to shoot at TBPS members. After the shooting, Adams helped take Malone to the hospital. Adams remained at the hospital only momentarily, however, and gathered a small group of people to search for Williams and Hodby to no avail.
Another TBPS member, Henry Golden, also testified that, while sitting on the hood of his car with Malone and Adams, he heard gunshots coming from the nearby alley. He stated that he saw Williams and Hodby firing at them and pushed Malone down. When he saw that Malone was shot, he summoned others for assistance and helped take the victim to the hospital. Golden testified that, immediately thereafter, he, Adams, and another TBPS member got their guns and searched for Williams and Hodby. He stated that the search was made with the intention of killing Williams and Hodby if they were found.
TBPS member Gregory Spence arrived at the party at approximately 11:45 p.m. and remained outside due to the overcrowding indoors. He testified that he witnessed Williams and Hodby, along with two other males, leave the party. Spence stated that, approximately 30 minutes later, he heard gunshots and saw two people firing guns. He testified that he was not "100% sure" that Williams was a shooter, but he stated that one shooter had the same height, weight, and clothing as Williams. Spence later identified Williams as one of the gunmen at a police lineup.
Diana McGhee, defendant's girlfriend and mother of his children, was the sole witness called to testify on behalf of defendant. She testified that, at approximately 11:30 p.m. on the night of the party, defendant came to her home. She stated that, at approximately 12:30 a.m., Williams received three to four telephone calls on his pager and that he returned at least one of those calls while at her house. McGhee testified that she did not know with whom Williams spoke on the telephone, and she said that, following his conversation, Williams proceeded to leave the house sometime after 1 a.m. She asked him what had happened, and Williams replied that there had been a shooting.
In January 1996, the jury found Williams guilty of first-degree murder. Defendant then filed a motion for a new trial arguing that the State failed in its burden to prove defendant guilty beyond a reasonable doubt and that newly discovered evidence warranted a new trial.
In May 1996, the trial court conducted a hearing and heard argument on Williams' and Hodby's separate posttrial motions. Defendants presented five witnesses at that hearing.
First, Jerome Hunt, defendant's fellow CVL member, testified that he had attended the party and witnessed the indoor incident between his gang and the TBPS. Hunt stated that two unidentified people left the party, stating that they would "be back." Hunt also testified that neither defendant was present during that incident and that he believed that they had left the party before the two unidentified men stated that they would return. Hunt stated that, when the shooting began, he was standing in front of the house from where he saw shots come from the alley. He testified that he saw one of the shooters turn around and that he only made out the gunman's shadow as he ran back towards the alley. Although he was approximately one-quarter of a block away from the figure he saw, Hunt stated that the gunman was "husky," about 190 pounds, and 5 feet 11 inches tall. He testified that he had known Williams for nearly six years and that he was positive that Williams was not the same body type as the shooter. Hunt also testified that he had not come forward sooner for fear of gang retaliation. On cross-examination, the State questioned Hunt about a statement in his own affidavit in which he positively identified two men other than defendants who were involved in the bumping incident and who left the party promising to return. Hunt testified that the statement in the affidavit was not his own and maintained that he could not identify the two men in that incident.
Next, Turonica Williams, who hosted the party on the night of the shooting, testified that she observed the bumping incident in her living room. She stated that defendants were not a part of that altercation and identified the two individuals involved as Ed Young of TBPS and "Prune" of CVL. Ms. Williams stated that it was CVL member Dorian Jefferson who stated, "we'll be back," and that he and CVL member Charles McDavid then left the party together. Ms. Williams also testified that approximately one hour after the bumping incident, she saw a tall, dark-skinned man about 6 feet tall and weighing about 185 pounds emerge from a nearby alley. She stated that this person was about 10 feet from her at the time and that he was alone. Ms. Williams testified that the gunman she saw fit Charles McDavid's physical description and that she was absolutely certain that the shooter she saw was not defendant. She also stated that, after the shooting, she received threats and learned that defendant's brother's house had been burned down. Ms. Williams testified that she became fearful for her life and moved out of her neighborhood within weeks. She further testified that it was this fear that kept her from coming forward with her information earlier. Prior to her testimony, Ms. Williams did tell the police that defendant did not commit the shooting and that McDavid was the gunman.
Defendant's brother, Levelle Williams, who was a top-ranking member of TBPS, also testified at defendant's posttrial hearing. He testified that, during defendant's trial, he spoke with Scott Tyler and fellow TBPS members Henry Golden and Gregory Spence outside the courtroom and that Golden and Spence discussed how they planned to testify during the trial. Levelle Williams stated that Golden admitted that he was uncertain that defendants committed the shooting but that he wanted to get even with the CVL.
Next, Lamar Williams testified on behalf of defendant. He is the brother of defendant and Levelle Williams and testified that he was not at the party during the shooting but was sitting on the front porch of his house. He stated that, sometime after midnight, co-defendant and CVL member Hodby came to his house, followed by TBPS members Henry Golden and Ed Young. Lamar Williams testified that Young and Golden arrived with news that one of their friends had been shot and that someone would have to do the time for it. Lamar Williams further testified that Golden saw Hodby at Lamar Williams' house at that time but took no action regarding Hodby. He further explained that the reason why he failed to reveal this information before the posttrial hearing was that his house had been burned down and he was concerned about the well-being of his family. On cross-examination, Lamar Williams was impeached by his prior inconsistent statement regarding his whereabouts on the night of the party. In a prior statement during direct examination, Lamar Williams had stated that co-defendant Hodby had been at his home for approximately 30 minutes when Ed Young and Henry Golden arrived with news that their friend had been shot. Lamar Williams then testified during cross-examination that he had visited Turonica Williams' house but that he returned home to drink with friends before her party began. He testified that, during a subsequent trip to a store to get more liquor, a TBPS member jumped on top of his car exclaiming that someone had been shot.
Finally, Ed Young testified at the hearing that he was a general in the TBPS and that he was one of the people involved in the bumping incident. He stated that, at the time of the altercation with a CVL member, defendants were outside the house. Young testified that he was in front of the house when gunshots were fired and that, based on the "stocky" physique of the two distant figures he observed, neither defendant could have been a gunman. He admitted, however, that he did not see the shooters' faces.
At the Conclusion of the hearing, the trial court denied defendant's motion for a new trial based on newly discovered evidence and thereafter ...