The opinion of the court was delivered by: Justice Gordon
Appeal from the Circuit Court of Cook County.
Honorable Themis Karnezis, judge Presiding.
Following a three-day joint trial in the circuit court of Cook County, a jury found defendant, William Negron, and his co-defendant, Roberto Almodovar, guilty of the first-degree murders (720 ILCS 5/9- 1(a)(1) (West 1992)) of Amy Merkes and Jorge Rodriguez, the attempted first-degree murders (720 ILCS 5/8-4 (720 ILCS 5/9-1) (West 1992)) of Kennelly Saez and Jackie Grande, and aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1992)) of Jackie Grande. Defendant was sentenced to natural life in prison at the Illinois Department of Corrections (IDOC) for the two counts of murder, and 30 years imprisonment at IDOC for the two counts of attempted murder, sentences to run consecutively. Defendant appeals, arguing that (1) the eyewitness identifications of defendant were as a matter of law insufficient to prove him guilty beyond a reasonable doubt; (2) the State's motive evidence should have been excluded; (3) defendant received ineffective assistance of counsel; and (4) the State failed to produce Brady material. For the reasons given below, we affirm.
In September 1994, defendant and co-defendant were jointly charged by an indictment in eleven counts. Each was charged with four counts of first degree murder (two counts for each of the two victims) (720 ILCS 5/9-1(a)(1), 5/9-1(a)(2) (West 1992)), two counts of attempt first degree murder (720 ILCS 5/8-4 (720 ILCS 5/9-1) (West 1992)), two counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1992)), two counts of aggravated battery (720 ILCS 5/12-4(a) (West 1992), and one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1992)). In November 1995, during pre-trial proceedings, the State nolle prossed the two counts of aggravated battery and the two counts of aggravated discharge of a firearm with respect to both defendants. The case proceeded to a joint trial on the remaining seven counts.
The State's first two witnesses at trial were the mothers of the decedents. Each testified to having seen their child alive the evening before the incident and identified a photograph as depicting their son or daughter as they had last seen them. Each testified that their child had gone out on the evening of August 31, 1994, and had not returned home.
The State's third witness was Deputy Medical Examiner Dr. Thamrong Chira. After qualifying Dr. Chira as an expert in forensic pathology, the State inquired about the manner of death of the two victims in this case, on both of whom Dr. Chira had performed autopsies. He testified that both Amy Merkes and Jorge Rodriguez had died from single gunshot wounds. In each case the bullet had entered the victim's back, but Dr. Chira was not willing necessarily to conclude the victims had been facing away from the shooter because of the possibility of a ricochet. Neither had been shot at close range. In Dr. Chira's opinion, the cause of death was homicide in each case. Dr. Chira testified that the victim Merkes was wearing a blue sweatshirt, black sweatpants, and black and blue sneakers when she arrived.
Fourth, the State called Kennelly Saez. Saez testified that as of September 1, 1994, the date of the murders, he had been a member of a street gang, the JOD's (also referred to at trial as the Young Latin Organization of Disciples, or simply Disciples), for about a year and a half. He testified that the JOD's, whose gang colors were blue and black, were at war over territory with another gang, the Insane Dragons. The Insane Dragons were attempting to expand their territory to take over Cortland Avenue, in Chicago. Saez testified that he was unaware of any killings involving the Insane Dragons and the JOD's shortly before September 1994.
On September 1, 1994, the date of the shooting, Saez was living at 3918 West Cortland, in an area of the street in which the Insane Dragons were attempting to establish themselves. From 10 or 11 p.m. earlier that evening until the time of the shooting after midnight, he was out in front of his house with Jackie Grande and the decedents, Jorge Rodriguez and Amy Merkes. Saez was standing and the other three were sitting on the step outside the door at the front of his building. He estimated his doorway was between eight and ten feet from the curb.
At about one a.m., the group saw a blue Oldsmobile drive down Cortland twice. After the car went by the second time it turned into an alley at the end of the block, sat still for a few seconds, then pulled out and drove back towards the group in reverse. It stopped at a gap between two parked cars, roughly parallel with the doorway to the building. Saez was able to see the driver and rear passenger portion of the car from where he was standing. He described the area in front of his building as very open, with only a few trees in the area and lights in front of and above his doorway. The car was facing east on Cortland and 3918 Cortland is on the north side of the street. Cortland is a two-way street, but the car was on the north (wrong) side of the street when it reversed and stopped.
When the car stopped Saez walked towards it, stopping at the sidewalk. The driver's window was down, and the rear window was halfway down. There were three persons in the car. Saez was able to see the driver and rear seat passenger, whom he later identified as defendant Negron and co-defendant Almodovar, respectively. He had not previously known either person, but had no trouble seeing their faces. When Saez looked into the car, co-defendant said "what's up, folks," which Saez understood to be a greeting indicating that he was part of Saez's general gang organization. When Saez responded "who's that," co- defendant pulled a gun and pointed it at him. Saez dropped to the ground, and as he did so, he heard a number of shots. Shortly thereafter he heard the car skid away.
When Saez looked and saw the car driving away, he ran towards the entryway to his building. It was there that he saw the victim Merkes lying on the ground, bleeding. He ran upstairs and saw Grande and Rodriguez, who had both also been shot. Saez called 911 and ran back downstairs to check on Merkes. She was not moving. When the police arrived Saez went with them to tell them what had happened.
Approximately a week later the police called him in to view a line- up at the Area Five Violent Crimes Police Headquarters. Grande, who had survived the shooting, was also present at Area Five at that time. Saez viewed the line-up first, and picked defendant Negron and co-defendant Almodovar as the driver and shooter, respectively. Saez stated that the Detective conducting the line-up did not at any time tell him who to pick out. After viewing the line-up Saez left the line-up room, having no contact with Grande before she went in to view the line-up.
Saez admitted that some time after the line-up, in March 1995, he went to the office of attorney Melinda Power at the instructions of his gang leader, Ki Ki, and signed a paper. On cross-examination it was established that the paper Saez signed was a sworn affidavit to the effect that he was high on marijuana at the time of the shooting and was not able to see the faces of the persons in the car. Saez testified that he lied in the affidavit, that the reason he said the things he did at that time was that he was afraid his gang would give him a "violation"--a 3-4 minute group beating--if he did not do so.
On cross-examination Saez admitted that a number of gangs were known collectively as "folks," including the Latin Disciples, Insane Dragons, Unknowns, and Latin Kings, among others. Saez admitted that when he talked with the police on September 1 he told them that he thought the persons in the car might have been Latin Kings. He admitted that he did not know either of the defendants, had never seen either of them before September 1, and did not know them to be Insane Dragons. He was not aware of anyone in his gang shooting any Insane Dragons before September 1, and he told the police that he did not know why he was shot at. He admitted that his gang was at war with the Insane Dragons, and that gangs at war sometimes retaliated against each other. He denied awareness that one Carlos Olon had been killed by Insane Dragons two days before the shooting.
Saez admitted that there were no streetlights on the north side of Cortland and there were no lights inside the car. However, he maintained that the light above his doorway was very bright, and he was perfectly able to see the occupants of the car. He stated that the windows of the car were not tinted. He admitted that the only description he gave the police of the occupants of the car was "three male latinos"; he did not mention height, hair length, or other distinguishing factors.
Saez further admitted that he had been convicted of robbery, he was currently in jail for violation of probation for the robbery, and his case was due to be heard within the same week as the instant trial. Saez further admitted that he had not on his own initiative advised the police or the State's Attorney that he was being coerced by his own gang to provide a false affidavit to attorney Powers. He admitted that the first time he had told anyone about any such alleged coercion was when a State's Attorney and investigator came to see him in jail.
However, on redirect Saez stated that when Powers had first come to see him to elicit a statement he had refused to speak with her. Later, however, his gang leaders told him he would receive a "violation" if he did not give her a statement, and she "showed up at [his] door" shortly thereafter. At this time he agreed to speak with her and set up the meeting at her office where his affidavit was typed. He stated that Ki Ki was present in attorney Powers's office when he gave her his statement and was telling him what to say. Powers typed the statement while she was asking him questions and he was telling her what Ki Ki told him to say. Contrary to his affidavit, Saez denied that he had smoked marijuana on September 1 and that he was unable to see and discern the offenders in the vehicle. Saez explained that the reason he had not told anyone about his false statement before the State's Attorney came to see him in jail was fear of a "violation."
The State's next witness was Chicago Police Officer Robert Lohman. Officer Lohman was the first member of the police force to arrive at the scene after the shooting on September 1. He stated that he was on routine patrol in his squad car with his partner at about 12:45 a.m. when a citizen, Juan Velez, came up to them and told them about the shooting. They activated their lights and proceeded to the scene. Officer Lohman stated that there were two streetlights fairly near the scene, one at each end of the block, in addition to the light above the entrance to the building which he estimated was 20 feet from the curb. He had no difficulty making any observations or seeing what was going on at the scene. He testified that at the time he arrived there were cars parked along the curb, but there was an approximately four foot gap immediately in front of the door.
The State's next witness was Chicago Police Officer John Butler, an evidence technician. Officer Butler testified that the lighting conditions were very good when he arrived on the scene at 3918 Cortland at approximately 1:45 a.m. He had no difficulty seeing people and things. Butler testified on direct that there was a streetlight on Cortland directly across from the scene, but on cross-examination admitted that he saw no such light in any of the photographs of the scene with which defense counsel confronted him.
Jackueline Grande testified next for the State. She basically corroborated Saez's version of events. She testified that she and Merkes had gone to see Saez on the evening in question. After they arrived they all sat outside of the front door of Saez's apartment building on Cortland. At approximately 12:45, a car drove past them heading west on Cortland, then shortly thereafter drove back east on Cortland, turned into an alley, paused, then reversed towards them and stopped parallel to them. Grande identified defendant as the driver and co-defendant as the rear seat passenger. She testified that she had no difficulty seeing their faces at the time of the incident. Once the car had reversed and stopped, the occupants of the car and the ...