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People v. Ontario Ervin

June 19, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ONTARIO ERVIN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Theis

Appeal from the Circuit Court of Cook County.

No. 96-CR-10342

Honorable Edward Fiala, judge Presiding.

Defendant, Ontario Ervin, was charged by indictment with first-degree murder pursuant to section 9-1(a)(1) of the Criminal Code of 1961. Ill. Rev. Stat. 1989, ch. 38, par. 9-1(a)(1) (now 720 ILCS 5/9-1(a)(1) (West 1996)). Following a jury trial, defendant was convicted and sentenced to 28 years' imprisonment. Defendant now appeals, contending that (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the circuit court erred by allowing the State to introduce defendant's statement as an admission; (3) the court erred by admitting coconspirator statements because the State did not establish defendant's participation in the conspiracy by independent evidence; and (4) the prosecutor committed reversible error in making certain statements to the jury during closing argument. For the following reasons, we affirm.

On September 20, 1992, the 411 Club, located at 411 East 63rd Street in Chicago, Illinois, was robbed by several men wearing masks and wielding guns. During the robbery, the bar manager, John Conley, was shot and killed by Norman Williams, one of the robbers. Except for Williams, all of the robbers wore stocking masks to hide their identity. The police found three masks on the sidewalk outside of the bar. Several men were arrested shortly after the crime. On September 22, 1992, Larry Gullette confessed to the crime and implicated Brian Collins, Nathan Green, Demon Body, Norman Williams, and defendant.

At defendant's trial in October 1996, the State presented five robbery witnesses and Larry Gullette. None of the robbery witnesses could specifically identify defendant. Londa Higgins and Katherine Allen both testified to seeing a man with a red jacket and another man with a silver gun wearing a stocking cap on his face. Erma Pitchford also saw a man wearing a stocking cap with a silver gun in his hand.

Ricardo Williams, an employee of the 411 Club, testified that he saw a man with a gun wearing a mask, and another man standing at the front door yelling. The man at the front door also had a gun and was not wearing a mask. Williams later identified the man at the door in a police lineup. That man was not defendant.

Charles Clark testified that he was looking out the front door of the 411 Club when he saw a group of guys pulling stocking masks down onto their faces. Clark returned to the club and pulled the door closed, trying to hold it shut. When he could no longer hold the door shut, Clark tried to run to the back of the bar. As he was turning to run, one of the men held a gun to Clark's head and took his keys and wallet. Clark then tried to leave the bar, but a man standing at the door told Clark he could not leave. Clark recalled the man had a gold tooth. Someone then grabbed Clark and threw him to the floor. From the floor, Clark saw another person enter the bar but could not identify that person.

After stipulations regarding medical and forensic evidence, the State then called Larry Gullette. Gullette testified that he had received a reduced sentence for his armed robbery conviction pursuant to the robbery of the 411 Club, in exchange for his testimony against defendant. Gullette testified that the State dropped the murder charge in exchange for his testimony.

Larry Gullette testified that on September 19, 1992, he was with Brian Collins, Nathan Green, Demon Body, and defendant at defendant's sister's apartment discussing robbing the 411 Club. Upon hearing their discussion, defendant's sister kicked them out of the apartment. The five men then moved to Brian Collins' sister's apartment in the same building. Gullette testified that Collins got three pair of stockings and cut them up with scissors. In the apartment, Brian Collins and defendant both had guns.

Gullette testified that the men planned to enter the club with pistols and to tell everyone to lay down. The men then left the apartment. On their way to the 411 Club, the five ran into Norman Williams who called Brian Collins over and the two spoke for awhile. Norman Williams indicated he would join the others in the crime and the six men then entered the abandoned building next door to the 411 Club. According to Gullette, Norman Williams made defendant give Williams the gun. Then, Norman Williams started telling everyone what to do. At that point, defense counsel objected to Gullette's testimony as to Williams' statements. Over defendant's objection, the court allowed Gullette to continue.

According to Gullette, the robbery went as planned. Nathan Green and Brian Collins went to the back of the bar. Gullette and defendant stayed in the middle of the bar and collected money from the patrons. Gullette testified that defendant pulled money from the cash register. At one point, Gullette saw defendant on top of the bar and then down again.

Next, the State called Officer Ken Epich of the Chicago Police Department. On March 29, 1996, Officer Epich was present at the 7th District police station when defendant sought to turn himself in on a probation warrant. Defendant indicated to Officer Epich that he thought he had a second warrant for murder. After confirming defendant's outstanding warrant for first degree murder, Officer Epich advised defendant of his rights and then questioned defendant regarding the murder warrant. Officer Epich testified that "[defendant] told me, he was with some dudes, who stuck up a fag bar, the 411 Club at 63rd and King." On cross-examination, Epich conceded that he had written the initial arrest report around the time defendant was arrested at 5:12 p.m. but that defendant's statement was not memorialized until Epich's supplementary report was written around 8 p.m. after Epich had spoken to the detectives investigating the murder.

After the State rested, defense counsel made a motion for a directed verdict, which was denied. The defense presented no case. After closing arguments, the court instructed the jury. The jury found the defendant guilty of first degree murder and the court sentenced him to 28 years' imprisonment.

On appeal, defendant first argues that the State did not prove beyond a reasonable doubt that defendant participated in the armed robbery. Defendant contends that none of the State's evidence showed six men in the bar and the only evidence of defendant's involvement came from Larry Gullette, an inherently incredible witness. The jury, however, was repeatedly informed as to the reliability of Gullette's testimony and as to the deal Gullette had made with the State. The testimony of an accomplice is sufficient to sustain a conviction. People v. Jimerson, 127 Ill. 2d 12, 44, 535 N.E.2d 889, 903 (1989). Moreover, a criminal conviction will not be set aside unless the evidence is so improbable that there remains a reasonable doubt as to defendant's guilt. People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 276-77 (1985). Here, defendant's conviction was not against the manifest weight of the evidence.

Defendant next argues that the circuit court erred in admitting the statement made by defendant to Officer Epich at the time of defendant's arrest. At ...


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