The opinion of the court was delivered by: Presiding Justice Gordon
Appeal from the Circuit Court of Cook County
Honorable John E. Morrissey, Judge Presiding.
After a jury trial in January 1997 defendant Edgar Ross was found guilty of the first degree murder (720 ILCS 5/9-1-A(1), 5/9-1-A(2) (West 1994)) of Henry Johnson. The court entered judgment on the verdict and sentenced defendant to 43 years imprisonment in the Illinois Department of Corrections (IDOC). Defendant contends he was denied a fair trial and received an excessive sentence. We reverse and remand.
At trial Ian Williams testified for the State that on the evening of December 22, 1994, he and his friend Henry Johnson went to the home of Johnson's girlfriend, Leslie Owens (Owens), on 106th Place in Chicago. The two brought alcoholic beverages and consumed some of them en route. When they arrived, they saw defendant on the street in front of Owens's house.
Williams went inside the house after speaking with defendant briefly, but Johnson stayed outside and shared his drink with the defendant. Inside the house with Williams were Owens and Owens's friend Melissa Page. After approximately 15 minutes, Owens looked outside and told Williams that Johnson was going to help the defendant fight someone. She told Williams to "come get your boy" before the fight started. Williams went to the door and called Johnson to come inside, which he did. Some time thereafter another woman named Neecie Roberts arrived. Williams and Johnson drank as the group talked.
Some time later, defendant knocked on Owens's door and she let him in. When he came in, the defendant began talking loudly about "what just happened outside with him"; his voice woke Owens's mother (Big Leslie), who asked to join the party and became angry because people were drinking and had not offered her anything to drink. Defendant passed his hat around to collect money to buy Big Leslie a drink. Williams testified that he gave defendant a dollar, but when defendant got to Johnson, Johnson said to him "on the five you trying to get some for yourself." Williams stated that he had never heard the term "on the five" before that night, but he explained that the phrase meant "It's like on everything we know and love, you know, on the five." He stated that Johnson was not and never had been in a gang.
Williams stated that defendant responded "F--k the five," and grabbed Johnson by the neck. The two began fighting, and Williams stated that it took a while to separate them because they were both large men (he stated that Johnson was 6'3" and 200 pounds and defendant was 5'9" and 180 pounds). After they were separated, Big Leslie ordered everyone out of the house. Defendant left immediately and Williams and Johnson left together a short time later after they had gathered their things together.
As Williams and Johnson were walking home, Williams saw the defendant "running out of somebody's house" towards them. Defendant confronted them and began asking "what's up," and took off his belt in a threatening manner. Williams stepped between defendant and Johnson to prevent them from fighting, but Johnson took off his coat as if preparing to fight, and defendant swung around Williams and hit Johnson in his chest with the belt. Williams stepped out from between the two and Johnson struck defendant in the face, after which defendant ran back to the house he had just come from. Williams and Johnson gathered their things and began walking away more quickly.
A few minutes later, defendant ran up behind Williams and Johnson with a rifle in his hands. Williams and Johnson ran in separate directions. Williams ran into a gangway but found his way blocked by a gate barring the far end. When he returned to the mouth of the gangway, he saw defendant fire the rifle at Johnson twice, then run. He stated that he was 10 to 15 feet away from the defendant, there was nothing obstructing his view, and the area was fairly well lit by streetlights.
When Williams emerged from the gangway he saw Johnson lying on the ground face down about three houses away. When he ran over to Johnson and turned him over, Johnson was covered with blood and had stopped breathing. The police arrived within approximately 5 minutes. Williams testified that at the police station later that night (or early the next morning) he selected the defendant's photo out of an array. He also picked the defendant out of a line-up on August 3, 1995.
Neecie Roberts corroborated Williams's version of the fight at Owens's house, except that she stated that Johnson and defendant were both stating "gang slurs" like "f--k the five" and "f--k the Chief" before defendant attacked Johnson and began to choke him. She stated that Melissa Page left the house shortly after the three men but returned almost immediately and stated that defendant, Williams and Johnson were fighting. However, when Roberts went outside with Owens and Page she only saw Johnson putting on his jacket. She heard Johnson yell "Vice Lord Killer," which she understood to be a gang slogan.
Roberts stated that the women returned inside, but a few minutes later she heard two gunshots. When she went outside she saw Johnson lying on the street, but she did not see the shooting and never saw the defendant with a gun.
Melissa Page corroborated that Johnson and Williams had come over to Owens's house on December 23 and that defendant and Johnson got into a fight at Owens's house when defendant asked Johnson for money. Page stated that Johnson was saying "gang stuff" like "f--k the five, f--k the chiefs," to which defendant responded "okay, f--k the five, f--k the chiefs." Page explained that Johnson and defendant were both members of gangs which were part of a general gang organization known as the "Brothers," or "People," whose symbol was the number 5 (as distinguished from the organization known as the "Folks," whose symbol was the number 6). She stated that the exchange between Johnson and defendant meant that they were going to fight each other despite the fact that they "were both under the same number," i.e., had similar gang ties.
Page stated that when she left Owens's house she saw Johnson picking his shirt up off the ground and saw defendant running across the street and into a gangway. Johnson was yelling after him "go run get the strap, go run like a little baby." Page stated that she understood a "strap" to mean a gun. She went back inside and told the others that it seemed like the men had been fighting. Page heard two gunshots while she was back inside the house and when she went back outside after the police arrived she saw Johnson dead on the ground.
Chicago Police Officer Daniel Aguilera testified that he and his partner responded to a radio call reporting a man shot at 334 West 106th Place. They responded to the call and saw a man lying on the ground on his back and another man over him calling for help, telling them his friend had been shot. Aguilera called for an ambulance on the radio and taped off the area around the body to preserve the scene. He spoke with Williams and Owens and subsequently sent out a "flash message" over the radio to alert other units to look for defendant Edgar Ross in connection with the shooting. He and his partner then went to the defendant's house (about half a block from the scene of the shooting) with the detectives who had by that time arrived on the scene.
Chicago Police Detective Herman Cross testified that he responded to the scene of the shooting on the evening of December 23. He immediately had Williams transported to the Area 2 Violent Crimes Police Station for an interview. He subsequently went to Owens's home and spoke with Roberts, Page, and Owens at Owens's home. He also had those three witnesses brought to Area 2 and spoke with them again there. As a result of those conversations, he looked for the defendant in connection with the shooting. Detective Cross stated that he went to defendant's home address (across the street from Owens's home) three times on December 23, but never found defendant at home. He told a woman with whom he spoke at that house that it would be in defendant's best interest to surrender in order that the police could determine what had happened. In January 1995, approximately a month later, still having failed to locate the defendant, Detective Cross obtained a warrant for his arrest.
Several months later, in August 1995, Detective Cross was notified by the authorities in Milwaukee, Wisconsin, that the defendant was in custody at the Milwaukee County Jail. Detective Cross and a Detective Bernatek went to Milwaukee and brought the defendant back to Chicago. After a line-up in Chicago in which Williams identified the defendant as the perpetrator, he was charged with first-degree murder.
On cross-examination Detective Cross stated that when he interviewed Williams, Williams told him that during the incident at Owens's house Johnson and defendant "began to exchang[e] gang slogans such as on the five and f--k the five." He also stated that when he took defendant into custody in Milwaukee he read him his Miranda rights. When defense counsel asked Cross if he thereafter had a conversation with the defendant, Cross replied that the defendant "told us he had a lawyer, and he didn't have anything to say." The court immediately interrupted, instructed the detective simply to answer the question yes or no and admonished the jury to disregard the answer.
At the termination of Detective Cross's testimony defendant moved for a mistrial based on the detective's testimony regarding defendant's invocation of his right to remain silent. The defense contended that the comment not only would have been improper if true, but in fact was not accurate, because the defendant did not refuse to answer questions, but rather voluntarily cooperated with extradition and subsequently waived his rights and gave a statement in which he admitted having an argument with Johnson but stated that he left the area thereafter. The court denied the motion, stating that the improper comment was cured by the "prompt cautionary instruction to the jury to immediately disregard Detective Cross's ...