ON APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY No. 94-CR-21169 THE HONORABLE JOSEPH J. URSO, JUDGE PRESIDING.
The opinion of the court was delivered by: Justice Cousins
On August 29, 1994, defendant, Reginald Kelley, was charged by indictment No. 94-CR-21169 with two counts of first degree murder, armed violence, attempt (first degree murder), aggravated battery with a firearm, aggravated discharge of a firearm and three counts of aggravated battery. Following a bench trial, defendant was found guilty of first degree murder, attempt (first degree murder) and armed violence. The trial court ordered the remaining aggravated battery and aggravated discharge counts to merge with the attempt (first degree murder) count. Thereafter, the trial court sentenced defendant to an 80-year extended-term sentence for the first degree murder charge, to be served consecutive to a 20-year sentence for the attempt first degree murder charge, totaling 100 years' imprisonment in the Illinois Department of Corrections. Defendant appeals from both his convictions and sentences, contending that: (1) he was denied effective assistance of counsel where counsel failed to investigate evidence and interview witnesses, failed to file a motion to suppress identification evidence, and conceded defendant's guilt in closing argument; and (2) the trial court abused its discretion at the sentencing hearing by allowing the transcript of the grand jury proceedings to be admitted in aggravation without the benefit of cross-examination and thereafter sentencing defendant to an excessive term.
The evidence presented at trial indicated that on July 25, 1994, at approximately 10:30 p.m., Ebony Collins, her three-year-old son Kevin Taylor, Jr. (K.T.), her father Ronnie Cole, her friend Lashon Johnson, and her brother Ronnie Collins were gathered at Ms. Collins' mother's house, located on Exchange Street in the southeast side of Chicago, Illinois. The group decided to drive to a grocery store located at 79th Street and Yates Boulevard in a white Chevy Caprice. K.T. sat in between Ms. Collins and Mr. Cole in the front seat, while Mr. Collins sat behind Ms. Collins and Ms. Johnson sat behind Mr. Cole. K.T.'s head was visible over the front seat from the neck up.
After leaving her mother's house, Ms. Collins drove southbound on Yates Boulevard to 79th Street. Ms. Collins and Ms. Johnson went into the store, purchased some items and returned to their respective seats in the car. Thereafter, Ms. Collins pulled out onto Yates Boulevard and proceeded northbound to 75th Street, where she stopped the car for a red light. As the vehicle was stopped, Ms. Collins, Mr. Collins and Mr. Cole noticed a group of approximately six people standing on the northeast corner, approximately 25 feet away. Ms. Collins and Mr. Cole noticed a boy whose hair was in french braids and who was wearing red shorts and a white T-shirt with stripes on the sleeve staring at the car. The boy in the red shorts and another boy dressed in dark clothes broke away from the group and crossed the street in front of the car, walking toward the northwest corner. While crossing the street and still staring at the car, the boy in the red shorts began lifting up his shirt in the area of his waistband.
The light turned green and Ms. Collins began to drive through the intersection. Ms. Collins and Mr. Collins noticed the boy in the red shorts throw gang signs in the air. When the car was approximately 10 feet away from the boy, Ms. Collins heard someone through the open driver's side car window say, "Ain't that the motherfucking car right there?" At the same time, Mr. Collins saw the face of the boy in the red shorts and both Mr. Collins and Ms. Johnson watched the boy "fiddle with his shirt," revealing a black object tucked in the waistband of his shorts. The car was approximately 50 feet away from the boys when Ms. Johnson saw the right arm of the boy in the red shorts extend to a 90- degree angle and further saw three flashes exit from where his arm was extended. Ms. Collins, Mr. Collins and Ms. Johnson heard three gunshots, which they described as sounding like a car backfiring; Mr. Cole heard approximately two shots. Then, the back windshield shattered. Mr. Cole yelled that he had been hit and K.T. began to cry. Ms. Johnson saw blood on Mr. Cole's arm and, when K.T. was lifted up, she saw blood from K.T.'s head. Mr. Collins saw two holes in his father's arm and a hole in the back left side of his nephew's head. Ms. Collins looked at K.T. and saw that he had been shot in the back of the head. She then became hysterical and Mr. Cole told her to let Mr. Collins drive them to the hospital.
Once at Jackson Park Hospital, Mr. Cole was treated for multiple gunshot wounds. After being transferred from Jackson Park Hospital to Wyler's Hospital, K.T. died from a single gunshot wound to the head. That same evening, police officers recovered three .9 millimeter cartridge cases from the driveway of the Amoco gas station and three more were found in the street next to the curb, approximately 10 to 12 feet from the parkway next to the driveway.
On July 29, 1994, Officer James Oliver picked up Ms. Collins and her sister Melissa in a green Jeep Cherokee with dark tinted windows. The three drove to the Gatlings Funeral Home, located at 102nd Street and Halsted Avenue, and parked across the street, approximately 50 to 75 feet from the entrance. Approximately 200 to 300 people, from ages 16 to 26, were present. The people were predominantly young black men of various heights, weights, hairstyles and clothes. After 15 or 20 minutes, Ms. Collins identified defendant and Jernel Brown as two of the boys present on July 25, 1994. Defendant was wearing a white T-shirt, black pants and gym shoes with red shoestrings, and his hair was in french braids. Ms. Collins recognized defendant's face, and both she and Officer Oliver identified defendant in open court as the boy Ms. Collins identified at the funeral home.
At Gatlings Funeral Home, on July 24, 1994, Officer Oliver called for assistance and Officer Edward Sonne, along with his partner, responded. As Officer Sonne exited his car and began to approach defendant, defendant began walking away. Officer Sonne asked defendant to stop, which he did, and the officer did a protective patdown of defendant, recovering a loaded .25-caliber semiautomatic handgun from defendant's right pants pocket.
On August 2, 1994, at approximately 2 p.m., Ms. Collins and Mr. Cole viewed the same lineup at Area 2 police headquarters, both consisting of seven black males in their late teens or early twenties, all with dark complexions. The participants in the lineup were approximately 5 feet 8 inches to 6 feet tall. Additionally, three of the participants had braided hair. Ms. Collins identified defendant and Mr. Brown; Mr. Cole was unable to identify anyone. On that same day, at approximately 6:15 p.m., Mr. Collins viewed a similar lineup with Detective John Ervin. Mr. Collins identified defendant as the boy staring at the car; he identified him again in open court during the trial. Mr. Collins only tentatively identified Mr. Brown as the boy in the dark clothes. On August 11, 1994, Ms. Johnson viewed a similar lineup prepared by Detective Ervin; however, Mr. Brown was unable to participate. Ms. Johnson also identified defendant.
Assistant State's Attorney (ASA) Peter Faraci of the felony review unit testified that, on August 2, 1994, he was assigned to the murder of K.T. At approximately 5:05 p.m., he went to an interview room where defendant was present with Detective Ervin. ASA Faraci introduced himself and recited to defendant his Miranda rights from memory. After indicating that he understood his rights as recited, defendant waived his rights and wanted to speak. Defendant informed ASA Faraci that, on July 25, 1994, at approximately 10:45 p.m., he was either at his aunt's house or with friends in the alley hanging out. Two days prior, his cousin, Brian Hill, a "Black P Stone" gang member, was shot and killed in a drive-by shooting by a "GD," a rival gangmember. Defendant also stated to ASA Faraci that he was also a "Black P Stone" gangmember. Defendant further stated to ASA Faraci that he believed that the drive- by shooting incident involved a light-colored or white, four-door Chevy. However, he denied knowledge of the location or facts relating to K.T.'s homicide.
ASA Catherine Hufford testified that, on August 3, 1994, at approximately 8 p.m., defendant was brought to the felony review room in Area 2 police headquarters to speak with her. She introduced herself and recited to defendant his Miranda rights from memory. After indicating that he understood his rights as recited, defendant again waived his rights and wanted to speak. Defendant originally told ASA Hufford that he was a "Blackstone" or "Stone" gangmember and that the Blackstones were at war with the Gangster Disciples over "turf." He further stated that his cousin, Brian Hill or "Ibir," was killed by a Gangster Disciple on July 23, 1994, and his friend Alina was shot in the same incident. Defendant denied being at 75th Street and Yates Boulevard at the time of the murder. Rather, he asserted that he was at his aunt's house at 6725 South Clyde Street at approximately 10:30 p.m. the night of the murder, smoking reefer and drinking. Defendant stated his uncle "Rocks" came out to get him, saw what he was doing and let him stay outside; however, defendant would not provide "Rocks' " real name, address or telephone number. Defendant further stated that his uncle Kash was visiting from Wisconsin and could verify his presence. He then provided ASA Hufford a telephone number to contact Kash.
ASA Hufford asked defendant if he was worried that the .25- caliber gun recovered by police officers on July 29, 1994, was used in the shooting. Defendant responded, "No because I didn't have no nine millimeter." ASA Hufford replied, "Who said it was a nine millimeter?" After indicating that ASA Hufford told him the caliber of the weapon, to which she replied that she had not, defendant stated, "I should have listened to my mother and kept my mouth shut. I don't want to talk to you no more." Defendant was then escorted out of the room.
Following the aforementioned testimony from the State's witnesses, the parties entered into a stipulation that Dr. Robert Kirschner, the medical examiner, would testify that K.T. died of severe cerebral injuries secondary to the single gunshot wound to the head. The parties further stipulated that a forensic expert by the name of Mr. Warner would testify that the bullet fragment removed from K.T.'s head was not suitable for comparison and, thus, he would be unable to testify as to its specific caliber. The State rested and the trial court granted defendant's motion for a directed verdict as to count VIII, aggravated battery based upon the permanent disfigurement of Mr. Cole.
Defendant presented four witnesses to corroborate defendant's alibi: Kash Tahmir, Enewamah Tahmir, Melissa Williams and Angela Egeston. Additionally, Detective Jack Hines was called to impeach Ms. Collins' testimony that police officers only asked her what the perpetrators were ...