The Honorable Richard E. Neville, Judge Presiding. Appeal from the of Cook County No. 93 CR 26475-01
The defendant, Artez Thigpen, was indicted on two counts of first degree murder and one count of aggravated battery for the September 12, 1993, shooting of Clifton Burks. He was also charged with first degree murder (attempt), aggravated battery with a firearm and two counts of aggravated battery on Anthony Townsend, who received a gunshot wound in the same incident. The co-defendant, Tyrone Williams, was tried separately. A jury convicted the defendant of murdering Mr. Burks, and the trial court sentenced the defendant to a term of 75 years' incarceration in the Illinois Department of Corrections.
The defendant contends that his convictions must be reversed because of the following errors, singly or in conjunction. He maintains that: (1) the trial court erred in allowing evidence of another crime; (2) the trial court improperly admitted alleged threats made against a prospective State witness who recanted his testimony; (3) the trial court should not have allowed testimony that a person who viewed a lineup that included the defendant was dead at the time of trial; (4) it was error for the trial court to allow "extensive" testimony about gang life which was not relevant to the question of the defendant's guilt or innocence; and (5) the trial court prejudiced him by showing bias and hostility toward the defense throughout the trial.
The defendant, Artez Thigpen, also known as "Ted," was indicted on two counts of first degree murder and one count of aggravated battery for the September 12, 1993, shooting of Clifton Burks, also known as "Chub." He was also charged with first degree murder (attempt), aggravated battery with a firearm and two counts of aggravated battery on Anthony Townsend, who received a gunshot wound in the same incident. The co-defendant, Tyrone Williams, also known as "Baby Ty," was tried separately. A jury convicted the defendant of murdering Mr. Burks and the trial court sentenced the defendant to a term of 75 years' incarceration in the Illinois Department of Corrections.
On the night of September 12, 1993, two men exited a gray car and shot Mr. Burks several times as he stood on a street corner. According to testimony at trial, the gunmen and the victim were in two rival factions of a street gang, the Unknown Vicelords.
The witnesses who testified against the defendant before the grand jury were Regina Goodwin, Terrell Thomas and Anthony Townsend. Ms. Goodwin told the grand jury that on the night of the murder she talked to Mr. Burks about a debt that he owed to her. Then she crossed the street to talk to her friend Terrell Thomas. She said that she then saw two men exit an older model gray car that was parked by the curb. The men walked over to the victim and shot him several times. Ms. Goodwin said that she ran over to Mr. Burks and saw the two assailants get in the car and drive off. Ms. Goodwin said that she knew the defendant from high school and that she had known Mr. Williams, the co-defendant, for about a year. She told the grand jury that she picked both men out of lineups.
Detective Gregory Baiocchi was one of the officers who investigated the crime scene the night of the murder. He testified that he spoke to Ms. Goodwin and that she told him the first three letters of the license plate of the gunmen's car were "VJN." A 1981 gray Oldsmobile was found with such a license plate, registered to "Michael Payne." "Michael Payne" was an alias of the defendant.
In his initial statement and before the grand jury, Mr. Townsend related that on the night of September 12, 1993, he was on his way to a convenience store. He saw a car pull up and heard someone say "Hey, that's Baby Ty." He did not know Mr. Williams but had heard of him. As he walked toward the store he dropped his cigarettes. As he stooped to retrieve them, he heard the door of the car slam. He turned around saw a man brandishing two handguns. Then, hearing gunfire, he ran to take cover in the convenience store. Before he made it to the store he was shot in the foot. Later when he came out he saw Mr. Burks on the ground. He said that he identified the gunman in a lineup.
After his grand jury testimony, Mr. Townsend spoke to Assistant State's Attorney (ASA) John Schmidt. According to ASA Schmidt, Mr. Townsend said that he was afraid and had received threats. Mr. Townsend was given money to relocate, and he left the city for a while. He bought a handgun to protect himself. ASA Anita Alvarez testified that Mr. Townsend said he was afraid for his life
Later, however, both Ms. Goodwin and Mr. Townsend separately went to defense counsel's office and recanted their grand jury testimony under oath. Mr. Thomas was with Ms. Goodwin when she recanted. The trial testimony of Mr. Townsend and Ms. Goodwin was consistent with their statements to defense counsel. Mr. Thomas was subpoenaed to testify at the trial but could not be located.
Ms. Goodwin told defense counsel that at the time of the murder she was in the entryway of her apartment building with an acquaintance named Terrell (not Terrell Thomas). They heard shots. When they went to the window they saw Mr. Burks on the ground. She went outside later and gave her name to a police officer when requested. She said that the Terrell that she was with that night is in Mississippi somewhere.
A few days later, she said, she and her friend Terrell Thomas were taken to the police station in the middle of the night to view a lineup. The police showed her a photograph of a person and told her to pick that person out of the lineup. She did not identify anyone, however. Ms. Goodwin claims that the police were abusive towards her and that one detective pushed her over her chair, though she was five months pregnant, and left her handcuffed to a wall for periods of time. She says the detective threatened to hold her for 72 hours if she did not cooperate.
A month later Ms. Goodwin and Mr. Thomas were taken back to view another lineup and were again told whom to identify. She talked with an ASA and then went before the grand jury. Ms. Goodwin claims that she was told what to say to the grand jury and that she agreed to say it so she could go home.
Detective Anne Chambers testified that Ms. Goodwin picked the defendant from the second lineup. Detective Chambers also testified that Ms. Goodwin said that she was afraid. The ASA, for her part, denied having told Ms. Goodwin what to say.
At trial, Mr. Townsend testified that on the evening of September 12, 1993, he heard shots as he was walking to a convenience store. He was high at the time. As he ran for cover in the store he was shot in the foot. Two police officers got his name later when he was in the hospital. He denied having seen the gunmen. A few days later he was taken to the police station where, he claims, a police officer (the same one that pushed Ms. Goodwin) beat him. He denied having witnessed the shooting and was beaten again. He said he may have spoken to an ASA afterwards. Like Ms. Goodwin, he claims that he was told what to say before the grand jury. He says that he was told that if he did not cooperate he would be charged with obstruction of Justice. ASA Demetrios Kottaras testified that he interviewed Mr. Townsend and that Mr. Townsend was not told what to say.
Mr. Townsend claims that he persuaded ASA Schmidt to give him relocation money, but he used the money to buy drugs. He says that the handgun he bought was not for self-protection, but to commit robberies to support his drug habit. He says that he left the city to avoid pending criminal prosecutions against him. He later pled guilty to possession of cocaine with intent to deliver and unlawful use of a weapon.
Although she was not present at the shooting of Mr. Burks, one of the State's primary witnesses was Eunice Clark. The defense made a motion in limine to exclude her testimony as other crimes evidence. The motion was denied. Ms. Clark testified that at the time of trial she was serving a sentence for two attempted murders. At one time she was a member of the Unknown Vicelords street gang. She testified that the defendant and the victim were members of that gang, though in two different factions. The defendant's faction was led by Mr. Williams, and the victim's was led by Willie Lloyd.
Ms. Clark testified that, on September 12, she was waiting at a street corner for a man called Larry. Larry was to deliver some of the defendant's drugs to her for her to sell. After Larry arrived, Willie Lloyd drove up with several companions and asked Larry where the defendant was. Larry said that he did not know. Then Mr. Lloyd beat up Larry and stole the drugs.
Shortly afterwards, Ms. Clark testified, the defendant drove up in a gray car. Furious to learn that his drugs had been stolen, he hit Larry with his gun. Then he took Larry to the hospital. That evening at the same street corner, the defendant said that he would no longer pay extortion money to Willie Lloyd and that, if he wanted to go to war, ...