Appeal from the Circuit Court of Cook County No. 95 CR 20339 The Honorable Henry R. Simmons Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cousins
Co-defendants Ronard Parker, Michael Green and Russell Young each were charged by indictment with 1 count of attempt (murder), 1 count of heinous battery, 5 counts of aggravated battery, 14 counts of aggravated kidnapping, 2 counts of kidnapping, 2 counts of aggravated unlawful restraint, and 1 count of unlawful restraint. After unsuccessful motions to quash arrest and suppress evidence, the defendants received simultaneous but severed bench trials.
The trial court found the defendants guilty on all counts. The judge sentenced Mr. Parker and Mr. Young each to an extended term of 35 years on the charge of attempt (murder), to run concurrently with a 35-year sentence for heinous battery and a 15-year sentence for aggravated kidnaping. Mr. Green received a sentence of 25 years for attempt (murder), to run concurrently with 25 years for heinous battery and 15 years for aggravated kidnapping. The remaining counts were merged. The defendants now challenge their convictions in this consolidated appeal.
All the defendants appeal on the basis that: (1) the prosecution did not prove that the defendants intended to kill the victim, since they allowed him to leave; and (2) it was reversible error to introduce gang evidence, since the crime was not gang-related. Defendants Young and Green additionally contend that: (3) there was insufficient evidence to make Mr. Young accountable for the aggravated kidnapping and Mr. Green accountable for any of the crimes; and (4) their convictions must be overturned because the trial court erred in denying their motion to quash arrest and suppress evidence. Finally, defendant Green argues that: (5) it was error for the trial court to admit his conversation with a detective as rebuttal evidence, since Mr. Green himself did not testify.
We affirm in part and reverse in part.
At trial, the victim, Wilbur Upshaw, testified as follows. Between 6 p.m. and 7 p.m. on July 2, 1995, Mr. Upshaw was walking near a tire shop where he worked as a mechanic. Mr. Parker pulled up next to Mr. Upshaw in a van along with some other people. Although they were not friends, Mr. Upshaw had known Mr. Parker for about nine months by the nickname "Assassin." He knew that Mr. Parker frequented the Chicago Housing Authority (CHA) building at 41st and Federal Streets. At the time, Mr. Upshaw had a girlfriend who lived in the building, and he sometimes saw Mr. Parker there when he visited her. Mr. Parker had recently given him his car to fix.
Mr. Parker asked Mr. Upshaw if he was called "Peanut." When Mr. Upshaw said "yes," Mr. Parker called out to his companions, "Here he is here." Mr. Parker asked where his car and his money were. Mr. Upshaw said that he had taken the car to a shop at 16th and Michigan to be repaired and he volunteered to call the mechanic who was working on the car. Mr. Parker responded "No. We're not going to do this. You're going with me." Mr. Upshaw said he wasn't going anywhere.
At this point Mr. Parker and his companions grabbed Mr. Upshaw and forced him into the van. During the struggle Mr. Upshaw's shirt was ripped off. Someone kicked Mr. Upshaw, fracturing his jaw. Mr. Parker sat on Mr. Upshaw with one hand holding a screwdriver and the other hand around his neck. He threatened to stab Mr. Upshaw with the screwdriver if he moved.
They drove to the parking lot of the CHA building at 41st and Federal and forced Mr. Upshaw out of the van. The men with Mr. Upshaw took his shoes and threw them onto the railroad tracks. When a CHA police car drove by, Mr. Parker made Mr. Upshaw hide, threatening to kill him if he made any noise.
Shortly thereafter Mr. Green and Mr. Young arrived on the scene. Mr. Young looked for a tire iron but could not find one and grabbed a baseball bat instead. Mr. Parker said that he needed a car to put Mr. Upshaw in and asked them to get keys to the car from the building across the street. Mr. Young and some companions took Mr. Upshaw across the street, threatening to hit him with the bat if he did not move fast enough. They went to the hallway of the building near the stairs. Mr. Young and others stood guard over Mr. Upshaw with the bat, while someone went to get the keys. When they found the keys about 10 minutes later, they went back across the street. Mr. Upshaw was struck once with the bat on the way over and once on the way back.
Mr. Young and Mr. Parker opened the trunk of a gray, four-door Chevrolet car near the van and put Mr. Upshaw inside. They shut the lid and told Mr. Upshaw that if he made any noise they would shoot up the trunk. Mr. Parker ordered someone to shoot if Mr. Upshaw made noise. After 20 to 30 minutes Mr. Parker reopened the trunk. Mr. Upshaw was ordered to face away from the attackers, and Mr. Young told him that if he looked around he would hit him with the bat. Mr. Green was also there. Mr. Upshaw heard someone say that they were going to "blow up his butt." He attempted to turn around and was hit with the bat.
Someone put an M-80 down the back of Mr. Upshaw's pants and closed the trunk. Mr. Upshaw tried to remove it, but it exploded in his hand, blowing off three of his fingers. The trunk flew open. Mr. Upshaw screamed that they had "messed up his hand," whereupon his assailants began to laugh. Mr. Parker and Mr. Green then told him to get out and "run toward 41st Street and don't stop." As Mr. Upshaw ran away, other people threw stones at him. His clothes were on fire and fell off him as he ran.
Mr. Upshaw found help in a nearby revival tent, where someone called an ambulance and the police. He was taken to Cook County Hospital, where he remained for over two months.
The parties stipulated that Dr. A. Hall would testify that he was a doctor at Cook County Hospital who treated the victim, whose injuries included three missing fingers, a broken jaw, broken facial bones, burns to the buttocks, both hands and the lower back and numerous abrasions and bruises. Mr. Upshaw had to undergo many surgeries, including having his rectum repaired and having muscle transplanted from his shoulder to his hand. When Mr. Upshaw was admitted to the hospital, cocaine was found in his system. Mr. Upshaw denied using cocaine on the date of the attack but admitted that he had used cocaine two days earlier.
It was also stipulated that a forensic expert would testify that the injury to Mr. Upshaw's hand was caused by a flammable device known as an M-80 to an M-1000.
Chicago police officer Eugene Offet testified that he and two other officers were called to 4227 South State Street at about 11:15 p.m.. Mr. Upshaw was there being attended to by paramedics. In the emergency room, Mr. Upshaw related what had happened to him. According to Officer Offet, Mr. Upshaw gave him the nicknames of four of the people that attacked him: "Assassin," "Black Mike," "Rell" and "Russ." Officer Offet knew the defendants to be people with those nicknames who hung around the building at 41st and Federal.
The next day, Officer Offet went to the building at 41st and Federal. There he found the defendants with four other men, including Mr. Green's brother Darrell (whose nickname is "Rell"), and arrested them all. He located the gray, four-door car and saw that the trunk lid had been blown open. There were bloodstains near the car, burned bloody clothing inside the trunk, and more clothing 15 to 30 feet away from the car. There was a "For Sale" sign in the window of the car. On the sign was written "2000 Assassin 20039."
At the police station, Mr. Parker allegedly told Officer Offet that "they had gotten into it with this guy Wilbur about some money he owed them, and he refused to pay up." He realized the situation had gotten out of control, he added, when he saw the extent of the victim's injuries. Polaroid photos were taken of the arrestees at the station. Mr. Upshaw picked out the defendants' photos from the array. The other arrestees were permitted to leave. The prosecution was unable to produce these photos at trial.
On cross-examination, however, Mr. Upshaw testified that although he had identified the defendants from photographs, he could not have given Officer Offet the nicknames of Mr. Green and Mr. Young, because he did not know them. He thought that he told Offet that one of the attackers was named "Assassin" and that one had braids (as does Mr. Young).
Detective John Griffin testified that he talked with the defendants at the police station at around 11:15 p.m. on July 3, 1995. Each defendant, when asked, allegedly admitted being in a gang, the Gangster Disciples. Mr. Young did not speak any further. Mr. Parker said he was a coordinator for the gang. He said that he knew "Peanut" but denied any knowledge of the incident. Mr. Green also professed ignorance.
Barbara White testified that she was working as a security guard at the building at 41st and Federal at the time of the attack. On July 2, 1995, she worked form 4 p.m. until midnight. From her booth she could see one of the two entranceways to the building. She knew Mr. Parker by sight. That evening she saw a naked man run through the parking lot, but she did not see anything else out of the ordinary. Her partner called the police when they saw the man run past. On cross-examination and over objection, she said she knew that Gangster Disciples would hang around the building. In closing argument the prosecutor suggested that Ms. White had testified untruthfully out of fear of the Gangster Disciples. The trial court overruled a defense objection to that argument.
Mr. Green's sister, Aisha Green, and his girlfriend, Sandra Williams, both testified that he had been at home at the time of the attack. Darrell Green said that his brother had picked him up on his motorbike on July 3 and they went to 41st and Federal, where they were arrested along with his brother's friends. He did not know why they had been arrested until later when someone told him it was for an attack the previous night. Darrell was released. Detective Griffin testified as a rebuttal witness that he had talked with Michael Green on July 4, 1995, and that according to his notes Mr. Green had not said that he was at home, but that he was riding his brother's bicycle on July 2, 1995.
The trial court found the defendants guilty on all counts. The judge sentenced Mr. Parker and Mr. Young each to an extended term of 35 years on the charge of attempt (murder), to run concurrently with a 35-year sentence for heinous battery and a 15-year sentence for aggravated kidnaping. Mr. Green received a sentence of 25 years for attempt (murder), to run concurrently with 25 years for heinous battery and 15 years for aggravated kidnapping. The remaining counts were merged.
All the defendants appeal on the basis that: (1) the prosecution did not prove that the defendants intended to kill Mr. Upshaw, since they allowed him to leave; and (2) it was reversible error to introduce gang evidence, since the crime was not gang related. Defendants Young and Green additionally contend that: (3) there was insufficient evidence to make Mr. Young accountable for the aggravated kidnapping and Mr. Green accountable for any of the crimes; and (4) their convictions must be overturned because the trial court erred in denying their motion to quash arrest and suppress evidence. Finally, defendant Green argues that: (5) it was error for the trial court to admit his conversation with Detective Griffin as rebuttal evidence, since Mr. Green himself did not testify. ANALYSIS
Mr. Green argues that all his convictions must be reversed because there was insufficient evidence to hold him accountable for the relevant crimes. Mr. Young contends that his convictions related to the initial kidnapping of Mr. Upshaw near the tire shop must be reversed. For the reasons that follow, we agree here with Mr. Green and Mr. Young.
A person is legally accountable for the conduct of another when either before or during the commission of an offense, and with the intent to promote or facilitate such commission, he or she solicits, aids, abets, agrees or attempts to aid such other person in the planning or commission of the offense. 720 ILCS 5/5-2(c) (West 1996). A defendant's presence at the scene of a crime is one factor that can, along with other circumstances, show a design to aid in the offense and, hence, accountability. People v. Morgan, 67 Ill. 2d 1, 8-9, 364 N.E.2d 56, 60 (1977). However, merely being present at the scene of a crime, even with ...