The opinion of the court was delivered by: Justice Freeman
Agenda 15-September 1999.
Following a trial in the circuit court of Cook County, a jury convicted defendant, Antonio Segoviano, of one count of first degree murder on an accountability theory (720 ILCS 5/9-1(a)(3) (West 1992)), and two counts of attempted armed robbery (720 ILCS 5/8-4, 18-2 (West 1992)). After vacating one of the attempted armed robbery convictions based on insufficiency of the evidence, the circuit court sentenced defendant to concurrent terms of 45 years' imprisonment for the first degree murder conviction and 15 years' imprisonment for the remaining conviction for attempted armed robbery. The appellate court reversed defendant's convictions and remanded the matter for a new trial, holding that the trial court abused its discretion in failing to declare a mistrial when it was discovered during trial that the testimony of one of the State's occurrence witnesses was perjurious. 297 Ill. App. 3d 860. We granted the State's petition for leave to appeal (177 Ill. 2d R. 315(a)) and now reverse the appellate court and reinstate defendant's convictions.
On November 9, 1993, at approximately 4:30 p.m., Onesimo Beltran and Martin Alvarez, the homicide victim, drove their truck into an alley near a currency exchange where the victim intended to purchase a City of Chicago vehicle sticker. Beltran waited in the truck with the door open, removing the old sticker from the windshield, while the victim went into the exchange.
Before the victim returned, a person later identified as defendant approached Beltran and asked him for money. Beltran closed the door, and defendant walked away, towards the mouth of the alley. Shortly thereafter, Beltran heard gunshots from behind the truck, and saw people scatter away from the victim. Beltran was uncertain whether defendant was among the people he saw running away from the victim, although he testified that defendant had walked in that direction after asking him for money. The victim died as the result of a single gunshot wound to the back.
Steven Schoenberg, the manager of the currency exchange, testified that while the victim was in the exchange defendant entered and began scribbling on the wall near one of the windows. Defendant followed the victim out of the exchange. Schoenberg testified that what was written on the wall of the exchange where defendant had been standing was "Little Cap or Little Capone." Chicago Police Officer Thomas Taglioli testified that he had seen graffiti around the neighborhood with defendant's name on it and that the graffiti in the currency exchange was written the way that defendant wrote his name.
Mario Rodriguez testified that shortly before the crime he, defendant, Arnel Robinson, and "J.J." were at a bank of telephones located near the currency exchange. Rodriguez did not know "J.J."s real name, but he knew defendant and knew that his nickname was "Little Cap," short for "Little Capone." While "J.J." was using the telephone, Rodriguez heard defendant ask Robinson if he wanted to "get some money." Robinson agreed, lifted his shirt, and adjusted a gun in his waistband. Defendant said he would "find someone" and walked over to the currency exchange while Robinson went to the alley nearby. In Rodriguez's written statement, which was introduced into evidence, he stated that defendant had said that he would find "someone to rob."
Rodriguez testified that a few minutes later defendant followed the victim out of the exchange and into the alley, out of Rodriguez's view. Rodriguez next heard Robinson shouting "give me your money." Rodriguez walked over to the alley, where he saw Robinson pointing a gun at the victim and saw defendant next to the truck. At this point Rodriguez panicked and walked back towards the telephones. As he was walking away he heard two shots, and he left the area. He did not see where the defendant or Robinson went.
The State's next witness represented that his name was Jerome Lewis, and that he went by the nickname "J.J." The witness testified that he was with defendant, Rodriguez, and Robinson at the time of the shooting. He stated that defendant asked Robinson to help him "stick up the Mexican guy," and Robinson agreed. Defendant thereafter followed the victim into the currency exchange, ducked back out for a moment, holding his hand over his head, then reentered the currency exchange. When the victim left the exchange defendant followed him into the alley where Robinson was waiting. A short while later "J.J." heard two gunshots in the alley, then saw defendant exit the alley.
On cross-examination "J.J." initially testified that his name was Stacy Lewis, and that his older brother was named Jerome, but that they were both known as "J.J." He later stated that his brother's name was Stacy and his own name was Jerome.
The State proceeded to introduce into evidence statements defendant made to police after his arrest. Defendant gave an oral statement to Chicago Police Detective Steven Glynn and signed a written statement in the presence of Assistant State's Attorney Margaret Wood. In each statement, defendant admitted that he had suggested to Robinson that they "make some money" and that they planned to have defendant follow a man out of the currency exchange and have Robinson rob him in the alley. Defendant admitted scratching his nickname on the wall of the currency exchange while waiting for the victim, then following the victim into the alley. In the alley, Robinson grabbed the victim while defendant approached the truck parked in the alley. Defendant demanded money from Beltran, but was told that he had no money. As he walked back to where Robinson was confronting the victim, defendant heard two shots and then ran from the area along with Robinson.
The next several events occurred outside the presence of the jury. Defendant contended that the State's witness who had testified as Jerome Lewis was in fact Stacy Cueto, Lewis' brother. To support this allegation, defendant called as a witness the real Jerome Lewis, who testified that Cueto sometimes used Lewis' name. After hearing Lewis' testimony, the trial court recessed for the day and directed the State to ascertain who was in fact Jerome Lewis by the next day, when the case would be recalled.
When court reconvened, the prosecutor informed the trial court that the person who had previously testified at trial was Cueto. According to the prosecutor, Cueto had admitted his identity when the prosecutor confronted him. Cueto informed the prosecutor that he had testified instead of Lewis because he thought Lewis might "run into some problems" if he testified, whereas Cueto believed he would be safe because he was incarcerated in Minnesota. The prosecutor confirmed that Cueto was not the person at the scene by asking Rodriguez to view him; Rodriguez stated that Cueto was not the "J.J." who was present at the time of the crime. However, the prosecutor maintained that the State had no knowledge of the fact that Cueto was not "J.J." until the defense raised that possibility.
Based on these events the State moved for a mistrial. Defendant opposed the State's motion, arguing that the proper course was not to grant a mistrial, but rather to explain to the jury what had occurred and direct the jury to disregard the evidence. He contended that "it would be a jeopardy issue" if the court declared a mistrial. The court declined to declare a mistrial, stating that "[a]t this time the trial in my opinion has not been reduced to a farce and a sham."
The jury was recalled, and the State admitted that the person who had testified was not Jerome Lewis but rather was his brother. Accordingly, the State requested leave of court to withdraw the earlier testimony and asked the court to instruct the jury to disregard it. The court struck the testimony and directed the jury "to disregard completely all the testimony that this person from Minnesota penitentiary said and completely disregard that."
The State then called the real Jerome Lewis to testify. Lewis stated that he was with defendant, Robinson and Rodriguez at the scene of the shooting several minutes before the shooting occurred. However, Lewis testified that defendant was standing next to him at the pay telephones when they heard the two shots. He stated that he and defendant had parted ways with Robinson and Rodriguez three to five minutes before.
The State proceeded to introduce as evidence a written statement Lewis had given to the police shortly after the crime. Therein, Lewis stated that he, Robinson, Rodriguez and defendant were at the pay telephones when he "heard [defendant] talk about robbing a guy who had just gone in the currency exchange." Robinson agreed to commit the robbery with defendant. Defendant then went into the exchange and came back out holding up five fingers "to indicate $500." He then reentered the exchange and shortly thereafter followed the other man into the alley, towards Robinson. A short while later, Lewis heard two gunshots coming from the alley and saw Robinson and defendant leaving the alley, after which Lewis left the area.
After the State rested, the defense presented the testimony of James Stilwell. Stilwell testified that he had been drinking with Robinson and Lewis at the home of a Raphael Martinez earlier in the day of the shooting. He testified that he was in the alley at the time of the shooting and saw Robinson and Rodriguez in the alley, but not defendant. Afterwards, Robinson and Rodriguez returned to Martinez's house, where Robinson claimed he had shot someone. Stilwell was impeached with a signed statement he had given to an assistant State's Attorney and with his testimony before the grand jury. In both his statement and his grand jury testimony Stilwell claimed that it was Robinson and defendant who had returned to Martinez's house claiming that they had shot someone. Defendant's mother also testified that she was in the area at the time of the shooting and that defendant was not in the alley when the shooting occurred.
The jury found defendant guilty of first degree murder and of two counts of attempted armed robbery on August 24, 1995. Defendant filed a post-trial motion on September 26, and filed an amended motion on September 28. The court reversed defendant's conviction for attempted armed robbery of Beltran "based on the sufficiency of the evidence," but otherwise denied defendant's post-trial motion.
Defendant appealed his convictions, and the appellate court reversed and remanded for a new trial, holding that the trial court had abused its discretion in failing to grant the State's motion for a mistrial. 297 Ill. App. 3d at 867.