Appeal from the Circuit Court of Cook County
Honorable Daniel J. Presiding.
JUSTICE CERDA delivered the opinion of the court: One of the main issues in this case is whether the comments made during the State's opening and closing arguments deprived defendant, Derrick Terry, of a fair trial.
Defendant appeals after a jury trial from his convictions for first-degree murder and aggravated battery. He argues in part that his right to a speedy trial was violated, that his guilt was not proven beyond a reasonable doubt, and that his trial was unfair due to inadmissible evidence and/or improper remarks of the State concerning (a) defendant being a member of a gang that dealt drugs, (b) the prior consistent statements of the sole-testifying eyewitness identifying defendant at the trials of the two co-defendants, and (c) defendant's threats against the eyewitness and another State witness. We agree that defendant's trial was unfair, and we reverse defendant's convictions and remand for a new trial.
On October 26, 1995, the murder victim and Bennie Hogue were painting a house on the 1800 block of South Kedzie in Chicago. Shots were fired by three people at a passing car. The victim was hit and killed. Bennie Hogue was wounded.
Defendant was arrested and, on the 116th day of the statutory speedy-trial term, the State moved for an extension of the term so that the State could continue to search for Lonnie Walker, one of the passengers in the car who were the targets of the shooting. The State claimed that Walker was an essential witness.
Thomas Quinn, a State's Attorney investigator, testified for the State on its motion that he was first asked in early October 1997 to locate Walker to serve him with a subpoena for court dates that month. Walker had been released from jail in September to a rehabilitation program but left without permission on October 5, 1997. Ever since Walker had fled, Quinn and three other investigators had been looking for him at several locations, including the homes of relatives. The State believed that, if a warrant were issued for Walker's violation of parole, it would be extremely helpful to the State in finding him.
Over defendant's objection, the trial court extended the speedy-trial term 30 days until January 20, 1997, and on that day, the trial commenced.
Defendant moved in limine to prohibit reference at trial to drug dealing and gang membership. The motion was denied.
Bennie Hogue testified at trial that he spent the day on October 26, 1995, with Joe Hegwood painting the exterior of a house at 1840 S. Sawyer Street. As he was working, he observed across the street a group of five young men standing in a vacant lot most of the day. At about 5:30 p.m., he heard about 35 gunshots. He was hit by several bullets, but he did not see who was shooting.
A medical examiner testified that Hegwood died from the gunshot wounds that were inflicted during this incident.
Calvin Horton testified at trial, over defendant's objection, that in 1995 he observed drug dealing on a daily basis on the 1800 block of south Sawyer Street. He knew men who frequented that block; they included defendant (nicknamed "D-Man"), Ardell Washington, and Derrick Johnson. He did not testify that these men were drug dealers or gang members.
Calvin further testified that, on October 26, 1995, in the late afternoon, he was near the vacant lot on the 1800 block of South Sawyer Street. He heard Washington tell defendant, Johnson, and some others to watch out for a gray station wagon. John Carter left in a car and, upon his return, gave a gun to defendant and a handgun to Washington. The gray station wagon then drove by and stopped by the vacant lot. Washington announced, "Here comes the gray station wagon." Washington, Johnson, and defendant shot at the car.
Calvin further testified that he ran toward his home at 1855 S. Kedzie Avenue. Washington, who had borrowed Calvin's coat earlier, threw the coat up on Calvin's porch before running off. Calvin's mother called the police who, upon their arrival, searched the home and found the coat that Calvin had loaned to Washington. Calvin was taken in for questioning at the police station, where he remained for two days. He told a detective O'Connor that Washington and D-Man had been shooting and that he was not sure of D-Man's real name.
Calvin further testified that he gave a six-page statement to an assistant State's Attorney while at the station; he was allowed to make changes to the statement, and he signed it. Although he also told the assistant State's Attorney that D-Man was one of the shooters, the assistant State's Attorney wrote down the wrong names of Terry Sykes and Derrick Knight. He later found out that D-Man's real name was Derrick Terry, and they made the correction on his statement.
[Calvin's statement is not in the record, but according to a reading of the statement by a witness at trial, the statement named only Washington and Johnson as the shooters and named Terry Sykes as a person who had been running with a gun which Calvin could not tell if Sykes shot. The statement did not refer to a Derrick Knight. The statement recited that D-Man was only present in the vacant lot prior to the shooting; it did not state that D-Man was one of the shooters.]
Calvin stated that he testified and identified defendant as the shooter at the prior trials of Johnson and Washington, who were the co-defendants for this murder.
Calvin further testified that he did not recall being introduced on July 24, 1996, to public defender Debbie Grohs in the company of a Peter "Sanifelt" [sic]. He also denied telling Grohs that he did not actually see who fired shots.
Detective Terrence O'Connor testified that Calvin told him on the evening of the shooting, in an interview with O'Connor's partner, that he saw Washington, Johnson, and Sykes shooting. Calvin did not at that time tell him that D-Man was shooting, but Calvin referred to defendant as Terry Sykes and stated during the interview with the assistant State's Attorney that he knew D-Man as Terry Sykes.
Officer Kathleen McKenna testified that she spoke to Calvin the night of the shooting and that he stated that the first name of a shooter was Derrick but that he was not sure of the last name although he thought it was Knight. Horton did not give her any other names.
Assistant State's Attorney Tom Kouglas, who took Calvin's statement on October 28, 1995, testified, in contradiction to Calvin's testimony, that Calvin did not state that D-Man was one of the shooters. Calvin did tell him that the real name of D-Man was Derrick Terry.
Peter Sonnefeldt testified that he formerly worked with the Cook County public defender's office as a criminal investigator. On July 24, 1996, he and attorney Debra Grohs were interviewing people concerning the shooting. Grohs interviewed Calvin, who said he heard the shooting but saw nothing.
Chicago police officer Daniel Vargas testified that, prior to October 26, 1995, he was told by witnesses to the shooting that two offenders ran into 1855 S. Kedzie, where Calvin lived. Calvin was shown to one witness, who said that he was not one of the shooters. He also testified, without objection, that the 1800 and 1900 blocks of South Sawyer were known for high-volume narcotics sales.
Defendant attempted to have the testimony of Zeta Horton, the mother of Calvin, barred because the State notified defendant only the day before that she would identify defendant as having had a gun at the scene. At the hearing on defendant's motion, she testified that she did not remember when and to whom she gave the information about her identification of defendant. The first time she told someone it was over the telephone in a call to the State's Attorney's office and it was "a while back." The trial court denied the motion.
Zeta Horton testified at the trial that she looked out her front window when she heard the gunfire. She saw Calvin coming towards the house, and she saw defendant on the other side of him with a gun in his hand. She knew then that defendant's name was Derrick Terry. When the police arrived, she did not tell them that she saw defendant with a gun even though she was aware that someone had been shot. She went to the police station the second day, but she still did not tell anybody at the station that she saw defendant with a gun.
Zeta further testified that she had not wanted to get involved because she was scared. She did not remember the date, but at some time before she testified in co-defendant Washington's trial, she told the assistant State's Attorneys that she saw defendant with a gun. She also testified at one point that she had not directly told the assistant State's Attorneys in person about defendant until the day before defendant's trial. Zeta further testified that she received threats related to this case that were communicated to her through her relatives. There were many threats of hurting them and burning the house if her son testified. On one occasion, someone tried to enter her home through a window. She reported it to the police as well as an incident in which someone was sliding on the roof next door.
The jury found defendant guilty of murder and aggravated battery with a firearm. He was sentenced concurrently to 50 years' imprisonment for the murder and to 20 years' ...