Appeal from the Circuit Court of Cook County. No. 95 CR 17061 Honorable Stanley Sacks Judge Presiding.
The opinion of the court was delivered by: Justice Hall
Defendant, Michael Thompson, was charged with two counts of first degree murder. Jamal Harmon, Eugene Wiseman, and Craig Newton were also charged by the same indictment with first degree murder but were not tried with defendant. Following a jury trial, defendant was found guilty of first degree murder under an accountability and transferred intent theory. Defendant filed a timely motion for a new trial on July 24, 1997, and an amended motion for a new trial on July 25, 1997. Both were denied. On September 18, 1997, defendant was sentenced to serve a 75 - year prison term. Defendant filed a motion to reconsider sentence. On October 23, 1997, defendant was resentenced to 60 years. Defendant filed a timely notice of appeal on November 11, 1997.
On appeal defendant contends: (1) that the State failed to prove him guilty beyond a reasonable doubt of first degree murder; (2) that several remarks made by the prosecutor during closing arguments prevented him from receiving a fair trial; (3) that the circuit court erred in admitting improper and prejudicial evidence; and (4) that the circuit court erred by refusing to give the cautionary accomplice jury instruction. For the following reasons, we reverse and remand this cause for a new trial. The following facts are relevant to our determination in this appeal.
On June 19, 1995, A.Z., an innocent female bystander, was shot and killed in Marquette Park during a gang fight. The incident involved two rival street gangs, the Black Disciples and the "Krazy Get Down Boys" (KGB's). In the summer of 1995, defendant was a member of the Black Disciples holding the rank of co-minister. Harmon, Wiseman and Newton were also Black Disciples. In the summer of 1995, Eddie Frazier, Jr., Derrick Johnson and April Alston were also Black Disciples.
Blanca Morales testified that on the evening of June 19, 1995, she, the victim, and a friend named Matilda drove into Marquette Park and parked next to a bridge by a pond inside the park. The three exited the car and stood looking at the water. Morales saw a group of Hispanics standing on a nearby bridge. Suddenly, numerous gunshots came from behind where the females were standing. The females ducked behind the car. After the gunshots ceased, Morales discovered the victim lying on the ground with blood coming from her arm. Morales, with the help of Matilda and the people from the bridge, put the victim in her car and drove her across a field to Holy Cross Hospital. The victim was pronounced dead at Holy Cross Hospital.
Both Frazier and Johnson testified that on June 18, 1995, they were in Marquette Park with two females when they were approached by a group of KGBs. One of the KGBs hit Frazier in the head with a gun. As Frazier and Johnson started running, the KGBs began shooting at them. Johnson testified that he told Harmon about the incident that night.
Alston admitted that, at the time of the trial, she was in custody in Cook County jail facing a charge for heinous battery. This charge was not connected to the present case. Alston testified that she expected no leniency in exchange for her cooperation with the State in this case.
On June 19, 1995, at 8 p.m., Alston was on the defendant's front porch with defendant and some other Black Disciples. Alston testified that she saw defendant, Harmon, and Newton go upstairs into the defendant's house. After a short time she saw Harmon leave the house carrying a black gym bag that he placed in the trunk of Newton's car. She could not see what was inside the black gym bag. She testified that defendant told her to get into Newton's car. She did. Defendant drove Harmon, Wiseman, and a Black Disciple named Rickey to the edge of Marquette Park in Harmon's car. Newton and Alston followed in Newton's car. Once at the park, Alston testified that she got out of Newton's car and got into Harmon's car. She saw Harmon, Wiseman, and Rickey get out of Harmon's car and open the trunk of Newton's car. Alston and defendant then drove away from Marquette Park and returned to defendant's front porch. On the way back to defendant's house, defendant told her that there was going to be a retaliation in the park.
Alston testified that Newton, Wiseman, Rickey, and Harmon returned to defendant's house about 10 to 15 minutes later. She saw Harmon take the black gym bag out of Newton's trunk and bring it into defendant's house.
In May 1996, after being contacted by defendant and his wife, Alston gave defense counsel a court-reported recantation of her prior statements. Alston's trial testimony was consistent with both her police statement and her grand jury testimony except that in those pretrial statements she denied membership in the Black Disciples.
Frazier testified that he retired from the Black Disciples on June 20, 1995. During this trial, Frazier was in custody on an outstanding McLean County warrant from breaking a person's jaw. Frazier testified that he expected no consideration from the State on his pending case in exchange for his cooperation in this case.
Frazier testified that on June 19, 1995, he was on defendant's porch for about six minutes before he left and went home. Frazier heard defendant talking to Wiseman about a hit in the park that night. When Frazier later returned to defendant's house, Wiseman showed Frazier a .38-caliber gun and stated that they had taken care of business for him. Frazier identified People's exhibit no.13 as a gun he had seen in defendant's house about a year before.
In the fall of 1995, after being contacted several times by defendant and his wife, Frazier gave a court-reported recantation of his earlier statements. His trial testimony, however, was consistent with his earlier statements to police and his grand jury testimony.
Johnson testified that on June 19, 1995, at 9 p.m., he was on the defendant's front porch. He heard defendant tell Harmon and Wiseman to park at 70th and California and walk through Marquette Park because the KGBs should be there. He then told them to "spray the mother f- -kers," which Johnson interpreted as a command to shoot KGBs. He saw defendant, Harmon, and Newton go upstairs in defendant's house. When they came out, about five minutes later, Harmon was carrying an Uzi machine gun pistol while defendant carried a black gym bag. He said that he and Frazier had seen the same Uzi machine gun and black gym bag one year earlier on defendant's bed. Johnson identified People's exhibit no. 13 as the gun that he saw Harmon carry out of defendant's house. After Harmon, Wiseman, Newton and Rickey returned to defendant's porch, defendant told Johnson "we got the mother f- - kers. Tell Eddie that it was taken care of."
After being contacted several times by defendant and his wife, Johnson gave a court-reported recantation of his prior statements. However, his trial testimony was entirely consistent with his earlier ...