The opinion of the court was delivered by: Justice O'mara Frossard
Appeal from the Circuit Court of Cook County Honorable Thomas A. Hett, Judge Presiding.
Defendant, Charles Mullen, and co-defendant, Louis Townsend, were charged with first degree murder, aggravated vehicular hijacking, vehicular invasion and armed violence. After a bench trial, both defendants were found guilty of first degree murder and not guilty of all other charges. Herein we address only the appeal of Mullen. Mullen was sentenced to 25 years in the Illinois Department of Corrections. Mullen argues on appeal that the evidence was insufficient to prove him guilty beyond a reasonable doubt, that the trial court improperly admitted evidence of prior consistent statements, and that the trial court improperly excluded testimony of a defense witness. For the following reasons, we affirm.
Venus Norfleet testified that on July 16, 1996 she saw a group of 10 to 15 men, including defendant, running after a pickup truck traveling east on Ohio Street. She went back into her apartment building, looked out the window and saw that the truck had collided with her car. She then saw the men drag the victim, Hugo Cariaga, out of the truck. She saw a man in the crowd pull a tool from the victim's tool belt and begin hitting the victim on the head while the others kicked and hit him. As she watched the beating, she noticed her neighbor Ernell Freeman also watching from in front of his home. She dialed 911, reporting the beating. She saw defendant standing over the victim while co-defendant Townsend kicked the victim and another man hit the victim with a baseball bat. As the victim was beaten, one of the men in the crowd got into the victim's truck and drove away. Defendant and Townsend, together with the rest of the group, walked away. Norfleet denied that she told her neighbor, Rosalind Russell, that she did not recognize any of the offenders.
Jose Meraz, the victim's co-worker, testified that he had been driving in front of Cariaga when he saw Cariaga pulled from the truck and beaten. Meraz left to get help, and upon returning, the victim was lying face down on the ground. Paramedics and the police arrived on the scene. Meraz was unable to identify any of the offenders.
Ernell Freeman testified he was in front of his home on Ohio Street when he saw a group, including defendant, running down the street chasing a pickup truck. The truck passed Freeman and hit a parked car. Freeman saw Sam Quinn pounding on the back window and recognized Quinn, the defendant and the others from the neighborhood. They were members of the Gangster Disciples. Freeman stood 10 to 20 feet away and saw the group pull Cariaga out of the truck and begin to hit, kick and beat him. Freeman testified the beating went on for three to four minutes and he watched Mullen, co-defendant Townsend and others kick Cariaga "a bunch" of times. The group of young men walked away together leaving Cariaga lying on the ground, and a black male drove away in Cariaga's truck. Freeman testified that on May 19, 1997, in the presence of defendant's cousin, Geraldine Mullen, defendant's attorney took a statement from him. Freeman, who could not read or write, signed the statement denying that either defendant or co-defendant beat the victim. Freeman also testified the signed statement was not true, he did not know why he signed it and he was afraid of Mullen, Mullen's family and Mullen's gang affiliation.
Freeman also admitted that he drank a "few" 40-ounce bottles of beer before he witnessed the victim being beaten. He further stated that when defense counsel read the recantation statement to him out loud he agreed with the statement. On redirect, Freeman acknowledged that he saw co-defendant Townsend and defendant chasing the victim's truck. He also acknowledged that when he testified before the grand jury, he stated that both defendant and co-defendant Townsend kicked the victim.
Detective Whalen, within hours of the beating, spoke to Venus Norfleet. She named one of the offenders and told Detective Whalen that Freeman was a witness. Detective Whalen spoke to Freeman a few hours after the beating on July 17, 1996. Freeman recognized co-defendant Townsend's picture among the photos he was shown. He also named defendant as one of the offenders. The next day, July 18, 1996, both Freeman and Norfleet went to the police station and identified defendant. On July 19, 1996, Freeman and Norfleet returned to the police station and identified co-defendant Townsend in a lineup. According to the medical examiner, the victim died as a result of injuries consistent with being struck multiple times with a blunt object and consistent with being kicked multiple times.
Defendant's grandmother, Odeal Mullen, testified that defendant was on her front porch at 637 North Christiana with his girlfriend when the beating occurred and that a short time later Sam Quinn, Mrs. Mullen's other grandson, ran into the house with blood on his hands and told her that he had beaten up a man on Spaulding. Anna Mae Mayes, Mrs. Mullen's neighbor, also testified that defendant was sitting on the front porch with his girlfriend; however, she could not recall what day or week it had been when she saw defendant. Miriam Towns, defendant's girlfriend, testified that she saw a group of boys, including Sam Quinn, standing on the street corner as she walked to defendant's house. She stayed on the front porch with defendant and after about 15 minutes she saw the group of boys running down the street but she did not see a pickup truck.
Latasha Morgan, who has known both defendant and co-defendant Mullen for her entire life, testified that she saw the events of July 16, 1996, from her front window, which looks out onto Spaulding Avenue. She stated that she saw about 15 people outside, although she could not see what they were doing because they were over a block away. She also conceded that the distance prevented her from recognizing any of the offenders, although she asserted that she saw neither defendant nor Mullen at the scene.
Leroy Johnson testified that he had known Mullen and Townsend for at least 15 years. On July 16, 1996, a truck came "blazing" down Ohio Street. He saw a group of approximately 15 or 20 men "snatch this guy" out of the truck and start "jumping on him." He stated Townsend and Mullen were not with this group. Johnson admitted that he did not actually witness the pickup truck colliding with the parked cars on Spaulding Avenue and that although he knew the police had arrested Townsend and Mullen, he never came forward to tell the police that they were not involved.
Danette McKinley testified that defendant and Townsend are her friends. She observed the beating from Ohio between Christiana and Spaulding. At first she saw a crowd of people running down Ohio toward Spaulding. She started running along with the crowd but stopped between Christiana Street and Spaulding Avenue and saw a white man on the ground being beaten by a large group of young black men. She did not see either Townsend or Mullen at the scene of the beating. On cross- examination, she stated she did not see a crowd of people chasing the truck down Ohio Street. She also could not recall how many cars were on the street that night or the color of any of the cars. She also did not remember whether she saw some of the other witnesses who testified for defendant at the scene.
Rosalind Russell testified that she learned about the incident a couple of days later from Venus Norfleet. Russell is a close friend of Mullen's family and has known Mullen for six or eight years. She stated that Norfleet told her that she did not know why the police were harassing her and that she did not see anything. Russell, however, did not contact the police with this information. The State called Joseph Mackey, an investigator, in rebuttal, who testified that he spoke to Russell on September 15, 1997. Mackey testified that Russell told him that Norfleet had told her that she witnessed the beating.
Defendant contends that he was not proven guilty beyond a reasonable doubt. The issue of whether a defendant has been proven guilty beyond a reasonable doubt is resolved by viewing the evidence in the light most favorable to the prosecution. People v. Hobley, 159 Ill. 2d 272, 313 (1994). In reviewing the sufficiency of evidence, the court determines if any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Batchelor, 171 Ill. 2d 367, 376 (1996). The trier of fact is responsible for determining the credibility of the witnesses, the weight to be given their testimony, and reasonable inferences to be drawn from the evidence presented. People v. Bofman, 283 Ill. App. 3d 546, 553 (1996). Further, the identification of a single witness is sufficient to sustain a conviction if the witness viewed the accused under circumstances that allowed a positive identification. People v. Green, 298 Ill. App. 3d 1054, 1064 (1998).
A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the credibility of witnesses and the weight of the evidence. People v. Herrera, 257 Ill. App. 3d 602 (1994). However, a reviewing court will reverse a conviction if the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt of defendant's guilt. People v. Smith, 185 Ill. 2d 532 (1999). In a bench trial it is for the trial judge to determine the credibility of witnesses, to weigh evidence and draw reasonable inferences therefrom and to resolve any conflicts in the evidence. People v. Slim, 127 Ill. 2d 302, 307 (1989). Therefore, as a reviewing court, it is our duty to carefully examine the evidence while giving due consideration to the fact that the trial court saw and heard the witnesses. Smith, 185 Ill. 2d at 541.
Defendant argues that Norfleet's testimony is insufficient to prove defendant guilty of first degree murder under a theory of accountability because her testimony only indicated defendant was merely present during the beating. Defendant further argues that Freeman's testimony was so contradictory that no reasonable trier of fact could convict on that testimony. We first address whether the evidence was sufficient to prove defendant guilty under a theory of accountability.
A. Sufficiency of Evidence Under Accountability Theory
In Illinois, a person is legally accountable for the conduct of another if "[e]ither before or during the commission of an offense and with the intent to promote or facilitate such commission, he 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 may be accountable for acts performed by another if the defendant shared the criminal intent of the principal or if there was a common criminal design, plan or purpose. People v. Taylor, 164 Ill. 2d 131 (1995). A common design can be inferred from the circumstances surrounding the commission of the crime, including presence during the perpetration of the crime, maintaining a close affiliation with the co- perpetrators after the commission of the crime, and failure to report the crime. Taylor, 164 Ill. 2d at 141. While mere presence at the scene of a crime is not enough to render one accountable for a crime, there is no requirement that a defendant actively participate in order to be found guilty under a theory of accountability. Taylor, 164 Ill. 2d at 140.
In People v. Perez, 189 Ill. 2d 254 (2000), the Illinois Supreme Court reversed the defendant's conviction for first degree murder based on an accountability theory where the defendant was merely present at the time of a gang-related shooting and fled the scene of the crime. In Perez, the defendant drove by a group of people and was hailed by a member of the Maniac Latin (Disciples) Gang, Anthony Rivera. As the defendant approached the group of people, Rivera asked him whether one of the men standing in the group was a member of the rival Latin Kings gang. Defendant pointed his finger at the victim. Rivera then fired five or six gunshots at the victim. The Court held that while defendant was present at the scene of the crime, knew of its commission and fled the scene, the evidence was not sufficient to prove that he intentionally aided in or encouraged the crime's commission. Perez, 189 Ill. 2d at 268. The evidence at trial which indicated defendant sometimes associated with members of the Disciples, did not know of the ongoing altercations between the victim and Rivera and did not know that anyone at the scene was armed was insufficient to prove defendant guilty of murder based on an accountability theory. Perez, 189 Ill. 2d at 268- 69.
This rationale, however, cannot be applied to the present case. In Perez, the defendant walked into a situation where he did not see any signs of impending violence and he did not know Rivera, the shooter. Here, there was evidence that defendant shared the criminal intent of the group who killed the victim. Norfleet testified that defendant was with a group of 10 to 15 men running after the victim's truck. She saw one of the men pull the victim out of the truck. Norfleet testified that she watched as the group of men beat the victim. She saw co-defendant Townsend kicking the victim while Mullen stood over the victim as another man beat the victim with a baseball bat. She later saw the group of people, including Mullen, walk away from the victim.
Presence during the crime without dissociating oneself from the crime, continued association with the perpetrator after the criminal act, and flight from the crime scene all serve as factors in determining a defendant's accountability. People v. Harris, 294 Ill. App. 3d 561 (1998). Here, defendant chased the victim, stayed during the beating, and stood over the victim as co-defendant Townsend kicked the victim while another man hit the victim with a bat. Defendant did not offer to help, he did not discourage or disapprove of the crime, he came and left with the group that actively participated in the beating and he did not report the crime. Thus, although Norfleet did not see Mullen hitting or kicking the victim, a rational trier of fact could find that defendant was accountable because he was not merely present during the beating. Defendant was part of the group who chased the victim, pulled the victim out of his truck and beat the victim. Unlike Perez, in this case, defendant was a part of the ...