Appeal from the Circuit Court of Cook County No. 88 CR 15409 Honorable John E. Morrissey, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
This case comes to us after a second jury trial in which defendant Marvin Reeves was convicted of five counts of first degree murder and five counts of aggravated arson. He was sentenced to natural life without parole. Defendant's first trial resulted in a guilty verdict, but on appeal we reversed his convictions and remanded for a new trial. We held then that defendant's right to confront and cross-examine witnesses against him was violated by the admission, through the testimony of Willie Williams, of co-defendant Ronald Kitchen's statement incriminating defendant. People v. Reeves, 271 Ill. App. 3d 213, 218-22 (1995) (Reeves I).
The victims, Debbie Sepulveda, Rosemary Rodriguez and three children, were found on July 27, 1988, in Debbie's burning house at 6028 South Campbell Avenue. Autopsies established that Rosemary had been strangled, and Debbie and the children had been suffocated before the fire was ignited.
Victor Guajardo, Jr., the victims' next-door neighbor and 12 years old at the time of the murders, testified that he saw a yellow two-door car parked in front of his house about 5 or 6 p.m. on July 26, 1988. The car was gone at 7 p.m. He later identified a photograph of defendant's car as the one parked in front of his house.
Detective Craig Cegielski found a shoe box with hundreds of small manila envelopes, commonly used to package narcotics, on the workbench in the basement of Debbie's house after the fire. Detective Cegielski testified that he did not recover narcotics from the scene, but other officers found narcotics residue.
Two dogs trained to respond to the odor of narcotics "alerted" to the presence of narcotics in the rear bedroom and the workbench in the basement.
Detective Daniel McInerney, a bomb and arson expert, testified the fire had been intentionally hand-ignited in each bedroom and at the top of the basement stairs. Though there was no evidence of an accelerant, he testified it was possible that an accelerant had been used but had burned or washed away.
Police officers found a lighter fluid container and a gas can in the trunk of defendant's car in August 1988.
Willie Williams testified he had known defendant for about 10 years before the murders. From 1986 to 1988, defendant and Kitchen paid Williams to drive them around the city to drop off cocaine and pick up money. During that time, Williams met Debbie and Rosemary, whom he knew as "Mary," when defendant and Kitchen delivered cocaine to them, often at Debbie's house on South Campbell. Williams also met Diane Rivera, who received cocaine from defendant and Kitchen. In November or December 1987, Williams drove defendant and Kitchen to Debbie's house, where defendant gave her cocaine and told her that she owed him money for the cocaine. In May 1988, defendant told Debbie that he "would do something if they didn't pick up their payments."
Williams pleaded guilty to a burglary charge in 1988 and was sentenced to a three-year prison term. He spoke to both defendant and Kitchen on the telephone while he was incarcerated.
The prosecutor asked Williams about a telephone conversation he had with defendant on August 6, 1988. The prosecutor asked, "Did you have occasion to ask [defendant] a question at that time without telling us what that question was?" Williams responded that defendant told him that he did not know "why Ronnie would be saying that on the phone because he get caught he would kill Ronnie too." Defendant then said, "That's how Jeff Fort got caught, by talking on the phone." He also said that "if Diane didn't pick up her payments the same that happened to Debbie and Mary was going to happen to her." Finally, defendant said, "Ain't no stoppin' us now."
Defendant's first issue on appeal is that his sixth amendment right to confront witnesses was violated by the admission of Williams' testimony and the State's argument, which raised the inadmissible inference that Kitchen implicated defendant. Use of a non-testifying co-defendant's inculpatory statement violates a defendant's right to confront and cross-examine witnesses against him. Bruton v. United States, 391 U.S. 123, 127, 20 L. Ed. 2d 476, 480, 88 S. Ct. 1620, 1623 (1968).
"[T]estimony that does not reveal the substance of a non-testifying co-defendant's statement may be presented to show the steps taken in the investigation or for other reasons, even though the jury could infer from the testimony that a non-testifying third party implicated the defendant, and that such testimony may be argued to the jury in closing argument." People v. Bounds, 171 Ill. 2d 1, 55 (1995).
In People v. Fauntleroy, 224 Ill. App. 3d 140 (1991), the non-testifying co-defendant made a statement. The defendant denied involvement in the offense, so the police confronted him with the co-defendant's statement. The defendant did not believe the statement was real, so police brought in the co-defendant, who said, "'Yes it is, yes,'" and, "'Tell the truth, I did.'" 224 Ill. App. 3d at 145. The court held that no Bruton violation occurred because no part of the co-defendant's statement was revealed. 224 Ill. App. 3d at 144-48.
In this case, Williams' testimony did not include the substance of Kitchen's statement. Williams did not testify that his conversation with Kitchen prompted him to confront defendant. Williams testified that he was in the habit of telephoning both Kitchen and defendant. Then he testified to defendant's statements during one conversation, in which defendant said that he "don't know why Ronnie would be saying that on the phone, because he get caught he would kill Ronnie too."
Defendant argues that the only inference from this testimony is that Williams spoke to Kitchen, who implicated defendant in the murders. Defendant claims that "the violation occurs not only where the substance of the statement is explicit, but also where the context makes it impossible for the jury to conclude that the co-defendant's implicit statement was anything other than a statement that defendant committed the crime." Defendant cites People v. Cruz, 121 Ill. 2d 321, 331 (1988), in support of this proposition. But the facts in Cruz do not apply here. In Cruz, the supreme court held that the trial court improperly admitted the co-defendant's statement that he had committed the crime with "friends." The court found that the jury could only have concluded that the "friends" included defendant. There, the co-defendant's actual statement, though redacted, was admitted. Cruz, 121 Ill. 2d at 331.
A careful reading of the record in Reeves I and the case before us is more to the point. In Reeves I, 271 Ill. App. 3d at 220-21, Williams testified that he spoke to Kitchen and the next day called Detective John Smith to tell him that a couple of his friends had killed the victims. Then Williams called defendant and told him that Kitchen had reported what Kitchen and defendant had done. Though Williams did not testify directly to the substance of his conversation with Kitchen, the prosecutor told the jury during opening statement: "'And Williams [sic] tell you that when he called the defendant up, he said hey, I talked to Ronnie a couple of days ago, he told me you and him killed Debbie and Mary and the kids because they were behind in their payments.'" Reeves I, 271 Ill. App. 3d at 220. The prosecutor referred to the conversation several more times during closing argument. We found a Bruton violation in Reeves I because the substance of Kitchen's statement was repeatedly brought to the jury's attention and no limiting instruction was given. Reeves I, 271 Ill. App. 3d at 220-21. We said in Reeves I: "Taking into consideration the entire record, in the instant case, we have no doubt that the combined effect of Williams' testimony and the prosecutor's arguments conveyed to the jury the substance of Kitchen's out-of-court statements which clearly implicated defendant in the murders." (Emphasis added.) Reeves I, 271 Ill. App. 3d at 222.
Here, there was no such "combined effect." Unlike Reeves I, Williams did not testify that he spoke to Detective Smith or that he told defendant what Kitchen had said. More importantly, the prosecutor did not argue in opening statements or closing argument that Williams' testimony would make clear that Kitchen had implicated defendant. The only reference to Kitchen in connection with Williams' conversation with defendant came from defendant himself. Defendant has not claimed error in the admission of his own words through the mouth of Williams. "The Illinois Supreme Court has defined an 'admission' as 'a statement or conduct from which guilt may be inferred, when taken in connection with other facts, but from which guilt does not necessarily follow.' [Citation.] Such admissions are not objectionable under the rule against hearsay." People v. Ervin, 297 Ill. App. 3d 586, 590 (1998).
Because Williams did not testify to the content of his conversation with Kitchen, the State did not improperly refer to the conversation in argument, and the only reference to such statements came from defendant himself, we find no Bruton violation.
Defendant next argues that the trial court erred in giving an accountability instruction where the evidence did not show that another person was involved or that defendant was accountable for another's actions.
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 its commission, he solicits, aids, abets, agrees or attempts to aid the other in the planning or commission of the offense. 720 ILCS 5/5-2(c) (West 1998). We will not disturb the trial court's decision to give a jury instruction on accountability absent a clear abuse of discretion. People v. Jones, 175 Ill. 2d 126, 131 (1997). "Very slight evidence upon a given theory of a case will justify the giving of an instruction." Jones, 175 Ill. 2d at 132. "Evidence, however slight, on accountability along with evidence of action as a principal offender is sufficient to support both instructions regardless of whether both theories were advanced in the State's case in chief." People v. Batchelor, 202 Ill. App. 3d 316, 331 (1990). Though a ...