Appeal from the Circuit Court of Kane County. No. 94--CF--2009 Honorable Donald C. Hudson, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
A jury in the circuit court of Kane County convicted defendant, Bonzell Lamar Joyner, of the murder of Armando Mendez. The trial court sentenced defendant to natural life imprisonment. Defendant appeals, raising the following contentions: (1) that the State failed to prove him guilty beyond a reasonable doubt; (2) that prosecutorial misconduct deprived him of a fair trial; (3) that he was deprived of the assistance of counsel at proceedings on posttrial motions; and (4) that the trial court erred in sentencing him to natural life imprisonment. We affirm the conviction but modify the sentence.
Defendant was charged with first-degree murder (720 ILCS 5/9--1(a) (West 1994)) for the October 27, 1994, shooting death of Armando Mendez. The State sought the death penalty. Prior to trial, defendant waived his right to a sentencing hearing before a jury. A jury trial was held in April 1997.
The record indicates that shortly after 10:50 p.m. on October 27, 1994, Aurora police responded to a shooting at Harper's gas station located at 1116 East New York Street, Aurora. Harper's consists of a lighted canopy over several gas pumps and a small building with a window through which business is conducted. Officers found the victim lying in front of the building with a large pool of blood around his head. The victim's 1979 Cadillac was located one-half block east of Harper's on East New York Street. The vehicle's hazard lights were on, and a gas can was sticking out of the gas fill located under the rear license plate.
Israel Ramos testified that on the night in question he was driving on East New York Street with his friend Jaime Juarez when he saw a vehicle stalled and a group of men fighting. Israel pulled into Harper's and saw a few black men beating a Hispanic man. The black men hit the Hispanic man across the back with a garbage can. During the beating, the Hispanic man tried to cover himself and get to the gas station attendant's window.
Israel further testified that a blue Chevrolet automobile pulled up. A person wearing a black "hoodie" and some sort of sports jacket walked in front of Israel's car holding his hand at his waist. The hood was tied tightly around the man's head so that his face could not be seen. The hooded man then walked up behind the victim, pointed a gun at the back of his head, and fired once. The shooter walked back toward the blue Chevrolet, and the man who was driving the blue Chevrolet told the shooter not to get in the vehicle. The shooter attempted to lift the door handles on the passenger side, but the doors were locked. The blue Chevrolet left the scene, and the shooter ran away.
Jaime Juarez testified that he was a passenger in Israel Ramos's car on the night in question. Jaime saw a Hispanic male at Harper's who was running from four or five black males. The Hispanic man was trying to get into the building. The black males were taking turns punching and kicking the Hispanic man and bouncing a garbage can off his body. As Israel pulled into Harper's, other vehicles pulled up, including a blue Chevrolet. One of the black males who was in the group beating the Hispanic man walked toward the blue Chevrolet, reached into the front passenger window, and then walked back toward the victim. The black male walked up to the Hispanic man, put a gun to his head, and fired. The shooter then walked back to the blue Chevrolet and lifted up on the door handles, but could not get into the vehicle. The blue Chevrolet pulled out of Harper's and the shooter ran.
Jaime said that the shooter was very thin and not tall. The shooter was wearing black pants and a pullover black and blue "hoodie" with a Georgetown bulldog emblem. Jaime also remembered someone wearing a red and black flannel shirt among those beating the victim.
Tracy Parish testified that she was working at Harper's on the night in question. That night, a man came to the window and asked to borrow a gas can. Tracy told him that she could only sell him a gas can but that he should try the gas station west of Harper's. Tracy watched the man walk to the west, then shortly thereafter back to the east toward his disabled vehicle. Next, she saw three or four black men punching and throwing stones at the man near his disabled vehicle. The man would fall down, get back up, and they would knock him down again as he made his way toward Harper's. As the man got closer to the building, the black men picked up a garbage can and hit him over the head. One of the black men held the man up against the window of the building and pulled out a small shiny gun. Tracy dropped to her knees and heard a gunshot. Tracy described the shooter as a black male with high cheek bones, a wide forehead, and wearing a hood. Tracy did not identify defendant in court. However, the morning after the shooting, a police investigator showed her a photo lineup consisting of six photographs, including defendant. Tracy pointed to the picture of defendant and said that she was 70% sure he was the shooter because of his high cheek bones and wide forehead.
On cross-examination, Tracy said that she did not think the shooter was among the group of people who were beating the victim. Tracy specified that the shooter held the victim against the window, held the gun in his right hand, and placed the gun against the victim's temple. Tracy believed the shooter had a flannel shirt on over a hooded sweatshirt. She did not see any sports logos on the shooter's clothing.
The State called Keith Smith, a truck driver who lived in the neighborhood at the time of the shooting. Keith testified that as he drove home from work on the night in question he saw a car blocking the right lane of East New York Street and five black men beating a Hispanic man. The Hispanic man ran toward Harper's and a couple of the black men chased him. The Hispanic man appeared to knock on the booth in an attempt to get some assistance.
Keith pulled into Harper's with his headlights shining on the beating. The black men picked up a garbage can and used it to beat the Hispanic man over the back. When the victim was lying on the ground, the black men kicked him several times.
Keith saw one of the shorter black individuals walk away from the beating out of his line of sight. A few moments later, the man returned and raised his right arm to the victim's head. Keith heard a loud noise, and the victim collapsed. The shooter looked at the victim and then turned and looked around.
At this point in Keith's testimony the following exchange took place:
"Q. And when he looked around, did you have occasion then to see him?
Q. Can you describe what you saw for us?
A. Um, it was just a look on his face, um, maybe pride, satisfaction, whatever.
[Defense Attorney]: Objection, Your Honor, move to strike.
THE COURT: Sustained. You're instructed to disregard. Proceed."
Keith saw the shooter from about 12 to 15 feet away. Keith made an in- court identification of defendant as the shooter.
Keith further testified that the shooter went to a blue Chevrolet and attempted to open the front passenger door, but the occupants would not let him into the vehicle. The blue Chevrolet drove away, and the shooter ran.
Keith testified that he had seen the individuals involved in the incident, including defendant, around the neighborhood almost on a daily basis. In 1994, it was not unusual to come home and find defendant siting on his front step. Keith explained that the individuals involved in the beating were all wearing dark-colored clothing and that one of the individuals wore a plaid jacket. Keith identified the individual with the plaid jacket as Priest Pryor.
On cross-examination, Keith stated that he was never asked to identify the shooter or anyone else involved in the incident prior to trial. On the night of the shooting, Keith told the police that he could identify the individuals involved if he saw them again and that he recognized the shooter, but he did not indicate that the shooter had sat on his front step in the past.
Next, the State called Darryl Bailey, a member of the Gangster Disciple street gang, who was also charged with first-degree murder for his role in the Armando Mendez homicide. Darryl explained that he had entered into an agreement with the State to testify at the trial of defendant and other defendants involved in the crime. In exchange for his cooperation, Darryl would plead guilty to several unrelated charges and would be sentenced to 12 months in prison in one case and to 48 months' probation in another. The first-degree murder charge would be dismissed. Although not testified to at trial, the agreement indicates that the State would dismiss the first-degree murder charge upon Darryl's completion of the agreement because Darryl had been shot twice since he agreed to testify.
Darryl stated that he knew defendant to be a member or associate of the Gangster Disciples. Darryl identified defendant in court. Darryl testified that defendant carried the rank of "enforcer" in the gang. The enforcer is responsible for administering punishments in the form of physical beatings to gang members who violated gang rules. Darryl's testimony concerning defendant's rank of enforcer was stricken, and the jury was instructed to disregard it because Darryl's knowledge of this fact was based upon hearsay.
Darryl testified further that, on the evening in question, he was talking with a Gangster Disciple named Eric Mott when they noticed a Cadillac with tinted windows pull up on East New York Street. Darryl and Eric ran away because they thought someone was going to shoot. Next, Gangster Disciples Jason Foster, Patrick Kirkwood, and Gabe Robinson pulled up in Foster's car. Eric told them that there was a "King," meaning a member of the Latin Kings street gang, up on the corner. Darryl, Patrick Kirkwood, Eric Mott, Gabe Robinson, and Kevin Scott ran to the Cadillac, and Jason Foster drove away. When the Hispanic man came back to the car, Patrick Kirkwood asked him if he was a King and to "throw down the crown," meaning to invert the Latin King gang sign in disrespect, if he was not a King. The Hispanic man failed to make the gang sign so Patrick Kirkwood hit him in the face. The Hispanic man ran toward Harper's, and the Gangster Disciples chased him. Priest Pryor, another Gangster Disciple, pulled up in his blue Chevrolet, got out of the car, ran up, and hit the Hispanic man. The Gangster Disciples hit and kicked the Hispanic man and threw a garbage ...