The opinion of the court was delivered by: Justice Gordon.
Appeal from the Circuit Court of Cook County. Honorable Marcus Salone, Judge Presiding.
Appeal from the Circuit Court of Cook County.
Honorable Marcus Salone, Judge Presiding.
SUPPLEMENTAL OPINION ON REHEARING
In these two consolidated cases, co-defendants Melvin Clifton and Vincent Galloway appeal from the contemporaneous respective judgments of the trial court convicting them each of first degree murder, attempted first degree murder and aggravated battery with a firearm. Galloway argues on appeal that portions of the gang-related testimony presented at trial were hearsay; both he and Clifton argue that such testimony was irrelevant and prejudicial, and was offered solely to inflame the jury. Clifton argues that because the name of one of the witnesses providing that testimony was submitted on the eve of trial, the state thereby committed a discovery violation. Clifton also argues that he was not tried within 120 days as required by the speedy trial statute (725 ILCS 5/103-5 (West Supp. 2000)), and therefore his counsel's failure to move for dismissal for lack of a speedy trial denied him effective assistance of counsel. Finally, Clifton argues that there was insufficient evidence to prove him guilty beyond a reasonable doubt either as a principal or on an accountability theory. For the reasons set forth below, we affirm the judgment of the trial court as to each defendant.
Following simultaneous but severed jury trials, Galloway and Clifton were found guilty of the first degree murder of Leon Holton (also known as Milkman) and of attempted first degree murder and aggravated battery with a firearm in the shooting of Eddie Brown. Galloway was sentenced to prison terms of 80 years for first degree murder and 40 years for attempted first degree murder, to be served consecutively. Clifton received sentences of 55 years for first degree murder and 25 years for attempted first degree murder, also to be served consecutively.
Prior to trial, defendants, who were members of the Gangster Disciples street gang, moved in limine to bar the state from introducing evidence of their gang affiliation on the ground that it would be more prejudicial than probative. The state had sought to introduce testimony by Tom Richardson, a Chicago Police Department gang crimes specialist, to help establish what the state asserted was the gang-related motive for the crime. According to the state, because of an alleged leadership vacuum in the Gangster Disciples resulting from the federal indictment of 39 gang members on August 31, 1995, there was jockeying among remaining gang members for leadership positions. As a result, a gang leader named Chuck Dorsey was killed in January 1996, and Holton was suspected of having killed him. The state's theory was that Gangster Disciples leader Larry Hoover was angry that Dorsey had been killed, and Galloway and Clifton, who held subordinate leadership positions in the gang, killed Holton in retaliation.
On February 5, 1998, the court heard argument and granted defendants' motion in limine, stating that there would be no mention of gang affiliation. On February 19, the date that jury selection was scheduled to begin, the state submitted a motion to allow gang-related evidence as motive, including the testimony of gang crimes specialist Richardson and of Philander Jenkins, a cooperating witness in a concurrent federal investigation of the Gangster Disciples. The state also filed a supplemental answer to discovery adding Jenkins' name to its list of potential witnesses. The case was continued on that date and on subsequent dates thereafter, with jury selection ultimately commencing on March 10, 1998. Jenkins testified at a pre-trial hearing on March 3, 1998, and on March 6, the trial court granted the state's motion as to Jenkins, concluding that his testimony was sufficiently relevant to be presented to the jury, and that there was no discovery violation even though Jenkins was not listed as a potential witness until February 19. The court subsequently stated on March 11 that Richardson could testify as to the leadership structure of the Gangster Disciples and as to which of its leaders were in federal custody, but he could not state the reason for the shootings.
The following evidence was adduced at trial. Eddie Brown testified for the state that on March 10, 1996, he and the murder victim, Leon Holton, were driving around in Brown's car when Holton called someone on his cell phone and then said he had to go and meet someone. Brown drove Holton to 78th Street where Holton saw a maroon Oldsmobile with the person he was to meet inside. Brown honked at the car, and the two cars pulled to the side of the road, with Brown's car behind the Oldsmobile. Brown said the two men in the Olds got out of their car and approached his car. He identified (in court) the man who got out on the passenger side as Galloway, who he knew at the time as Legs Diamond, a member of the Gangster Disciples. The man who got out on the driver's side was hopping on a crutch and had a cast on his leg. Brown said that man entered Brown's car and sat behind Brown in the back seat, and Galloway entered and sat in the back seat on the passenger side behind Holton. Galloway told Brown the other man's name was Melvin, and Brown identified him in court as Clifton. Brown said once the two men were in the car, he and Galloway talked about the Chicago Bulls basketball game that day. Holton then asked Clifton what was up, and Clifton said he had paged someone and was waiting for a call back on his cell phone.
Brown testified further that as he was about to turn around and say something, he noticed out of the corner of his right eye what looked like a silver tube extension behind him, and then heard a "poof sound" like a gun with a silencer, and felt a pain in his neck and knew he had been shot. Brown then grabbed the door handle, and as he was trying to get out of the car he felt a sharp pain in his right hip and another in his back on the right side. Brown got out of the car and tried to run but fell because he had been shot in the hip. As he was lying in front of his car, Brown said he saw Galloway get out of the car on the passenger side, walk toward him and stand directly over him, pointing a gun at his head. Galloway then and there shot Brown in the forehead and the upper right chest, and thereupon turned to Clifton, who had exited the car and was standing nearby, and told him he was out of bullets. Galloway and Clifton then ran to the maroon Olds, with Clifton hopping on his crutch, and the car took off.
Brown stated that he next called his sister on his cell phone, and his niece, Asunta Saddler, answered. Brown told her who had shot him and where he was, and subsequently the police and an ambulance arrived. Brown talked to a police officer while he was in the ambulance, and told him who shot him. Brown was then taken to a hospital.
The next afternoon, March 11, 1996, Brown said he talked to two detectives, a male and a female, while he was in the hospital. They showed him four or five photos, from which he identified Galloway. About two weeks later, on April 4, 1996, Brown went to the police station and viewed a series of photos from which he identified Clifton, whom he also identified in court. On May 1, 1996, Brown went back to the police station and viewed a lineup from which he identified Galloway. Three days later he viewed another lineup and identified Clifton.
On cross-examination by Clifton's counsel, Brown conceded that he had not seen Clifton with a gun. Brown also said he learned when he was in the hospital that Holton had been shot but that he did not know which of them was shot first. According to Brown, when he talked to his niece on his cell phone after the shooting he told her that Galloway had shot him, but he conceded that he did not remember "saying another guy." On March 12, 1996, two days after the shooting, Brown spoke in the hospital to an assistant state's attorney (ASA) and a Chicago homicide detective, and gave them an eight-page statement. Brown told them it was Galloway who shot him, but admitted in his testimony that although he told the ASA there was a second person, he did not remember telling them the second person's name was Melvin. The parties stipulated that in Brown's eight-page statement he did not mention the name Mel or Melvin as being the second person who was with Galloway.
On redirect, Brown stated that the first time he met Clifton was on March 10, 1996, and that if he did not mention Clifton's name when he talked to the ASA and the police detective two days later, it was probably because he had forgotten it. Brown also testified that on April 4, 1996, after he identified Clifton's photo in a photo array, he asked the police detective what the person's name was and the detective told him. Brown then told the detective that he remembered that the person who was with Galloway was named Melvin. In addition, Brown said he told a grand jury on April 12, 1996, that when he talked to his niece on the night of the shooting, he told her that "Legs Diamond and Melvin" shot him.
Brown's niece, Asunta Saddler, testified for the state that Brown called her at about 8:45 p.m. on March 10, 1996, saying he had been shot and needed help. She asked him who had done it, and he told her "Melvin and Legs Diamond." On cross-examination by Clifton's counsel, Saddler said that is what she told the police when she subsequently spoke to them on the telephone: that "Legs Diamond and Melvin" had done this.
The state's next witness, Chicago Police Sergeant James Jackson, testified that when he arrived at the scene of the shooting on the night of March 10, 1996, he went to the ambulance and talked to Brown, who told him that Legs Diamond had shot him and that there was another person with him but he did not know his name. Jackson also said he saw a black male with a fatal gunshot wound at the back of his head seated in the front passenger seat of a car parked on the south side of the street. Jackson later learned that the man was Holton. On cross-examination by Clifton's counsel, Jackson conceded that during the conversation in the ambulance Brown told him that Galloway "pulled a handgun" and shot Holton in the head, and that Galloway shot Brown several times when he tried to flee from the car.
Chicago Police Detective Linda Drozdek stated that she and her partner, Detective George Carl, went to Christ Hospital the night of March 10, 1996, to check on Brown's condition. While they were there, hospital personnel gave Detective Carl a bullet that had been recovered from Brown's clothes. The next day (March 11), Drozdek and Carl went back to the hospital and showed Brown a series of five photographs from which he identified Galloway as Legs Diamond. Brown told them that (unlike the photo) Galloway at present had no hair.
Delilah Hunt next testified for the state. She stated that in March 1996 Holton was her boyfriend. She testified that on the morning of March 10, she and Holton drove to a restaurant and parked next to a car in which Galloway was sitting in the driver's seat. She said Holton got out of their car and got into the front seat of Galloway's car, and the two men talked for 10 to 15 minutes. Hunt said she and Holton then returned to their house, and at some point later he left. Hunt subsequently learned what had happened to Holton. The next morning, March 11, she met with Chicago Police Detective John Hamilton who showed her a series of photographs from which she identified Galloway. Hunt said she noticed that (unlike the photo) Galloway was "bald headed" when she had seen him (the day before) in the restaurant parking lot. About four days after the shooting, Hunt saw Galloway and Clifton sitting together in a car. She said as she rode past, Clifton looked up and pointed at her, but she kept going and went home. About three hours later, Galloway came to her house and asked if Holton or Holton's son, Del, lived there, to which she answered "no." A week or so later, Clifton came to Hunt's house and asked her if someone new had moved onto the block. About three days after that, Galloway returned to Hunt's house and also asked if someone new had moved onto the block. Hunt said because she was "scared," she called the detectives who were in charge of the case "sometime after that." On April 12, 1996, while testifying before a grand jury, Hunt viewed a series of photos and identified Clifton.
The state also called Philander Jenkins, who testified that he had been a member of the Gangster Disciples. Jenkins stated that he was arrested by federal authorities on November 6, 1997, after having sold $4,500 worth of cocaine to a federal informant. Because he was facing a possible penalty of up to life in prison without possibility of parole, Jenkins said he began cooperating with federal authorities. Jenkins also stated that the first time he said anything about the instant case was in mid-February 1998 when he talked to ASA Brian Sexton about it. According to Jenkins, though he spoke to federal authorities several times following his arrest in November 1997, they did not ask him about this case.
Jenkins testified further that he was a Gangster Disciple on August 31, 1995, when 39 members of the gang were indicted in federal court. (Neither Jenkins nor any of the principals in this case were among those indicted.) Jenkins named three of the 39 who he said were board members, which is the rank just below Larry Hoover, the head of the Gangster Disciples. In addition, Jenkins named another of the 39 who he said was a governor, which is the next rank below a board member. Following the August 31 indictments, Jenkins became a regent, which is below a governor. Jenkins identified Clifton in court and said Clifton was his governor.
Jenkins also averred that around September 1995, a man named Chuck was running the Gangster Disciples for the entire city. In January 1996, Chuck was murdered, and Jenkins said he subsequently learned that there had been friction between Chuck and Holton, who held the rank of board member. According to Jenkins, Holton "felt that he should have had the city and not Chuck."
About two months later, in March 1996, Jenkins saw Clifton with a man he subsequently learned was Galloway. A couple of days after that, about four days before Holton's murder, Jenkins attended a Gangster Disciples meeting which he said was called to reassure the members that, despite the previous indictments, "the gang was still going strong." Both Clifton and Galloway were at the meeting. Galloway introduced himself as a (Gangster Disciples) board member, and Clifton, who Jenkins said had a cast and was using crutches, introduced himself as a governor. According to Jenkins, at one point Clifton asked those present if they would kill a board member or governor if they were required to, and they answered yes.
A couple of days later (about two days before Holton's murder), Jenkins said he met with Clifton in response to a page from a gang member named Onion, and Clifton told Jenkins he was "having a problem" and "needed a couple of units," meaning guns. Jenkins obtained a .380 automatic and a Tech 9, and gave them to Clifton. About two weeks after Holton's murder, Jenkins said he gave $500 to a board member named "Godfather," and gave as his reason: "so Melvin [Clifton] could leave town."
Prior to cross-examination by Clifton's counsel, the parties stipulated that Jenkins was debriefed by federal law enforcement officials five times between November 6, 1997, and February 9, 1998. On cross-examination, Jenkins reasserted that during those debriefings, he never told federal authorities that he had any information about Holton's murder. On redirect, Jenkins stated that no one ever identified for him the kind of weapon that was used in Holton's murder.
The state also called Dr. Thamrong Chira, a Cook County medical examiner, who performed an autopsy on Holton on March 11, 1996. Dr. Chira testified that Holton had a single gunshot wound entering at the back of his neck on the left side. There was no evidence of close-range firing, which meant that the muzzle of the gun had to be more than 18 inches from the entry wound. Dr. Chira also said the bullet traveled from left to right and from back to front, and was found on the right side of Holton's neck. Given those two factors, Dr. Chira said it was more likely that the shooter was in the back seat behind the driver (Clifton's position) rather than on the passenger side. On cross-examination by Clifton's counsel, Dr. Chira conceded that if the person on the passenger side had leaned forward and shot the driver first and then turned and shot Holton on an angle from where the driver was located, it was possible that Holton could have been shot by someone in the rear passenger seat. Dr. Chira said the shot had to have come from a little to the left and behind the victim.
The parties stipulated that if Robert Smith, a Chicago Police Department firearms examiner, were called, he would testify that in his opinion the fired bullet recovered from Christ Hospital (from Brown's clothes) had the same class characteristics as having been fired from a .380 automatic pistol. Smith would testify that in his opinion the same was true of a fired bullet ...