Appeal from the Circuit Court of Cook County No. 96 CR 4234 Honorable Joseph Urso, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cahill
In compliance with a supervisory order of the supreme court dated June 29, 2001, the following opinion in case No. 1-99-2805 is substituted for the opinion and judgment vacated by the supreme court in its order.
Defendant was found guilty of first degree murder and attempted first degree murder after a bench trial. He was sentenced to consecutive terms of 60 and 25 year terms. Defendant challenges his first degree murder conviction and claims his consecutive sentence is unconstitutional. We affirmed defendant's conviction but vacated an order requiring his sentences to run consecutively in People v. Mason, 318 Ill. App. 3d 314, 741 N.E.2d 1088 (2000). The supreme court issued a supervisory order on June 29, 2001, vacating the opinion and directing us to reconsider our decision in light of People v. Wagener, 196 Ill. 2d 269 (2001). We now affirm defendant's conviction and sentence as originally imposed.
The evidence at trial revealed the following. William Thurman drove Eric Martin and two other friends to a liquor store near 54th Street and Damen Avenue in Chicago at about 9 p.m. on July 31, 1994. Thurman parked his car on the east side of Damen Avenue, next to a brown pickup truck. The brown truck was parked on a parkway in front of a liquor store near a pay phone on the sidewalk. Thurman's car was a maroon Oldsmobile. The brown truck was between the store and the maroon car.
Thurman stayed in the car while his three friends went inside the store. Thurman testified that he entered the store briefly to check on his friends and saw they were in the checkout line. He then returned to his car. Two of Thurman's friends left the store and got in the back seat of the car. Thurman said that, while they were waiting for Martin, defendant and another man came up to the front passenger window and started an argument. Thurman said defendant asked him if he was "Big Thief." Thurman said his nickname was "Big Will." Thurman said that defendant then asked his companion for "the piece" and shot at Thurman three to four times, wounding him in the thigh. Thurman and his friends left the car and ran across the street.
Martin testified that, as he left the store, he was attacked by four or five members of the Vice Lords gang who had been standing in front of the store. Martin said he managed to get away and was chased down 55th Street. He heard five to six gunshots about 15 minutes later, when he got home. Martin identified Kenyatta Cursey, a Vice Lord gang member and a State witness, as one of the men outside the store.
Johnny Harris testified that he brought his six-year-old son Bernard and two-year-old grandson to the liquor store at 54th Street and Damen Avenue. Harris parked his truck on the sidewalk in front of the store. When he left the store, Harris noticed that a maroon car had parked on the curb alongside his truck. Harris said he was helping the children into the truck when he heard an argument beside a maroon car parked behind his truck. Harris said he heard a man say "give it to me, I'm going to off this mark." Harris then saw the man get a gun and shoot at a man in the maroon car. Harris said that, a second later, another man near a telephone booth fired three shots at the maroon car. One of the shots fired by the man near the telephone booth hit Harris' six-year-old son in the head, killing him. Harris saw the man near the telephone booth run down an alley next to the store. He later identified defendant as the man who shot into the maroon car. He also identified Brandon Johnson as the shooter near the telephone booth.
Ronnie Smith testified that he was a member of the Vice Lords gang. Smith was originally arrested for the July 31 shooting, but was never charged. Smith said that he was walking down Damen Avenue, toward the liquor store, when he saw a fellow gang member known as "Mad Dog," chasing someone down the street. He then saw defendant and Johnson jogging next to each other out of an alley next to the store. Smith saw defendant go to the maroon car. Johnson went to the front of the store. Defendant shot at the driver of the car. Johnson fired five to six shots at the car from the telephone booth. Smith said he saw Johnson and defendant run together down an alley next to the store.
On cross-examination, defense counsel established that, at co-defendant Johnson's earlier trial, Smith testified that he did not see defendant or Johnson leave the scene of the shooting. Smith said he did not remember that testimony. Smith also admitted lying to police during their investigation. Smith admitted that he first told the police that he was not at the liquor store on July 31 and only knew what had happened because someone had told him.
Kenyatta Cursey testified for the State. His testimony was consistent with a statement he had given to police and testimony before a grand jury on August 3, 1994. Cursey said he was a member of the Black Stones gang and that he believed the Vice Lords and Black Stones were at war. Cursey was in front of the liquor store on July 31. Cursey testified he saw defendant standing by a maroon car parked near the store. He heard defendant say "[expletive deleted] Chief Stones" and then shoot into the car. Defendant ran toward Winchester Avenue. Cursey said Johnson fired shots at the car as he ran past the car to an alley next to the store near 55th Street. Cursey said he ran toward Winchester.
Defendant testified that he went to the liquor store near 54th Street and Damen Avenue on July 31, 1994. He was at the entrance of an alley near the store when he saw Thurman staring at him from his car. Defendant went up to the car and asked Thurman why he was staring at him. Defendant said that Thurman was "acting crazy." Defendant said he heard gunshots from behind and reached for a friend's gun. Defendant said he thought Thurman was reaching for a gun. He shot at Thurman to protect himself. Defendant then ran down the alley and disposed of the gun. Defendant denied going to the liquor store with Johnson. He also denied knowing Johnson was at the liquor store on the night of the shooting.
Defendant knew police were looking for him so he actively avoided them. Defendant admitted being a member of the Vice Lords gang. Defendant said that his testimony at trial was the same as the statements he gave police when he was arrested.
Detective James O'Brien testified in rebuttal. O'Brien said that, when first interviewed, defendant denied being involved in the shooting. Defendant admitted his involvement only when he was told he had been identified as the shooter. Defendant told O'Brien that he was at the liquor store with other gang members. He asked the driver of a maroon car if he was a "Chief Stone." He then shot the driver. Defendant told O'Brien he heard more shots as he ran away from the scene. He left the neighborhood when he heard police were looking for him. He remained in hiding until his arrest. Defendant was ...