Appeal from the Circuit Court of Cook County. No. 97 CR 14705 Honorable James Egan, Judge Presiding.
The opinion of the court was delivered by: Justice Theis
Following simultaneous but severed trials before two separate juries, co-defendants Chaka Ayers and Terrace Hoskins were each convicted of the first degree murder of Kwasi Page. The trial court sentenced Ayers to 45 years' imprisonment and Hoskins to 26 years' imprisonment. In appeal number 1-00-1470, Hoskins argues that: (1) he was denied his fundamental rights to due process and trial by jury where the jury was given contradictory instructions on first degree murder and the phrase "without lawful justification" was omitted from several instructions; (2) the trial court erred in impaneling a juror who stated that she did not know if she could be fair; (3) the trial court erred in excluding State witness Dexter Johnson's testimony concerning statements made before the shooting as inadmissible hearsay; (4) Hoskins was denied his right to confront his accusers where the trial court excluded one of State witness Sheridan Clark's findings of delinquency; and (5) Hoskins was denied effective assistance of counsel where his attorney failed to impeach a State witness, acquiesced to seating a biased juror, and failed to object to contradictory jury instructions. In his consolidated appeal number 1-00-1014, Ayers argues that (1) the State failed to prove him guilty beyond a reasonable doubt where the eyewitness only glimpsed the shooter for a few seconds and the other witnesses were impeached and inconsistent; and (2) the trial court abused its discretion in sentencing him when it failed to consider his rehabilitative potential. For the following reasons, we reverse and remand Hoskins' conviction in appeal number 1-00-1470 and affirm Ayers' conviction and sentence in appeal number 1-00-1014.
During Hoskins' trial, the State presented evidence that Hoskins and Ayers attended Cassie Jones' party on the evening of April 22, 1997, at 7308 South Jeffrey Boulevard in Chicago. Before entering the party, Hoskins stated that he needed a gun, so Clifton Johnson retrieved a weapon used by the Gangster Disciples and gave it to Hoskins. Hoskins showed Dexter Johnson his gun while at the party. When the party ended, Todd Jones, a Gangster Disciple, and Billy, a Mickey Cobra, began arguing loudly outside the apartment. Hoskins, Ayers, Todd, Maurice Johnson and Dexter then entered Todd's two-door car and pulled out of the parking space when Billy threw a bottle at the car. Ayers then asked Hoskins for his gun, Hoskins handed Ayers the weapon, and Ayers leaned out the passenger window and fired three shots, killing the victim, Kwasi Page. Hoskins admitted in his handwritten statement that he carried a gun to the party, gave Ayers the weapon after someone threw a bottle at their car, and saw Ayers fire the gun out the car window.
Hoskins responded that his actions were justified in self-defense and presented evidence that when the fight between Billy and Todd, rival gang members, escalated, Cassie ended the party. At that point, members from several different gangs spilled on to the street at the same time and a group of approximately 12 to 15 Mickey Cobras congregated near Todd's car. Billy continued to threaten Todd in a loud and angry manner even after Todd, Hoskins, Ayers and the others entered Todd's car. Billy was standing only a few inches away from the car when he threw the bottle.
At Ayers' trial, Sheridan Clark testified that he had been given probation in juvenile court for possession of a controlled substance and was convicted as an adult for delivery and possession of a controlled substance. While alcohol and drugs were present at Cassie's party, Clark denied drinking or smoking. When the party broke up around 11:30 p.m., Todd, a Boss Pimp, got into an argument with Billy, a Mickey Cobra. The Boss Pimps were aligned with the Gangster Disciples and against the Mickey Cobras. Clark and Page, both Mickey Cobras, left the apartment with several people, including Hoskins and Ayers whom Clark had known for one year. Clark then saw Hoskins, Ayers, Todd, and two others get into Todd's two-door Honda parked in front of the building. Hoskins sat behind the driver, Todd, and Ayers sat in the backseat on the passenger side. As Clark and Page walked home, Clark saw Todd's car pull away from the curb and heard someone throw a bottle at the car. Clark and Page turned to watch for approximately one minute, and Clark saw the passenger window open and Ayers, sitting in the backseat, lean his whole upper body out the window and fire a black .38-caliber gun approximately three times. Clark and Page were approximately four to five feet away from the car when Ayers fired. Clark testified that there was sufficient light from the light pole to see the car's occupants, but he admitted on cross-examination after viewing photographs of the scene that the alley was "pretty dark." After the first shot, Clark and Page ran down the alley and Page fell to the ground, bleeding. When the police arrived, Clark told them that Ayers was the shooter and stated that he saw Ayers lean out the window for approximately five seconds.
Dexter Johnson next testified that he was 12 years old at the time of the crime and currently incarcerated in a juvenile facility for violating his probation. In April 1997, he was a member of the Boss Pimps. Dexter drank champagne and smoked marijuana at the party, but denied that Hoskins showed him anything. When Cassie ended the party and told everyone to leave, Dexter, Ayers, Hoskins, Todd and Maurice left together and piled into Todd's car. Todd drove, Maurice was in the front passenger seat, Dexter sat in the backseat behind Todd, Hoskins sat in the middle of the backseat, while Ayers sat behind the passenger. While they entered the car, approximately 12 to 15 people congregated on the street. As the car drove away, someone threw a bottle at the passenger door. Dexter denied that anyone said anything inside the car after the bottle was thrown and denied seeing Ayers with a gun. Dexter also stated that he never told the police that Ayers asked Hoskins for a gun. Dexter then testified that a gun was fired out of Todd's car, but he did not see who did it.
In his grand jury testimony, however, Dexter testified that Hoskins showed him his gun at the party. After the bottle hit the car, Ayers asked Hoskins for the gun and Hoskins took a revolver from his jacket and handed it to Ayers. Ayers then extended his hand out the window and shot twice. Dexter further testified that Ayers had the gun at his side while switching cars in the parking lot after the incident. In his statement, Dexter stated that Ayers fired the gun twice as Todd sped away. At trial, Dexter stated that he was coerced by the police and assistant State's Attorney when he testified before the grand jury. However, in his grand jury testimony, he stated that he was treated "okay" and "kindly" by the police and assistant State's Attorneys and was not threatened into making a statement. At trial, Dexter testified that when he gave that statement, he could not read. When Ayers' counsel spoke with Dexter in November 1998, Dexter said he was very intoxicated after the party and stated that he did not see Ayers shoot the gun.
Assistant State's Attorney Marci Jacobs testified that she asked Dexter before and during his grand jury testimony if he had been coerced and he denied it. Dexter also testified before the grand jury that he could read and write English. Assistant State's Attorney Paul Pavlus testified that he interviewed Dexter and prepared his statement with his grandfather present and stated that no one told Dexter what to say. Additionally, Dexter demonstrated his ability to read and write.
Clifton Johnson next testified that he was a member of the Gangster Disciples, was placed on probation in juvenile court for a drug charge the day after the shooting and was arrested on drug charges and found delinquent two months later. Before he, Marquis Watkins, Hoskins, Dexter and other Gangster Disciples entered the party, Hoskins stated that he was not going without a gun. Watkins then drove to 79th and Bennett to retrieve a gun belonging to the Gangster Disciples which was hidden in the basement. Clifton recovered the gun and handed it to Hoskins, who placed it in his pocket before entering the party. Clifton, Hoskins and Watkins stayed at the party drinking and smoking until Todd "got into it with somebody" and the party ended. When everyone left, Todd and Billy were fighting and the Mickey Cobras got involved, made threats and flashed gang signs. When he left the party with Watkins, Clifton saw Todd, Hoskins, Ayers, Dexter and Maurice in Todd's car. As Watkins drove away, Clifton heard several gunshots. Watkins then drove to a nearby parking lot where they met with the group in Todd's car. After everyone exited the cars for a few minutes, Clifton retrieved the gun from underneath the passenger seat of Watkins' car and returned it to its hiding place. A few days later, Clifton showed the police where the gun was hidden. Clifton testified that he never saw Ayers with a gun.
Todd Jones testified that when he arrived at the party, he wished Cassie happy birthday and left. While leaving, Billy said something to Todd, followed him down the stairs and continued to try to provoke Todd as he walked to his car. As Todd reached the car, the rest of the partygoers emptied on to the street and everyone went their separate ways. No blows were exchanged between Todd and Billy and no one prevented Todd or his friends from entering the car. As Todd drove out of the parking space, Billy threw a bottle at the car and immediately Todd heard three gunshots. Todd later denied seeing a bottle being thrown but stated he heard it hit the car. He testified that the shots came from the passenger side of the car and that Ayers fired the gun, but he later denied seeing a gun out the window. In his written statement, Todd stated that he saw Billy throw the bottle at the car and told police that he saw Ayers extend his arm out of the window with the gun in his hand and pull the trigger.
Mary Beth Thomas, a forensic scientist, testified that a partial palm print found on the weapon was not made by Ayers, Hoskins, Maurice or Clifton and she did not compare the print to Todd or Dexter. Another forensic scientist performed gunshot residue tests on Maurice, Todd, Smith, and Watkins. The tests were negative and consistent with not firing a weapon.
Chicago police officer Gruber testified that the mouth of the alley near the scene of the crime was well-lit. On April 24, 1997, Gruber asked Hoskins and his mother to accompany him to the police station. While Hoskins and his mother sat in the backseat of his police car, Gruber overheard their conversation. Gruber then located Clifton, who showed Gruber the weapon hidden in the basement at 79th and Bennett. A forensic scientist testified that the bullet which killed Page was fired from the gun recovered by police.
The juries then found Ayers and Hoskins guilty of first degree murder and the trial court sentenced them to 45 years' imprisonment and 26 years' imprisonment, respectively. After the denial of their posttrial motions, Ayers and Hoskins filed these timely appeals, which were later consolidated.
Hoskins first challenges the propriety of the jury instructions. The jury instructions given by the trial court included Illinois Pattern Jury Instructions, Criminal, No. 7.01A (3d ed. 1992) (hereinafter IPI Criminal 3d), an instruction which defines first degree murder, IPI Criminal 3d No. 7.02A (Supp. 1996), which is a first degree murder issue instruction when second degree murder is not also an issue, and IPI Criminal 3d No. 7.06A, which is a first and second degree murder issues instruction. The jury was also given IPI Criminal 3d No. 7.05A, an instruction which defines a mitigating factor for the purposes of second degree murder, and IPI Criminal 3d No. 24-25.06, a self-defense instruction.
The first degree murder issue instruction when second degree murder is not also an issue, IPI Criminal 3d No. 7.02A, stated:
"To sustain the charge of first degree murder, the State must prove the following propositions:
First: That the defendant, or one for whose conduct he is legally responsible, performed the acts which caused the death of Kwasi Page; and
Second: That when the defendant, or one for whose conduct he is legally responsible, did so, he intended to kill or do great bodily harm to Kwasi Page or another; or
he knew that his acts would cause death to Kwasi Page or another; or
he knew that his acts created a strong probability of death or great bodily harm to ...