Appeal from the Circuit Court of Cook County. No. 99 CR 16598 Honorable Michael Buckley Bolan, Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Defendant Calvin Craig was indicted, inter alia, for the first degree murder of Christopher Smith and Latisha Midderhoff, two counts of aggravated discharge of a firearm, and the aggravated battery of Antwon Bishop and Quintius Taylor with a firearm. After a bench trial, he was found guilty of the murder of Smith, the two counts of aggravated discharge of a firearm, and the aggravated battery of Bishop and Taylor with a firearm, but not guilty of the murder of Midderhoff. The court sentenced the defendant to 45 years' imprisonment for murder, 15 years for the aggravated battery of Bishop with a firearm, and 15 years for the aggravated battery of Taylor with a firearm. In addition, the court merged the two counts of aggravated discharge of a firearm into the two counts of aggravated battery with a firearm.
In its findings of fact, the trial court ordered the defendant's 45-year sentence for his murder conviction to be served consecutive to his 15-year sentence for the aggravated battery of Bishop with a firearm, and ordered his 15-year sentence for the aggravated battery of Taylor with a firearm to be served concurrently. However, the court did not mention to which sentence the sentence for the aggravated battery of Taylor was to be served concurrently. The mittimus in this case reiterates that the defendant was sentenced to 45 years for the murder charge, 15 years for the aggravated battery of Bishop with a firearm, and 15 years for the aggravated battery of Taylor with a firearm; and that the two counts of aggravated discharge of a firearm merged into the two aggravated battery counts. The mittimus then states that the sentence for the aggravated battery of Taylor was to be served concurrently with the murder sentence, but states nothing with regard to whether the sentence for the aggravated battery of Bishop was to be served concurrently or consecutively to either of the other two sentences. Because of the mittimus, the State asserts, the Illinois Department of Corrections now believes that all of the defendant's sentences are to run concurrently. Defendant now appeals, and for the reasons that follow, we affirm in part and vacate in part.
At trial, the following events were related by a number of witnesses. On August 20, 1998, at approximately 3:40 p.m., Bishop picked up Taylor and Smith in a white conversion van at the corner of 69th Street and Halsted Avenue in Chicago. While Bishop drove, Smith sat in the front seat with Taylor in the backseat behind the driver. Smith, Taylor, and Bishop were all friends and all belonged to the Black Disciples street gang. After stopping briefly at Smith's house, they drove around the Englewood area looking for a "weed spot" where they could buy some marijuana.
Around 4 p.m., they were driving north on Green Street when Bishop stopped the van at a stop sign on the corner of 71st and Green Streets. On the east side of Green Street, between 71st and 70th Streets, stood a man leaning on a parked white car. Meanwhile, a man purported to be the defendant walked out of a building on the east side of the street, crossed the street to the west side, stood next to a parked blue van, and looked southbound toward the white van that Bishop was driving. As Bishop began to drive through the intersection and alongside the blue van, the defendant allegedly brandished a gun and started shooting at the driver's side of the white van while the other man started shooting at the passenger side. When the defendant allegedly began to shoot, he was approximately three to four feet away from Bishop's van.
During the shooting, a bullet struck Smith in his back, continued upward, and lodged in the right side of his tongue. Bishop, who was also hit in the chest and in the arm, accelerated northbound and then turned east onto 69th Street, hitting some parked cars along the way because he had ducked his head after the shooting began. At some point during the shooting, further up the street, Latisha Midderhoff was also hit in the chest with a bullet. After turning the van onto 69th Street, Bishop and Taylor saw blood coming out of Smith's mouth and realized that he was badly hurt. They then drove to St. Bernard's Hospital, where Smith and Bishop were admitted to the emergency room and treated. While Bishop and Smith were being treated, Taylor noticed that defendant's cousin, Pierre Freeman, who was also a Black Disciple, had entered the hospital. Fearing an attack from Freeman, Taylor got the keys to Bishop's van and fled the hospital.
At approximately 4:45 p.m. that same afternoon, Officer Peter Larcher was instructed to go to the area of 7000 South Green Street regarding a shooting that occurred in that neighborhood. In the course of his investigation, Officer Larcher photographed bloodstains in front of 6844 Green Street and recovered a 9-millimeter cartridge case in a vacant lot at 6951 South Green Street. He then photographed a car that had taken firearms damage in front of 7047 South Green Street and recovered a bullet from the vestibule of a residence at 7023 South Green Street. He then proceeded south on Green Street and eventually recovered 16 cartridge cases from the general vicinity. Officer Larcher then concluded his on-site investigation and proceeded to St. Bernard's Hospital, where he recovered a T-shirt and discovered blood on the driveway to the emergency entrance. Some time that afternoon, Smith died of his injuries and Bishop was transferred to Cook County Hospital.
That afternoon, Detectives O'Brian and Murray, who were also assigned to the case, went to 6902 South Emerald Avenue, where police had recovered the white van that Bishop was driving. Detectives O'Brian and Murray noticed that the exterior of the van was damaged by numerous bullet holes and that there was a large amount of blood on the front passenger seat as well as on the interior and exterior of the passenger door. They then notified Officer Larcher and instructed him to process the van.
While Officer Larcher processed the van and proceeded with his own forensic investigation, Detectives O'Brian and Murray went to the location of the shooting. When they arrived, they spoke with the beat officers on site to get an idea of what had happened. They then searched the area for physical evidence and canvassed the area in an attempt to locate witnesses. The detectives next drove to Cook County Hospital, where they were able to speak briefly with Bishop for approximately 10 to 15 minutes. In that conversation, Bishop was able to describe the two shooters. He identified the first shooter as a black male, 5 feet 7 inches to 5 feet 10 inches tall, approximately 25 years of age with a medium complexion and a fade-type haircut. He described the second shooter as also being a black male with the same general characteristics as the first shooter, except that this person had a light complexion. The detectives then began searching for Taylor.
At about that same time, Detective Griffin began investigating the shooting of Latisha Midderhoff, which had occurred in front of the building at 6844 Green Street. To that end, he went to Christ Hospital and learned that she had died as a result of a gunshot wound that she had sustained. After viewing Midderhoff's body and speaking with the medical personnel who had rendered assistance to Midderhoff, Detective Griffin recovered and inventoried a bullet that they had found in her clothing.
On August 24, 1998, Brian Mayland, an expert in the field of firearms and a forensic scientist with the Illinois State Police, received inventories from the murder investigations of Midderhoff and Smith. One of the inventory bags held three sealed envelopes. The first envelope contained six 9-millimeter cartridge cases, the second contained nine 9-millimeter Luger cartridge cases, and the third held one 9-millimeter Luger cartridge case. After performing tests on these 16 cartridge cases, Mayland was able to determine that 15 of the cartridge cases were fired from the same gun. He was unable, however, to determine that the one remaining cartridge case was fired from the same gun as the other 15.
A second inventory bag also contained three envelopes. Two of the envelopes held one fired bullet each while the third contained a metal fragment. Mayland performed tests on the two bullets and determined that they were each fired from a 9-millimeter gun. Mayland then performed tests on the metal fragment in the third envelope and determined that the fragment was consistent with a lead bullet core. However, because the bullet was so deformed, he was unable to determine its class characteristic to determine whether it was fired from a 9-millimeter gun.
On September 12, 1998, police officers James Weyforth and Jerry Pentimore of the Chicago police department had occasion to stop a vehicle driven by the defendant, who presented his license. Leaving his license with the officers, the defendant fled from the scene at a high rate of speed. During the chase, a gun was thrown from the window of the vehicle which was later recovered and found to be a 9-millimeter weapon. The gun was fully loaded at the time and subsequently was inventoried in the police department.
At trial, Mayland testified that the bullets found at the scene of the offense could have been fired from that gun, but that he could not make a conclusive identification. Specifically, he stated that, like the bullets he recovered at the scene of the crime, the bullets from the gun that defendant defenestrated were "nine millimeter, with six lans grooves, a right-hand twist and a one to one and quarter ratio." However, after microscopic testing, he could "neither identify them nor eliminate them from having come from [the recovered] gun." He also testified that there were a minimum of 100,000 of those types of weapons on the streets.
On September 18, 1998, Taylor and Bishop were found and were transported to Area One headquarters for questioning. Upon arriving at Area One, both Bishop and Taylor were taken to separate offices within the department and each of them spoke individually with Detectives O'Brian and Murray regarding the details of the shooting. The detectives first spoke with Bishop. He stated that he saw an individual leave the building at 7049 South Green during the incident. Bishop then told the detectives that this individual walked to the west side of the street and stood in front of a van. Bishop stated that as they passed this individual in their van, another man on the east side of the street produced a gun and started shooting at their van. Bishop claimed that he observed the person who was shooting on the west side of the street better than the other shooter. Lastly, he stated that although he did not know the name of either one of the shooters, he would be able to identify either one of them.
Detectives O'Brian and Murray then interviewed Taylor, who related essentially the same story as Bishop. Taylor stated that on the day in question, the defendant, whom he identified as "C-Man," was standing south of the alley on the west side of the street and that he, Taylor, personally saw the defendant shooting at their van. Taylor also stated that there was another person on the east side of the street near an apartment building whom he saw fire a weapon as well. After relating his story to the detectives, Taylor was shown a computer-generated photo of the defendant to verify Taylor's identification of the defendant as one of the shooters. Taylor concluded by stating that the reason why he had not come forward sooner was that the defendant was a high-ranking member of the Black Disciples and that Taylor feared retribution if he came forward and told the police what he knew.
On November 21, 1998, Assistant State's Attorney Ron Dewald (ASA Dewald) traveled to Area One headquarters after receiving an assignment regarding the murder investigation of Midderhoff and Smith. While there, he interviewed Taylor for approximately one hour while Detective Murray was present. During this interview, Taylor was shown a picture of the defendant, and Taylor again identified the defendant as "C-Man." At the conclusion of the interview, ASA Dewald asked Taylor if he would give a handwritten statement. When Taylor agreed, ASA Dewald began to ask Taylor questions and wrote out the statement based upon Taylor's answers. After the statement was completed, ASA Dewald gave it to Taylor to review it. After each page was read and reviewed, ASA Dewald asked Taylor, "is everything in here correct?" and Taylor would say "yes" or "no." ASA Dewald then asked for Taylor to mark the corrections and for Taylor and Detective Murray to sign the bottom.
Approximately 2 1/2 months later, an arrest warrant was secured for the defendant. On February 10, 1999, Detectives O'Brian and Murray submitted defendant's picture and "wanted information" to the Daily Bulletin, a document that detailed information on wanted offenders.
On February 24, 1999, the defendant was stopped in Michigan by a Michigan state trooper, James Coleman. The defendant gave Trooper Coleman a driver's license in the name of Kevin Miller. After checking the license on the police computer, Trooper Coleman made a second approach of the defendant's car. When Trooper Coleman asked the defendant to step out of the car in order to check for narcotics, the defendant drove off. A high-speed chase ensued culminating in the defendant's arrest. The defendant later appeared in court, pled guilty to those traffic charges, and received 30 days in the county jail. It was at that point that Trooper Coleman asked to have the defendant's fingerprints retaken, which was done after the conclusion of the court proceedings.
Soon thereafter, Detectives O'Brian and Murray learned that the defendant had been involved in a high-speed chase with the Michigan State Police and had been taken into custody as a result. Several days later, Trooper Coleman was informed that "Kevin Miller" was in fact the defendant, Calvin Craig, and that the defendant was wanted on an outstanding homicide arrest warrant in Cook County.
Once defendant was transported to Area One headquarters and advised of his Miranda rights, Detective O'Brian allegedly asked the defendant if he knew why he had been arrested. Purportedly, the defendant responded, "for murder." Defendant was then asked if he knew for which murder he had been arrested, and the defendant apparently indicated that he was under arrest for the murder that had occurred at 71st and Green Streets. Defendant then indicated that he did not want to say anything else, and the conversation ended.
On June 24, 1999, the detectives were able to locate Bishop and Taylor and bring them to Area One headquarters. At approximately 10 p.m., Detectives O'Brian and Murray had Bishop and Taylor individually view a lineup in which the defendant was a participant. After examining the lineup, both Taylor and Bishop separately identified the defendant as one of the shooters.
Shortly after he had viewed the lineup, Bishop was then taken to a side office on the second floor where Assistant State's Attorney John O'Grady (ASA O'Grady) conducted an oral interview with Bishop while Detective O'Brian was present. When it concluded, ASA O'Grady asked Bishop if he minded giving a handwritten statement. Bishop agreed, and ASA O'Grady wrote out the statement based upon the interview that had just been conducted. With no major differences, Bishop described the incident as he had before with Detectives O'Brian and Murray. After the statement was completed, ASA O'Grady gave it to Bishop to review it. After each page was read and reviewed, ASA O'Grady asked Bishop, "is everything in here correct?" Bishop would say "yes" or "no," and ASA O'Grady would then ask Bishop to mark his corrections and to sign the bottom.
On July 2, 1999, Assistant State's Attorney Lynn McCarthy (ASA McCarthy) asked Bishop to appear before the grand jury that had convened regarding the murders of Midderhoff and Smith, and Bishop agreed. He then testified before the grand jury and was shown his handwritten statement. His testimony substantially reflected the same facts as those in his handwritten statement. He was also asked if he had an opportunity to speak with ASA O'Grady and how he had been treated when he spoke with ASA O'Grady. Bishop then acknowledged to the grand jury that he had read, reviewed, and signed the handwritten statement and that at no time was he handcuffed when he was brought in for questioning by the detectives. Thereafter, on July 8, 1999, ASA McCarthy met with Taylor and reviewed his handwritten statement with him. After Taylor read and reviewed the entire statement, he also testified to substantially the same facts as those found in his handwritten statement.
At trial, however, when Taylor was called as a witness for the State, his attorney objected to his having to testify because she stated that he had a fifth amendment right not to testify at the trial. The court disagreed and stated that Taylor's fifth amendment privilege had been waived by his having testified at the grand jury. Accordingly, the court ordered him to testify. On direct examination, Taylor recalled testifying to the contents of his handwritten statement before the grand jury and that he was telling the truth before the grand jury. He also stated that he remembered telling the grand jury that he met with ASA Dewald and Detective Murray at Area One headquarters and told them the same facts that he had told the grand jury and that once his statement was written down, he signed it. Lastly, he stated that he remembered telling the grand jury that he looked at his statement that the assistant State's Attorney had written for him and that he read it and reviewed it.
On cross-examination, however, Taylor stated that he had been smoking marijuana the afternoon of the shooting and that when he left the hospital, there was possibly more in the van. He further stated that the police came looking for him that night and that he told them his name was Pierre Grant. He stated that when the police picked him up later, they told him that he could be charged with a murder "because a girl [Midderhoff] was killed, which he did not want to happen." He stated that he felt "scared" because he thought he could be charged with murder. Accordingly, he stated that when the police then asked him who was outside the van, he told them that it was the defendant. He did not, however, tell the police that he saw a gun in Calvin's hands firing a gun at the van. In fact, he stated that he told Mr. John Ireman, a private defense investigator, that the part of the statement relating that he saw "C-Man" shooting at the van was not true. Instead, as he told Mr. Ireman, he did not see the person who fired the shots on August 20, 1998. "All I saw was C-Man in front of the van and that was the truth."
Similarly, when Bishop testified for the State, he stated that he was driving a van on August 20, 1998, with Smith and a man he only knew as "Quintin." He stated that as they proceeded on Green Street north of 71st Street, someone was shooting at the van, and that he was shot in the chest. However, he stated that because he ducked down, he did not get a chance to see who was shooting. He did not recall telling the police that two subjects fired guns at him but that he could only recognize the one who was closest to him. Moreover, he testified that he went to a lineup but did not recognize anyone in the lineup. He stated that he did not recall meeting an assistant State's Attorney and that the handwritten statement alleged to be his was not in his handwriting and did not contain his signature at the bottom. In addition he stated that he never read that document and that he never agreed to give a statement to anyone.
Accordingly, because he claimed he never met any assistant State's Attorney, he stated that: he never told ASA O'Grady that he had a friend named Quintius Taylor whom he had known for five years and a friend named Chris he had known for five years; he never told ASA O'Grady that they were members of the Black Disciples; he never told them that he saw the defendant at 7049 South Green and that he is known as C-Man and that he is a Black Disciple gang member; he never identified a photo of C-Man; and he never told anyone that C-Man held a gun and began shooting at their van as it drove past. Furthermore, he stated that he did not recall being in front of a grand jury in July of 1999, and he denied all questions that were allegedly given to him in the grand jury. Lastly, he stated that he never even gave a statement to the defendant's counsel.
To counter that testimony, the State then sought to admit the grand jury testimony of both individuals into evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 1998)) as prior inconsistent statements. The court found that those prior statements met the requirements of section 115-10.1 and admitted them into evidence.
Robert Montgomery, a gang crimes officer, then testified about his investigation of gangs and, particularly, about the Black Disciples. He noted that in August of 1998, there was a rift between two factions within the Black Disciples street gang. On one side was a faction led by Marvel Thompson, the "Appointed King" of the Black Disciples. The title of "Appointed King" signified that Thompson was second in command of the entire gang. On the other side of the dispute was a faction led by Jerome "Shorty" Freeman, the "King" of the Black Disciples. The title of "King" meant that Freeman was the leader of the entire gang. At that time, Bishop was aligned with Thompson's faction, and the defendant, who was the nephew of Freeman and held the rank of "Board Member," was aligned with Freeman. One of the disputed areas between these two factions was in the vicinity of 72nd Street and Green Street in Chicago, approximately one block from where the shooting in the instant case occurred. Lastly, Montgomery described what is known as a "violation" in gang terminology, and noted that testifying in court against fellow gang members is considered a violation within a gang. A "violation," he continued, could result in a "beating or a killing start[ing] from a punch in the mouth that someone orders on another member."
After the trial court found the defendant guilty and sentenced him, defendant filed a motion to reconsider his consecutive sentences. That motion was denied.
Defendant's first claim is that the evidence presented at trial was "based on perjured, inconsistent testimony" and, therefore, was "insufficient to sustain a conviction." For this, he notes that the primary evidence against him consisted of Bishop's and Taylor's grand jury testimony and their statements to police, both of which were recanted by both individuals on the witness stand. In fact, defendant argues, "[t]he only possible other evidence-by stretching the circumstantial evidence to its breaking point-was the fact that sometime later the defendant was in possession of a weapon that was one of hundreds of thousands of weapons capable of having fired the shots which [sic] killed Christopher Smith and wounded Taylor and Bishop." And, he claims, because neither one of these people can be believed as to what really happened at 71st and Green Streets on August 28, 1998, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.
Defendant concedes that matters of credibility are for the trial court, the trier of fact in this case, to decide and that this court should not rule on such matters because the trial court was in a position to observe the witness, assess his demeanor, and make credibility judgments based on a firsthand encounter with the witness. See People v. Hornsby, 277 Ill. App. 3d 227, 230-31 (1995). Accordingly, he argues that the trial court could not have made the determination that Taylor's and Bishop's statements in the police station and in front of the grand jury were more credible than their trial testimony because the court never observed the witnesses' demeanor on those prior occasions.
On the other hand, he argues, if the trial court assigned more credibility to Bishop's and Taylor's prior statements because they testified to those facts earlier in time, then such logic "flies in the face of all the law in this state that prior consistent statements are inadmissible to bolster a witness's credibility, even though the witness is still on the stand subject to cross-examination." See People v. Emerson, 97 Ill. 2d 487, 500 (1983). He asks, "is a prior inconsistent statement more believable than a prior consistent statement?" For if this court has held that prior consistent statements are inadmissible for ...