Appeal from the Circuit Court of Cook County. No. 98 CR 12477 Honorable Stuart Palmer, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice O'brien
Defendant, John Burnom, appeals his jury conviction for first degree murder and attempted armed robbery, and his respective sentences of natural life in prison and a 15-year concurrent term. On appeal, defendant contends: (1) he is not guilty of first degree murder on the theory of accountability because the excessive force used by police officers operated as a superceding or intervening cause in the death of Ernest Hopkins; (2) the trial court gave a misleading answer to the jury's question regarding excessive resistance; (3) he trial court erroneously applied federal eavesdropping law, rather than state law, when it denied defendant's motion to suppress audio and video recordings; and (4) the trial court erred in admitting gang evidence and proof of defendant's prior criminal convictions. We affirm.
Trial testimony established the following facts.
Patricia Gibbons worked as a special agent for the Bureau of Alcohol, Tobacco and Firearms (ATF), a federal agency, for 13 years. In 1988, she also belonged to the Chicago Anti-Gun Enforcement (CAGE) task force, a joint cooperative between ATF agents and Chicago police officers which investigates the purchase and sale of illegal firearms in Chicago. During her CAGE investigations, Special Agent Gibbons discovered that Joseph Vicario had illegally purchased 21 firearms in a three-year period. In February 1998, Vicario was indicted on federal charges for falsifying the federal application form in connection with the purchase of five firearms.
After appearing in federal court on these charges, Vicario met with Special Agent Gibbons and two assistant United States Attorneys on March 19, 1998, and offered his cooperation in their investigation of defendant in exchange for consideration on his case. Specifically, Vicario informed Special Agent Gibbons and the two assistant United States Attorneys that he knew defendant, a high- ranking gang member who ran an area of Chicago called "Motown," and that he had engaged in numerous conversations with defendant regarding the purchase of firearms. Vicario stated that he had sold one of his illegally purchased guns to defendant.
Vicario told Special Agent Gibbons and the two assistant United States Attorneys that he had met with defendant in early March, and that defendant had indicated he was interested in purchasing several automatic weapons, seven or eight handguns, and five or six grenades. Defendant proposed to pay for the weapons with a combination of cash and heroin.
Special Agent Gibbons and Vicario formulated a plan whereby Vicario, in an undercover capacity, would meet with defendant on March 30, 1998, for the purpose of selling him firearms in exchange for heroin and cash. The transaction would be monitored by the CAGE task force, headed by Special Agent Gibbons. Vicario would drive a Cadillac specially equipped with a fixed video camera in the dashboard and various microphones and recording equipment.
On March 30, 1998, pursuant to their plan, Vicario met with Special Agent Gibbons and three other CAGE team members-her partner, Special Agent Ken Ryan, and two Chicago police officers, Officer John Coles and Officer Dave Harris-in a parking lot at 87th Street and Kedzie Avenue. Vicario was given the Cadillac with the audio and video surveillance equipment and instructed to remain in the Cadillac at all times so that the surveillance team could monitor Vicario's contact with defendant. Special Agent Gibbons monitored events from her own car, while Special Agent Ryan remained in his own car, and the two police officers were in a car together.
Defendant eventually drove up in a grey, four-door Chevy, exited his vehicle, and entered Vicario's Cadillac. During their 10-minute conversation, the two men agreed that in exchange for various weaponry, defendant would pay Vicario a total of $2,800, in the form of $1,100 in cash and one half ounce of pure heroin with a street value of $1,700. They agreed to meet again in two days, on April 2, 1998, at a McDonald's parking lot on 79th Street and Western Avenue to conclude the transaction.
On April 2, 1998, CAGE team members Sergeant Alvin Urbikas, Officer Coles, and Officer David Harris (of the Chicago police department), and Special Agent Mike Casey (of the ATF) were dispatched to the McDonald's parking lot at approximately 11 a.m. They were assigned to conduct surveillance from a Chicago police department undercover conversion van and to be the immediate arrest team. The van took up a position in the north end of the McDonald's parking lot, approximately five spaces east of the western curb.
Meanwhile, Vicario arrived at 87thStreet and Kedzie Avenue and was given the specially equipped Cadillac. Vicario then went to defendant's "Motown" neighborhood, in the area of 51st Street and Racine Street, and began asking around if anyone had seen defendant. Special Agent Gibbons and two other ATF agents followed Vicario in a separate vehicle.
Vicario eventually spoke with a man named "Ernest," later identified as the victim, Ernest Hopkins. Vicario explained to Ernest that he was trying to locate defendant. Ernest told Vicario how to page defendant.
Defendant returned Vicario's page at approximately 2:20 p.m., and the two men came to an agreement to meet between 3:15 and 3:30 p.m. at the McDonald's parking lot. Special Agent Gibbons, the two ATF agents, and Vicario then drove to a forest preserve on 87th Street, where Special Agent Gibbons put a suitcase full of weapons in the trunk of the Cadillac. Special Agent Gibbons told Vicario that the guns were not to leave the trunk of the car, and she also told him to park as close as possible to the covert van in the McDonald's parking lot.
At approximately 3 p.m., Vicario arrived at the McDonald's parking lot and pulled into a spot at the north end of the lot, in close proximity to the covert van containing Sergeant Urbikas, Officer Coles, Officer Harris, and Special Agent Casey. Meanwhile, Special Agent Gibbons took up surveillance from a Shell gas station located on the northwest corner of 79th Street and Western Avenue, adjacent to and south of the McDonald's parking lot. Officer George Klinger, who was on the surveillance team, also took up a spot in the Shell station.
CAGE team member Officer Larry Knysch took up location in a covert car at approximately 2450 W. 79th Street. His position was south of the McDonald's and a little bit west of the Shell station. His duty was to prevent anyone from accessing the scene from the alley, which feeds into the McDonald's parking lot.
At approximately 3:20 p.m., when all the surveillance units were in place, Vicario called defendant and told him that he had the "stuff." Shortly thereafter, at 3:30 p.m., a small green car pulled up next to Vicario's Cadillac. There were two men in the green car, including the victim, Ernest Hopkins, who had earlier told Vicario how to page defendant. Vicario told them that he was looking for defendant, and they replied that he was on the way. Vicario then stated that he would only deal with defendant.
The green car backed away and parked for a few moments alongside the covert van. The driver of the green car, later identified as Lavon Brown, reached under the seat, retrieved a handgun, and handed it to Ernest Hopkins. Hopkins put the gun in his waistband and covered it with his shirt.
The green car then drove into the Shell station. At approximately this time, Special Agent Gibbons observed defendant parked in the Shell station. Special Agent Gibbons and Officer Klinger saw defendant, who was wearing a blue, hooded sweatshirt and dark pants, walk over to the green car. Defendant leaned into the green car on the driver's side and conversed with the two occupants for approximately 1 ½ to 2 minutes. Defendant then walked back to and reentered his car; meanwhile, the green car exited the Shell station.
Less than a minute later, defendant pulled his car southbound through the gas station and parked just south of Officer Klinger's car. Defendant exited his vehicle and walked to the alley on the south side of 79th Street. He looked straight down the alley to the north toward Vicario's Cadillac.
The green car reentered the McDonald's parking lot and backed alongside the covert van. From inside the van, Sergeant Urbikas observed the driver, Lavon Brown, and the passenger, Ernest Hopkins, switch positions. Brown had a handgun in his waistband. Because Sergeant Urbikas could only see the butt of the handgun, he did not know whether it was the same gun he had seen Brown hand to Hopkins.The green car pulled up next to the Cadillac. Vicario again told the two men to back away, that he was waiting for defendant. Brown exited the green car with a gun in his hands and told Vicario to exit the Cadillac. As Vicario was exiting his vehicle, Brown placed the gun to Vicario's forehead.
Special Agent Gibbons immediately told her surveillance team to go in. Sergeant Urbikas was the first to exit the van, followed by Officer Harris and then the other two officers. Both Sergeant Urbikas and Office Harris testified that they ran around the van toward Vicario and Brown and screamed "police, police" and ordered Brown to drop his gun.
Brown fired his gun at Vicario, the bullet passing to the right of Vicario's head. Vicario suffered burns from the gunshot and could not hear as a result of the gun going off so close to his ear. After the shot, Vicario went down to a squatting position.
Sergeant Urbikas and Officer Harris observed Brown fire his gun at Vicario. Officer Harris testified that he thought Brown had killed Vicario and he next observed Brown aiming his gun at the approaching Sergeant Urbikas. Officer Harris testified that he fired a shot at Brown.
At this point, Brown began running along the chain-link fence that lines the west side of the McDonald's parking lot. As he was running, Brown turned and pointed his gun in Sergeant Urbikas's direction. Sergeant Urbikas fired two shots at Brown. Brown turned around again and, still with the gun pointed toward Sergeant Urbikas, began to run northbound. Sergeant Urbikas continued yelling and heard gunshots from behind him. Brown then threw himself onto the ground, ending up by a tree.
Sergeant Urbikas saw Special Agent Casey coming along the fence to cover Brown. At approximately the same time, Hopkins, who was still in the driver's seat of the green car, revved the engine and sped backwards, with the tires squealing. Sergeant Urbikas had to jump out of the way of the car to avoid being hit.
Sergeant Urbikas saw that Hopkins was completely turned to his right and that his right arm was extended straight out behind him. He heard Officer Coles screaming "stop him, stop him" and thought that the others had been run over. Sergeant Urbikas also heard gunfire and the sound of glass breaking and he saw that the rear passenger window of the green car had been broken out. Thinking that Hopkins was shooting at the officers, Sergeant Urbikas fired into the driver's side of the car.
Meanwhile, Officer Harris had observed Sergeant Urbikas jump out of the way of the green car and he thought that Urbikas had been hit. He, too, heard Officer Coles scream "stop him, stop him" and saw Officer Coles fire one shot into the car. Approximately the same time, Officer Harris saw that Hopkins was "making a motion" with his extended right hand in Officer Harris' s direction and Officer Harris believed that Hopkins was armed. Officer Harris therefore fired twice into the car.
The green car continued backward at a high rate of speed. It hit a concrete divider, bounced forward, and came to rest. Hopkins, who had been shot in the back and in the face, died as a result of his wounds.
Sergeant Urbikas ran back to where Special Agent Casey had been covering Brown. Officer Harris also ran over to Brown, handcuffed him, and took him into custody. Brown told him that he had been shot in the arm. The officers called for medical attention for Brown, who sustained six bullet holes to the outer ...