The opinion of the court was delivered by: Justice Fitzgerald
Docket No. 86382-Agenda 1-September 2000.
Following a jury trial in the Cook County circuit court, the defendant, Edward Graham, was convicted on three counts of first degree murder. The defendant waived his right to a sentencing-phase jury, and the trial court found him eligible for the death penalty. The court then found no mitigating circumstances sufficient to preclude the death penalty and sentenced the defendant to death. That sentence has been stayed pending direct review by this court. Ill. Const. 1970, art. VI, §4(b); 134 Ill. 2d Rs. 603, 609(a). For the reasons that follow, we affirm the defendant's convictions.
In the mid-1980s, the defendant met Johnny Jones, Sr. (Jones), a major Chicago cocaine distributor, while doing carpentry work for him. Eventually, the defendant began doing more lucrative work for Jones. For approximately five years, the defendant delivered cocaine to street dealers affiliated with Jones, collected drug-sale proceeds from them, and returned the money to Jones. In return, the defendant received $10,000 per month for his courier services.
Jones lived in a house on Chicago's south side with Marshall Mason and Erica Chotoosingh. Occasionally, Jones' eldest son, Johnny Jones, Jr. (Johnny), and his friend, Cory Williams, spent the night at Jones' house in second-floor bedrooms. On September 28, 1996, Johnny and Williams went upstairs to sleep around 1 a.m. An hour later, Johnny awoke to a loud thump and then heard the sound of gunfire. Johnny determined that Williams was unhurt, and together they crept downstairs. Johnny saw the defendant shooting a handgun into Mason's bedroom. Johnny and Williams scrambled back upstairs to find a cellular telephone and call the police. According to Williams, Johnny said, "[T]hat's Ed." As they discovered that the telephone was not functioning, they heard a woman scream and more gunfire. When Johnny returned to the stairs, he saw the defendant in his father's bedroom with a handgun. The defendant fired several shots into Jones' bedroom and then crouched down and fired several more shots. The defendant fired another shot into Mason's room, grabbed a white box, and fled out the back door of the house. Johnny then locked the back door. Again, according to Williams, Johnny repeated, "[T]hat was Ed, man, that was Ed, I saw him, that was Ed." They discovered that Jones, Mason, and Chotoosingh had been shot to death, and they called the police around 3 a.m.
After leaving Jones' house, the defendant drove to a Chicago-area municipal airport, flew in a private plane to Indianapolis, Indiana, and, using an alias, flew in a commercial plane to Las Vegas, Nevada. He was arrested more than a month later by Las Vegas police officers and Federal Bureau of Investigation agents assigned to the fugitive task force. While incarcerated in Las Vegas, the defendant encountered Carl Torrence, who was being held on drug charges. Torrence asked the defendant why he had been arrested. According to Torrence, the defendant answered that he was "involved in a murder in Chicago." The defendant explained that he had visited Jones' house early one morning to drop off money. Inside the house, he smelled and saw gun smoke; Jones was dead. The defendant went home to shuttle drugs to another location, but returned to Jones' house a short time later. When he noticed Johnny standing on the stairs, he left immediately.
Torrence had a second conversation with the defendant the next evening. The defendant stated that he wanted to enter a witness protection program; Torrence advised him against that strategy. At Torrence's request, the defendant described the layout of Jones' house. Torrence dismissed the defendant's suggestion that Johnny did not see who shot his father and encouraged the defendant to "come clean." According to Torrence, the defendant admitted, "Well, I did it." The defendant detailed his relationship with Jones and stated that he had been stealing money from Jones. Two days before his murder, Jones had ordered the defendant to bring him boxes containing $750,000. On the night of the murder, the defendant placed a handgun in a box and went to Jones' house. According to Torrence, the defendant stated that he shot Jones twice, shot Mason twice, and shot Chotoosingh five times as she hid under a bed. Autopsies later revealed that Chotoosingh had been shot five times, but that Jones was shot seven times and Mason three times.
Torrence had a third conversation with the defendant the following morning. The defendant asked Torrence whether the police could trace a .380 handgun to him. The gun used to shoot the victims was a .380. The defendant waived extradition and was returned to Chicago. Torrence then contacted the authorities, offering to exchange his information on the defendant for "a deal." Based on grand jury testimony from Johnny and Torrence, the State obtained an indictment against the defendant.
At trial, Johnny, Williams, and Torrence testified for the State. The defendant testified on his own behalf and told a story consistent with the story he told in his first conversation with Torrence. A jury found the defendant guilty on three first degree murder counts. The defendant waived a sentencing-phase jury. The trial court found the defendant eligible for the death penalty. After hearing evidence in aggravation and mitigation, the court sentenced the defendant to death. This appeal followed.
The defendant raises 11 issues: three guilt-phase issues and eight sentencing-phase issues.
An appellate issue is moot when it is abstract or presents no controversy. People v. Blaylock, 202 Ill. 2d 319, 325 (2002). An issue can become moot if circumstances change during the pendency of an appeal that prevent the reviewing court from being able to render effectual relief. People v. Jackson, 199 Ill. 2d 286, 294 (2002). While this appeal was pending, and more than two years after oral arguments, then-governor Ryan commuted the defendant's death sentence to natural life imprisonment without the possibility of parole or mandatory supervised release. Commutation removes the judicially imposed sentence and replaces it with a lesser, executively imposed sentence. People ex rel. Johnson v. Murphy, 257 Ill. 564, 566 (1913); Black's Law Dictionary 274 (7th ed. 1999). Thus, the commutation rendered the defendant's sentencing-phase issues moot. See, e.g., Lewis v. Commonwealth, 218 Va. 31, 38, 235 S.E.2d 320, 325 (1977); State v. Mitchell, 239 Or. 87, 88, 396 P.2d 572, 573 (1964). We therefore, address only his guilt-phase issues.
The defendant first contends that he received ineffective assistance of counsel because his trial attorney, George Howard, labored under a per se conflict of interest. The defendant claims that Howard previously represented Johnny, a key prosecution witness and the son of one of the murder victims, when Howard went to the police station on the night of the murders at the request of Johnny's uncle after Johnny had been taken there for questioning. We review this issue de novo. See People v. Miller, 199 Ill. 2d 541, 544 (2002).
On June 2, 1998, before jury selection began, Howard addressed an issue about which the State had concerns. Howard stated:
"[I]n this case, when this incident first happened, the uncle of the dead man or one of the deceased individuals called me and asked me if I would go to the station and see about his nephew. *** The son of one of the deceased was being questioned by the police.
So I drove to the police station pursuant to that request to see what was going on. I did not speak to the witness. I was told by the investigating officer that he was not a suspect and I ...