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People v. Tolliver

March 12, 2004

[5] THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
JONATHAN TOLLIVER, DEFENDANT-APPELLANT.



[6] Appeal from the Circuit Court of Cook County. No. 98 CR 24624-03 Honorable Dennis Porter, Judge Presiding.

[7] The opinion of the court was delivered by: Justice O'brien

[8]  We affirm defendant Jonathan Tolliver's convictions for the first degree murder of Michael Ceriale and for possession of a controlled substance with intent to deliver and his concurrent sentences of 60 years' and 15 years' imprisonment.

[9]  Michael Ceriale, a Chicago police officer, was fatally shot while conducting an undercover narcotics investigation.

[10]   Defendant was tried before a jury for the murder of Ceriale, for possession of a controlled substance with intent to deliver and for criminal drug conspiracy. He was found guilty of possession with intent to deliver, and acquitted of the charge of criminal drug conspiracy. A mistrial was declared on the murder charge because of a hung jury on that charge.

[11]   Defendant was retried before another jury for the murder of Ceriale, found guilty and sentenced to concurrent sentences of 60 years for murder and 15 years for possession of a controlled substance with the intent to deliver. He filed this appeal. Upon appeal, defendant contends that: (1) the State failed to prove him guilty beyond a reasonable doubt of murder or possession of a controlled substance with the intent to deliver; (2) the trial court erred in admitting testimony related to defendant's arrest for possession of a controlled substance with intent to deliver; (3) he was denied a fair trial by admission of excessive evidence about street gangs; (4) the trial court erred in allowing evidence of gang intimidation where no evidence of intimidation was tied to defendant; (5) he was denied a fair trial by multiple incidents of prosecutorial misconduct; (6) he was denied a fair trial by the prosecutor's closing argument; (7) the trial court abused its discretion in excluding exculpatory evidence; (8) defendant was denied a fair trial by cumulative error; (9) the trial court erred in denying defendant's motion to bar retrial on the grounds of double jeopardy; and (10) the trial court erred in sentencing defendant as an adult on the possession charge.

[12]   The trial testimony summarized here is from defendant's first and second jury trials.

[13]   The State's Witnesses

[14]   Chicago police sergeant Mark Moore of the organized crime division, narcotic and gang investigation section, testified about the operation and security of illegal drug sales of the Gangster Disciples street gang. "Outside security" was two gang members who watched outside the building for police or for rival gang members. Inside the building, gang members known as "servers" or "holders" held the drugs and handled the sales. Another armed gang member searched people as they entered and left the building.

[15]   Security worked in two shifts and with one weapon, a .357-caliber firearm which was passed from shift to shift along with six extra bullets.

[16]   Moore testified that the drug operation at 4101 South Federal Street was controlled by the Gangster Disciples street gang. Gangs have bylaws and rules and a broken rule is a "violation." The Gangster Disciples consider "tricking" or testifying against each other as one of the worst violations. Gang members who "trick" are badly beaten or killed.

[17]   Chicago police officer Joseph Ferenzi testified that in the early morning hours of August 15, 1998, he and Chicago police officer Michael Ceriale, plainclothes partners, were conducting drug surveillance at 4101 South Federal Street. They parked their unmarked car in front of Hartigan grammar school, exited the car and walked to an elevated, wooded area called "the coal mine." The area was well lit by street-lights, wall lighting on the school, and lights on all floors of nearby 4101 South Federal Street.

[18]   Ferenzi testified that they saw three women sitting on a bench at 4101 South Federal Street, another person standing and talking to the women and a black male in dark clothing sitting on a milk crate approximately 150 feet away. The officers thought that the male or the people on the bench were "outside security." The male on the milk crate looked in the direction of the officers, got up and walked into the breezeway. He returned to the milk crate with two other men, one a thin, light-skinned black male approximately 6 feet to 6-feet-2 inches tall wearing an orange baseball cap turned backwards, an orange jersey with a light-colored number "50" and dark pants, and the other, a black male shorter in height, with dark hair, wearing a red top with light-colored writing and light-colored shorts or overalls.

[19]   Ferenzi testified that these two males stopped and pointed at the officers. Ceriale said, "Joe, I think they made us. The guy in the orange hat and orange jersey." Ferenzi replied, "Yeah, I see him." The two males eventually walked across the grass and stopped. The male in orange clothing moved closer to the officers and looked at them.

[20]   Then, Ferenzi heard a noise "like an M80" and saw sparks flying from the outstretched hands of the male in orange clothing. Ceriale screamed and fell to the ground while the shooter and the male in red ran back into the breezeway. Ceriale said, "He shot me," referring to the male in orange.

[21]   Ferenzi did not see the face of the shooter during the shooting. Ferenzi called for an ambulance just after 3:30 a.m.

[22]   Detective James Jones testified that he spoke with Ceriale after the shooting, while Ceriale was still coherent. Ceriale told Jones that he was shot by a slender, tall, male black wearing an orange baseball cap turned backwards, an orange sports jersey with white or light lettering featuring a "zero" and another number, and dark-colored pants who ran back towards 4101 South Federal Street after the shooting.

[23]   Officers Amina Greer and Ethel Green testified that they monitored the radio call of an "officer down", and arrived on the scene at 3:40 a.m. Greer and Green had a description of the offender as a "male black wearing an orange baseball cap turned backwards and an orange jersey shirt." Green saw defendant standing with three other males in the crowd of approximately 100 people and noted that defendant matched the description. Green and Greer approached defendant, who gave his name and age as 18 years old. Defendant said he was coming from a party and going home to 4101 South Federal Street. Green testified that defendant was fidgety, nervous, making rapid eye movements, and breathing fast and would not look at her. Green patted defendant down for weapons and found none.

[24]   Ferenzi viewed four suspects at the scene. He identified a tall, light-skinned male black wearing an orange baseball cap turned backwards, an orange jersey with "50" in light-colored writing and dark pants as the shooter.

[25]   That male was the defendant.

[26]   At trial, six witnesses called by the State testified contrary to their prior grand jury testimony and their prior statements.

[27]   Lacole Dismuke testified contrary to her grand jury testimony and her prior statements. At trial, Lacole denied witnessing the shooting and denied telling the police about the shooting or about a Gangster Disciple drug operation at 4101 South Federal Street. She testified that she ran to apartment 810 at 4037 South Federal Street after the shot. Lacole testified that when she returned to apartment 609 later that morning, her sister showed her a gun and she handled the gun.

[28]   Lacole testified that early another morning, she was awakened by five police detectives with drawn guns who transported her to police headquarters for questioning. She testified that she was questioned for hours by Detective Jones and that Jones refused to accept that she knew nothing of the shooting. Jones repeatedly told her she was in "deep shit," which she believed meant that her fingerprints were found on the gun used in the shooting. She was afraid she would be jailed because she was already on probation for a weapon charge.

[29]   Lacole testified that Detective Jones told her what to say before the grand jury. She feared his police authority and testified to the grand jury as he suggested, although he did not threaten or touch her. Jones coached her sister and Tameesha Bolden as to their testimony also.

[30]   Lacole testified she was visited by approximately 15 relatives of co-defendant Robert Brandt several days after testifying before the grand jury. The Brandts said they were angry that Lacole had testified; they threatened to "blow up" her apartment, "whip her ass," and kill her niece.

[31]   She did not immediately call the police after the Brandt incident. She later returned to the grand jury and again testified that she witnessed the shooting, and further, she testified to the incident with the Brandt family. When one of the grand jurors asked Lacole if those who threatened her were Gangster Disciples, Lacole responded,"some of them was."

[32]   Detective Jones denied that he or any officers told her she was in "deep shit." He testified that Lacole told police details concerning the drug operation at 4101 South Federal Street.

[33]   Tameesha Bolden testified contrary to her grand jury testimony and her prior statements. At trial, she denied knowing details about the shooting. She testified that her statements and grand jury testimony were from a paper given to her by Detective Rose and that she gave the statements because police told her that they had already arrested the defendant and that she would get home quicker if she memorized the paper. She told Detective Jones that the paper was not true.

[34]   Tameesha testified that defendant was not present when she was in the breezeway at 4101 South Federal Street at 3 a.m. on August 15, 1998, but that Christopher Evans, a/k/a "Big Moose," wearing an orange jersey and orange hat and carrying a gun, was present. Tameesha testified that Big Moose brought a gun to apartment 608 and that Lacole dropped the gun out of the window

[35]   Tameesha further testified that after her grand jury appearance, she told Reverend Deborah Jones, Sergeant McCaskey, Officer Ron Kimble, Officer James Davis and Sergeant McCaster about her false testimony to the grand jury.

[36]   Officer Joe Parker testified that he knew Tameesha from working at an after-care program. Parker stated that he saw Tameesha throw gang signs and heard her shout gang slogans on 30 to 40 occasions.

[37]   Fannie Louise Howard testified contrary to her grand jury testimony and her prior statements. At trial, she denied the information in her prior statements and her testimony before the grand jury. She testified that police yelled and cursed at her and threatened eviction and the removal of her children if she did not tell them that defendant was the shooter.

[38]   She testified she signed a false statement because she was afraid of losing her home and children. After she signed the statement, she was taken home so she could take her diabetes medicine.

[39]   Assistant State's Attorney Dan Groth testified that Howard had given him a handwritten statement and had no complaints about her treatment by the police.

[40]   Carlos Hendricks testified contrary to his grand jury testimony and his prior statements. At trial, he testified that he did not see who shot Ceriale and did not see defendant in the breezeway at 4101 South Federal Street because he was in his sister's apartment at 4037 South Federal Street at the time of the shooting. Hendricks testified that he lied about being at the scene and lied about defendant's participation in the shooting because he was afraid of the police.

[41]   Hendricks testified that two detectives questioned him about the Ceriale shooting when police picked him up for a misdemeanor and that one detective "wouldn't take no for an answer," One detective told Hendricks that if he did not identify defendant as the shooter, he would be charged with murder. Another hit Hendricks' head with a clipboard or against a wall every time Hendricks repeated his denials. Hendricks finally agreed to give a handwritten statement naming defendant as the shooter because Hendricks was afraid he would be charged.

[42]   At trial, Detective O'Brien testified that Hendricks was never abused or threatened and that Ceriale was still alive at the time Hendricks was interviewed so Hendricks was not threatened with a murder charge.

[43]   At trial, Calvin Brown testified contrary to his grand jury testimony and his prior statements. He denied knowing what happened at the shooting because he left a party attended by defendant at 3 a.m. and spent the night with his girlfriend.

[44]   Brown testified that he went to the police station voluntarily because his "name was in the air." He was accompanied by his mother Kathryn Smith and a man named Adrian Frowner, who he considers his stepfather. Brown testified that Detective Murray provided Brown with details of the shooting outside the presence of his mother and that detectives gave Brown a choice as the shooter: defendant or "June Bug."

[45]   After hours of rejecting police suggestions, Brown was left alone in the interview room, without food or blankets, and later placed in a cell until Detective Murray resumed questioning. Detective Murray suggested to Brown that Brown could be charged and that other witnesses had placed him at the scene. Brown then signed a statement naming defendant as the shooter. Brown had been with police for more than 20 hours.

[46]   Brown admitted that he signed the handwritten statement and read it aloud. Brown testified that sometime after his grand jury testimony, he was visited by five or six Chicago police detectives who threatened him not to change his story or recant his grand jury testimony.

[47]   Adrian Frowner testified that he and Kathryn Smith took Brown to the police station. Frowner and Smith told Brown to tell the truth. Frowner was present when the assistant State's Attorney drafted the statement and when Brown read the statement aloud and signed it. Frowner took Brown to the grand jury the following day. Brown never complained to Frowner that he was mistreated, that he was coerced into signing a statement or testifying before the grand jury or that his statement was not true.

[48]   Treyvon Louis testified contrary to his grand jury testimony and prior statements. At trial, he denied any knowledge of the shooting. He testified that he left 4101 South Federal Street at approximately 2:15 a.m., went to a truck stop to get something to eat, returned at approximately 2:30 a.m., and went to his mother's apartment in 4101 South Federal Street. He testified that after he voluntarily turned himself in to the police, he was interrogated for hours and was struck repeatedly in the face by three white police officers until he agreed to cooperate. Louis testified that police threatened to charge him with the shooting unless he told them the story they wanted to hear. Louis also testified that he was handcuffed and not allowed to obtain his insulin medication for diabetes and that the officers threatened to "blow [his] brains out."

[49]   Louis testified that "GD" means "Growth and Development," and that he had "heard about" the Gangster Disciples. However, he admitted that he had belonged to the Gangster Disciples since he was 15 years old, that he had a tattoo on his right arm with "CPO" above a "G," that CPO was his nickname and that the "G" stood for "Gangster." Louis testified he was no longer a Gangster Disciple and he did not know if the gang sells drugs.

[50]   Assistant State's Attorney Alan Lynn testified that he took Louis's handwritten statement. Lynn advised Louis of his rights before taking the statement. Louis showed no signs of abuse and complained of none. A photograph taken of Louis showed no injuries. Louis told Lynn that he was not present during the shooting and did not find out about the shooting until the next day, and Lynn added that information to the statement. In both his signed statement and in his testimony before the grand jury, Louis stated that no threats or promises had been made to him.

[51]   The State then introduced the grand jury testimony and prior statements of these six witnesses as substantive evidence. The following is the evidence from the grand jury introduced as substantive evidence by the State:

[52]   Before the grand jury, Lacole Dismuke testified that on August 15, 1998, at approximately 3:30 a.m., she was sitting on a bench in front of 4101 South Federal Street with Lynette Dismuke and Tameesha Bolden. Calvin Brown was sitting on a crate in front of the bench. Gregory Mollet, James, George Alexander, and Robert Brandt, all Gangster Disciples (GDs), were also present. Lacole testified that drug selling went on every day in the building and that Brandt sold drugs while other GDs ran security in the back. George Alexander worked security outside in front of the building.

[53]   Lacole testified that George Alexander pointed to the cocaine and said, "on the Popsicles, Folks," meaning that inside security was to come outside with their guns, and "[t]hen JT [defendant] come out of the side door and he run over there and he shoot."

[54]   Lacole testified that Willie Hunter was also working security and was standing partially outside the door sporting a nine-millimeter gun. Defendant told Hunter to "watch my back" and said he was going to shoot. Defendant positioned himself across the street from the coal mine, aimed straight ahead, fired one time at the coal mine and "somebody in the bushes fell." After firing, defendant yelled, "Go up, folks," meaning they should run inside.

[55]   Lacole and Tameesha then ran to apartment 609. Approximately five minutes later, defendant knocked on the door of that apartment, but he did not have a gun. Lacole later found a gun in the pantry. It was missing one bullet and smelled as though it had just been fired. Lacole wrapped the gun in a pair of shorts and put it on the shelf in the bathroom because she was scared. Later that night, Brandt came over, retrieved the gun, and threw it out the window.

[56]   Before the grand jury, Tameesha testified consistent with the grand jury testimony of Lacole. Tameesha thought the gun defendant had was a .44 Magnum.

[57]   Before the grand jury, Carlos Hendricks testified that he saw defendant shoot the gun on August 15, 1998. Hendricks stated that the gun was a .357 Magnum. Hendricks signed a statement with these facts.

[58]   Before the grand jury, Calvin Brown identified defendant as the shooter of the gun on August 15, 1998. Brown testified that defendant shot either a .357 or a .38. Brown signed a statement with these facts.

[59]   Before the grand jury, Fannie Louise Howard testified that she was home in bed in apartment 606 at 4101 South Federal Street on August 15, 1998. She heard a knock on the door and saw defendant standing in the hallway. Defendant was wearing an orange shirt and an orange hat turned backwards and held a gun in a plastic bag. Defendant asked Howard if she would hold his gun for him and she said no. Defendant had never come to her apartment before that date nor asked her to hold anything for him. Howard had seen defendant working security for the drug-selling operation on prior occasions. Howard signed a statement with these facts.

[60]   Howard told the grand jury that on the night of the shooting, she told police she saw nothing because she was afraid of defendant and other Gangster Disciples.

[61]   Before the grand jury, Treyvon Louis testified that he was responsible for drug security for the Gangster Disciples on August 15, 1998, and that when he left 4101 South Federal Street at 2:30 a.m., defendant was armed and working inside security for the drug operation. Louis signed a statement with these facts.

[62]   The State's Forensic Evidence

[63]   Dr. Eupil Choi testified that he performed an autopsy on Ceriale and that Ceriale died from shock and loss of blood as a result of a gunshot wound that hit the main vein in his leg. Dr. Choi recovered a fired bullet from behind the hip area on the right side of Ceriale's body.

[64]   Police officer James O'Brien testified that officers searched the area at 4022 South State at approximately 6:15 p.m. on August 16, 1998, for the weapon used to shoot Ceriale. The officers searched an electrical room on the thirteenth floor containing rows of electric meters and covered with Gangster Disciple graffiti. They found a Smith and Wesson .357 Magnum revolver in a space left by a missing meter. It had a blade of grass in the barrel and five live rounds; the sixth chamber was empty.

[65]   That gun and the five cartridges were transported to the State Police crime lab for tests for latent fingerprints. No prints were found.

[66]   Brian Maryland, a firearms examiner, testified that he received the fired bullet recovered from the body of Ceriale and determined that the bullet was fired from the .357 gun recovered from the electrical room at 4022 South State.

[67]   Mary Beth Thomas, a State Police crime lab forensic scientist specializing in latent fingerprints, testified that she conducted five different fingerprint tests on the .357 weapon and cartridges and found no latent fingerprints on any of the items.

[68]   Scott Rochowicz from the State Police crime lab testified that swabs taken from defendant's hands after his arrest were examined for gunshot residue (GSR). In analyzing the GSR results, an examiner looks for levels of antimony, barium and lead above the levels normally found in the environment.

[69]   The swab taken from defendant's right palm showed a barium level of .592 micrograms and a .992 microgram reading for the left palm. Both of these levels were above the barium threshold level of .4 micrograms. The levels on the back of defendant's hands were below the threshold level. Defendant's right palm swab level for lead was .389 micrograms and the left palm level for lead was .568 micrograms, both above the threshold level. The other two lead readings were below the threshold level. The four antimony readings were all below the antimony threshold.

[70]   Rochowicz testified that he was unable to form an opinion as to whether defendant had fired or handled a weapon based upon the GSR results although he could not exclude the possibility that defendant had handled a weapon because the levels of lead and barium were above the threshold.

[71]   The State's Evidence of Possession of a Controlled Substance with Intent to Deliver

[72]   Defendant was convicted in the first jury trial of possession of a controlled substance with intent to deliver. The State introduced evidence of that arrest and the facts surrounding it as evidence in the second jury trial for murder to show motive and identity. The testimony regarding this arrest and event was substantially the same in both the first and second trials.

[73]   Chicago police officers Michael Miller and Johnny Cavers testified about defendant's arrest for possession of a controlled substance with the intent to deliver three days before the Ceriale shooting. They testified that shortly before 11 p.m. on August 12, 1998, they were on patrol at the Robert Taylor Homes, where they saw a young male black holding a sandwich baggie containing several other colored plastic bags in the entrance of 4101 South Federal Street. The officers had seen such bags on hundreds of occasions during narcotics investigations.

[74]   Miller exited the squad car and eventually began to chase defendant. Defendant threw the sandwich bag, which landed on the fifth-floor landing. Cavers eventually retrieved the sandwich bag. It contained smaller red zip-lock bags which each contained a white rock substance. The Illinois State Police crime lab determined the white rock substance to be 7.6 grams of cocaine.

[75]   Defendant told police that he was 6 feet 3 inches tall, weighed 165 pounds and was a member of the Gangster Disciples.

[76]   The Defendant's Witnesses

[77]   Defendant presented alibi witnesses who testified that defendant was at a party in apartment 709 at 4410 South Federal Street in the early morning hours of August 15, 1998.

[78]   Marie Carr, defendant's good friend, testified that she went to the party with defendant at approximately 12:30 a.m. and that defendant's girlfriend, Crystal Easley, did not go with them. Carr testified that she did not see defendant leave the party and that she would have noticed because he wore a bright orange shirt. Carr stayed at the party until 3:30 a.m., when the disk jockey (DJ) announced the time and said that the party was over. After the party, Carr saw defendant on a bench in front of the building as police cars came zooming down the street. Carr, defendant, and Easley walked to a gas station to get something to eat, and then returned to 4101 South Federal Street. Carr testified that there were no drugs or alcohol at the party and that at least half of the people at the party were GDs.

[79]   Pascha Marie Gray, a cousin of Easley, testified that when she arrived at the party at 12:30 a.m., defendant was already there. After the party, Gray saw defendant outside the building.

[80]   Tamika Merkson, defendant's sister's friend, testified that she saw defendant at the party but did not know if he was still there when the party ended. Merkson saw defendant after the party on the corner of Root and State Streets.

[81]   Valentino Mayo, a friend of Easley's, testified that she was at the party and that defendant arrived at the party between 11:15 and 11:30 p.m. without Easley. The party ended at 3 a.m., and the DJ did not announce the time.

[82]   Kamita Milton testified that she went to the party at approximately 10:30 p.m. and saw defendant dancing at the party. The DJ did not announce the time at the end of the party. Milton testified that she was home at approximately 3:15 a.m. and did not hear any squad cars on the street.

[83]   Donald Jenkins, a cousin of Easley, testified that he arrived at the party at midnight and saw defendant at the party. Jenkins testified that the party ended at 3:30 a.m., but admitted that he had previously told the ...


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