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People v. Thomas

December 13, 2004

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DUEL THOMAS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. No. 99 CR 10375. Honorable John J Moran, Jr., Judge Presiding.

The opinion of the court was delivered by: Justice Cahill

OPINION MODIFIED ON DENIAL OF REHEARING

[9]     Defendant Duel Thomas was convicted of first degree murder (720 ILCS 5/9-1(a)(1) (West 2000)) and aggravated kidnaping (720 ILCS 5/ 10-2(a)(1) (West 2000)) after a jury trial. He was sentenced to 60 years' imprisonment for murder and 30 years for aggravated kidnaping, to be served concurrently. Defendant appeals, claiming he is entitled to a new trial because: (1) the State did not prove him guilty beyond a reasonable doubt; (2) the trial court erred in admitting the statement of a witness as a prior inconsistent statement; (3) the trial court erred in admitting evidence linking defendant to a gang; and (4) the State's closing arguments were improper. We affirm.

We simultaneously address arguments raised by defendant in his appellate brief and in his petition for rehearing filed after the release on August 31, 2004, of our affirmance of his conviction. Because the issues raised in his petition overlap with his arguments in his appellate brief and with our conclusions in our affirmance, we issue this modified opinion on denial of the petition for rehearing.

Quinton Kirkwood's body was found on March 27, 1999, in a rear basement stairwell at 1648 S. Christiana Avenue in Chicago. He had been shot to death.

Jeff Henderson was arrested on March 28, 1999, in connection with the murder. The next day, he gave Assistant State's Attorney Luke Sheridan a statement, implicating defendant in the shooting. Henderson said he and several other people, including defendant, defendant's brother Antonio Thomas (Antonio) and Linord Thames were in the apartment of Frederick Laws at 8 p.m. on March 26, 1999. Thames told defendant and Antonio that Kirkwood was playing dice in another apartment, had won about $9,000 and was a good target for a robbery. Antonio gave Henderson a set of keys and told him to go get a car that was parked nearby. Henderson got the car and parked it in front of the building where the dice game was taking place. About 10 minutes later, Henderson saw Antonio walking Kirkwood at gunpoint from the building. Antonio pushed Kirkwood into the trunk of the car and closed the lid. Antonio ordered defendant and Henderson to get inside the car.

Henderson said Antonio drove to an alley where he stopped and opened the trunk. Defendant and Antonio grabbed the victim and walked him to a cemented area under a porch behind a building. When defendant and Antonio demanded money, Kirkwood used a cellular phone to call relatives and ask for money. Henderson said he heard Kirkwood say he had lost money in a dice game, needed more money and was sending someone to get the money. Henderson then went to Kirkwood's relatives' house but they refused to give him money. Henderson returned to the location where defendant and Antonio were holding Kirkwood at gunpoint. When Henderson told defendant and Antonio that no money was given to him, Kirkwood asked to call his relatives again. Antonio dialed the number and handed the phone to Kirkwood as defendant shot Kirkwood multiple times with an automatic weapon. Then Antonio shot Kirkwood multiple times. Defendant fled on foot. Henderson and Antonio fled in the car. The statement said that Henderson was treated well by the police, he had read and signed each page of the statement and he was not threatened or promised anything in exchange for the statement.

Defendant, Antonio, Thames and James Williams were arrested on March 29, 1999. Defendant was charged by indictment with first degree murder, aggravated kidnaping, kidnaping and attempted armed robbery. Henderson's trial was held before defendant's trial. Henderson's testimony at his own trial was essentially the same as his statement to Sheridan, implicating defendant in the shooting. Henderson was acquitted. Defendant, Antonio and Williams then were tried concurrently before separate juries.

Before opening statements in defendant's trial, the trial judge instructed the jury, giving the following admonition as to closing arguments:

"[C]losing arguments [are] not evidence, but it's helpful for you to have the attorneys review the evidence presented in the case and also to discuss inferences to be drawn from the evidence. It's also your determination as to whether an inference that's argued is in fact a reasonable inference or not because you are the trier of the facts. You will decide what the facts in the case are."

The State called Officer Thomas McGreal, who testified that in investigating the crime scene, he found seven cartridge casings and four fired bullets.

The State called Henderson to testify. Henderson testified that he could not recall seeing defendant on the night of the murder, contrary to his testimony at his own trial, and stated that his entire testimony at his own trial was untrue. The State then examined Henderson on the basis of the transcript of his trial, impeaching his statements that his trial testimony was untrue. Defendant did not object. Henderson said he was not with defendant on the night of the murder and he knew defendant "just from around the neighborhood, that's all." Henderson admitted to testifying at his own trial that he was with defendant that night, but claimed "the whole transcript you're reading is [a] lie."

Following a discussion outside the presence of the jury, the trial court determined that Henderson's statement to Sheridan could be admitted under section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2002)). That section allows a prior inconsistent statement that would otherwise be excluded as hearsay to be admitted as substantive evidence. Henderson testified the written statement was "made up" by the assistant State's Attorney. Henderson said he signed the statement without reading it after being told he could go home if he signed.

Henderson testified that, contrary to his earlier accounts of the murder, he alone forced Kirkwood at gunpoint into the trunk of a car and tried to rob him. He said that when he failed to get money from Kirkwood's relatives, he drove to the scene of the murder and shot Kirkwood, firing a .38-caliber weapon with one hand and a .45-caliber weapon with the other hand.

After a discussion with the parties outside the presence of the jury, the trial court decided to allow the introduction of gang evidence despite its earlier refusal to do so. Over defendant's objection, the trial judge instructed the jury as to gang-related evidence:

"[Y]ou are going to be hearing evidence and testimony that is being admitted for a limited purpose, and the testimony involves the mention of gang membership. There is no evidence or inference or argument that this homicide in any way was gang related. So it is being offered for the limited purpose only of evaluation of the credibility of this witness as well as the consideration of any arguments concerning his motivation.

So for that limited purpose only it will be admissible. It will not be considered by you for any other purposes in deciding the case."

When questioning resumed, Henderson denied ever being a member of the Black Souls street gang, of which defendant was the chief, but Henderson admitted that he so testified at his own trial. Henderson admitted that he testified that the number one law of the Black Souls was "to never disown one of your brothers" and "to always look up to your older brothers and never disobey the mob, never go against the grain."

Assistant State's Attorney Virginia Bigane asked Henderson if he had ever told anyone that he committed the crimes, and he replied that he had told her, but he could not recall the exact date. He claimed to have confessed to Bigane in private while he was waiting for a hearing to begin in the present courtroom on an earlier occasion. He said that on the day he confessed, he had been transported from the Pinkneyville Correctional Center by correctional officers, and although the officers accompanied him to court, they were not present when he confessed.

The State also examined Henderson as to whether he understood the extent of his immunity from further prosecution following his acquittal:

"Q: That was [at your own trial] where you told a jury that [defendant] and [Antonio] committed the murder, correct?

A: Yes, ma'am.

Q: You were found not guilty after that testimony, correct?

A: Yes, ma'am.

Q: And you now know that the State can never try you again for murder no matter what you say here today, correct?

A: I don't know. ***

Q: And [your lawyer] informed you that you can say anything you want here today about the murder because you cannot be tried again for the murder, isn't that true?

MR. WAGNER (Defense Counsel): Objection.

THE COURT: Overruled.

BY THE WITNESS:

A: He told me something like that, but he said I could still get tried by federal, something about the federal government can try me for murder and stuff like that.

Q: Well, you are aware that there was an agreement with the State's Attorney that you would not be tried again for murder if you tried to get up and say you did the murder either in this courtroom or any other courtroom -

A: No, ma'am. I wasn't told that. ***

Q: Your lawyer didn't tell you that you cannot be tried for this murder either here ...


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