Appeal from the Circuit Court of Cook County Honorable Brian Flaherty, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gallagher
PRESIDING JUSTICE GALLAGHER delivered the opinion of the court: Following a jury trial, defendant Keith Wilcox was found guilty of first degree murder and aggravated unlawful restraint and was sentenced, respectively, to concurrent terms of 50 and 5 years' imprisonment. On appeal, defendant contends that the State failed to prove him guilty of first degree murder beyond a reasonable doubt and that he was denied the effective assistance of counsel. Defendant also contends that the trial court erred by coercing the jury into returning a verdict, failing to admit an out-of-court statement made by a State witness into evidence, failing to grant the defense's motion for mistrial, admitting evidence of his flight, and improperly considering factors in aggravation and mitigation during sentencing. We reverse and remand.
Defendant was charged with three counts of first degree murder for shooting and killing Gerald Cross and one count of aggravated unlawful restraint for detaining Cameron Brefford while armed with a deadly weapon. Defendant allegedly committed these offenses on November 23, 1997.
Prior to trial, the State filed a motion to bar the testimony of Quincy Page as to an out-of-court statement in which Mohammed Williams allegedly admitted to shooting Cross. The State asserted that the testimony was inadmissible hearsay and that there were insufficient indicia of the statement's trustworthiness for it to fall within the exception to the hearsay rule created by the United States Supreme Court in Chambers v. Mississippi, 410 U.S. 284, 35 L. Ed. 2d 297, 93 S. Ct. 1038 (1973). Defendant filed a response, in which he asserted that the necessary indicia of trustworthiness were present because Page and Williams knew each other well, Williams made his inculpatory statement on the evening of the shooting, the statement was corroborated by other evidence, and Williams would be available for cross-examination. Following argument, the trial court initially denied the State's motion, but later revisited the issue and granted the motion, finding that Williams' statement was not admissible under Chambers because it was not corroborated by any independent evidence.
At trial, Cameron Brefford testified that about 12:30 p.m. on November 23, 1997, he drove his girlfriend's car to a house in Harvey Illinois, where he visited his friend Gerald Cross. Muhammad Williams was at the house when Brefford arrived, and Cross asked Brefford to help him sell a video game. Brefford drove Cross and Williams to a house on Kinney Road in Robbins, Illinois, where they attempted to sell defendant the game. Defendant asked Brefford to take him to a different part of Robbins to get money. Brefford drove defendant, Cross, and Williams to two locations, but defendant was unable to get the money, and they returned to the house on Kinney Road. After the game was returned, Brefford drove Cross and Williams to theirrespective homes.
Brefford then picked up his girlfriend, Wendy Rollins, and drove her to a trailer park in Robbins, where they arrived at about 5:20 p.m. Brefford parked the car in front of Rollins' friend's trailer, and the two separated to visit different friends. Brefford returned to the car after he had finished visiting his friend and saw that defendant was talking loudly with Rollins near the vehicle. Defendant asked Brefford if he had left his wallet in the car and searched Brefford, but did not find anything. Defendant asked Brefford who had been in the car that day and where he had been, and Brefford responded that the only other people that had been in the car that day were Cross and Williams. Defendant pulled a gun out of his pocket and Brefford tried to run away, but defendant told him to stop or he would shoot and he "would come down and kill all of us." Brefford stopped running and defendant put the gun back in his pocket and pointed it at Brefford through his clothes. The two men walked back to the car while defendant continued to point his gun at Brefford through his clothes, and Brefford obtained the car keys from Rollins. Brefford and defendant entered the car and drove away to see if defendant's wallet was at Cross's or Williams' house.
As they were driving, Brefford ran a red light and defendant told him not to do that again because "[i]f he was going to go to jail, he might as well go for murder [and] not just catch a gun case." When they arrived at Cross's house, Brefford told Cross that defendant had a gun and was looking for his wallet, and that Cross should return the wallet if he had it because defendant was talking about killing him. Cross said that he did not have defendant's wallet, but that he was looking for Williams because he had stolen some things from his house earlier in the day. Cross went inside and got his hoodie, and all three men entered the car and proceeded to Williams' house at 158th and Paulina in Harvey.
When Williams opened the door at his house, defendant asked him if he had his wallet, and Williams responded that he did not. Defendant, Williams, Brefford, and Cross then walked from the front door to Rollins' car after the owner of Williams' residence asked them to do so because her neighbor was a police officer. When they arrived at the car, Cross grabbed Brefford by the collar, asked him why he had brought defendant to his residence, and struck him three times. Brefford then heard a gunshot and Cross let go of him. As Brefford ran away, he looked back and saw defendant standing over Cross, who was lying on the ground. Defendant unloaded his clip into Cross, and Brefford heard six or seven gunshots as he did so. Brefford explained that he believed that the bullet from the first shot had traveled past his ear.
After running for a couple of blocks, Brefford stopped at a house and used the phone to call 911. The police took Brefford to the scene of the shooting that night, and he told the officer that he did not want to speak about the shooting because "there was a killer on the loose" and there were a lot of people standing around that area. Some time later, Brefford viewed a number of mug shots at a police station and picked out a picture of defendant and identified him as the man who had shot Cross.
On cross-examination, Brefford stated that when he was at the trailer
park, he returned to Rollins' car because he heard shouting coming
from that area and that he was about four feet away from her when
defendant pulled a gun on him. Brefford also stated that Cross did not
push him up against a car when he grabbed him by the collar and shook
him. In addition, when
defendant first shot Cross, Williams was standing off to the
side, defendant was standing behind Cross, and Brefford was the only
person facing Cross.
Muhammad Williams testified that he had been good friends with Cross and defendant and that on November 23, 1997, he and Cross had decided to try and sell one of Cross's video games to defendant. Brefford picked up Williams and Cross and drove them to defendant's house, but they were unable to complete the sale. Brefford then drove Cross to his home and dropped Williams off at his friend Jackie's house. About an hour later, defendant arrived at Jackie's house with Quincy Page and asked Williams if he had seen his wallet. Williams responded that he had not, and defendant asked him if he knew where Cross lived. Although Williams knew where Cross lived, he told defendant that he did not because defendant was acting "too tense *** too eager."
Defendant returned to Jackie's house about two hours later with
Brefford and Cross, and Williams went on the porch to speak with them.
After they moved off the porch at Jackie's request, defendant told
Brefford to tell Williams what he had told him. Brefford said
something, and Cross grabbed hold of Brefford and started hitting him,
"[t]rying to shut him up." After about two minutes, defendant pulled a
9-millimeter semiautomatic pistol out of his pocket and shot Cross
from about two feet away. Cross tensed up and made a quick move to the
right, and defendant shot him again, causing him to fall on his back.
Defendant then stepped over Cross and fired the gun at him at least 10
times. Williams ran away and did not go to the police because he was
afraid and wanted nothing to do with the shooting. Some time later,
Williams spoke with Harvey police detective Billy Martin and testified
in front of a grand jury regarding
On cross-examination, Williams stated that he did not mention Page when he testified before a grand jury in January 1998 or in the signed statement he provided Harvey police on December 1, 1997, and he explained that he did not mention Page because he thought he was irrelevant to the murder. Williams also stated that Cross pushed Brefford up against a car when he grabbed him outside of Jackie's house. When Cross did so, Williams was standing to the left of Cross and defendant was standing to the left of Williams. Defendant reached across Williams and shot Cross on the left side of his torso, and Cross tensed up, raised his shoulder, and grabbed himself around the belt buckle. Although Williams saw defendant point his gun at Cross and fire the second shot, he did not see where on Cross's body defendant had shot him. Williams stated that he did not see defendant pull the gun out of his pocket prior to shooting Cross, but acknowledged that he testified before the grand jury that he did see defendant pull the gun out of his pocket. Although Williams did not actually see defendant pull the gun out of his pocket, he had seen the imprint of the gun in his pocket prior to the shooting.
Wendy Rollins testified that about 5:30 p.m. on November 23, 1997,
Brefford picked her up from work in her car and drove to a trailer
park in Robbins, where they separated to visit different trailers.
While she was at the trailer park, a man with brown skin, "a low bald
face," and a little hair on the top of his head approached her and
asked her if she had let anyone drive her car that day. Rollins
responded that she had, and the man then asked if he could look in the
car for his wallet. The man seemed agitated and angry, and she allowed
him to look in her car. The man did not find anything in Rollins' car
and then asked her if she knew where Brefford
was, and she responded that she did not. While Rollins and
the man were talking, Brefford appeared from a couple of trailers down
and was walking toward them before he turned to run away. The man told
Brefford not to run and approached him. Brefford spoke with the man
and they returned to the car, walking shoulder to shoulder. Brefford,
who seemed nervous and jittery, asked Rollins for the keys to the car.
Rollins handed Brefford the keys, and he and the other man entered the
car and drove away. On cross-examination, Rollins stated that she did
not observe the man make any threats to Brefford or pull out a
Scott Bakken, a FBI fugitive task force agent stationed in Las Vegas, Nevada, testified that on March 11, 2004, he conducted a raid on a house to locate and apprehend defendant based on an arrest warrant from Harvey, Illinois. Upon arrival, the task force officers knocked on the doors and windows of the house for about five minutes until defendant responded and asked who they were and what they wanted. Agent Bakken said that they were the FBI and wanted to speak to the occupants of the house. Defendant responded that his name was Dajuan and that he did not want to come to the door. About 15 minutes later, defendant, another man, and two children emerged from the back of the house. Defendant told Agent Bakken that his name was Dajuan Walker and produced an Ohio identification card and Cook County Hospital birth certificate to that effect. Agent Bakken took defendant into custody and asked him if his name was Keith Wilcox, and defendant responded that his name was Dajuan Walker. Defendant was then transported to the FBI office, where he identified himself as Keith Wilcox just before Agent Bakken fingerprinted him.
Dr. John Ralston, an assistant medical examiner for the office of the medical examiner of Cook County, testified that he reviewed the reports prepared by Dr. Brian Mitchell of the autopsy he performed on Cross's body in November 1997. Those reports reflected that Cross sustained seven gunshot wounds: the first showed that Cross was shot on the right side of the upper chest at the point of connection between the arm and the shoulder and that the bullet traveled through the middle and lower lobes of the right lung and the liver; the second showed that he was shot on the left side of the chest and that the bullet traveled through the lower lobe of the left lung before exiting his through his back; the third showed that he was shot on the left side of the chest and that the bullet traveled through the spleen before exiting through his back; the fourth showed that he was shot on the lower part of the left side of the chest and that the bullet lacerated the left kidney; the fifth showed that he was shot at the base of his right hand on the palm side and that the bullet lodged in the bone; the sixth showed that he was shot at the front side of his left elbow and that the bullet exited through the back of the arm; and the seventh showed that he sustained a graze wound on the left side of his head. The reports further showed that there was no evidence on the surface of Cross's skin of close-range firing, which is usually present if the gunshot occurred within three feet of the body.
On cross-examination, Dr. Ralston stated that the records reflected that each of the four gunshot wounds that Cross sustained to his chest was caused by a bullet that entered through the front of his body and that none of the wounds sustained by Cross were caused by bullets entering directly through either of his sides. Dr. Ralston further stated that although evidence of close-range firing will generally be found on a body if the gun was fired within two to three feet, such evidence may not be present on a body if the victim was wearing heavy clothing.
Defendant testified that he moved from Robbins to Columbus, Ohio, on November 15, 1997, eight days before the shooting of Cross, because he was offered a job at a steel mill in Columbus by his girlfriend's cousin. Although defendant did not get the job at the steel mill, he remained in Columbus for three years with his girlfriend and their children and worked as a mechanic. Around May 2000, defendant and his family moved to Las Vegas.
On cross-examination, defendant stated that he had obtained an identification card under the name of Dajuan Walker, his girlfriend's brother, while in Columbus because there was a rumor that the police had wanted him for questioning. Walker had told defendant that Robbins police officers had stopped by his house on Kinney Road and asked him if defendant was there. Although the officers did not tell Walker what they wanted to question him about, defendant believed that they wanted to question him because he had violated his "I-Bond" in connection with his arrest for criminal trespass in Robbins on November 7, 1997. Defendant told his employer in Las Vegas that his name was Dajuan Walker because he thought that his employer might run a background check on him. When defendant was arrested in Las Vegas, he told the FBI officers that his name was Keith Wilcox, and not Dajuan Walker. Defendant further stated that although he knew Williams as a gang banger from his neighborhood, he had never before seen Brefford.
On this evidence, the jury found defendant guilty of first degree murder and aggravated unlawful restraint. Following a hearing, the trial court sentenced him to 50 years' imprisonment for first degree murder and 5 years' imprisonment for aggravated unlawful restraint, to be served concurrently.
I. Sufficiency of the Evidence
In this appeal, defendant first contends that the State failed to prove him guilty of first degree murder beyond a reasonable doubt. Where a defendant challenges the sufficiency of the evidence to sustain a conviction, the standard of review is whether, after viewing the evidence in the light most favorable to the State, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Hall, 194 Ill. 2d 304, 330 (2000). This standard recognizes the responsibility of the jury to resolve conflicts in the testimony, weigh the evidence, and draw reasonable inferences therefrom. People v. Campbell, 146 Ill. 2d 363, 375 (1992). This court will only reverse a conviction where the evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the defendant's guilt. People v. Ross, 229 Ill. 2d 255, 272 (2008).
Defendant asserts that the evidence was insufficient to prove him guilty of first degree murder beyond a reasonable doubt because the eyewitness testimony of Brefford and Williams was unreliable. Defendant first maintains that the testimony of Brefford and Williams is unbelievable because neither of them immediately informed the police that defendant shot Cross, which would have been ...