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The People of the State of Illinois v. Brandon Mccarter

June 24, 2011


Appeal from the Circuit Court of Cook County. No. 04 CR 1788 The Honorable Frank Zelezinski, Judge Presiding.

The opinion of the court was delivered by: Presiding Justice Garcia

PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justice McBride concurred in the judgment and opinion.

Justice R.E. Gordon dissented, with opinion.


Following a bench trial, Brandon McCarter was convicted of murder, aggravated kidnapping, armed robbery, aggravated vehicular hijacking, and concealment of homicidal death. The defendant challenges all five of his convictions, only two of which we find cannot stand. We reverse the defendant's conviction for armed robbery because we find no admissible evidence to establish that the victim was ever robbed. Because we reverse the armed robbery conviction, we vacated the judgment of conviction entered on count VIII for aggravated kidnapping, based on the commission of armed robbery. However, the defendant was found guilty of six counts of aggravated kidnapping, with the five remaining counts merged in count VIII. We remand to the circuit court to enter judgment on a good aggravated kidnapping count. We reverse the defendant's conviction for aggravated vehicular hijacking where no evidence was presented that the defendant ever deprived the victim of possession of his car.


Defendant Brandon McCarter was charged in a 14-count indictment with murder (5 counts), armed robbery (1 count), aggravated vehicular hijacking (1 count), aggravated kidnapping (6 counts), and concealment of homicidal death (1 count). The charges arose after the body of Tyree Bias was discovered in a burning car in a wooded area in Chicago. The defendant was charged, along with his brother Jamie McCarter, with the murder of Bias. We affirmed Jamie McCarter's conviction following a separate jury trial. People v. McCarter, 385 Ill. App. 3d 919 (2008). The instant defendant was convicted of all charges following a bench trial. He received consecutive sentences on each of his convictions: 35 years for murder, 10 years for armed robbery, 10 years for aggravated vehicular hijacking, 10 years for aggravated kidnapping, and 5 years for concealment of homicidal death. The following evidence material to this appeal was introduced at his trial.

Around 6 a.m. on July 8, 2003, Vanessa Jackson was in her car delivering newspapers near the intersection of 137th Street and Wentworth Avenue in Chicago. Ms. Jackson observed a dark car parked on a gravel road, blocking her way, causing her to drive around the car. She saw three men in the car, one man in each front seat and one man seated behind the driver. She later saw two men standing alongside the car. One man had a T-shirt pulled up over his head, and the other man was wearing a hooded sweatshirt. A few minutes later, Ms. Jackson saw the two men running across a field and, about 15 minutes after that, Ms. Jackson saw the men at a nearby pay phone. Ms. Jackson was unable to identify either of the men.

Around 6:30 a.m. on July 8, 2003, Officer Reilly responded to a call regarding a brush fire at 136th Street and Wentworth. Tire tracks led north into a wooded area where a black car was found crashed through a fence into the brush. The car and the surrounding brush had caught fire. The source of the fire was later determined to be the car itself. Tyree Bias's severely burnt body was found in the driver's seat.

Later that day, Sergeant Daniel Dempsey met with Bias's girlfriend Lakesha Johnson. Ms. Johnson admittedly lied to Sergeant Dempsey when she told him that Bias left her house between 7:30 and 8:00 a.m. that morning. After meeting with Ms. Johnson, Sergeant Dempsey learned that Bias had died of a gunshot wound to the back of the head. Sergeant Dempsey reexamined the scene and found a wad of burnt money in Bias's car.

On July 15, Ms. Johnson was brought into police custody and questioned about Bias's death. After being in custody for around 72 hours, Ms. Johnson gave both a written and videotaped statement to Assistant State's Attorney (ASA) Patrick Enright. In her written statement, Ms. Johnson told ASA Enright that Bias was a drug dealer. She explained that the defendant and Bias were rival drug dealers who were not getting along. Five days before Bias's murder, the defendant told Ms. Johnson that he was going to get her a car. The defendant said to Ms. Johnson, "that if things got bad with Tyree [Bias] when they were going to take what they needed, he was going to take care of business." Ms. Johnson explained in her written statement that she understood the defendant's statements to mean that the defendant was going to shoot Bias and take his money. On July 6, Ms. Johnson told the defendant that Bias was coming home from jail later that day. On July 7, the defendant said to Ms. Johnson, "it's almost time for you to get that car" and "it's going down tomorrow." Ms. Johnson explained that she understood these statements to mean that the defendant was going to rob and kill Bias.

In her written statement, Ms. Johnson also described what she saw the morning of July 8, 2003. Around 5:15 a.m., Bias left her home. About 10 minutes later, Ms. Johnson saw Bias pull back into her driveway. She then saw the defendant's brother, Ernest McCarter, park his car in front of her house. The defendant and a second brother, Jamie McCarter, got out of Ernest McCarter's car and approached Bias's car. Jamie McCarter was holding a handgun, and the defendant was holding what appeared to be a sawed-off shotgun. The defendant and Jamie McCarter were both dressed in black, hooded sweatshirts. The defendant got into the passenger seat of Bias's car and Jamie McCarter sat behind Bias, pointing his gun at the back of Bias's head. Bias then backed out of the driveway and drove away.

Finally, Ms. Johnson recited, in her written statement, the contents of a conversation she had with the defendant and Jamie McCarter two days after the killing. Jamie McCarter said "did you see that bitch flinch when I shot him" and admitted that he shot Bias in the back of the head while Bias was in the car. Jamie McCarter also told Ms. Johnson that he and the defendant placed Bias's foot on the gas pedal, put the car in drive, ran to the park, and went to a pay phone. Jamie McCarter later altered his story. He told Ms. Johnson that they were standing outside of Bias's car when he shot Bias. Jamie McCarter also claimed to Ms. Johnson that he had taken $3,000 from Bias.

At trial, Ms. Johnson testified that she fabricated the story in her written statement because she was threatened by the police. She was repeatedly impeached by the State with the testimony she gave at Jamie McCarter's trial and with her prior statements to the police. Ms. Johnson's entire written statement that she gave to ASA Enright was admitted, without a defense objection, under section 115-10.1 of the Code of Criminal Procedure of 1963. 725 ILCS 5/115-10.1 (West 2008).

Gerard Jimerson was also questioned by the police and testified on behalf of the State. At trial, he acknowledged that after he spoke to an assistant State's Attorney, he was relocated and provided with a month's rent and security deposit. On the morning of Bias's death, Mr. Jimerson was awakened at his home on 127th Street by the defendant and Jamie McCarter. The defendant told Mr. Jimerson that he had thrown drugs and a gun away while running from the police and needed a ride home. Mr. Jimerson drove the defendant and Jamie McCarter home. Mr. Jimerson also testified that a couple of days later, the defendant and Jamie McCarter were both crying and told him that "the hanging come before the catching, and he is not about to do a hundred years in jail." The defendant also told Mr. Jimerson that before he got caught for murdering Bias, he would kill Mr. Jimerson and his family.

Ernest McCarter gave the police written and videotaped statements after being held in custody for several days. On cross-examination at the defendant's trial, Ernest McCarter testified that the police promised not to charge him with murder if he agreed to testify against the defendant and Jamie McCarter. On direct, Ernest McCarter testified that the defendant and Bias were members of rival gangs that were at war. Around 7:30 or 8 a.m. on the morning of Bias's murder, Mr. Jimerson, along with the defendant and Jamie McCarter, arrived at Ernest McCarter's house. Ernest McCarter testified that Jamie McCarter placed a .38-caliber handgun under his mattress. Later that day, the defendant told Ernest McCarter that he got a "trophy." Ernest McCarter explained that getting a "trophy" meant that someone from a rival gang had been killed. The defendant told Ernest McCarter that Bias was the trophy.

Ernest McCarter also testified that the defendant told him about the events surrounding Bias's murder. The version testified to by Ernest McCarter, however, differed from the version contained in Ms. Johnson's written statement. The defendant told Ernest McCarter that he and Jamie McCarter flagged down Bias in his car. The defendant and Jamie McCarter convinced Bias to drive them around to look for drugs they lost and then Jamie McCarter shot Bias in the back of the head near a side street in Riverdale. The defendant and Jamie McCarter jumped out of the car, which sped forward and crashed through a fence. The defendant left his shirt in Bias's car, so the defendant jumped the fence to retrieve his shirt but set the shirt on fire instead. The defendant and Jamie McCarter ran to a pay phone to call Mr. Jimerson. They walked to Mr. Jimerson's house, who drove them home.

The defense did not present any witnesses. The trial judge found the defendant guilty on all charges. This appeal followed.


The defendant raises six issues, challenging each of his five convictions and the admission of Ms. Johnson's prior inconsistent statement: (1) he was not proved guilty of murder beyond a reasonable doubt because the State's witnesses' testimonies were inconsistent and unreliable; (2) plain error was committed by the admission, as substantive evidence, of portions of Lakesha Johnson's prior inconsistent statement containing inadmissible hearsay and inadmissible lay witness opinions; (3) he was not proved guilty of armed robbery because the only evidence proving a robbery occurred was an inadmissible hearsay statement in Ms. Johnson's prior inconsistent statement; (4) he was not proved guilty of aggravated kidnapping because the asportation was incidental to the other crimes committed by the defendant; (5) he was not proved guilty of aggravated vehicular hijacking because no "taking" of the victim's car within the meaning of the statute occurred; and (6) concealment of homicidal death was not proved beyond a reasonable doubt because no real concealment occurred and the State failed to prove every allegation of the charge in the indictment. We address the issues in the order raised by the defendant.

1. Evidence of Murder

The defendant first contends that the failure of the State's witnesses to promptly come forward with information related to Bias's murder renders their testimony unworthy of belief. Each of the witnesses provided information to the police only after being arrested. The defendant specifically points out that Lakesha Johnson denied she knew anything about the murder when she was first questioned by police on the day Bias's body was discovered. A week passed before she gave her written statement incriminating the defendant to the police following her arrest. The defendant argues the surrounding circumstances make the evidence provided by each of the witnesses not credible, which provides grounds for reversal under People v. Charleston, 47 Ill. 2d 19 (1970).

The defendant also argues Ms. Johnson, Ernest McCarter, and Mr. Jimerson had motives, opportunities, and time to fabricate their testimony, all of which undermines the credibility of their testimony to the point that reasonable doubt remains. The defendant directs our attention to People v. Smith, 185 Ill. 2d 532 (1999), for support on this point.

Finally, the defendant argues that unbelievable testimony was given by Ms. Johnson, Ernest McCarter and Mr. Jimerson because each witness was impeached numerous times and gave inconsistent and contradictory accounts of the events leading up to Bias's murder. The defendant points out that Ernest McCarter's testimony about where and how the defendant got into Bias's car differed from the account in Ms. Johnson's handwritten statement. The defendant argues that the inconsistencies in the evidence provided by the State's witnesses are irreconcilable, which compels reversal.

It is not the function of this court to retry the defendant. People v. Tenney, 205 Ill. 2d 411, 428 (2002). It falls within the province of the trier of fact to judge the credibility of witnesses, resolve conflicts in the evidence, and draw conclusions based on all the evidence. People v. Titone, 115 Ill. 2d 413, 422 (1986). A reviewing court will not substitute its judgment for that of the trier of fact on these matters. People v. Ortiz, 196 Ill. 2d 236, 259 (2001). On review of a guilty verdict, a reviewing court asks only if any rational trier of fact could have reached the same conclusion viewing the evidence in the light most favorable to the prosecution. Id. The findings and judgment will not be reversed unless the evidence is so improbable as to create reasonable doubt of the defendant's guilt. Id. A reviewing court must consider all of the evidence submitted at the original trial to resolve the question of the sufficiency of the evidence.

People v. Olivera, 164 Ill. 2d 382, 393-94 (1995).

That one witness's testimony contradicts the testimony of other prosecution witnesses does not render each witness's testimony beyond belief. See People v. Cunningham, 212 Ill. 2d 274, 283 (2004). The trier of fact is free to accept or reject as much or as little of a witness's testimony as it pleases. People v. Logan, 352 Ill. App. 3d 73, 81 (2004); People v. Goodar, 243 Ill. App. 3d 353, 357 (1993) (affirming a conviction even though there were discrepancies between the accounts given by several witnesses). It is sufficient if all of the evidence taken together satisfies the trier of fact beyond a reasonable doubt of the defendant's guilt. People v. Jackson, 232 Ill. 2d 246, 281 (2009).

A conviction, supported by a substantively admitted prior inconsistent statement, may be upheld even though a witness recants on the stand the prior inconsistent statement admissible under section 115-10.1 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-10.1 (West 2008)). People v. Craig, 334 Ill. App. 3d 426, 439 (2002). "[T]here are no 'suspect categories' of properly admitted evidence that require a different standard of appellate review. [Citation] *** In other words, when a defendant is convicted and then appeals, one standard of review applies to all evidence." Id. A properly admitted prior inconsistent statement under section 115-10.1 is, by virtue of its admissibility, reliable and voluntary. People v. Morrow, 303 Ill. App. 3d 671, 677 (1999). The trier of fact may consider a prior inconsistent statement introduced as substantive evidence under section 115-10.1 the same as direct testimony by that witness. The trier of fact is free to accord any weight to such properly admitted statements based on the same factors it considers in assessing direct testimony. Id. "Once a jury or trial court has chosen to return a guilty verdict based upon a prior inconsistent statement, a reviewing court not only is under no obligation to determine whether the declarant's testimony was 'substantially corroborated' or 'clear and convincing,' but it may not engage in any such analysis." (Internal quotation marks omitted.) (Emphasis in original.) Morrow, 303 Ill. App. 3d at 677 (quoting People v. Curtis, 296

Ill. App. 3d 991, 999 (1998)).

Charleston and Smith, the cases the defendant places great reliance upon, are distinguishable from the facts here.

In Charleston, our supreme court reversed the defendant's conviction following a bench trial. Charleston, 47 Ill. 2d at 20. The defendant was convicted of armed robbery and attempted rape. An off-duty officer came upon the assault after he heard the victim's screams. Id. The assailant fled after the officer fired his gun, first as a warning, then at the fleeing assailant. Id. The victim gave a thorough description of the assailant to the responding police officers. The victim stated "she would know him if she saw him again." Id. at 21. The victim, however, failed to tell the officers "that she had gone to school with her assailant, knew him and his name, and that he was a friend of her husband." Id. The victim's explanation for her failure to give the responding officers the complete information she possessed was inconsistent with her subsequent conduct. The victim explained her behavior "in concealing the identity of her assailant for almost a week" by claiming a fear of the defendant. Id. at 22. " 'I was scared. I figures that if he were bold enough to grab me he knew me. He will get me again.' " Id. Yet, her fear of the defendant did not dissuade her from identifying the defendant in a lineup six days after the alleged assault. Charleston, 47 Ill. 2d at 22. The victim's denial that she had ever seen the defendant with her husband or had ever spoken with him was directly contradicted by the testimony of others. The defendant, his fianceee, and another defense witness testified they had shared drinks with the victim and her husband about three months before the alleged assault. Id. The defendant's alibi defense, supported by two witnesses, was not directly challenged. Id. Notably, the victim's husband did not testify. Id. The evidence in Charleston triggered the court's duty to set aside a conviction where reasonable doubt remains. " 'We attach great weight to the findings of the trier of fact, including his appraisal of the credibility of the witnesses, but they are not conclusive and it is our duty to set a conviction aside where the evidence is so unsatisfactory as to raise a reasonable doubt of a defendant's guilt.' " Charleston, 47 Ill. 2d at 22 (quoting People v. Reese, 34 Ill. 2d 77, 80 (1966)). Based on the nature of the evidence presented in Charleston, we are unpersuaded that the supreme court's decision in that case, apart from the general statement regarding when a conviction may be set aside, provides any guidance in the case before us.

In Smith, our supreme court reversed a jury's guilty verdict. Smith, 185 Ill. 2d at 534. The State's case in Smith hinged upon a single witness, who provided the only direct evidence linking the defendant to the crime. Id. at 542. Importantly, the crucial witness contended that the shooting, which resulted in the victim's death, occurred when the defendant and the victim were alone together. Id. However, at least three other witnesses testified that the defendant was always with them up to and including the time of the shooting. Id. at 543. There were also numerous other reasons to question the witness's credibility, including her out-of-court admission, which she denied on the stand, that she used drugs every day. Id. at 544. The witness also "did not tell the police that she had witnessed the shooting until two days later, when she found her sister at the 51st Street police station under suspicion of involvement with the murder." Id. Finally, the boyfriend of her sister was an "alternative suspect" in the murder. Id. Ultimately, the court concluded that "given the serious inconsistencies in, and the repeated impeachment of, [the witness's] testimony, we find that no reasonable trier of fact could have found her testimony credible." Id. at 545. The court noted: "[T]he circumstantial evidence tending to link defendant to the murder merely narrowed the class of individuals who may have killed the victim, without pointing specifically to defendant." Id. Once again, we find the nature of the evidence presented in Smith to be dissimilar to the evidence in the case before us.

Here, Ms. Johnson's written statement alone provided substantial incriminating evidence that the defendant was involved in the murder of Bias. See People v. Thomas, 354 Ill. App. 3d 868, 878-79 (2004). In addition to Ms. Johnson's written statement, Mr. Jimerson and Ernest McCarter implicated the defendant. Ms. Jackson's testimony, which the defendant does not challenge, largely corroborated, at least circumstantially, the accounts provided by Ms. Johnson and Ernest McCarter that the defendant, while armed with a weapon, forcibly entered Bias's car and drove off. Unlike Charleston and Smith, this case did not turn on a single witness presented by the prosecution. Unlike Smith, the direct and circumstantial evidence beginning with the events at Bias's home pointed specifically to the defendant in the murder of the victim. See People v. Hall, 194 Ill. 2d 305, 333 (2000).

Nor is this a case in which the conflicts in the testimony were so numerous, confusing, and contradictory as to raise reasonable doubt of the defendant's guilt. See People v. Hister, 60 Ill. 2d 567, 571 (1975) (the testimony of each of the two eyewitnesses were so remarkably different that it was "obvious that one or both of the witnesses was grossly mistaken or untruthful" and the record was so "replete with other instances of inconsistent testimony relating *** the description [of the co-defendants], the number of persons with them, the type of automobile they were driving, who was armed and with what type of weapon, what other witnesses were present *** the sequence and location of the events leading up to the shooting, and the number of shots fired"). Nor do we find the testimony of the State's witnesses so contradictory that such evidence falls to the level of palpable improbability and incredulity. See People v. Lindsey, 73 Ill. App. 3d 436, 447 (1979) (where a key witness's mental history was erroneously kept from the jury and the physical evidence contradicted the witness's claim that two girls were raped (later found to be virgins), that a stabbing occurred (unsupported by evidence), that a strangulation by rope occurred (for which there was no evidence), and there was no signs of a claimed aggravated assault, left the reviewing court "with grave and substantial doubt of guilt").

Rather, the facts in this case are most similar to those in People v. Logan, 352 Ill. App. 3d 73 (2004). In Logan, the defendant was convicted of murder for shooting two men by a pay phone, fatally wounding one. Id. at 74-75. The State's primary witness, after first telling several different stories, provided the police with a written statement detailing her presence with the defendant when he committed the murder. Id. at 74-76. There was also corroborating evidence linking the defendant to the car driven by the assailant. Id. at 78. At trial, the State's primary witness recanted her prior written statement and grand jury testimony, which were substantively admitted into evidence under section 115-10.1. Id. at 79. Although the murder victim's companion testified he was " 'positive' " the defendant was not the person that shot him and the victim, he was not sure he could identify the shooter if he saw him again. Id. at 78-80. The defendant was convicted of murder, and the appellate court affirmed. Id. at 81. "[T]he jury obviously found [the State's primary witness's] pretrial statement and grand jury testimony implicating defendant more credible than her trial testimony, and we will not substitute our judgment therefor." Id. at 80. The court concluded that the witness's prior statements, admitted under section 115-10.1, were alone sufficient to sustain the guilty verdict. Id. In addition, corroborating evidence supported the conviction. Id. That one shooting victim testified he was "positive" the defendant was not the shooter did not compel reversal. "It is for the trier of fact to resolve any inconsistencies in the testimony, and the trier of fact is free to accept or reject as much or as little as it pleases of a witness's testimony." Id. at 80-81.

Like Logan, the trier of fact here obviously found Ms. Johnson's prior statement more credible than her trial testimony. In explaining its verdict, the trial court stated:

"Right now [Ms. Johnson] doesn't want to get involved for the most part, denies everything, and certainly is impeached, but looking at her memorialized testimony of how she lays the facts *** in the detail that she provided it in light of the detail of the unbiased witnesses, and it's the Court's position that the pieces of the puzzle all fit together." (Emphasis added.)

The trial judge was free to ignore Ms. Johnson's testimony at trial in favor of her prior inconsistent statement, introduced as substantive evidence, that incriminated the defendant in Bias's murder. See People v. McCarter, 385 Ill. App. 3d 919, 936 (2008) (Jamie McCarter decision) (Ms. Johnson's statement that she saw the defendant and Jamie McCarter "holding Bias at gunpoint and entering his car within an hour of when the murder" occurred, along with testimony from other witnesses, supported the jury's verdict of guilty of murder).

While the defendant correctly points out that Ms. Johnson's memorialized statement describing the defendant and Jamie McCarter's initial encounter with Bias differs from the testimony of Ernest McCarter, this does not mean the trier of fact had to throw his hands in the air on whom to believe. Once again, the trier of fact was free to place the greatest importance on the testimony, shared by Ernest McCarter and Ms. Johnson, that the defendant encountered Bias at Bias's home. Logan, 352 Ill. App. 3d at 80-81; People v. Williams, 256 Ill. App. 3d 370, 373 (1993) (affirming defendant's conviction after trial court explicitly stated that it believed the testimony of one officer over the conflicting testimony of another officer); People v. Hoffman, 45 Ill. 2d 221, 226 (1970) (rejecting the defendant's argument that the defendant was not proven guilty beyond a reasonable doubt in light of testimony of defense witnesses that contradicted the arresting officers' testimony). Certainly, if the trial court accepted only the evidence from Ms. Johnson's written prior inconsistent statement that was consistent with Ernest McCarter's testimony, such evidence supported the defendant's conviction. McCarter, 385 Ill. App. 3d at 936.

In sum, there is little in the defendant's challenges to the testimony of all three prosecution witnesses that compels us to question the guilty finding by the trier of fact. Taking all of the evidence in the light most favorable to the prosecution, we cannot say that no rational trier of fact could have found credible portions of the testimony of the three prosecution witnesses, consistent with the other incriminating evidence, such that the essential elements of murder ...

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