Appeal from the Circuit Court of Cook County. No. 06 CR 24410 The Honorable Neera Lall Walsh, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Garcia
PRESIDING JUSTICE GARCIA delivered the judgment of the court, with opinion. Justices Cahill and McBride concurred in the judgment and opinion.
¶ 1 Defendant Travis Weston was convicted of first degree murder and attempted murder and sentenced to consecutive terms of imprisonment of 45 and 30 years, respectively. Before the defendant's jury trial, the trial court granted the State's motion to admit evidence of the defendant's gang affiliation to "provide a motive for what would otherwise be an inexplicable act." However, no evidence connecting the defendant's gang membership to the crimes was ever presented and the trial evidence made patently clear the defendant committed the crimes to aid his cousin. On the record before us, we are compelled to find the trial court abused its discretion in allowing gang-related evidence, where the State made no showing that the gang-related evidence was germane to the charges and the case law offered by the State was inapposite. Nevertheless, evidence of the defendant's guilt was overwhelming, where the victim was very familiar with the defendant and the defendant confirmed in a conversation he had with an independent witness that he was familiar with the victim. The overwhelming evidence closed the door to the defendant's claims of plain error grounded on the State's remarks during closing argument. We affirm.
¶ 3 The defendant and his brother Brian Weston were tried simultaneously, but before separate juries, for the April 30, 2005, shootings of Tai Williams, who was killed, and Nyoka Williams, her sister, who lived to testify at trial against both defendants. We recently affirmed Brian Weston's conviction for first degree murder and attempted murder. People v. Weston, No. 1--09--2122 (2011) (unpublished order under Supreme Court Rule 23).
¶ 4 Nyoka testified that in 2004, she began dating William Yelvington, whom she knew as William Jackson. Yelvington introduced Nyoka to his cousin, the defendant. Nyoka interacted with the defendant on 10 or 11 separate occasions, including the times she accompanied Yelvington to the defendant's residence. In September 2004, Nyoka and Yelvington ended their relationship. Nyoka moved in with her sister Tai and Tai's son on East 50th Place in Chicago. Nyoka resumed dating Yelvington in early 2005, but recurrent arguments soon ended the relationship. Around April 4, 2005, Nyoka came home to find Yelvington and the defendant in her bedroom with multiple "long" guns laid out on her bed. She asked Yelvington to remove the guns, which he did. On April 11, 2005, Yelvington broke into her apartment through a window and refused her requests to leave. Yelvington pointed a long gun at Nyoka, threatening to kill her if she called the police. She ignored the threat and called 911, which prompted Yelvington to run out of the apartment. She recognized the long gun Yelvington pointed at her as among the guns he had laid out on her bed the week earlier. Nyoka obtained an order of protection that barred Yelvington from entering her building.
¶ 5 On April 12, 2005, the police recovered a number of weapons and ammunition from a dumpster about a block from Nyoka and Tai's residence. There were two 12-gauge pump-action shotguns and three rifles, one of which had a bipod support stand attached to the barrel. The police search for weapons was triggered by an anonymous phone call. In an interview with Chicago Detective Jean Romic on May 4, 2005, Nyoka recognized from a photo the rifle with the bipod as the gun Yelvington pointed at her on April 11.
¶ 6 On April 29, 2005, Nyoka was home with her sister Tai. Nyoka was watching television in her bedroom while Tai was watching television and talking on the phone in the living room. The doorbell rang. The man at the intercom said he lived across the hall and needed to be let in. Nyoka told the man to contact the landlord. She observed through a window that the person at the intercom was a young black man in a gray, hooded sweatshirt. She told Tai she did not feel safe. She checked the locks to the apartment and fell asleep in her room on top of her bed covers with both the television and a closet light on.
¶ 7 In the very early morning, Nyoka awoke to a man standing directly over her, holding a silver gun with a white handle in her face. It looked like a "cowboy" gun to Nyoka. The man was wearing a gray, hooded sweatshirt, had "short, nappy afro" hair, and was about 5 feet 6 inches or 5 feet 7 inches in height. He yelled, "where those things at." When Nyoka sat up, the defendant walked into her bedroom with Tai, who sat next to Nyoka on the bed. The man with the gun continued to ask, "where is William's guns at." Nyoka responded that she did not know what the man was talking about; she said Yelvington had taken all of his possessions when he moved out of her apartment. The defendant left the room for a couple of seconds, during which time Nyoka testified the man with the gun was "steady asking me where the fuck is William's guns at." The defendant returned to the room with two pillows from Nyoka's couch. He addressed Nyoka by her nickname, "Cookie, where the fuck them things at." She responded, "Travis, you know that William took everything with him."*fn1
¶ 8 When Tai began repeating what Nyoka said, the gunman threatened to shoot her for talking too loudly. The defendant attempted to put one of the pillows over Tai's face, while the gunman aimed the gun at her face. Nyoka then stood up, which prompted the gunman to hit her in the face with the gun, shove her to the floor, and shoot her in the back of the head. Nyoka heard her sister scream, "my arm, my arm," and heard two more shots. While Nyoka was lying on the floor, she heard the defendant say, "shoot that bitch again," at which point Nyoka was shot in the shoulder. After the two men left, Nyoka called 911 on her cell phone. She was hospitalized with two through-and-through gunshot wounds: one to the base of her skull at her neck; the other to her left upper shoulder. Tai died from the gunshots wounds she received.
¶ 9 Chicago police officer Carl Brasic testified he arrived at the East 50th Place apartment at 4:20 a.m. on April 30, 2005. He found the rear door of the apartment forced open. He recovered a fired bullet and metal fragment from the bedroom where the shootings occurred. Another bullet was recovered in the basement beneath Nyoka's bedroom. He recovered no guns from the scene.
¶ 10 Following an interview of Nyoka at the hospital, Detective Romic began looking for a black male known as Travis. On May 3, Detective Romic presented Nyoka with an array of 11 photographs from which she identified the defendant as one of the men that broke into her home. The following day, she identified the defendant from a lineup at the police station. According to Detective Michael Adams, Nyoka later identified the defendant's brother, Brian Weston, as the gunman from a photo array and at a lineup. She identified both the defendant and Brian Weston in court during the trials.
¶ 11 Rannell Colbert, a 26 year-old female, also testified for the State. Colbert knew the defendant from grade school, but had lost touch with him over the years. By April 2005, they had reconnected and had been friends for some time, with the defendant sleeping at Colbert's home on the sofa. Colbert came to know the defendant's cousin, Yelvington, by the name of "LC." Around mid-April, the defendant said to Colbert, " 'Sis, I might need you to beat LC's bitch up for me.' " When Colbert asked why, the defendant said, " 'man, that bitch turned some thumpers in to the peoples.' " The defendant added, " 'if they catch LC, man, my cousin going to be gone for life. They going to slam him.' " According to Colbert, "thumpers" meant guns and "LC's bitch" referred to the woman LC was dating. On the day before the shooting, Colbert went to a party around 9:30 p.m. The defendant was not home when she returned around 2:30 or 3 a.m. the next day. He was not there when she awoke at noon. She went to another party the night of April 30. When she came home around 3 a.m., the defendant was home. When she asked where he had been, the defendant responded that he had been "hanging out." At some point that morning, the defendant walked through Colbert's house putting his belongings in a plastic bag and left. Colbert saw the defendant a few days later, when she gave him a ride to her cousin's house. She did not see the defendant again until the trial.
¶ 12 The parties stipulated to the DNA evidence. The forensic analyst would testify that the defendant and his brother were excluded as contributors to the DNA mixture recovered under Tai's fingernails.
¶ 13 Before trial, the State filed a motion to admit evidence that the defendant was a member of a gang. The State argued the defendant and Yelvington were members of the gang known as Unknown Vice Lords and the defendant committed the crimes in an attempt to recover weapons for the gang. The motion stated:
"The nature of the weapons, that they had been in the custody and control of defendant's fellow gang member (William [Yelvington]), and were now inaccessible, is the motive for the forced entry of victim[']s residence, their interrogation, and ultimately their shooting. The gang evidence is clearly relevant to show the motive is defendant's recovery of his fellow gang member[']s weapons cache, if not weapons belonging to the gang itself."
¶ 14 At oral argument on the motion on June 29, 2009, the State contended evidence of the defendant's gang affiliation should be admitted to "provide a motive for what would otherwise be an inexplicable act." Counsel for the defendant countered that Yelvington and the defendant were cousins, "So it's a familial thing going on here." Counsel stated that "alleged gang members also have families, also do things for other reasons. What the State has to prove here is that this whole crime has to do with something related to the organization that they call a gang. They haven't done that." Defense ...