Appeal from the Circuit Court of Cook County 04 CR 22104 (02) Honorable John J. Moran, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Robert E. Gordon
PRESIDING JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion.
Justices Cahill and Garcia concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Joseph Wilborn*fn1
was convicted of first-degree murder. 720 ILCS 5/9-1(a)(1)
(West 2000). After hearing aggravation and mitigation, defendant was
sentenced to 55 years in the Illinois Department of Corrections, 30
years for the first-degree murder and 25 years as a firearm
enhancement. Defendant's conviction was affirmed on direct
appeal (People v. Wilbourn, No. 1-06-2088 (2008) (unpublished order
under Supreme Court Rule 23)). Defendant then filed a petition for post-conviction relief in
which he claimed ineffective assistance of trial and appellate
counsel. The trial court dismissed defendant's post-conviction petition
at the first stage of the proceedings, finding that: (1) the issues
presented in the petition are barred by the doctrine of res judicata;
(2) defendant's allegations were conclusory and the petition lacked
supporting documentation; and (3) the petition is frivolous and
patently without merit. Defendant now appeals, and we affirm. See
People v. Jones, 399 Ill. App. 3d 341, 359 (2010) (we may affirm the
decision of the trial court on any grounds substantiated by the
record, regardless of the trial court's reasoning).
¶ 3 Defendant and co-defendant, Cedrick Jenkins, were arrested and charged by indictment with the first-degree murder of Emmit Hill (victim). The trial court granted defendant's motion for severance and defendant's jury trial commenced on June 12, 2006.
¶ 4 During opening statements, defense counsel told the jury that "you'll see and hear from Jenkins." He stated that the victim had "problems" with defendant and Jenkins, and that Jenkins "will talk to you about [their] relationship with [the victim]." He also told the jury that the victim had approached defendant and Jenkins on the day of the shooting, accused Jenkins of "being out and looking for him with [a] gun," and told Jenkins that "I'll have this neighborhood flooded and you won't get out." Defense counsel further stated as follows:
"[Jenkins] will tell you what happened inside that gangway [where the victim was found shot]. It won't be the same story that you here from [another witness] but the facts of who pursued, who wouldn't let this go, who having seen what he regards as suspicious, disregards it and it follows him through that gangway anyway ***. "
¶ 5 Following opening statements, the State called eight witnesses: (1) Frederick Sanders; (2) Clarence Morgan; (3) David Parker; (4) Chicago police detective Mike Qualls; (5) Stacey Daniels; (6) Chicago police officer Andre Bedford; (7) forensic investigator John Kaput; and (8) Cook County medical examiner Dr. Valerie Arangelovich.
¶ 6 A. Frederick Sanders's Testimony
¶ 7 Sanders testified that, at approximately 11:30 p.m. on July 28, 2004, he exited his apartment building located on the 6200 block of South Michigan Avenue and walked to his automobile where his friend, Randy Griffin, was waiting in the passenger seat. Sanders testified that Griffin told him that he had heard "a couple of gunshots" while he was waiting. Sanders then drove his vehicle westbound on 63rd Street to Wabash. Sanders testified that when he turned north, he observed a person he knew by the nickname of "Moochie," whose real name is Samuel Richards, standing over a body lying in a gangway located near the northeast corner of 63rd Street and Wabash. Sanders testified that he then stopped his vehicle, exited it, and telephoned the police with his cellular telephone. While he waited for the police to arrive, he did not observe anyone in the area with a gun, nor did he observe Richards remove a handgun from the body. He did not observe defendant or Jenkins in the area.
¶ 8 Sanders also testified that he was not friends with defendant, the victim or Jenkins. He testified that he knew defendant because he observed him "being around the [apartment] building." In addition, he testified that he "knew [the victim] from the neighborhood" and knew Jenkins because Jenkins previously resided at the apartment building.
¶ 9 B. Clarence Morgan's Testimony
¶ 10 Morgan testified that on July 28, 2004, at 11 p.m., he was standing on the South Michigan Avenue side of Sanders's apartment building, drinking liquor with the victim, who was a friend of his, and with "other people," which included Richards and a man named David Parker. He testified that defendant, Jenkins, and a man known as "Chub" were standing "in front" of the apartment building. He testified that he had known defendant and Jenkins for approximately 10 years because, at one time, they both lived in the same apartment building as him.
¶ 11 Morgan testified that "Chub" handed a hooded sweatshirt to Jenkins and the victim then made a "smart comment" to "Chub." Morgan testified that the victim said to "Chub," "was he on bullshit," which he understood to mean, he was "up to no good at the time." Morgan testified that he did not hear the victim threaten defendant or Jenkins at any time on the night of the shooting. Morgan further testified that prior to the shooting he was unaware of any animosity between defendant, Jenkins, and the victim.
¶ 12 Morgan also testified that, after the victim made the comment to "Chub," he observed defendant and Jenkins walk in a westerly direction across South Michigan Avenue and through a gangway toward Wabash. He testified that the victim followed them into the gangway, but then he lost sight of the victim. He testified that he did not observe a handgun on the victim. Morgan testified that, approximately one minute later, he heard five gunshots coming from the direction of the gangway. When the victim did not return, Morgan decided to walk to Wabash to determine if the victim had arrived at the other side of the gangway. He testified that he walked south to 63rd Street then west to Wabash to avoid walking through the gangway. When he arrived at the corner of 63rd Street and Wabash, he observed the victim lying on the ground in the gangway. He also observed several people, including Richards and Parker, standing near the victim's body, but he did not observe defendant or Jenkins in the area.
¶ 13 On cross-examination, Morgan testified that defendant, Jenkins, and "Chub" were members of the "Insane Gangster Disciples" gang, while he was a member of the "Black Gangster Disciples," a rival gang. He testified that his gang "controlled" Sanders's apartment building, but after a series of arrests of Black Gangster Disciple members, defendant and Jenkins started "hanging around" the apartment building. He further testified that the victim had a confrontation with defendant, Jenkins, and "Chub" two weeks before the shooting because they were trying to take over the drug sales at the building.
¶ 14 C. David Parker's Testimony
¶ 15 Parker testified that he was a friend of the victim and that Jenkins had a "beef" with the victim because the victim had been discussing Jenkins and Jenkins's "parent" in the presence of others. He testified that two days before the shooting, defendant asked Parker to tell the victim to stop talking about Jenkins.
¶ 16 Parker testified that at 11 p.m. on the evening of July 28, 2004, he was visiting with the victim, Richards, Morgan, and a man by the name of Keith Wright. He testified that they were drinking liquor and standing on the South Michigan Avenue side of Sanders's apartment building. He testified that defendant, Jenkins and "Chub" walked passed them. Parker observed "Chub" remove his hooded sweatshirt and hand it to Jenkins. Parker testified that he thought it was unusual for a person to wear a hooded sweatshirt because the evening was "cool, but it wasn't cool enough for a [hooded sweatshirt]." Parker denied that he heard the victim say anything to defendant, Jenkins or "Chub" at that time.
¶ 17 Parker testified that two people began arguing across the street from the apartment building, and he walked toward the couple to stop the argument. He testified that he then heard seven gunshots and observed the gangway "lighting up from sparks." Parker testified that he noticed that the victim was no longer in the area and Morgan told him that "I think [the victim] just followed [defendant] and [Jenkins] to the gas station." Parker testified that he told the group that they should run to 63rd and Wabash to find out if anyone had been shot. He testified that when they arrived at Wabash, he observed the victim on the ground in the gangway. Parker testified that he and Morgan then ran to the victim's residence to inform his family of the shooting. He testified that he did not observe a gun on the victim that evening. Parker testified that Richards searched the victim's pockets to ensure there were no drugs on the victim.
¶ 18 D. Chicago Police Detective Mike Qualls's Testimony
¶ 19 Detective Qualls testified that when he arrived at the scene at approximately 12:30 a.m., he did not locate a weapon near the body. He testified that he spoke with Parker the following day, who told him that just before he heard the gunshots, he heard the victim ask Jenkins, "What you all bitches doing with those hoodies?" He testified that after he and other officers interviewed witnesses, an investigative alert was issued for defendant, Jenkins, and "Chub."
Detective Qualls testified that he and other detectives were initially unable to locate the three men.
¶ 20 E. Stacey Daniels's Testimony
¶ 21 Daniels testified that he had been a friend of defendant's for more than four years. He testified that two weeks after the shooting, on August 12, 2004, he was with defendant at a mutual friend's home when defendant told Daniels that he "got into some problems" and that he was in "some serious shit." Daniels testified that defendant did not immediately explain this remark. Daniels, defendant and Jenkins then departed from their friend's home and walked to Daniels's apartment, which he shared with a man named Xavier Woolard. Daniels testified that when they arrived at his apartment, Woolard was in the apartment along with his girlfriend, named LaKiesha.
¶ 22 Daniels testified that he was standing on a rear porch of his apartment with defendant and Jenkins when defendant explained to him that he "got into it with some dude," that there was a shooting, and that he "had to give it to [the] n***er." According to Daniels, defendant explained that he was walking through a gangway and observed that the "dude was following him." He told Daniels that he "didn't know what dude had or something and he thought dude was fittin' to do something to him" and that defendant said that he "turned around busting," which Daniels understood to mean shooting. Daniels testified that defendant then told him he needed to obtain money to leave town and that he might try to "hit a lick or something like that," which Daniels understood to mean "come up on some money" or to commit a robbery.
¶ 23 After his conversation with defendant, Daniels testified that he went to a party with Woolard, while defendant, Jenkins, and LaKeisha stayed at Daniels's and Woolard's apartment. Woolard was arrested at the party for an unrelated battery offense and Daniels then returned to his apartment.
¶ 24 F. Chicago Police Officer Andre Bedford's Testimony
¶ 25 Officer Bedford testified that he arrested Woolard at the party. Following the arrest, Woolard told him that there were two people, nicknamed "Little Joe and Ced," who were at his apartment and were wanted on murder charges. Woolard then consented to a search of his apartment. Officer Bedford performed a police computer search of the nicknames and discovered that "Little Joe" was a nickname for defendant and that "Ced" was a nickname for Jenkins. Officer Bedford observed that there was an investigative alert for defendant and Jenkins in relation to the July 28 shooting.
¶ 26 Officer Bedford testified that, at 5 a.m. the following day, he and two other police officers conducted a search of Daniels's and Woolard's apartment, where they found four individuals, defendant, Jenkins, Daniels and LaKeisha. During the search, the officers found a 9-millimeter Glock brand handgun, loaded with two bullets, and an additional 28 bullets in Woolard's bedroom. The officers also searched defendant, who had one Wolf brand Luger bullet and four "hollow point" Luger bullets in his pocket; and Jenkins, who had a 9-millimeter High Point handgun, loaded with seven bullets, on his person.
¶ 27 G. Forensic Investigator Kaput's Testimony
¶ 28 Forensic investigator Kaput testified that he arrived at the crime scene at approximately 10 minutes after midnight on July 29, 2004. He testified that he conducted a walk-through of the crime scene, where he found five fired Wolf brand 9-millimeter Luger cartridge casings and a 9-millimeter fired bullet. Kaput placed the cartridge casings and fired bullet into individual envelopes and submitted the envelopes to the Illinois State Police crime lab.
¶ 29 H. Assistant Cook County Medical Examiner Dr. Valerie Arangelovich's Testimony
¶ 30 Dr. Arangelovich testified that she performed an autopsy on the victim. She observed that the victim had seven bullet entrance wounds and five exits wounds. She recovered two bullets from the victim's body and a third bullet "hanging loose in his clothes." Dr. Arangelovich placed the bullets into individual envelopes and submitted the envelopes to the ...