Appeal from the Circuit Court of Cook County. No. 07 CR 6580 Honorable Rosemary Grant-Higgins, Judge Presiding.
The opinion of the court was delivered by: Justice Cunningham
JUSTICE CUNNINGHAM delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Harris concurred in the judgment and opinion.
¶1 Following a jury trial in the circuit court of Cook County, the defendant, James McKinney, was convicted of first-degree murder and sentenced to 30 years of imprisonment. On direct appeal, the defendant argues that: (1) the trial court violated his right to a speedy trial when it granted the State a 30-day extension of time beyond the speedy trial term; (2) the trial court erred in admitting evidence of the defendant's post-arrest silence; (3) the State misstated the law and improperly bolstered the credibility of witnesses' prior inconsistent statements during closing arguments; (4) the trial court erred in admitting evidence that co-defendant Jerome Wilkins had pled guilty to the murder and in allowing the State to reference this evidence during its opening and closing arguments; (5) he received ineffective assistance of counsel when defense counsel made an erroneous remark during opening statements; (6) the trial court erred in failing to appoint new counsel for him following a Krankel hearing; and (7) the trial court improperly imposed a 30-year consecutive sentence. For the following reasons, we affirm the judgment of the circuit court of Cook County.
¶3 On September 8, 1991, the defendant and co-defendant Jerome Wilkins (co-defendant Wilkins) shot and killed the victim, Willis Myers (Myers), at 502 East Browning Avenue in Chicago, Illinois. Co-defendant Wilkins was arrested for Myers' murder and later pled guilty and served time in prison for the crime. However, the defendant could not be located and a warrant was issued for his arrest.
¶4 On February 21, 2007, the defendant was arrested for the shooting death of Myers, while he was serving a federal sentence on an unrelated charge in a Pennsylvania penitentiary. On March 22, 2007, the defendant was charged with two counts of first-degree murder.
¶5 On May 18, 2009, the State filed a motion to extend the speedy trial term (motion to extend term), alleging that it had just located its material witness, Kenneth Jackson (Jackson), on that day in Racine County, Wisconsin. The State requested that an extension of time be allowed so that the necessary documents could be executed and served on Jackson to compel his appearance in court for trial. On May 26, 2009, the defendant filed a response to the State's motion to extend term, arguing that the State had failed to exercise due diligence in locating and securing the appearance of Jackson for trial. On May 27, 2009, following a hearing on the State's motion to extend term, the trial court found that the State had exercised due diligence in locating Jackson, without whom the State could not proceed in the prosecution of the defendant. The trial court then granted a 30-day extension of time beyond the speedy trial term.
¶6 On June 24, 2009, a jury trial began during which the State presented the testimony of several witnesses. During opening statements, the State asserted that the defendant and co-defendant Wilkins shot and killed Myers for wearing his hat in a manner that was disrespectful to their street gang. The State stated that Jackson was an eyewitness to the crime, and noted that co-defendant Wilkins had pled guilty to the first-degree murder of Myers. Defense counsel*fn1 stated that Jackson and his then wife, Joizette Finley (Finley), were also arrested for the illegal possession of firearms in their home on the day the shooting. Defense counsel asserted that Jackson and Finley provided statements to the police about the shooting after they were arrested, and noted that the weapons charges against them were dropped after they testified against the defendant before a grand jury.
¶7 Following opening statements, a sidebar conference was held during which the State requested a mistrial. The State argued that there were "actual gasps from the jury" when defense counsel stated that Jackson's and Finley's weapons charges were dismissed after they testified against the defendant before a grand jury. The State claimed that while the misdemeanor weapons charges against Jackson and Finley were dismissed, they were actually replaced with felony weapons charges that resulted in a conviction. In response, defense counsel explained that his comment was made in good faith because the reinstatement of the felony weapons charges against Jackson and Finley was absent from the information sheet available to the defense. The trial court then denied the State's motion for a mistrial, but allowed the State to address the issue through trial testimony and to clarify it in closing arguments.
¶8 Medical Examiner Nancy Jones (Dr. Jones) performed the autopsy of the victim, Myers. She observed that Myers was shot three times--in the back of the head, back of his left upper arm, and the left forearm. Myers also suffered from brush-burn abrasions and injuries around his mouth, a laceration on the right side of his upper lip, and a laceration in the right side of the tongue--all of which were consistent with falling onto a pavement and being punched in the face. Dr. Jones testified that there was no evidence of close-ranging firing. She concluded to a reasonable degree of medical and scientific certainty that Myers died as a result of multiple gunshot wounds and the manner of death was homicide. The parties then stipulated that a fired bullet and a fired bullet fragment retrieved from Myers' body was a ".38 Special" from a class of ammunition that included revolvers and automatic weapons.
¶9 Zeudon Knox (Knox) testified that on September 8, 1991, he, Myers and a friend named Kendrick drove to the Ida B. Wells housing complex because Myers "wanted to go see somebody." Knox stated that Myers was affiliated with a street gang. Once they arrived, Myers entered the building while Knox and Kendrick waited in the car. As they waited, Knox observed a fistfight at the building and heard multiple gunshots. Knox testified that Myers was shot as he tried to run; however, he was unable to identify the shooters. Thereafter, Knox and Kendrick drove a short distance and notified a police officer, who then returned to the crime scene with them.
¶10 Jackson testified at trial that he was 42 years old, that he resided outside of Illinois, and that Finley was his wife at the time of the 1991 shooting. He stated that he had previously lived in an apartment with Finley in the housing complex located at 511 East Browning Avenue in Chicago. Jackson testified that he was affiliated with the Gangster Disciples street gang in 1991. On September 8, 1991, Jackson was arrested for the illegal possession of firearms, and he was subsequently convicted of the weapons charges and sentenced to two years of imprisonment. However, Jackson denied witnessing the shooting and denied seeing individuals with the nicknames "Red" or "J" at the time of the shooting. Jackson further noted that he was not Mirandized by the police at the time of his arrest for the illegal possession of weapons and that he did not recall making any statements to the police regarding the shooting, and he denied testifying before a grand jury in September 1991. At that point at trial, the State confronted Jackson with prior inconsistent statements that he had made in his September 1991 grand jury testimony, and Jackson denied making those statements. Jackson further testified that he did not recall identifying the defendant in a photographic array during a home visit by two Chicago detectives in January 2006.
¶11 Finley testified at trial that in 1991, she was married to Jackson and that they resided in a third-floor apartment at the Ida B. Wells housing complex at 511 East Browning Avenue in Chicago. She noted that their apartment unit had a view of the front entry area of the building. Finley then identified a photograph of the defendant as an individual nicknamed "Red" and identified another individual as "J" in a second photograph presented by the State. Finley did not recall seeing either "Red" or "J" on September 8, 1991, and could not recall the details of the shooting because she suffered from memory loss resulting from an accident that occurred 15 years earlier. Finley also could not recall whether she spoke with the police about the shooting in 1991, nor could she remember testifying before a grand jury on the day after the shooting.
¶12 Sandra Provenzano (Provenzano) testified that on the day after the shooting, September 9, 1991, she served as a court reporter for a grand jury hearing during which Jackson and Finley testified. The State then introduced the grand jury transcripts of Jackson's and Finley's testimony into evidence and published it to the jury. In his grand jury testimony, Jackson stated that on September 8, 1991, he was in the bedroom of his apartment at 511 East Browning Avenue, when his wife Finley informed him that someone outside was calling his name. Jackson then looked out the window and observed the victim, Myers, run out of the building while "Red" chased Myers with a gun in his hand. "Red" then shot Myers five to six times. Jackson also observed an individual named "J" run out of the building, slip and fall, and proceed to fire three to four gunshots at Myers. Jackson testified that he had known "Red" and "J" his entire life. In her grand jury testimony, Finley testified that on September 8, 1991, "Red" was selling a product to Myers, along with 10 other individuals, on the first floor of the building located at 511 East Browning Avenue. After Myers purchased the product, "Red" punched Myers in the face, after which Finley retreated to her apartment. Shortly thereafter, Finley believed she had heard someone call Jackson's name from outside the window. She testified that as Jackson went to the window, she heard about 12 gunshots. Subsequently, Finley joined Jackson at the window, where Jackson directed her attention to a body lying against a fence across the street. Finley noticed that the victim was Myers and observed "Red" and "J" flee the scene. Finley further testified that "J" was someone whose first name was "Jerome." Later that day, Finley overheard "Red" tell an unknown individual that Myers was shot because they believed that Myers was a member of a rival gang.
¶13 Co-defendant Wilkins testified on behalf of the State that he was
an inmate in the Cook County department of corrections for a pending
but unrelated case. He noted that in March 1995, he pled guilty to the
first-degree murder of Myers and had served his sentence for that
case. Co-defendant Wilkins denied knowing the defendant as "Red" and
stated that the defendant's
nickname was "Cool." He claimed that he met the defendant for the
first time in Iowa in 1993. Co-defendant Wilkins stated that he lived
in the Ida B. Wells housing complex from his birth in 1977 until 1995,
that he was a member of the Gangster Disciples street gang, and that
his nickname was "J." He testified that on September 8, 1991, he was
selling drugs with several other individuals in the lobby of the
building located at 511 East Browning Avenue. He stated that he shot
Myers because Myers "snatched [his] drugs." Co-defendant Wilkins denied
that the defendant was present at the time of the shooting and denied
making a statement to the police and to an assistant State's Attorney.
Although he acknowledged that his signature and his mother's
name*fn2 was on a handwritten statement detailing the
shooting, he testified that he signed the statement under police
¶14 Former Assistant State's Attorney Nick Arvanitis (ASA Arvanitis) testified that he was an assistant State's Attorney in 1991. On September 9, 1991, at approximately 5a.m., he spoke with co-defendant Wilkins during which Detective Tom Kelly, a youth officer and co-defendant Wilkins' mother were also present. After advising co-defendant Wilkins of his Miranda rights, co-defendant Wilkins made a statement to ASA Arvanitis regarding the shooting. Co-defendant Wilkins then conferred with his mother and signed a handwritten statement summarizing the details of the shooting. The handwritten statement was then published to the jury at trial as follows: On September 8, 1991, co-defendant Wilkins and several friends were in the lobby of a building located at 511 East Browning Avenue in Chicago. Co-defendant Wilkins had a .38 caliber handgun hidden in a radiator and "Red" also had a firearm. While co-defendant Wilkins and "Red" were selling drugs, "[Myers] came into the building wearing his hat tilted to the left," which co-defendant Wilkins interpreted to mean that he was a "hook"--a member of the rival gang, Vice Lord. Co-defendant Wilkins' friend, Rodney, told Myers to "straighten up his hat," but Myers refused and instead stated that he just wanted to "get high." Myers purchased $10 of cocaine. When asked again to adjust his hat, Myers refused, after which an individual named Calvin began to punch Myers. Co-defendant Wilkins and "Red" then chased Myers while armed with their firearms. "Red" then shot ...