Appeal from the Circuit Court of Cook County No. 07 CR 5385 (02) Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Epstein
PRESIDING JUSTICE EPSTEIN delivered the judgment of the court, with opinion. Justices Joseph Gordon and Howse concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendants Alan White and Demond Carter were convicted of first degree murder and attempted first degree murder. On appeal, Carter and White argue that (1) the trial court abused its discretion by admitting cumulative prior inconsistent statements and by sending copies of these statements back to the jury; (2) they were denied effective assistance of counsel because their trial counsel failed to request jury instructions on self-defense and second degree murder; (3) they were denied effective assistance of counsel because their trial counsel failed to move to strike or move for a mistrial when a witness testified that one of the detectives claimed that Carter had "beat so many murders"; (4) the trial judge committed reversible error when, through his comments at trial, he suggested that the jury should need little time to reach a verdict; and (5) the trial court violated defendants' right to a jury trial when it enhanced their sentences by 15 years based on the possession of a firearm. Additionally, Carter separately argues that he was denied his right to conflict-free counsel because his trial counsel represented a potential State witness. For the reasons that follow, we affirm.
¶ 3 Defendants Alan White and Demond Carter were charged with first degree murder of Chester Alexander and attempted first degree murder of Derrick Nelson in connection with a shooting on July 6, 2006. Carter and White were represented by separate counsel and were tried jointly before the same jury.
¶ 4 I. Trial Testimony of Occurrence Witnesses
¶ 5 During the trial, the State presented the testimony of eight occurrence witnesses: Larmarius Brooks, Derrick Nelson, Davon Turner, Geremy Johns, Charles Henderson, Tyrone Thomas, Michael Pitchford, and Shukeyina Godfrey. Although several of these witnesses provided prior statements identifying Carter, White, or both as the shooters, at trial all the witnesses testified that they did not see who fired shots.
¶ 6 A. Events Leading up to the Shootings
¶ 7 Lamarius Brooks, known as "Bobo," sold drugs on the evening of July 6, 2006, at the corner of Wilcox and Keeler in Chicago. Brooks belonged to the Traveling Vice Lords gang, though he was selling drugs on a corner controlled by the Four Corner Hustlers. Carter and White pulled up to the corner in a car. The jury heard testimony that Carter and White were members of the Gangster Disciples and Four Corner Hustlers gangs, although the testimony did not specify who belonged to which gang. Carter got out of the car and asked Brooks for "rocks," or cocaine. Brooks gave Carter the cocaine, but Carter did not pay and instead told Brooks to "get the fuck on," which meant get off the corner. Brooks argued with Carter and White and then walked toward the house at 4231 West Wilcox, where Brooks' girlfriend, Re-Re, lived with her mother. Carter followed Brooks, who told Carter to return the drugs.
¶ 8 Carter then snapped his fingers and White hit Brooks over the head with a heavy metal object. Brooks ran into Re-Re's house to get a towel for his bleeding head. Carter and White went to a porch across the street that was a few houses down from Re-Re's house.
¶ 9 While in the house, Brooks called a fellow member of the Traveling Vice Lords gang, Chester Alexander. Brooks was angry because he had lost money and was injured. The jury heard testimony that Brooks was "running his mouth, steady talking, talking about wait until his man come pull up," referring to Alexander. Alexander arrived in a Range Rover, picked up Brooks, and drove to a gas station at Laramie and Jackson. En route, Alexander made a phone call and asked several "guys" to meet there. At the gas station they met six or seven other men, including Charles Henderson. Brooks, Alexander, Henderson, and five or six other men then drove to Keeler and Wilcox. As to the reasons for the group's return, Henderson testified that it was Alexander who eventually decided to go over to Keeler and Wilcox and "see what's going on." Henderson elaborated that the group went to back to the area to "[d]uke it out" and "do whatever," but when asked if he was "going to fight it out somehow, one way or another, fists, whatever it was going to be," Henderson replied, "Just fists."
¶ 10 When Brooks and Alexander returned to the area, Carter and White were still there, on the porch across the street and a few houses down from Re-Re's house. Derrick Nelson, Geremy Johns, Davon Turner, and Tyrone Thomas were near Re-Re's house when Brooks and Alexander returned. Michael Pitchford was also in the area. Brooks and Alexander testified that upon returning to Keeler and Wilcox, they did not carry or fire weapons, nor did anyone in their group.
¶ 12 Sometime after Alexander and Brooks returned to Keeler and Wilcox, shots rang out. As the shots began, a crowd of people rushed into Re-Re's house. Nelson tried to enter with the crowd, but he was shot once in the back. Shukeyina Godfrey, who was also in the area, ran eastbound on Wilcox toward Keeler and saw Alexander at the corner. Godfrey saw a white van driving along Wilcox turn onto Keeler, and as she continued running, she heard more gunshots from the area on Keeler that she had just passed. Alexander was found wounded in the grass at 142 S. Keeler and subsequently died from his injuries. His autopsy revealed four gunshot wounds.
¶ 13 All witnesses testified that they did not see who fired shots. For example, Johns testified that he heard "a lot of different shots coming from different places" and that the shots were "coming from everywhere *** from across the street, down the street." Turner testified that the shots were "coming from the opposite side of the street, but from gangways."
¶ 14 II. Prior Inconsistent Statements and Claims of Coercion and Intoxication
¶ 15 After all eight occurrence witnesses testified that they did not see the shooters, the State confronted all witnesses, except Godfrey, with prior inconsistent statements identifying or otherwise implicating White or Carter as the shooters. When the witnesses denied their prior inconsistent statements, the State introduced, through the testimony of several assistant State's Attorneys, both a written statement and grand jury testimony for six occurrence witnesses and a written statement for Pitchford. The jury also heard testimony from Detective Dan Gallagher as to the identification of defendants in photo arrays and lineups by several witnesses.
¶ 16 As detailed below, several witnesses testified that they were coerced to make statements or identifications by Detective Gallagher. Gallagher denied all accusations of threats and coercion and that he identified Carter and White to the witnesses. All assistant State's Attorneys testified that the witnesses provided statements voluntarily, never claimed they were coerced or threatened by police, and were not under the influence of drugs or alcohol.
¶ 18 In Brooks' prior written statement, he stated that he saw Carter go to a porch across the street after he gave Carter drugs, and he saw a dark-skinned black male in a white T-shirt shooting from the ground level near the porch. Brooks gave similar testimony to the grand jury. Brooks acknowledged at trial that he previously gave a statement and grand jury testimony, but denied saying that he saw a dark-skinned black man shooting toward him from across the street.
¶ 20 Nelson's prior statements included that he saw Carter and White on a porch across the street after the argument with Brooks. He then saw people shooting from that porch. In his written statement, he identified "a black guy" shooting from the porch, but when asked during his grand jury testimony if the shooter "might have been" White, Nelson responded "Yes." Nelson stated that he saw a white minivan driven by a black female stopped in the street, Carter and White jumped in the van, and the van then headed toward Keeler. Nelson identified Carter in a photo array and in a lineup as someone he saw argue with Brooks and later enter a white minivan. He identified White in a photo array as the person who hit Brooks, and he identified White in a lineup as a person who entered a white minivan during the shooting. At trial, Nelson denied portions of his statement regarding Carter's and White's presence on the porch across the street or in the van, and he denied telling the grand jury that White was one of the shooters. Nelson also testified that Gallagher coerced him into implicating the defendants in his prior statements and that when Nelson identified someone other than defendants in the physical lineups, Gallagher had him choose Carter and White.
¶ 22 In his prior statements, Turner stated that he saw Carter "on the porch walking down the stairs shooting a gun" toward "everyone outside of Re-Re's." Turner also saw White "standing by a gate on ground level near the porch" where Carter stood and shooting a gun in Turner's direction. Turner identified Carter in a photo array as the shooter from the porch, and he identified White in a photo array as the shooter from the gate. At trial, Turned acknowledged his prior statements, but denied identifying the shooters. Turner, who was on home confinement, testified that police took him from his home in handcuffs and kept him until after his statement.
¶ 24 According to Johns' prior statements, Carter came down from the porch shooting with a gun and White fired a gun by a fence near the house where Carter was standing. Johns identified Carter in a photo array and lineup as the shooter from the porch, and Johns identified White in a photo array as the person who hit Bobo. At trial, Johns stated that he did not recall his statements identifying White and Carter as the shooters, but he acknowledged speaking to the police and the grand jury. Johns further testified that Detective Gallagher told him whom to identify in the photo arrays and that Gallagher harassed him and threatened to say he violated his probation to induce to him sign his written statement.
¶ 26 In his prior statements, Henderson stated that Carter shot toward Re-Re's house from a porch across the street. Henderson identified Carter as the shooter from the porch in a photo array and lineup. At trial, Henderson testified that he did not recall viewing lineups or photo arrays or making the written statement or testifying before the grand jury, though he later recalled a portion of his grand jury testimony. Henderson explained that he is high "everyday" on various drugs and alcohol, and when asked if he remembered meeting with an assistant State's Attorney to give a written statement, he responded "I don't remember. I do a lot of drugs."
¶ 28 Thomas said in his prior statements that Carter shot toward Re-Re's house from a porch across the street. Thomas identified Carter as the shooter from the porch in a photo array and lineup. Thomas identified White in a photo array and lineup as the person who hit Bob and as the person who entered a white minivan during the shooting. Thomas acknowledged his prior statements, but did not recall his statements about the shooters. He testified that Gallagher harassed him by coming to his house several times and banging on the doors and that Gallagher told him what to say in the written statement and who to identify in the lineup.
¶ 30 In his prior written statement, Pitchford stated that he saw "a Range Rover pull up and guys get out," and that Carter was on the porch of a house "around 4242 West Wilcox." Pitchford further stated that he saw a van driven by a woman named Nesha, whom Pitchford identified as Carter's girlfriend. He saw "two other people in the seats behind the driver seat" that he did not see them clearly. Pitchford testified at trial that when he was brought to the police station, he was in possession of heroin, and Detective Gallagher told him he could go free if he signed a statement. Pitchford said that he signed the statement without reading it and then left without being charged for the heroin.
¶ 31 III. Expert Testimony
¶ 32 The State also called Detective John Rawski as a gang expert. He testified that around the time of the incident, the Brick Yard Fours, a subsect of the Four Corner Hustlers, controlled drug sales around the 4200 block of West Wilcox. Rawski testified that if a member of a different gang tried to sell drugs there without approval, he would be confronted and told to leave. Rawski testified that it is more likely that a gang would use a young kid without a gun to sell in rival territory, though he testified that it is not unusual for gang members engaged in drug sales to carry weapons. Rawski testified that if the seller encountered trouble, he would call his "influence," and Rawski would expect that the people who come to assist would be armed.
¶ 33 IV. Firearms Evidence
¶ 34 Forensic investigators recovered a total of 23 fired cartridge cases from the scene on West Wilcox, where Nelson was shot, and from the scene near 142 South Keeler, where Alexander was found. Bullet fragments were also recovered from the scene and from the body of Chester Alexander. Two State firearms experts testified that the incident involved the use of at least three guns, and one testified that there could have been as many as seven guns used.
The jury also heard testimony regarding the execution of a search warrant on January 8, 2007 on an apartment at 4248 West Le Moyne. The police encountered Montrell Knight, a Gangster Disciple. They recovered nine guns, including a firearm commonly known as an AK-47 and an automatic handgun, both of which were used in the offense.
¶ 35 V. Conviction and Sentencing
¶ 36 Defendants were both found guilty of the first degree murder of Chester Alexander and the attempted first degree murder of Derrick Nelson. White was sentenced to 50 years for first degree murder, including a 15-year sentencing enhancement for possessing a firearm, and a consecutive 10-year sentence on the conviction for attempted first degree murder. Carter was sentenced to 55 years for first degree murder, also including a 15-year sentencing enhancement for possessing a firearm, and a consecutive 15-year sentence for attempted first degree murder.
¶ 38 I. Prior Inconsistent ...