Appeal from the Circuit Court of Cook County. No. 08 CR 13128 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Quinn
PRESIDING JUSTICE QUINN delivered the judgment of the court, with opinion. Justices Cunningham and Harris concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant, Lamont Donegan, was convicted of first degree murder in the shooting death of Lorne Moseley and subsequently sentenced by the trial court to 27 years in prison. On appeal, defendant contends that: (1) he was denied effective assistance of trial counsel where counsel failed to object to inadmissible testimony; (2) the trial court erred in permitting the State to present evidence of defendant's prior crime; and (3) the trial court violated Supreme Court Rule 431(b) (Ill. S. Ct. R. 431(b) (eff. May 1, 2007)) in questioning potential jurors. For the reasons set forth below, we affirm.
¶ 3 On June 10, 2008, defendant and Keith Pikes were arrested for the August 21, 2006, murder of Lorne Moseley. They were later charged with first degree murder, attempted murder, aggravated battery with a firearm, and aggravated discharge of a firearm. The State's theory of the case was that the shooting was part of an ongoing war between two street gangs, the Four Corner Hustlers and the Gangster Disciples. Specifically, the State contended that defendant was a Four Corner Hustler and that the day before Moseley's murder, defendant shot at Quentez Robinson, a Gangster Disciple, who had ridden a motor scooter into Four Corner's territory. Defendant was then hit by a car driven by Gangster Disciples who had been following Robinson. The State posited that two days later, defendant retaliated by driving into a Gangster Disciple neighborhood with co-defendant Pikes, and a third man, Golden Richardson, and shot at a group of people, killing Moseley.
¶ 4 The case proceeded to separate simultaneous jury trials in December 2010. Prior to trial, the State filed a motion in limine to introduce evidence that defendant was a gang member and that he had shot at Robinson a few days before killing Moseley, in order to establish motive. The trial court allowed the evidence over defense counsel's objection. The State also sought to introduce statements made by defendant and Pikes to two witnesses before the shooting as reported in the witnesses' handwritten statements and grand jury testimony, also to establish motive. The defense objected on the grounds that there was insufficient foundation for those statements, but the trial court found them to be admissible under the coconspirator's exception to the hearsay rule. Lastly, the trial court granted the State's request to introduce statements made by defendant and Pikes describing the shooting to their friends.
¶ 5 At trial, Quentez Robinson testified that he was a Gangster Disciple and that he knew defendant to be a member of a rival gang, the Four Corner Hustlers. On August 18, 2006, Robinson was riding a scooter and being followed in a car by his friends "Cairo," Herbert Lemon, and Brandon Merkson. When Robinson rode into Four Corner territory he saw defendant run out of an alley and start shooting at him. Robinson stated that two days later, on August 20, 2006, he, Moseley, and several other friends were standing in front of a friend's house at 104th Street and Corliss Avenue when a silver, boxy car rode by with the back window down. Robinson saw a hand come out of the rear window and start shooting. Robinson heard 12 to 15 shots that sounded like they were coming from two guns, but he was unable to identify the shooter.
¶ 6 Next, Herbert Lemon testified that he was a Gangster Disciple and was with Robinson on the night he rode a scooter into Four Corner territory. Lemon was riding in the car that was following Robinson and saw defendant shoot at Robinson. He said the car then hit defendant. On the night of the Moseley murder, Lemon was with Moseley and several other people standing in front of a house on 104th Street and Corliss Avenue when a gray, box-like car drove by and shots were fired from it. Lemon said he heard eight or nine shots, looked inside the car, and recognized defendant in the passenger seat and Pikes in the driver's seat and saw both of them shooting. On December 22, 2007, Lemon identified defendant and Pikes in a photo lineup as the shooters.
¶ 7 The State then presented three witnesses, Vernard Crowder, Brandon Merkson, and DeAngelo Coleman, who had given handwritten statements and grand jury testimony before trial but denied some or all of those prior statements at trial. First, Crowder testified that he knew defendant and Pikes and that they were not members of any gang. Crowder said that he could not recall seeing defendant or Pikes on the night Moseley was killed and that he did not hear any gunshots. Crowder acknowledged that he met with Assistant States Attorney (ASA) Aidan O'Connor on January 8, 2008, regarding the Moseley murder, but said that she told him what to say and threatened to charge him if he refused to do so. Crowder also acknowledged that he testified before the grand jury on April 16, 2009, but claimed that he was told that his pending domestic battery case would not be dropped unless he did. The State confronted Crowder with portions of his grand jury testimony and he denied giving the answers in the transcript. Defense counsel objected to the State's request to introduce the transcripts, arguing that they were inadmissible. The trial court reserved ruling on the issue.
¶ 8 Later in the trial, the State called two witnesses to prove up Crowder's prior statements. First, ASA Krista Peterson was called to testify as to Crowder's grand jury testimony. Defense counsel objected on the grounds that parts of Crowder's grand jury testimony included his interpretation of statements made by defendant and Pikes before and after the shooting. The trial court overruled the objection, noting that Crowder had testified and that "[Crowder's] own present sense impressions were some of the things he was talking about, and he was available for cross-examination."
¶ 9 The transcript of Crowder's grand jury testimony was admitted into evidence and ASA Peterson read the transcript stating, in part, that Crowder testified that he, Pikes, and defendant were Four Corner Hustlers and that in August 2006, their gang was at war with the Gangster Disciples. On the evening of August 20, 2006, Crowder was walking home when he saw defendant and Pikes standing near an older model, four-door, grayish-black Toyota car. Crowder said that defendant was cleaning out the car and that Pikes called him over and asked him if he wanted to go with them to go "handle some business" on Corliss. Crowder said he took this to mean that they were going to harm someone since that was the block where they had previously fought with Gangster Disciples. Crowder told Pikes he did not want to go with them because he was on probation. Crowder then went to his godmother's house and was sitting on the front porch when he heard several gunshots coming from the direction of 105th and Corliss Avenue.
¶ 10 During his grand jury testimony, Crowder further stated that a few days before the Moseley shooting, defendant was hit by a car driven by Gangster Disciples and was angry about it. Two days after the Moseley shooting, Crowder was with defendant and DeAngelo Coleman in a gangway at 107th and Champlain. Defendant had a .45-caliber High Point gun with orange sights and told Crowder that he "can't get caught with a gun because it had a body on Corliss," which Crowder took to mean the Moseley shooting. While they were in the gangway, the police approached and everyone ran. Crowder said that defendant fell and the clip fell out of the gun. Defendant then threw the gun away. When Crowder next saw Pikes in the fall of 2007, Pikes was angry about being shot at "in the behind and said 'Why ain't nobody keeping going over there, finishing what he had left off with?' " Crowder took that to mean the Moseley shooting.
¶ 11 ASA Aidan O'Connor was called to testify as to Crowder's handwritten statement, which she took on January 8, 2008. That statement, which was entered into evidence and published to the jury, was nearly identical in substance to Crowder's grand jury testimony
¶ 12 Next, the State called Brandon Merkson, who testified that in August 2006, he was a member of the Gangster Disciples and that defendant was a member of the Four Corner Hustlers.
On the evening of August 19, 2006, Merkson was in a car with Herbert Lemon and a friend called Cairo, and they were following Robinson, who was riding a scooter in the vicinity of 107th and Champlain, which was Four Corner Hustlers territory. Merkson said that he saw a person run into the street and shoot at Robinson four times but could not identify the shooter. Merkson said that the car ran into the shooter, knocking him down, and that they then drove away.
¶ 13 Merskon testified that on December 22, 2007, he was brought to Area 2 police headquarters and gave a handwritten statement to ASA O'Connor, wherein he identified defendant as the man who shot at Robinson. Defense counsel objected when the State began reading from the statement on the grounds of improper impeachment, and the trial court overruled the objection. When asked whether he had told ASA O'Connor that defendant had shot at Robinson, Merkson testified that he told her that he was not sure who the shooter was, but that she had written in his statement that he identified defendant. Merkson also testified that he appeared before the grand jury on June 17, 2008, and identified defendant as the man who shot at Robinson and Moseley. Defense counsel objected to the State's questions about Merkson's grand jury testimony on the grounds of improper impeachment but was again overruled.
¶ 14 At trial, Merkson also testified that on August 20, 2006, he was at 104th and Corliss with Moseley, Robinson, and other friends when a small gray box-like car approached from 103rd Street. The car slowed down, and Merkson saw flashes from guns coming from inside the car. Merkson said that he recognized defendant in the backseat as one of the shooters but could not identify the driver. On cross-examination, Merkson acknowledged that in his handwritten statement he said that he could not identify the shooters but knew that two guns were being fired.
He also stated that the information he gave in his handwritten statement was what the police told him to say and that he was threatened by the police with enhanced charges or more jail time if he did not testify before the grand jury.
¶ 15 Later in the trial, ASA Patrick Keane testified that he presented Merkson to the grand jury on June 17, 2008, and the transcript of that testimony was admitted into evidence and published to the jury. According to that testimony, on August 20, 2006, at about midnight, Merkson was at 10411 South Corliss with Moseley and some other friends when he saw a small, boxy Toyota approach from 103rd Street. The car slowed down and the people inside started shooting in Merkson's direction. Merkson recognized defendant as one of the three people in the car. Two days before the Moseley shooting, Merkson was in a car driven by his friend Cairo that was following Robinson on a scooter. Merkson saw defendant shoot at Robinson and then Cairo hit defendant with the car.
¶ 16 ASA O'Connor testified that she took a handwritten statement from Merkson on December 22, 2007. In that statement, which was admitted into evidence and published to the jury, Merkson identified defendant as a passenger in the car from which the shots were fired.
¶ 17 DeAngelo Coleman testified that he knew defendant and Pikes from the neighborhood and denied that he or defendant was a gang member. Coleman stated that on the day Moseley was killed, he did not speak with defendant or Pikes. Coleman testified that on August 27, 2006, he was "snatched" by the police, who "tried to put something on him" and told him what to say about the Moseley murder. He spoke to an ASA in January 2008, but denied the substance of his handwritten statement and asserted that he only repeated what detectives told him to say.
Coleman acknowledged that he testified before the grand jury on April 10, 2008, but said that he did so because he was told that charges against him in a pending case would be dropped. Coleman asserted that the ASA and detectives told him what to say and had him memorize his handwritten statement before going into the grand jury room.
¶ 18 Later in the trial, ASA Jose Villareal testified that he presented Coleman to the grand jury on April 10, 2008. Coleman's grand jury testimony was admitted into evidence and published to the jury. According to that testimony, in August 2006, Coleman was a member of the Four Corner Hustlers, who were at war with the Gangster Disciples. On August 19, 2006, Coleman was standing across from a liquor store at 107th Street when he heard gunshots. Coleman went to see what happened and saw defendant, also a Four Corner Hustler, lying in the street. Defendant told him that he was hit by a car because he was shooting at Quentez Robinson, a Gangster Disciple. Coleman said that defendant was very upset and said he wanted retaliation, which Coleman took to mean that he wanted to kill a Gangster Disciple but not Robinson specifically.
¶ 19 The next day Coleman saw defendant talking to Pikes about stealing a car to go on a mission. Defendant had a "jiggler" key that would fit any older model Toyota. Later that evening, Coleman was at a store at 107th and Champlain when he saw Pikes pull up in a Toyota Camry. Pikes and defendant cleaned out the car and then defendant went into a gangway to a house where the gang kept guns. Defendant returned with a .45-caliber High Point, which was his own gun, and a .40-caliber "nation gun," which is a gun available for gang members to use. A third man, Golden Richardson, arrived and Coleman saw them drive off, with Pikes driving, defendant in the front passenger seat, and Richardson in the back. Coleman heard defendant say "It's time," which he took to mean time to go kill.
¶ 20 Coleman saw defendant and Pikes together a few days after the Moseley shooting. Defendant said "it was about time we got one." Coleman testified that defendant described the shooting, stating that the three men drove to 105th and Corliss and saw a group of Gangster Disciples. They were going to chase them down on foot, but instead, they slowed down and he and Richardson shot at the crowd from the car. A few days later, Coleman was in a gangway with defendant and others when the police pulled up and everyone fled. Coleman saw defendant fall down and his gun fall out. Later, defendant told Coleman that he threw the gun and that the police found it.
¶ 21 ASA O'Connor testified that she took a handwritten statement from Coleman on January 9, 2008 at Area 2 police headquarters. Coleman's handwritten statement was admitted into evidence and published. In that statement, which was nearly identical to his grand jury testimony, Coleman also said that on the morning of the Moseley shooting defendant told him that someone had to pay, that he was going to kill a Gangster Disciple, and that defendant and Pikes had been talking all day about going over to 104th and Corliss and getting payback.
¶ 22 The jury also heard testimony from several witnesses who investigated the Moseley murder. Chicago police officer Mark Reno testified that on August 22, 2006, he was assigned to a gang investigations unit and was looking for witnesses in the Moseley homicide. At about midnight, he drove into an alley between Champlain Avenue and Cottage Grove Avenue and saw a group of six to ten men running away from his car toward Cottage Grove. Reno stopped the car and chased the men to a residence at 10747 South Cottage Grove, where they were detained. Reno returned to the alley where he first saw the men and found a .45-caliber semiautomatic High Point pistol with orange sights. Reno was unable to determine whose gun it was. When he returned to the police station, he inventoried the gun and sent it to the Illinois State Police lab.
¶ 23 Dr. Valerie Arangelovich, a medical examiner for Cook County, testified that she performed the autopsy on Lorne Moseley and recovered a bullet from the back of Moseley's head, which she gave to the Chicago police department. Forensic investigator Joseph Dunigan testified that he processed the scene of Moseley's murder and recovered cartridge cases, bullet fragments, and .40- and .45-caliber bullets. William Demuth, a forensic scientist at the Illinois Police crime lab, testified that .the 45 caliber bullets and bullet fragments recovered from the crime scene and the medical examiner's office matched a test bullet fired from the .45-caliber semiautomatic gun that Officer Reno recovered.
¶ 24 Sergeant Milton Owens testified that on September 2, 2006, he pulled defendant over for failing to stop at a stop sign and took defendant into custody. Owens testified that when he pulled defendant over, he noticed a "jiggler" key in the car's ignition, which Owens said is like a master key that can be used to operate the door locks and ignition in older model Toyota cars.
¶ 25 Detective Brian Forberg testified that he was assigned to investigate the Moseley murder and that he spoke with Coleman, Lemon, Robinson, Merkson, and Crowder about the shooting. Forberg testified that Lemon identified defendant and Pikes in a photo array as the shooters and Merkson identified defendant. Forberg said that defendant and Pikes were arrested on June 10, 2008 in connection with Moseley's murder.
¶ 26 The State rested, and the defense presented no witnesses. The jury convicted defendant of first degree murder but found that the State had not proven that defendant personally discharged a firearm. Defendant filed a motion for a new trial, arguing, in part, that the trial court erred in admitting other crimes evidence that defendant shot at Robinson prior to the Moseley shooting; allowing hearsay statements made by Pikes implicating defendant in violation of Bruton; allowing the State to read entire grand jury transcripts to the jury, even where the transcripts were nonimpeaching, irrelevant, and prejudicial, and where they included prior consistent statements, in violation of section 115-10.1 of the Code of Criminal ...