Appeal from the Circuit Court of Cook County. No. 08 CR 13128 The Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Fitzgerald Smith
JUSTICE FITZGERALD SMITH delivered the judgment of the court, with opinion. Presiding Justice Lavin and Justice Sterba concurred in the judgment and opinion.
¶ 1 Following simultaneous but separate jury trials with co-defendant
Lamont Donegan (co-defendant),*fn1 defendant Keith
Pikes (defendant) was convicted of first degree murder and sentenced
to 27 years in prison. He appeals, contending that the trial court
erred in several respects, including in admitting other crimes
evidence where there was no proof that he was involved in that crime,
in admitting the hearsay statement of non-testifying co-defendant that
was not made in furtherance of a conspiracy, and in allowing the State
to introduce inculpatory statements of recanting witnesses that were
redundant. He asks that we reverse his conviction
and remand his cause for a new trial. For the following
reasons, we reverse and remand.
¶ 3 The instant cause involved incidents related to the shooting death of the victim, Lorne Mosley, on August 21, 2006.
¶ 4 Prior to trial, the State made several motions. In one of these, entitled "Motion to Admit Proof of Other Crimes/Other Bad Acts," the State sought to introduce evidence against both defendant and co-defendant of a prior shooting committed by co-defendant. As described in that motion, in the days prior to the instant murder, Quentez Robinson, a member of the Gangster Disciples street gang, was riding a motor scooter when co-defendant, a member of the Four Corner Hustlers street gang, shot at him. Immediately thereafter, a car driving behind Robinson's scooter struck co-defendant. Defendant argued that this evidence should not be admitted as to him, since he was not present when it occurred. While acknowledging that it was "unaware of any evidence that [defendant] was present at the time of the shooting," the State argued that this incident was relevant and admissible against both defendant and co-defendant to show motive in the instant murder. Following argument, the trial court agreed with the State and admitted evidence of the incident against defendant and co-defendant, finding that it was "extremely relevant[,] by far more probative than prejudicial" and "[w]ill help the jury understand the context" of the instant cause.
¶ 5 In another motion, the State moved to admit several hearsay statements against defendant made by co-defendant after the shooting at issue, pursuant to the coconspirator exception to the hearsay rule. Specifically, the State sought to introduce co-defendant's statements, made in the presence of defendant and Deangelo Coleman, that "we got one last night" and "its about time they got one," along with co-defendant's description of the events immediately prior to the murder, namely, that he and defendant drove slowly on Corliss Avenue near some Gangster Disciples, with defendant behind the wheel; that he shot outside his window from the car; that he had wanted to shoot at the Gangster Disciples on foot but that his foot had been injured; and that he wanted revenge for his injury. Defendant argued that there was not sufficient evidence of a conspiracy to support the admission of these statements against him. Again, following argument, the trial court agreed with the State and admitted the evidence, finding that it was "extremely relevant" and "more probative than prejudicial," and that "the jury has a right to hear some context to what may have happened."
¶ 6 The cause then proceeded to trial. Quentez Robinson testified that in the summer of 2006, he was a member of the Gangster Disciples, as were his friends Herbert Lemon and Brandon Merkson. Their territory encompassed an area on Corliss Avenue between 103rd and 106th Streets; at 106th Street, the territory belonged to the Four Corner Hustlers, their rivals, to which defendant and co-defendant belonged. Robinson confirmed that the two gangs were in a feud. He testified that on August 18, 2006, he was riding his friend Cairo's scooter when he rode it into Four Corner Hustlers' territory. Following him in a car were Cairo, Lemon and Merkson. Robinson averred that, once in rival territory, co-defendant ran out of an alley and shot at him four times. Robinson did not report this incident to police. Robinson further testified that, a few days later, on August 21, 2006, he was outside on Corliss Avenue with Merkson, Cairo, Lemon, Lawanda Hamilton, her young daughter and the victim when he saw a silver, box-type car driving toward them with the back window down. Robinson then saw a hand stick out of the window and start shooting. Robinson stated that he heard between 12 and 15 shots from what he believed were two different guns. Robinson ran and jumped to the ground; he did not see who was shooting. When he got up, he saw that the victim had been shot.
¶ 7 Lemon testified that he is a member of the Gangster Disciples and that the Four Corner Hustlers are a rival gang. He averred that Robinson and Merkson were his friends and fellow Gangster Disciples, while he knew Vernard Crowder, Deangelo Coleman, co-defendant and defendant to be members of the Four Corner Hustlers. Lemon recounted that, a day or two before the murder, Robinson was riding Cairo's scooter through Four Corner Hustler territory when co-defendant shot at him. Lemon averred that, at the time, he was in a car driving behind Robinson with Cairo and Merkson and, immediately after the shooting, that car struck co-defendant. Lemon further testified that, on the night of the shooting, he was with Robinson, Merkson, Hamilton and the victim on Corliss when he saw a gray, box-type car coming toward them. Someone then shot from the car, and Lemon took cover by a tree. Lemon stated that he was able to see inside the car and recognized defendant and co-defendant inside; co-defendant was in the passenger seat and defendant was driving. Lemon testified that he saw both these men shooting as the car drove past. When the group came back together, Lemon saw that the victim had been shot and was lying on the ground. Lemon did not meet with police right away. However, when he eventually did, he picked defendant out of a photo lineup and identified him to police as the driver of the car and as one of the shooters; he also picked co-defendant out of a separate lineup and identified him to police as the passenger and as the other shooter.
¶ 8 Vernard Crowder testified that he knew defendant and co-defendant from the neighborhood, but denied that he or they were members of a street gang. He further testified that on the night of the shooting, he went to the store and then to his godmother's house and did not recall anything unusual happening; he denied seeing defendant or hearing any gunshots. He admitted that, a few months later, he spoke to police and to Assistant State's Attorney (ASA) Aiden O'Connor about the shooting. He averred that they told him to say exactly what another witness had said regarding the shooting or they would "charge" him, and that they "forced" his signature to a written statement. Crowder described that in April 2009, he testified before a grand jury regarding the shooting but that he did so only because these authorities promised to drop a domestic battery charge against him. He then denied essentially all his grand jury testimony, including that defendant was a member of the Four Corner Hustlers and that he saw him everyday; that co-defendant was also a member of that gang; that Goldie Richardson was a member of a friendly gang known as the Black Souls and that these two gangs were rivals of the Gangster Disciples; that he (Crowder) had a conversation with defendant shortly before the shooting; that he heard gunshots soon thereafter; that he had a conversation with Coleman a few days later; that he was with co-defendant when the police came to arrest him and recovered the murder weapon; and that he had a conversation with defendant wherein defendant told him he was angry about previously having been shot.
¶ 9 ASA O'Connor testified that she met with Crowder in January 2008, whereupon he agreed to give a handwritten statement to her and police. In his statement, Crowder explained that, while he is not in a gang, most of his friends are. He stated that, on August 20, 2006, he was going to his godmother's house when he saw defendant standing near an older model Toyota and saw co-defendant inside the car cleaning it, along with Richardson. Crowder described that defendant asked him if he wanted to "go do business" with the group on Corliss, but Crowder declined. Crowder went to his godmother's home, and when he returned outside, the group was gone. He then heard gunshots coming from Corliss. Crowder's statement also averred that, two days later, he was in a gangway with co-defendant and others when police arrived; as he and co-defendant ran, co-defendant fell and tossed a .45-caliber High Point handgun into a yard. Crowder stated that he saw defendant again in the fall of 2007, whereupon defendant complained to him that "if every one had kept up what he did on Corliss when the shooting occurred the trouble wouldn't have continued."
¶ 10 ASA Krista Peterson testified that she met with Crowder in April 2009, along with police detectives, and she presented his testimony before the grand jury. At the grand jury hearing, Crowder testified in line with his statement to ASA O'Connor and police. He again confirmed that both defendant and co-defendant were gang members and that there was a gang war between their gang and the Gangster Disciples, stemming from the killing of one of their members by a Gangster Disciple. Regarding August 20, 2006, Crowder testified that, while he was walking from the store to his godmother's house, he saw defendant standing by a "greyish black" car, with co-defendant inside cleaning it out. Defendant called over to Crowder and asked him if he wanted to go with them to "handle some business," which Crowder knew meant harming someone in the rival gang. Crowder stated that he declined because he was on probation; at that time, Richardson arrived and joined defendant and co-defendant. Crowder continued on to his godmother's home, and when he came back outside to sit on the porch, he saw that defendant, co-defendant and Richardson were gone. Shortly thereafter, Crowder heard about 10 gunshots coming from Corliss. Crowder further testified before the grand jury that, a few days prior to the shooting, co-defendant had been hit by a car containing Gangster Disciples and was mad about the incident. Crowder then testified that he was with Coleman and co-defendant a few days after the shooting when co-defendant told him that he could not get caught with the gun he had with him because "it had a body on Corliss." Crowder stated that he knew this meant that co-defendant had used the gun, which was a .45-caliber High Point, to kill the victim. While they were talking, police arrived; as they ran, co-defendant fell in front of Crowder, whereupon the ammunition clip fell out of the gun and co-defendant threw the gun away. Finally, Crowder testified before the grand jury that he saw defendant in the fall of 2007, and that defendant told him he was "mad at the fact that he ended up being shot" during another incident, complaining " 'Why ain't nobody keeping going over there, finishing what he had left off with,' " which Crowder knew referred to the murder of the victim.
¶ 11 Merkson testified that he is a member of the Gangster Disciples, as are Lemon, Robinson and Cairo, and that his gang was feuding with the Four Corner Hustlers. He averred that, in August 2006, he was in the car following Robinson, who was riding a scooter, when a person he could not identify ran into the street and began shooting at Robinson. The car that Merkson was in then approached and bumped the shooter, who fell to the ground. Merkson denied telling police that the shooter was co-defendant, though he admitted that he had written this in a statement to police and had testified before the grand jury that it had been co-defendant.
Regarding the night in question, Merkson testified that he was standing on the sidewalk with the victim and others when he saw a gray, box-type car approaching them; the car slowed down and then its occupants began shooting. Merkson was able to see inside the car and ...