Appeal from the Circuit Court of Cook County 07 CR 22863 Honorable Neera Lall Walsh, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice McBRIDE
PRESIDING JUSTICE McBRIDE delivered the judgment of the court, with opinion. Justices Howse and Taylor concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Marshawn Wright was found guilty of the first degree murder of Sean Page. The jury also found that defendant personally discharged a firearm that caused Page's death. The trial court subsequently sentenced defendant to a term of 50 years' imprisonment for first degree murder with an additional term of 25 years for personally discharging a firearm that caused the death of another person, for a total sentence of 75 years.
¶ 2 Defendant appeals, arguing that (1) he was denied due process when the State failed to correct the allegedly false testimony of a witness about his provisional plea agreement in a federal case; (2) he was denied the fundamental right to testify on his behalf and to present a defense because the trial court precluded him from testifying about an alibi when no notice was given to the prosecution before trial; (3) his trial counsel was ineffective for failing to impeach the witness about his plea agreement, failing to give notice of an alibi defense and failing to object to inadmissible hearsay evidence in the testimony of a police detective; and (4) this court should correct the mittimus to reflect his conviction for first degree murder with a firearm enhancement.
¶ 3 Prior to trial, the State filed a motion in limine. One request from the State was to introduce evidence of defendant's criminal history for impeachment purposes if he testified, specifically a prior conviction in federal court for conspiracy to distribute a controlled substance for his participation in a heroin distribution ring and was awaiting sentence. The trial court denied the request to admit defendant's prior conviction, finding that the guilty finding was not final prior to sentencing. The State also requested to limit the information that could be elicited by the defense and the State regarding the federal case involving the heroin distribution ring in which the prosecution witness Aukey Williams received sentence considerations for his testimony in this case. As part of the plea agreement, the State asserted that Williams was required to testify truthfully in this case and in the federal cases against Mario Reeves and defendant. Defense counsel agreed that he would not question Williams about that case, other than the fact that he was receiving sentencing considerations for his testimony. The prosecutor stated that she would be presenting this information to the jury during direct examination. The court advised defense counsel to make sure that defendant understood that as a matter of trial strategy, defense counsel would not be questioning Williams about the federal case at trial because that evidence could cause the jury to be biased against defendant. The court specifically asked defendant if he agreed with this strategy and he stated that he did. The State also agreed not to go into the subject of the federal case at trial.
¶ 4 The following evidence was presented at defendant's September 2010 jury trial.
¶ 5 Aukey Williams testified for the State and admitted that he had multiple prior convictions for possession of a controlled substance as well as convictions for possession of a stolen motor vehicle and aggravated unlawful use of a weapon. In September 2007, Williams was arrested for distribution of a controlled substance by the federal government for his participation in a heroin distribution ring. Williams stated that he had entered into a plea agreement for this charge with the federal prosecutors. He testified that his agreement was for a 30-year sentence. In August 2010, he agreed to an amendment to his plea agreement that in exchange for his truthful testimony in defendant's case, his sentence would be reduced by three years.
¶ 6 Williams testified that he had been friends with Sean Page since elementary school. Williams knew Earl Lewis by his nickname "Twan" and was familiar with him from the neighborhood. Williams stated that he had been friends with Mario "Rio" Reeves since 2002. Williams had also known defendant since 2003. Williams identified defendant in court.
¶ 7 On May 10, 2007, at around 3 p.m., Williams went to 79th and Langley in Chicago with Reeves, Maurice Williams (Maurice) and Marshawn Jones to speak with a person known as "Mo" about a problem with the sale of drugs. Mo had pretended to be Aukey Williams in order to sell drugs to individuals. Defendant was not with them. Williams talked to Mo outside of an apartment building on that corner. Mo was on the roof while Williams and his friends were on the sidewalk. Williams stated that Reeves had a "heated discussion" with Mo and asked Mo to come downstairs to continue the discussion. Mo refused. Williams testified that Mo then "started shooting off the roof." Page and Lewis were not present at this time. Reeves was shot in the leg, but did not seek medical attention. Williams said the he did not stay and speak with the police. Williams left with Reeves and Jones and got into a car. They drove to 80th and Langley.
While Williams was looking for Mo, Williams received a phone call informing him that Mo had left the building.
¶ 8 While driving, Williams saw Page and Lewis on foot at 79th between Langley and Champlain. Williams initially drove past them and parked nearby. They exited the vehicle and walked east toward Page and Lewis. Williams testified that he stayed on the north side of the street, but Reeves crossed to the south side and walked directly toward Page and Lewis. Reeves approached Lewis and started a fight with him. Williams was watching from across the street.
¶ 9 At this time, Williams saw defendant a few feet ahead of him on the north side of the street. Williams observed a gun fall out of defendant's back pocket. Williams testified that the gun was a black 9-millimeter. Defendant picked the gun up and put it back in his pocket. Then defendant ran across 79th toward Page and Lewis. Williams then ran across the street. As he was crossing the street, Williams heard about four or five gunshots. Williams did not see defendant shoot Page. Williams stated that he saw defendant running east toward Langley with a gun in his right hand. He also saw that Page was bleeding from his torso. Williams said he told Page to lie down. Both Page and Williams ran across 79th and Page collapsed. Williams saw the police arrive, but he did not talk to the police because he "didn't want [any] part of it."
¶ 10 Williams testified that he spoke with defendant on the telephone on May 10, 2007. Williams asked defendant if he was all right and why he "did it." Defendant responded that "he didn't know." Williams did not speak with police about Page's homicide until he was arrested in September 2007 on the federal felony case. Williams testified that he spoke with the police about the homicide prior to receiving any sentence deals. Williams identified several individuals on a surveillance video while speaking with the police at that time and named defendant as the shooter.
¶ 11 At trial, the prosecutor played the surveillance video recording of the homicide. Williams identified Page and Lewis as they walked on 79th. He also identified himself, Reeves, and defendant in the video. Williams stated that the video accurately showed what happened at the time Page was shot. Williams testified that a photograph taken from the video showed Reeves hitting Lewis. In several photographs, Williams identified defendant holding a weapon pointed at Page. He also identified himself in a photo with Page after Page had been shot.
¶ 12 Earl Lewis testified at the trial. He stated that people call him "Twan," which is his middle name. He admitted that he had a pending contempt case because he failed to appear after being served with a subpoena in the instant case. He also admitted that he had two prior felony convictions for attempted burglary.
¶ 13 Lewis stated that he was friends with Page and had known him for five years. Lewis identified Reeves as "Mohawk" and "Rio," whom he knew from the neighborhood. He also identified defendant in a photograph and in court as someone he knew from the neighborhood. Lewis also said he knew Williams from the neighborhood. Lewis stated that he was an "acquaintance" of a person called "Mo" and that Mo's real name was Bernard.
¶ 14 On May 10, 2007, Lewis was with Page in an apartment building at 79th and Langley with a female. They were on the second or third floor. He did not know if Mo was in that building that day. He heard gunshots while in the building. He then looked out the window and saw people running. He was unable to tell where the gunshots came from. Later, Lewis left with Page on foot to get cigarettes from the store. They walked down 79th toward Champlain and then turned around and came back.
¶ 15 While they were walking, someone called to them. They stopped and turned to see who it was. Lewis saw Reeves coming toward them. Lewis testified that Reeves said something and then "swung at [Lewis.] We got to fighting. And after we were fighting, [Lewis] heard the gunshots." When Lewis was first hit by Reeves, Page was standing nearby, but once Lewis started fighting with Reeves, he could not see where Page was. Lewis said the gunshots were right next to him and he grabbed Reeves and pulled Reeves over him. Lewis stated that he could not see who was shooting. Lewis then "kicked" Reeves off and got up. He looked at Page and saw that Page's white shirt was "turning red." Lewis then started running. He saw Page walking, but Lewis went in the other direction.
¶ 16 The prosecutor then played the video and asked Lewis to identify the individuals. Lewis admitted that he had previously identified the people in the video. He identified himself walking with Page. He identified Reeves, who approached them and punched Lewis. Lewis also identified defendant as the person pointing a gun at Page. The last person he identified was Williams. Lewis stated that it was a true and accurate recording of what happened. At the time it occurred, he did not see defendant shoot Page, but he recognized defendant.
¶ 17 Mohammed Babul testified that he has a business at 641 East 79th Street. He stated security cameras had been outside his business since March 2007. These cameras were operational on May 10, 2007, and recorded the events on the street. The Chicago police department obtained the recordings from the security cameras.
¶ 18 J. Scott Denton testified that he was a forensic pathologist at the Cook County medical examiner's office and he performed Page's autopsy. He stated that the cause of death was multiple gunshot wounds and the manner of the death was homicide.
¶ 19 The State also presented evidence that fired bullet cartridge cases were recovered from the scene and sent to the Illinois State Police lab for analysis. Brian Mayland, a forensic scientist at the crime lab, analyzed the cartridge cases as well as bullets removed during the autopsy. Mayland testified that the bullets were fired from the same gun, either a 9-millimeter or .38-caliber gun. Mayland also found that the cartridges were fired from the same gun, a 9-millimeter. However, Mayland could not determine whether the bullets recovered during the autopsy and the cartridges recovered from the scene were fired from the same weapon because there was no firearm to analyze.
¶ 20 Sergeant Johnny Tate testified that in May 2007, he was working as a detective in Area Two, homicide section. On May 10, 2007, Sergeant Tate received an assignment to investigate Page's homicide. Sergeant Tate went to the scene on East 79th Street and viewed the surveillance video footage from two businesses on the street and requested an evidence technician to come to the scene and download the footage.
¶ 21 Sergeant Tate stated that on May 13, 2007, he spoke with Tiffany Andrews on the phone. Andrews lived at 7908 South Langley. Sergeant Tate learned that Andrews' building was the same building where an earlier shooting had occurred from the roof. He testified that Andrews told him that "there was an incident that had taken place earlier in the day and also that Earl Lewis was with the victim [Page] when he was shot." Andrews gave Sergeant Tate the contact information for Lewis and he was able to contact Lewis.
¶ 22 Later, in June 2007, Sergeant Tate continued to investigate the case. He spoke with an individual named Pierre Young at the sixth district police station. Sergeant Tate stated that after his conversation with Young, he was looking for defendant as a suspect in this case and also wanted to speak with Williams and Reeves. Sergeant Tate's involvement with the case ended after that date.
¶ 23 Detective John Otto testified that he was employed as a detective in the homicide section of Area Two. On September 20, 2007, he and his partner, Detective Richard Sullivan, received an assignment to follow up on this case. He and his partner went to the Homan Square station to interview defendant and Williams about this case. He brought the DVD of the surveillance video with him. He spoke with defendant in an interview room with electronic recording. Detective Sullivan advised defendant of his Miranda rights and defendant agreed to speak with them.
¶ 24 The detectives showed defendant the surveillance video of Page's homicide. An agreed portion of defendant's interrogation was played for the jury. No transcription of the interrogation is included in the record. In the recording, defendant watched the video of the shooting and initially denied any involvement in Page's homicide. As Detective Otto opened ...