Court of Appeals of Illinois, First District, Fifth Division
Defendant’s conviction and sentence for first degree murder arising from an attempted armed robbery were upheld where the prosecutor’s closing arguments were not improper, the trial court did not err in instructing the jury on gang evidence, even though defendant’s motion to bar such evidence had been granted earlier, the constitutionality of the mandatory firearm sentencing enhancement was upheld, and defendant forfeited the claim that the trial court improperly bifurcated the sentence into two sentences, instead of one sentence incorporating the mandatory firearm enhancement; however, where the mittimus reflected two sentences and this conflicted with the common law record, it was corrected to reflect a conviction on one count of first degree murder with a sentence of 50 years and a 40-year firearm enhancement.
Appeal from the Circuit Court of Cook County, No. 09-CR-14684; the Hon. Nicholas R. Ford, Judge, presiding
Michael J. Pelletier, Alan D. Goldberg, and Lindsey J. Anderson, all of State Appellate Defender's Office, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Michelle Katz, Jon Walters, and Michael G. Gamboney, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices McBride and Taylor concurred in the judgment and opinion.
GORDON, PRESIDING JUSTICE
¶ 1 After a jury trial, defendant Rudolph Thompson was convicted of first degree murder and was sentenced to 50 years in the Illinois Department of Corrections. Defendant was also sentenced to an additional 40 years for personally discharging the firearm that proximately caused the victim's death, pursuant to a mandatory firearm enhancement that required him to receive an additional 25 years to natural life, bringing his total sentence to 90 years in the Illinois Department of Corrections. On appeal, defendant argues that he is entitled to a new trial because (1) the prosecutor made a number of errors that, individually or cumulatively, so infected the trial that defendant did not receive a fair trial; and (2) during voir dire, the trial court instructed the jury on gang evidence despite having earlier granted defense counsel's motion in limine to bar the introduction of such evidence in the State's case-in-chief. Additionally, defendant asks us to reduce his sentence or remand for resentencing because (1) the 25-years-to-natural-life mandatory firearm enhancement is unconstitutionally vague and (2) the trial court improperly bifurcated defendant's sentence instead of considering the enhanced range, resulting in an excessive sentence. For the reasons that follow, we affirm but order the mittimus to be corrected.
¶ 2 BACKGROUND
¶ 3 I. Pretrial Proceedings
¶ 4 On August 19, 2009, defendant was indicted for, inter alia, first degree murder and attempted armed robbery for the shooting death of victim Francisco Villanueva. On June 21, 2011, the defense filed a motion in limine to preclude the State from eliciting or arguing evidence of any gang affiliation of defendant, as well as a motion in limine to prevent testimony that defendant was using illegal narcotics at or near the time of the shooting. The trial court granted the defense's motion concerning gang affiliation "as it relates basically to the State's case in chief, " but indicated that "depending on the evidence as it is adduced it is possible that this Court will allow certain gang evidence to come in should I deem it relevant at a later time either by way of explanation of a change of testimony by one of the witnesses or any other unforeseen circumstance that might occur. I will deal with it on a case by case question by question basis." The trial court denied defendant's motion concerning drug consumption, finding that "the basis of knowledge on the part of the three eyewitnesses for the State[ ] is predicated on a social circumstance in which drugs were used" and the drug use was more probative than prejudicial on the issue of defendant's state of mind and to indicate why the witnesses were together; the court also noted that "I could see relevance both for the State and the Defense in that certainly their drug consumption in the evening or early morning hours before they witness a shooting could have probative value on their ability to observe or whatever testimony they offer regarding the defendant's conduct."
¶ 5 II. Trial
¶ 6 A. Jury Selection
¶ 7 Jury selection occurred on August 26, 2011. While addressing the venire, the trial court stated:
"THE COURT: There may be evidence in this case–I am talking to the 28 people I just questioned–of gang membership. What I want to tell you is that gang membership in and of itself cannot be considered by you because he or she is in a gang, that they are guilty of a crime.
Does everybody understand that?
PROSPECTIVE JURORS: Yes.
THE COURT: It is just a part of the evidence, but it is not the thing that should make you make your decision. It is another thing to consider along with all the other evidence in this case in reaching your verdict.
Would everyone follow that law in this case?
PROSPECTIVE JURORS: Yes.
THE COURT: Anyone take issue with it?
No one is indicating.
Understand it is something that you can consider, but it is not a reason to say in and of itself, in other words, just [because] he sat down and said I am in the Insane Pastry Cooks, right, that is not enough in and of itself to convict a person.
Does everybody understand that?
PROSPECTIVE JURORS: Yes.
THE COURT: You have to listen to the evidence and decide the case by the evidence."
¶ 8 B. State's Case-in-Chief
¶ 9 Defendant's trial began on August 29, 2011. The State's witnesses included three witnesses to the shooting and the testimony of defendant's ex-girlfriend, who claimed that defendant confessed to the shooting.
¶ 10 1. Christopher Smith
¶ 11 Christopher Smith, whose his nickname was "BC" or "Black Chris, " testified that he had two prior felony convictions. Smith first met defendant in grammar school and they had known each other for approximately 10 years.
¶ 12 Smith testified that, on July 29, 2003, he met defendant at approximately 6 a.m., when Smith was driving a Cutlass down the street. He observed defendant driving down the street in a white van and asked defendant if he wanted to split the cost of some marijuana. Defendant agreed, so Smith parked his vehicle and entered defendant's van, sitting in the back. They drove down Harper Street and ran into "Cecil" and "Corn, " whom Smith had known for approximately five years; Smith testified that he had a child with Corn's sister Carla. Cecil and Corn offered to share their marijuana with defendant and Smith, so they entered the van. They drove to a gas station, where defendant and Cecil switched seats so that Cecil was in the driver's seat and defendant was in the back. They drove around, smoking marijuana. At approximately 7 a.m., someone suggested they drive somewhere for food. They drove to a Hispanic man selling food in a little truck near CVS High School; Smith lived in the area and had seen the man before.
¶ 13 When they arrived, defendant exited the vehicle and shot the man. Smith heard a gunshot, and defendant reentered the van and said "pull off quick." Defendant was the only one outside the van; Smith was in the van on the telephone with Carla. When defendant returned to the van, he had a rifle, approximately 18 to 20 inches long, and Smith observed the man from the truck lying on the ground. They drove to 92nd and Essex, and Smith told defendant that he was "bogus" for shooting the man. When they arrived, everyone exited the van and went their separate ways; Smith entered a nearby house.
¶ 14 Smith testified that, on April 1, 2009, he was visited by police while incarcerated at Logan Correctional Center. He did not speak to them that day, but agreed to speak with them at another location, so on April 13, 2009, he was brought before a grand jury and talked to the police on that day. Smith testified that he was not promised anything on either April 1 or April 13, although he had a chance to speak with his mother on April 13, and did not receive any type of consideration for testifying.
¶ 15 On cross-examination, the defense asked Smith whether defendant owned a white van, and Smith responded that "[h]e was in one." Smith admitted that he did not tell anyone about the shooting until he was approached by the police in 2009. Smith testified that he did not observe the gun until after the shooting.
¶ 16 2. Cecil Barren
¶ 17 Cecil Barren, the State's next eyewitness, testified that he had two prior felony convictions and one pending case; Barren testified that he had received no promises of help on those cases from anyone, including the State or the police.
¶ 18 Barren testified that, on July 29, 2003, he was working in the early morning hours, selling drugs with his friend Cornelius Jones at 92nd and Harper. After they finished selling their drugs, he and Cornelius met with defendant and BC when they pulled up in a conversion van. Cornelius asked defendant to take them to purchase marijuana, and the two entered the van. They purchased marijuana, and Barren switched seats with defendant, so that BC and defendant were in the back, while Barren and Cornelius were in the front; Barren switched seats "because I don't roll blunts real good. I just smoke them, to tell the truth." They smoked marijuana while driving around until the sun came up. After they finished smoking, Cornelius suggested they drive to 87th Street and buy tacos from the food truck that was always near CVS High School.
¶ 19 They pulled up next to the food truck, facing east; the food truck was facing west. Cornelius was planning on exiting the van to order the tacos, "and [defendant] said look at that rack in his hands"; Barren explained that the food truck operator had a large amount of money in his hands. Before anyone could respond, defendant jumped out of the van, holding "[s]ome type of machine gun with a long banana clip on it." Defendant pointed the gun at the man and asked the man for the money, and the man turned and grabbed the barrel of the gun. Defendant shot the man two or three times.
¶ 20 Barren testified that he was able to observe the shooting and was still sitting in the driver's seat of the van, and that the man fell to the ground when he was shot. Defendant jumped back into the van and told Barren to "pull off, don't stop for no police"; defendant still held the gun in his hand. Barren drove away, and pulled over at approximately 93rd Street. Everybody exited the van and went their separate ways; defendant and BC went one way, while Barren and Cornelius went another. As he was exiting the van, Barren observed defendant wrap the gun in a piece of clothing and throw it on the side of a house. Barren and Cornelius walked back toward Barren's home.
¶ 21 Barren again met defendant a few weeks later, when Barren was with Cornelius. Defendant "was just saying keep our mouth closed, we got away with it, you know what I'm saying, don't say nothing to nobody or he going to have to hurt us, is what he said." Barren never went to the police to inform them what happened because "I was afraid for my life." He was interviewed by the police, but did not tell them the truth; he told them everything except that he was the driver of the van. He explained that "I didn't tell them that I was driving because I didn't want to go down for something that he just did off a split, you know, not thinking. I didn't want to go down for something he did. I had no plans on none of this happening."
¶ 22 On cross-examination, the defense asked Barren who the van belonged to, and Barren responded "I was under the assumption that it was [defendant's] van because he was driving it." Barren testified that he did not observe the gun until defendant pulled it from under the seat and used it. Barren further testified that he was handcuffed and brought in for questioning by the police concerning the crime, where he lied and said that Cornelius was driving before eventually admitting that he was the driver.
¶ 23 3. Cornelius Jones
¶ 24 Cornelius Jones, the State's third eyewitness, testified that he was currently awaiting trial on a felony case and had previously been convicted of two felonies. Jones testified that the night of July 28, 2003, he was selling drugs on 92nd and Blackstone with Cecil Barren until approximately 4:30 or 5 a.m. on July 29. After they stopped selling drugs, they ran into defendant, whom Jones had known since high school, or approximately eight years. Defendant pulled up, driving a light blue Cutlass, on 92nd and Harper. Defendant was in the presence of BC, or Christopher Smith, who was asleep in the backseat. Jones and Cecil asked defendant to take them somewhere to get something to eat, and, after defendant agreed, they entered the vehicle. They drove aimlessly for a while because they could not decide what they wanted to eat. BC woke up and told defendant to pull over because he needed to use the bathroom; defendant pulled over near an alley. Defendant and BC went into the alley and, when they came back, they told Jones and Cecil that they needed to drop them off because the vehicle was too small for them. They dropped Jones and Cecil back at 92nd and Harper, and returned in a van to take them to find food. Defendant was driving the van, Cecil was in the front seat, and Jones and BC were in the back. They decided to visit the "taco man, " who sold tacos from a truck on 87th and Jeffrey.
¶ 25 Jones testified that, on their way to the food truck, Cecil and defendant decided to switch seats because defendant "almost kind of like got out of control with the van" and a police vehicle was behind them; Cecil was then driving and defendant was in the front seat. Cecil drove to the food truck, which was near CVS High School. They pulled up beside the truck after some students had passed, facing in the opposite direction from the truck. Defendant "saw the man giving some change to one of the students or whatever, and he said, I'm fixin' to get him." Jones "gave him like a nervous chuckle" and told him "don't do that dumb s"; Jones thought that defendant was planning to rob the taco man. Jones reached for the back door, and defendant jumped out of the front passenger seat, pulling a gun "from I don't know where"; the gun looked like a rifle, approximately 18 to 24 inches long. Defendant said something to the taco man, who had his back to defendant. The taco man turned, observed the gun, and grabbed it and pushed it down "just like out of instinct." Jones heard gunshots and observed the taco man running away, then falling down. After defendant shot the taco man, he jumped back into the van and closed the door; he had the gun sitting in his hands and lap and told Cecil to "pull off." Cecil drove away.
¶ 26 When the van stopped, Jones exited the van and began walking home. As he was leaving, he observed defendant pick a shirt or jacket up off the floor of the van; defendant still held the gun in his hand. Cecil caught up to Jones and they walked home.
¶ 27 A few years later, defendant walked up to where Jones, his sister, and Cecil were sitting on Jones' grandmother's porch. Defendant said that "somebody talking, somebody snitching." Jones "immediately threw my hand up like it wasn't me, it ain't me, you know." Defendant "kind of looked at me and chuckled and just walked off." Jones never told the police about the shooting, but the police eventually approached him in 2009 while he was incarcerated. Jones told the police what happened, but left out the part about BC being present, because "BC has a child with my sister, with my younger sister. So we like family. So I figured, like, if I didn't have to involve him and, you know, I could get this over with without involving him, I didn't want to involve him." Eventually, he informed the police about BC's presence.
¶ 28 On cross-examination, Jones testified that he and Cecil were smoking marijuana while selling drugs, but could not recall whether they were smoking while riding in the vehicle. Jones further testified that the van was dark-colored.
¶ 29 On redirect, Jones testified that he was not promised anything in exchange for testifying.
¶ 30 4. Ebony Haythorne
¶ 31 Ebony Haythorne, defendant's ex-girlfriend, testified that she had known defendant since they were 9 or 10 years old, and had a daughter with him, born in 2004. Haythorne testified that she had gone to high school at CVS and was aware of the food truck, which sold pizza, chips, and pop.
¶ 32 On the evening of July 29, 2003, Haythorne was at home watching the news on television; Haythorne lived with her grandparents and her mother. Haythorne learned on the news that the food truck operator had been killed, and was on the phone talking with a friend about it, when defendant, whom she was dating at the time, came in; defendant looked "[l]ike worried or something, just looked funny, like he seen a ghost or something." Haythorne asked what was wrong, and defendant told her that "something bad happened" and "he accidentally shot someone." Defendant explained to Haythorne that he saw someone who had shot his friend several weeks ago, and he was attempting to shoot him in retaliation when the food truck operator got in the way. Defendant informed her that he was with Cornelius, Cecil, and Chris.
¶ 33 Haythorne testified that defendant was not with her the night before the shooting. She further testified that, in 2005, the police visited her grandmother's home and asked Haythorne in the presence of her grandparents whether defendant was with her on the night the food truck operator was killed, and she told them that he was not. However, she did not inform the police that defendant had admitted to shooting him, because she was scared. Haythorne testified that, at that point, she had given birth to defendant's child.
¶ 34 Haythorne testified that she spoke with Detective Saul Del Rivero and Assistant State's Attorney Arunas Buntinas on May 22, 2009, when she informed them that defendant had admitted to killing the food truck operator.
¶ 35 On cross-examination, Haythorne testified that, while her grandmother liked defendant, he was not permitted to spend the night. However, she would sneak defendant into the house at night and sneak him out in the morning before her grandparents woke up. She did this multiple times a week, such that she was unable to specify which days he spent with her and which nights he did not; however, she knew that he was not with her on the night of the shooting. Haythorne also testified that she was familiar with defendant's sister, who would sometimes pick defendant up from Haythorne's house in the mornings.
¶ 36 Haythorne admitted that, when first interviewed by the police in 2005, she told them that defendant spent the night once or twice a week, when in fact it was more often. She also informed them that he only began spending the night after the baby was born and that in July 2003, he was not spending the night at all, because her grandparents did not know she was sneaking him in and she was interviewed in their presence. Haythorne never contacted them to speak to them outside of her grandparents' presence in order to inform them that defendant admitted to the shooting.
¶ 37 Haythorne admitted that, when her child was a year or two old, she discovered that defendant had been seeing a woman named Shaquitha in July 2003, although Haythorne did not know whether defendant was cheating on her while she was pregnant. Shaquitha was pregnant with defendant's child in May 2009, when police came to speak to Haythorne again. At that time, ...