Appeal from the Circuit Court of Cook County No. 06 CR 13757 Honorable Thomas V. Gainer, Judge Presiding.
JUSTICE PALMER delivered the judgment of the court, with opinion. Justices Howse and Taylor concurred in the judgment and opinion.
¶ 1 Following a jury trial, defendant Antonio Morris was found guilty of first degree murder based on a theory of accountability. Defendant was sentenced to a term of 30 years' imprisonment. On appeal, defendant contends that: (1) the trial court erred when it ruled that the State could use portions of defendant's suppressed videotaped statement to impeach two medical experts that defendant intended to call on his behalf; (2) he was denied a fair trial when the court prevented him from eliciting evidence that a prior statement of one of the participants in the crime, who testified at defendant's trial, was given in exchange for a plea to a lesser offense and a reduced sentence; (3) he received ineffective assistance of counsel; and (4) the court failed to properly admonish the potential jurors pursuant to Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the reasons that follow, we affirm.
¶ 2 Defendant and three other men were arrested and charged with first degree murder arising out of the fatal beating of the victim, Phillip Thomas, in a vacant parking lot on the evening of May 8, 2006. Two of those men, Johnny Graves and Laronne Wallace, pled guilty to lesser offenses and testified at defendant's trial. Defendant and the other man, codefendant Marcel Simpson, were tried together before a single jury.
¶ 3 Prior to trial, defendant filed a motion to suppress a videotaped statement he gave to police following his arrest. In that statement, defendant told police that he threw a metal pole at the decedent's back and hit him with it in the ribs. The trial court granted the motion and suppressed defendant's statement. The court noted that its ruling was based on a "technical violation of the Miranda warnings" and that there was no allegation that defendant's statement was coerced.
¶ 4 Prior to trial, defendant also filed a motion in limine asking the trial court to prohibit the State from introducing evidence of defendant's videotaped confession to police during trial. Defendant stated that he would not be testifying at trial but that he intended to introduce "evidence from treating medical personnel at the Cook County jail that he was not able to physically commit the crime as alleged due to a medical condition, specifically his Hills-Sachs deformity as diagnosed by Cermak physicians." Defendant claimed that the testimony of these experts would be based on their own opinions and not on based on statements that defendant made in his confession. Defendant asked the court to preclude the State from introducing any details of his confession, including his statement that he threw a pipe at the victim.
¶ 5 Defendant submitted three documents to the trial court as an offer of proof in support of his motion in limine. The first was a medical intake form from the Cook County jail signed by a paramedic on May 16, 2006. In the document, there is a mark by the section for "Assistive Devices (prostesis, cane, etc.)" with the "etc." circled and the word "Brace" written in. In the remarks section it states "Hx. R. shoulder injury 4/06 Rx. Pain Pills and Brace." The next document was a Cook County radiology report regarding two X-rays taken of defendant's right shoulder on June 8, 2006. The document is signed by a "reading radiologist" named Oscar Jara. The report lists "Reason for Exam: Chronic Dislocation." The "Findings" section states that "[t]wo views of the right shoulder reveal no evidence of fracture or dislocation. There is flattening of the lateral aspect of the humeral head suggestive of Hill-Sachs deformity from previous dislocations." The final document was a definition of "Hill-Sachs deformity" taken from the Internet website biology-online.org, which defines "Hill-Sachs deformity" as "indentation or groove on posterolateral aspect of humeral head, probably due to compression of humeral head on posterior lip of glenoid, suggests repeated or chronic anterior shoulder dislocation, may occur after one episode of dislocation associated with: Bankhart lesion of glenoid." Biology Online, http://www.biology-online.org/dictionary/Hill-sachs_deformity (last visited November 13, 2103).
¶ 6 The State responded by asking the court to deny defendant's motion and to allow it to play portions of defendant's videotaped statement to impeach defendant's proposed medical experts. The State pointed out that in his confession, defendant admitted to throwing a pipe at the victim and to hitting the victim in the back and rib cage with the pipe. The State argued that allowing it to introduce evidence of defendant's confession would further the State's "truth seeking function."
¶ 7 When arguing the motion before the trial court, defense counsel stated that the experts examined defendant and diagnosed him with Hill-Sachs deformity. Counsel argued that the testimony would be that defendant would "at least have a diminished capability for performing that (throwing or hitting the victim with a pole)." In response, the State argued that defendant wanted to call witnesses who would testify to things that defendant had told them about his physical condition and that it should be allowed to impeach those experts with portions of defendant's statement to rebut what amounted to "perjury by proxy." Defense counsel responded that although defendant made statements that he had a history of shoulder problems that were recently exacerbated, the doctors would testify to information they learned from "a physical observation of [defendant]" and that defendant did not "have a conversation with" the radiologist who read defendant's X-ray. The trial court agreed with the State and ruled that if defendant called the medical experts, the State would be allowed to confront them with portions of defendant's videotaped statement.
¶ 8 The following evidence was presented at trial.
¶ 9 Jesse Rucker, who was 74 years old at the time of trial, lived next to the vacant lot where the victim's body was found. On the day of the incident, Rucker was at home working on his second-floor deck when he heard a loud noise coming from a nearby alley. He saw two or three men chasing another man from the alley and across a nearby vacant lot. The group of men were being followed by a beige Chevy and a Ford Bronco. The men did not have anything in their hands at this time and they were shouting "vulgar names" at the victim. The Chevy followed the men through the vacant lot while the Ford drove south to the "T" in the alley and then drove west to Waller Street. Rucker lost sight of the incident when he walked to the bedroom window at the front of his house to get a better view. When Rucker reached the bedroom window, he saw six men beating the victim and he also saw the Chevy and the Bronco, which were now empty. The victim was lying on the ground and could not protect himself because "they were beating him too bad." All six men took turns using weapons to beat the victim, and Rucker explained that one of the weapons looked like a bat and the other looked like a tire iron or crowbar. Rucker did not see the men kicking or hitting the victim and he did not see anyone throw a pole or a bat at him. Rucker moved to his front porch and saw that the men were still beating the victim. The victim tried to crawl under a car but men pulled him out and continued to beat him. The beating lasted approximately 10 minutes and the men then "jumped" into the two cars with the bat and the tire iron and drove from the scene.
¶ 10 Rucker spoke to the police that day and during the course of the investigation he was shown various photographs by the police. He could not describe for police the attackers' hairstyles or facial hair, but he did say that one of the attackers was much heavier than the others -approximately 300 pounds- and that another attacker had scars. On May 10, Detective David Gillespie showed Rucker three photo arrays which included photographs of Dwayne Thompson and Vonzell Franklin. Rucker identified a photograph of Powell as someone who chased and beat the victim. Approximately one week later, on May 14, Rucker viewed a lineup at the police station. He identified defendant as one of the men who beat the victim and as the person who he was "almost sure" was driving the Chevy. Rucker also identified Simpson as one of the men chasing the victim and Wallace as a passenger in the Chevy.
¶ 11 On cross-examination, Rucker testified that he gave a handwritten statement approximately one week after the incident but claimed that he did not remember telling police that he saw the attackers stomp on the victim's head. When shown his handwritten statement, Rucker denied having signed it and claimed that his signature on the statement looked "altered." Rucker further testified that he was 100% sure of the lineup identifications he made on May 14, and he did not recall telling a defense investigator that was 90% sure of those identifications.
¶ 12 Johnny Graves testified that he was originally charged with first degree murder in connection with his role in the victim's death. Graves later pled guilty to conspiracy to commit murder and entered into an agreement with the State's Attorney's office by which, in exchange for his truthful testimony, he would be sentenced to 14 years' imprisonment with day-for-day good-time credit after defendant's trial concluded. Graves acknowledged that he expected to serve 6 1/2 to 7 years in prison after good-time credit and that a murder conviction would have meant a 20-year minimum sentence, a 60-year maximum sentence and no good-time credit. After making his deal with the prosecution, Graves was also put in a special area of the prison and received special privileges. Graves also had a prior felony conviction for manufacturing and delivery of a controlled substance.
¶ 13 Graves testified that on the afternoon of May 8, 2006, he was at his cousin's house when defendant and codefendant Marcel Simpson arrived in defendant's orange Ford Bronco. Graves got into the car and the group drove to the store. While Simpson was in the store, Graves was sitting in defendant's vehicle when he saw the victim getting off the "el" train at Central and Lake Streets and pointed him out to defendant. Defendant then made a call on his cell phone. The group was going to drive back to Graves's cousin's house but defendant was on the phone and instead they drove to West End and Waller. Defendant was driving, Simpson was in the front passenger seat and Graves was sitting in the back. Graves knew that there had been an altercation between the victim and Dwayne Powell a month or two ago during which the victim kicked out Powell's teeth. Graves had never had a problem with the victim and he had "no clue" as to what was going to happen that day.
¶ 14 When the group arrived at West End and Waller, defendant was using his cell phone when the group saw the victim coming out of an alley. Graves saw Dwayne Thompson following the victim in his tan or grey Chevy Cavalier and also saw Larron Wallace and Powell inside that vehicle. When the victim ran back down the alley going south, Powell got out of the Chevy and Simpson got out of the Bronco and they chased the victim on foot while Graves and defendant stayed in the Bronco. Thompson drove the Chevy through the alley after the victim and defendant pulled his vehicle "behind them through the alley." The victim ran down the alley and through a vacant lot. Thompson drove through the vacant lot after the victim while defendant turned his vehicle around to cut him off.
¶ 15 Graves testified that the victim ran around the Bronco and that he and defendant jumped out of the vehicle. Defendant threw a pole at the victim and hit him in the back with it from about five to seven feet away. Graves had not seen the pole in the Bronco and did not know where the defendant got it. The victim continued to run until Graves grabbed him. Graves and defendant then started punching and kicking the victim, who fell to the ground. Simpson, Powell, Thompson and Wallace also approached and surrounded the victim. Powell approached the victim with a wooded baseball bat but he fell and dropped it. Simpson picked up the bat and used it to hit the victim once in the head. The victim tried to get up but could not do so and then he was punched, kicked and hit with the bat several more times. Graves could not recall the victim getting hit again with the pole and he did not know if anyone was holding the pole during the beating. Graves identified a photograph of a dumbell as the "pole" which defendant threw at the victim. While on the ground, the victim tried to crawl under a car but Graves pulled him out by his legs. The group continued to punch and kick the victim and they also hit him with the pole several more times. Somebody said, "lets go, " and then Graves, Powell and Wallace entered Thompson's vehicle while defendant and Simpson got into defendant's vehicle and they all drove away from the scene. Graves was arrested approximately three weeks later and initially denied involvement in the crime. He testified that he lied to the police when he denied involvement in order to distance himself from the crime. However, when he most recently spoke to police, he told them a version of events that was the same as his testimony at trial.
¶ 16 Graves testified that although Wallace, Thompson and Powell stood in a circle around the victim, they did not actually participate in beating the victim. He explained that Wallace was the biggest of the six men and weighed approximately 260 pounds. Graves testified that he has a scar on his forehead and another on his neck.
¶ 17 Dwayne Thompson testified that he was currently serving an eight-year prison sentence for a drug conviction from Champaign County along with two concurrent one-year sentences for drug convictions in Cook County. He also had a prior conviction for driving on a revoked license. Thompson testified that he had no agreement with the prosecution in exchange for his testimony in this case.
¶ 18 Thompson further testified that he "somewhat" recalled the events of May 8, 2006. He used his girlfriend's beige Chevy Cavalier to go and buy shoes for his children but claimed he never made it to the store because he started gambling in an alley near his home. Thompson also let Wallace borrow the car later that day. Wallace left with the car but returned a couple of hours later. Thompson entered the car and he and Wallace drove around the neighborhood for a while until they "ran into the situation." He explained that they initially drove to Lake Street but then drove to "where some other guys was" at Waller and West End, where he saw defendant's orange Bronco. Thompson did not see anyone other than defendant in the Bronco and he did not see anyone running in the area. Thompson "couldn't see from the distance" what was taking place because he "wasn't close enough up on it to be able to pinpoint exactly what was happening." Around June 15, Thompson went to downstate Illinois in order to "lay low for a while" and he got into some "legal problems" while he was there.
¶ 19 On cross-examination, Thompson testified that Detectives James Gilger and Vaulkner visited him in the Champaign County jail in September of 2007 and that they said they wanted Thompson to be a witness. At trial, Thompson agreed that it was better to be a witness than a defendant. Thompson could "not recall" if he told the detectives that he drove to Waller and West End and saw the orange Bronco and Graves and Powell running in the alley. Thompson then testified that he told the detectives that he did see Graves and Powell chasing after the victim. He also told the detectives that five people were involved in the beating, but he could not recall the names he gave to the detectives. On October 24, 2007, while he was still in the Champaign County jail, he was visited by Detective Gilger and Assistant State's Attorney (ASA) Phyllis Porcelli. Thompson acknowledged that he answered ASA Porcelli's questions and that he gave a handwritten statement but he denied telling the ASA anything about the victim's murder or saying the things that were contained in the statement. He claimed that the specific statements about the murder had been put in his statement by someone else.
¶ 20 ASA Phyllis Warren testified that on October 24, 2007, she accompanied Detectives Gilger and Volker to the police station to interview Thompson. The ASA explained to Thompson her role in the case and that she wanted to speak to him about the victim's death. Thompson agreed to speak with her. The ASA and the detectives spoke to Thompson for about an hour and then ASA Warren spoke to Thompson alone to ask if anyone had made threats or promises to him and Thompson said no. ASA Warren then wrote out a statement based upon what Thompson had told her and she showed him some photographs, which he identified. ASA Warren verified that Thompson could read by having him read the first paragraph of the statement to her and then she read the rest of the statement to him. Thompson signed every page and indicated that he was giving the statement voluntarily and that no threats or promises were made to him in return for giving the statement. The ASA also did not promise Thompson any deal regarding his Cook County drug cases in exchange for his statement and she did not compare his statement to the one he previously gave to the detectives. ASA Warren then published Thompson's statement to the jury.
¶ 21 In the statement, Thompson stated that in February of 2006, the victim was acting "crazy, " snatching people's money or pouring out their liquor. Around that time, the victim got into a verbal confrontation with Powell, but Thompson did not know if it was physical. Thompson heard that the day after the verbal confrontation, Powell had his teeth kicked in by the victim and his brother and some other men with baseball bats and poles.
¶ 22 At approximately 4 p.m. on the day of the incident, Thompson borrowed his girlfriend's tan Chevy Cavalier. He stopped to play some cards and, while doing so, Wallace asked to borrow the vehicle. Thompson let Wallace use the car and Wallace returned sometime later and told Thompson that Graves had called and told him that "they" were chasing the victim. Thompson got into the car with Wallace and they drove toward Waller and Lake streets because that is where Graves told Wallace they were going. At that location, Thompson saw the victim running through an alley and also saw defendant's orange Bronco chasing behind the victim. Powell and Simpson were running behind the Bronco and Graves got out of the Bronco and joined the chase. Thompson and Wallace parked nearby and Thompson saw the victim lying on the ground next to a car while defendant, Simpson and Graves beat the victim. Defendant had a metal pole, "maybe like a tire iron, " and was hitting the victim with it everywhere but his head. Simpson was hitting the victim in the head with a baseball bat and Graves was "stomping" and kicking the victim's body. Thompson did not know if Powell hit the victim and did not think Wallace did because he was standing by the car. Simpson repeatedly hit the victim in the head with the bat and, after one of the blows, Thompson heard what sounded like a "turtle shell cracking" and heard a girl say, "oh, they killed him." Thompson and Wallace then left in the Cavalier.
¶ 23 Thompson concluded by stating that no deals had been made in any of his cases in exchange for his statement, which he was giving freely and voluntarily, and that no threats or promises were made to him. Thompson also stated that the police and the ASA had treated him "right" and that when the police visited him in jail in September of 2007, he told them the same version of events he was relating in this statement.
¶ 24 On cross-examination, ASA Warren testified that she reviewed Detective Gilger's reports about his September 2007 interview with Thompson and that, based upon those reports, she considered Thompson a witness and not a suspect. She acknowledged that the detective's notes indicated that Thompson drove the Chevy and pursued the decedent.
¶ 25 Franklin testified that he was currently in custody on two cases. He was charged with contempt of court for not appearing on a subpoena in this case and he was in possession of narcotics when he was arrested for contempt. Franklin also had three prior felony drug convictions. However, Franklin testified that no promises were made to him in exchange for his testimony in this case.
¶ 26 Franklin testified that he spoke with Simpson on the night of the incident but he could not remember what Simpson told him about the beating. Franklin could not remember whether he told police that during that conversation, Simpson admitting hitting the victim 30 times in the head with a baseball bat. Franklin admitted that he knew defendant and that he told police where defendant's Bronco was located. He knew the location of the Bronco because two days after the incident, he picked defendant up and defendant asked him to look at his car. Franklin identified a photograph of himself and Powell that was taken on March 6, 2006, at Franklin's birthday which showed Powell with his teeth knocked out. He also admitted that Powell had been beaten up by the victim and others who knocked Powell's teeth out with bats and sticks. On cross-examination, Franklin testified that the police threatened to charge him with the victim's murder if he did not tell them "something, " and that he was not charged in connection with the victim's death.
¶ 27 Chicago police detective John Valkner testified that he spoke with Franklin about a week after the incident and that Franklin was in custody at the time as a suspect in the victim's murder. The State played a videotape of Detective Valkner's interview with Franklin, in which Franklin stated that Simpson admitted hitting the victim 30 times in the head with a bat.
¶ 28 Detective David Gillespie testified that he met with Rucker at his home on May 10, 2006, and showed him some photo arrays. Rucker identified Powell in the first array as one of the men who beat the victim. Rucker made no identifications from the other two photo arrays which included photographs of Thompson and Franklin.
¶ 29 Detective James Gilger testified that on May 14, 2006, he went with Franklin to an address and located defendant's 1987 orange and tan Ford Bronco. Later that day, defendant signed a consent to search form for the Bronco. Detective Gilger searched the vehicle and observed a 12-inch-long metal pipe with a "collar" on the end that turned out to be a dumbbell between the driver's seat and the center console. At approximately 9:45 a.m. that day, Rucker viewed a lineup at the police station made up of defendant, Simpson, Wallace, Franklin and two "fillers." Rucker identified defendant, Wallace and Simpson. Defendant was identified as driving the Bronco, Simpson was identified as chasing the victim and Wallace was identified as being someone who was inside the vehicle and who got out of the vehicle. All three were identified as having participated in beating the victim. Detective Gilger also testified that ASA Lauretta Froelich took a handwritten statement from Rucker. Rucker told the ASA that six men took turns beating the victim with a bat and a metal bar and stomping on the victim's head. The detective also testified that the Chevy Cavalier was later recovered and that a search warrant was obtained for the car. The Cavalier was processed by an evidence technician. Detective Gilger went to Rucker's house on May 31 with a photo array that included Thompson but Rucker made no identification. Rucker also did not identify Graves or Powell in ensuing lineups.
¶ 30 The parties stipulated that the Illinois State Police crime lab detected no latent prints suitable for comparison and no traces of blood on the dumbbell or the "collar" recovered from the Bronco. The parties further stipulated that defendant was the registered owner of the Bronco. The parties stipulated that no blood was found on any of the evidence recovered from the Bronco or the Cavalier. It was stipulated that the victim's clothing was recovered but never submitted for trace or micro analysis.
¶ 31 The parties further stipulated to the results of the autopsy performed on the victim's body. The victim had fractures on both sides of his skull, a comminuted or multifragmentary fracture along the skull and three lacerations on this back of his head which aligned with the fractures underneath. The victim also had a bruise above his right eye, internal head injuries caused by the comminuted fractures, and a total of 10 contusions to the brain located at the fracture sites. The cause of death was craniocerebral injuries from blunt trauma due to assault. The State rested its case following these stipulations.
¶ 32 The first defense witness called was investigator Quentin Hall. Hall spoke with Rucker on January 25, 2007, and Rucker told Hall that he was 90% sure of his identifications. Hall measured the distance from Rucker's second-floor window to the place the victim was found lying and it was 164 feet.
¶ 33 The defense also called Detective Gilger as a witness. The detective testified that he and Detective Valkner interviewed Thompson at the Champaign County jail on September 17, 2007, and that he was present when ASA Warren interviewed Thompson in October of 2007. The detective agreed that there were some differences between what Thompson told the detectives in September and what he told the ASA on October 24, 2007. Specifically, Thompson told Detective Gilger that Powell and Graves chased the victim by foot but he told ASA Warren that Powell and Simpson chased him by foot. Further, Thompson told Detective Gilger that defendant, Powell, Graves, Simpson and Wallace beat the victim but he told the ASA that defendant, Simpson and Graves beat him. The detective also testified that Thompson was not charged because nobody identified him.
¶ 34 The next defense witness was Wallace, who was Powell's cousin. Wallace testified that on the day of the incident he and Thompson rode to the area of 123 North Waller in Thompson's Cavalier but that he did not remember anyone else in the car. Wallace admitted striking the victim twice with a baseball bat. At first, Wallace testified that he did not remember seeing defendant or his Ford Bronco on Waller before the beating, stating that "it went too fast" and "everything happened too quick." Wallace then agreed, however, that on May 8, at about 5:20 p.m., he saw defendant, Simpson, Graves, Thompson and Powell on the 100 block of Waller. He also saw the victim, who was not his friend. Wallace then testified that "[o]ur car chased him down. I got out. And struck him twice with the object I was holding." He said the object was a bat but he could not remember where he struck the victim.
¶ 35 On cross-examination by the State, Wallace admitted that defendant and Simpson were two of the men that he was with on the day of the incident. Wallace further admitted that defendant's Ford Bronco was there that day but Wallace testified that he did not know who was in the Bronco. When asked if the Bronco was one of the vehicles chasing the victim, Wallace responded, "I guess. I don't know. I was in the front car." Wallace then testified that he did not know if Simpson or defendant was present when the victim was beaten or if other people hit the victim with a bat and a pole. Wallace then admitted that during a "prior proceeding" on May 7, 2007, he agreed and swore to certain facts that were read into the record. Wallace agreed to having sworn that the victim was running toward Waller street, that the victim was caught by all six men chasing him and that Wallace kicked the victim and hit him with a baseball bat. Wallace also swore that in addition to himself, defendant, Simpson, Graves, Thompson and Powell punched and kicked the victim and hit him with a bat and what was believed to be a barbell.
¶ 36 The jury found defendant guilty of first degree murder and the trial court subsequently sentenced him to a term of 30 years' imprisonment. This appeal followed.
¶ 37 Defendant first contends that the trial court erred when denied his motion in limine to preclude the State from introducing evidence from defendant's videotaped confession to impeach two physicians that defendant intended to call in his defense. Defendant claims that this ruling denied him the right to present "critical probative evidence" to the jury that would have contradicted the ...