Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 08 CR 1009 (03) The Honorable Maura Slattery Boyle Judge Presiding.
JUSTICE LAVIN delivered the judgment of the court, with opinion. Presiding Justice Howse and Justice Fitzgerald Smith concurred in the judgment and opinion.
¶ 1 Following a bench trial, defendant Clarence Williams was found guilty of one count of first-degree murder based on an accountability theory. Defendant received a sentence of 23 years in prison and an additional 20-year firearm enhancement. 730 ILCS 5/5-8-1(a)(1)(a), (a)(1)(d)(ii) (West 2006). On appeal, defendant asserts that (1) the evidence was insufficient to sustain his conviction; (2) the trial court erred by admitting gang evidence through an unqualified witness and a witness's prior consistent statement; (3) the murder was not sexually motivated and defendant should not be required to register as a sex offender; and (4) defendant's mittimus should be corrected to reflect that he was convicted of first-degree murder with a mandatory firearm enhancement, not two first-degree murder convictions. We reverse defendant's conviction for first-degree murder and remand for sentencing on the lesser offense of aggravated discharge of a firearm.
¶ 2 BACKGROUND
¶ 3 On October 17, 2007, 10-year-old Arthur Jones (AJ) was shot and killed during an apparent gang dispute. Defendant, whom the trial court ultimately found not to be a gang member, was charged with first-degree murder along with codefendants Lesean Jackson and Steven McCaskill. Andrew Bradley, then a 14-year-old, was subjected to juvenile delinquency proceedings.
¶ 4 Over the course of a six-day bench trial, 15 witnesses testified. Johnell Brown testified that he belonged to the Black P Stones street gang (P Stones), which "controlled" the north side of 55th Street or Garfield Boulevard. The Jet Black Stones (Jets) also occupied the area as a branch of the P Stones (collectively called the Stones). A rival street gang, the Gangsters Disciples (GD), "controlled" the south side of 55th Street. Brown testified that around 3:30 p.m. on the day of the incident he sold cigarettes at the corner of 55th Street and Halsted Street. He also testified that he knew defendant, McCaskill and Jackson from the neighborhood and all three were members of the Jets. When a fight broke out between the Stones and the GD in a gas station on the south side of the boulevard, Brown went over to try and "squash" the fight, but eventually got involved when he tried to rescue his friend Jimmy. Brown also saw defendant and McCaskill in the area of the Shell and then saw them leave together heading north.
¶ 5 Eventually, Brown returned to his "business, " crossing over to the east side of Halsted Street, where he had hidden cigarettes and marijuana by the bus stop near the mall. While standing there, Brown saw defendant, codefendant Jackson and McCaskill walk though the mall area, but he could not recall Bradley's whereabouts. Brown also observed some high school youths hanging out in the grassy area in the middle of the boulevard. He then saw Jackson, who was standing behind the bus stop, point a semiautomatic gun toward the southwest corner of the intersection. On direct examination, Brown testified that he heard defendant tell Jackson "to wait" and then saw defendant walk toward the back of the mall. Brown then saw Jackson fire four shots into the grassy area of the boulevard. Afterward, Brown took off running toward 54th Street and heard another round of shots.
¶ 6 On cross-examination, Brown admitted that he was found guilty of manufacturing and delivering a controlled substance in 2000, as well as possession of a controlled substance in 2003 and 2004. Brown allowed that he disliked defendant and wanted to "beat his ass" because of his relationship with Brown's sister. Regarding gang membership, Brown testified that he never saw defendant get initiated into the Jets. In addition, Brown testified that he did not hear defendant tell Jackson to wait before firing and he did not recall making that statement to detectives.
¶ 7 On redirect examination, over defense counsel's objection, the judge allowed the State to read into evidence prior consistent testimony that Brown had given before a grand jury to rebut a charge of recent fabrication. We note the record does not indicate the trial court considered Brown's recitation of defendant's statement for the truth of the matter asserted. See People v. Evans, 373 Ill.App.3d 948, 964 (2007) (hearsay is defined as testimony of an out-of-court statement offered to establish the truth of the matter asserted therein and resting for its value upon the credibility of the out-of-court asserter); see also People v. Robinson, 368 Ill.App.3d 963, 976 (2006) (the trial court is presumed to know the law and to only consider admissible evidence). The prior testimony included the following colloquy:
"Q. Did you say anything when Lesean put up the gun?
Q. What did you say?
A. I told him not to shoot, there's kids ...