Court of Appeals of Illinois, First District, Second Division
Modified Upon Denial of Rehearing Filed: May 5, 2015.
Appeal from the Circuit Court of Cook County. No. 09 CR 9023 (02). Honorable Vincent M. Gaughan Judge Presiding.
For Defendant-Appellant: Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Emily E. Filpi, Asst. Appellate Defender, Chicago, IL.
For Plaintiff-Appellee: Anita Alvarez, State's Attorney, Allan J. Spellberg, Michelle Katz, Carol L. Gaines, Asst. State's Attorneys, Of Counsel, Chicago, IL.
PRESIDING JUSTICE SIMON delivered the judgment of the court, with opinion. Justices Pierce and Liu concurred in the judgment and opinion.
[¶1] This appeal concerns the limits on a prosecutor's closing argument in a criminal case. Specifically, the appeal focuses on the issue of vouching. At trial, the prosecution crossed the line of permissible argument and, therefore, we reverse.
[¶3] On April 20, 2009, defendant Kerry Williams and his codefendants Michael Minnifield and Angelo Straight, all members of the Black P. Stones gang, were traveling in a vehicle that was used for a drive-by shooting. The shooting took place in an area commonly occupied by the Gangster Disciples, a rival gang. The gangs were purportedly involved in a gang war, and some of the three defendants' fellow gang members had recently been killed. Two guns were used in the drive-by shooting. One victim was killed and another sustained two gunshot wounds. All three of the vehicle's occupants, Straight, Minnifield, and defendant, were arrested for the shooting and each was charged with first degree murder and aggravated battery with a firearm. Ten months later, Straight went to the police with his attorney and agreed to plead guilty to conspiracy in exchange for testifying that defendant and Minnifield were the shooters.
[¶4] At defendant's trial, Straight, the government's cooperating witness, testified that, at the time of the shooting, he was driving, that defendant was in the front passenger seat and Minnifield was in the backseat. Straight claimed that the three of them drove to an area looking for Gangster Disciples and when they saw a group of what appeared to be the rival gang members, Minnifield and defendant opened fire.
[¶5] In contrast, defendant testified on his own behalf that Straight and Minnifield were the shooters. Defendant maintained that he had been drinking and smoking weed and that he was sleeping, or passed out, in the passenger seat until just before the shooting began. Defendant disclaimed any knowledge of going to look for rival gang members or of the presence of guns in the vehicle. Defendant claimed that Straight reached across him from the driver's seat to fire the shots while Minnifield was also firing from the back seat.
[¶6] One of the people that was shot died shortly after the shooting. Another, Theodis Cook-Mims, suffered two gunshot wounds. The surviving victim turned out to be a former Gangster Disciple who identified the three occupants of the vehicle in a lineup the following day. However, in a written statement taken shortly after the shooting, the victim did not identify which two of the three were the shooters. The victim also stated that he could not definitively identify the driver. In his grand jury testimony, the victim testified that he was not paying attention to the front passenger seat and did not know if the passenger had a gun. At trial, however, the victim identified defendant as one of the shooters. The victim also conceded that he was high at the time of the shooting.
[¶7] The physical evidence showed that all three defendants had gunshot residue on their hands. There were shell casings found both inside and outside the car in various areas. All of the shell casings that were recovered matched two guns that were eventually recovered. Cell phone tower data put both Straight and defendant near the crime scene at the time of the shooting.
[¶8] The guns turned out to have been bought by Straight's mother in Iowa, and Straight admitted that he was a gunrunner for the Black P Stones gang. Straight did not tell the prosecutors about the origin of the guns because he wanted to protect his mother. On the day after the shooting, Straight told the officers that he was not present at the shooting, but that defendant and Minnifield had done it. Straight also told the officers that the gunshot residue on his hands was from a gun that he had touched on the previous day. Straight took the officers to a house and told them that he was at that residence at the time of the shooting. Straight abandoned all of those positions before trial and admitted that he was present at the shooting, but still maintained he was not a shooter. The evidence at trial showed that Straight had previously been shot by the Gangster Disciples, the target of the drive-by. Straight also admitted that he was facing a sentence of 90 years, but that he would serve just 7 1/2 years in exchange for his testimony. Evidence was introduced that Straight had prior felony convictions for unlawful use of a weapon and a felony drug offense.
[¶9] Defendant was convicted by a jury of first degree murder and aggravated battery with a firearm and sentenced to 48 years in prison. The jury also made a finding that defendant personally discharged a weapon in commission of the crime.
[¶10] On appeal, defendant's main contention is that the prosecutor improperly vouched for Straight's ...