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People v. Murray

Court of Appeals of Illinois, Second District

December 13, 2017

DEONTAE X. MURRAY, Defendant-Appellant.

         Appeal from the Circuit Court of Boone County. No. 13-CF-86 Honorable C. Robert Tobin III, Judge, Presiding.

          JUSTICE ZENOFF delivered the judgment of the court, with opinion. Justices Jorgensen and Birkett concurred in the judgment and opinion.


          ZENOFF, JUSTICE.

         ¶ 1 Defendant, Deontae X. Murray, appeals his convictions of first-degree murder (720 ILCS 5/9-1(a)(2) (West 2012)) and unlawful possession of a firearm by a street gang member (720 ILCS 5/24-1.8(a)(1) (West 2012)), following a jury trial in the circuit court of Boone County. We affirm as modified.

         ¶ 2 I. BACKGROUND

         ¶ 3 On July 19, 2013, a Boone County grand jury returned a three-count amended indictment charging defendant with first-degree murder in connection with the April 21, 2013, shooting death of Richard J. Herman in Belvidere, Illinois (count I), aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1), (a)(3)(A), (d) (West 2012)) (count II), and unlawful possession of a firearm by a street gang member (count III). The jury convicted defendant of all three offenses. The jury also found that defendant was armed with a firearm during the commission of the offenses. The court merged count II into count III and sentenced defendant to an aggregate of 60 years' incarceration in the Illinois Department of Corrections. The following evidence relevant to the issues in this appeal was adduced at trial. We will augment our discussion of the evidence where necessary in the analysis portion of the opinion.

         ¶ 4 A. Defendant's Gang Affiliation

         ¶ 5 The State introduced defendant's gang affiliation to show the motive for Herman's murder. The State argued that defendant facilitated the shooting when he handed the murder weapon to Marco "Wacko" Hernandez, who shot Herman.[1]

         ¶ 6 Officer David Dammon of the Belvidere police department testified for the State as an expert on gang activity. He testified that defendant was a member of the Latin Kings street gang. He based his opinion on his personal experience with defendant, information in the police department's gang database, defendant's association with other known Latin Kings, defendant's use of gang signs, and defendant's mode of dress. According to Dammon, Hernandez was also a member of the Latin Kings but was so low in the hierarchy that he would not be permitted by the gang to carry a gun. Dammon detailed the criminal nature of street gangs in general and the Latin Kings in particular. Dammon further testified, without objection, that the Latin Kings are an organized street gang as defined by statute. See 740 ILCS 147/10 (West 2012).

         ¶ 7 B. The Shooting of Richard Herman

         ¶ 8 On April 21, 2013, defendant attended a birthday party at the home of Mallek Sanchez in Belvidere. Sanchez was a "higher-up" in the Latin Kings. Hernandez was also at the party. Defendant and Hernandez left the party and walked to a nearby Shell gas station to buy beer and a cigar. Max Cox, who was a member of the rival gang the Surenos 13, and Herman, Cox's companion, were at the Shell station. Cox was prepaying for gas, and Herman was at the coolers buying beer. Cox and defendant knew each other, as Cox had previously sold cannabis to defendant. Hernandez had a recent confrontation with Cox.

         ¶ 9 1. Cox's Testimony

         ¶ 10 At approximately 6:30 p.m. on April 21, 2013, Cox parked his car next to pump No. 5 at the Shell station, and he and Herman went inside the store. Defendant and Hernandez were in the store. Herman waved Cox to his location by the coolers and told Cox something about Hernandez. Then Cox prepaid for gas, Herman paid for a case of beer, and they left the store. Herman placed the beer in the back passenger seat of Cox's car, taking out a can for himself. Cox was on the driver's side of the car, pumping gas, when he saw defendant and Hernandez walking toward him. Defendant stopped at his front bumper, and Hernandez stopped 10 or 15 feet from the front bumper. Hernandez was yelling.

         ¶ 11 Defendant asked Cox if he was "gang banging, " meaning was Cox "hanging out" with the Surenos 13. Cox said no. Defendant accused Cox of lying. Then defendant lifted his shirt and exposed a gun on his left side. Cox described the gun as "black, square, decent size." Defendant then covered the gun with his shirt again. Hernandez stepped in front of defendant, stepped away, and put a "pistol" behind his back. Then Hernandez began arguing with Herman. Cox told Herman to shut up, that Hernandez had a gun. Then Hernandez pulled out the pistol, ran up to Herman, and shot him.

         ¶ 12 On cross-examination, Cox testified that defendant was at least 10 feet away from him during the incident. Cox testified that he did not see the exchange of the gun from defendant to Hernandez. Cox agreed that he did not know whether defendant handed the gun to Hernandez or whether Hernandez grabbed it. According to Cox, the entire incident took approximately a minute and a half.

         ¶ 13 2. Dan Arevalo's Testimony

         ¶ 14 Dan Arevalo was the cashier at the Shell station on the evening of April 21, 2013. He looked out the window and saw Cox pumping gas. He also saw Herman and defendant arguing. He did not see Hernandez. Arevalo attended to some customers, and when he looked outside again a few seconds later, he saw Hernandez at the passenger side of Cox's car. Arevalo testified that Hernandez was running toward Herman, reaching for a gun from behind his back. He saw Hernandez point the gun at Herman, at which time Arevalo "backed away." Arevalo heard a shot. He immediately called 911. When Arevalo next looked outside, he saw defendant and Hernandez running away.

         ¶ 15 3. Gerald Keeney's Testimony

         ¶ 16 On the evening of April 21, 2013, Keeney stopped at the Shell station to buy lottery tickets. He sat in his pickup, scratching his tickets on the center console, when he heard people arguing. He saw two white men (presumably Cox and Herman) at a gas pump. The next thing Keeney heard was a gunshot. He ducked down. When he looked out again, he saw a black man waving a gun. Keeney ducked down again. The next time he looked out, he saw the black man and a Hispanic man running toward the back of the station.

         ¶ 17 C. The Crime Scene and Investigation

         ¶ 18 A woman flagged down police officer Jeremy Bell and told him that she saw two people running through an alley. Bell searched the area, but he did not locate anyone. Sergeant Shane Woody responded to the scene and saw Herman lying face-up on the pavement near pump No. 5. He noted a bullet hole in Herman's chest. Herman was transported to a Rockford hospital, where he died at approximately 7 p.m.

         ¶ 19 Illinois State Police investigator Rebecca Hooks processed the scene for evidence. Arevalo turned over a Shell station surveillance video to Dammon. Dammon recognized defendant on the video, but he did not recognize Hernandez. Cox and Arevalo each identified defendant from a photo lineup, and they later identified Hernandez as the shooter, from a second photo lineup.

         ¶ 20 Dr. Larry Blum, a forensic pathologist, performed an autopsy on Herman. Dr. Blum testified that the bullet caused Herman's left lung to collapse and then exited his back. Herman died of hemorrhagic shock due to a gunshot wound to the chest.

         ¶ 21 After the murder, defendant moved among various addresses in Harvard, Rockford, and Freeport, and he was considered by the police to be a fugitive. Defendant's wandering was aided by another Latin King, Anthony Perez. In late April 2013, the Belvidere police enlisted the help of the United States Marshals to apprehend defendant. On May 9, 2013, the police and the marshals executed a search warrant at Perez's mother's apartment in Winnebago County. The police recovered a state-issued ID card for defendant, mail belonging to Perez, drug paraphernalia, cannabis, two firearms, and ammunition.

         ¶ 22 On the top shelf of the bedroom closet, the police found a Glock gun case. Inside the gun case were a black Glock Model 30 pistol, two magazines, and a magazine motor. Later, a forensic test determined that the Glock was used to kill Herman. Perez's fingerprints were found on the gun's slide, but there was no DNA on the gun that was suitable for analysis.

         ¶ 23 On May 10, 2013, police officers searched a residence at 925 11th Street in Rockford. They observed a woman trying to get into the house. She was placed in custody and identified as Heather Swanson, defendant's girlfriend. While placing Swanson in custody, the officers heard a "crash" in some bushes north of the property. The officers jumped over a chain link fence and arrested defendant, who was lying in the bushes. Defendant stated: "Yeah, I know I'm wanted. I was going to turn myself in."

         ¶ 24 The police seized defendant's cell phone. Two videos recorded approximately two hours before the shooting showed (1) Perez urinating on a building in Belvidere that bore Surenos 13 gang graffiti and (2) defendant "throwing up" a Latin Kings sign while Perez "threw down" a Surenos 13 sign and said "13 killer."

         ¶ 25 D. Additional Trial Testimony

         ¶ 26 1. Swanson's Testimony

         ¶ 27 The State called Swanson in its case-in-chief. Swanson testified that she was in jail on the evening of the murder. She spoke on the phone with defendant that night, and she later saw him in early May 2013.

         ¶ 28 The prosecutor asked Swanson what defendant told her about what happened at the Shell station. Swanson testified: "There was an argument and *** his friend shot somebody." Swanson testified that she knew that Cox was also at the Shell station. The prosecutor then asked her the following question: "So what, if anything, did [defendant] tell you about what [Cox] was doing at the Shell station?" Swanson replied that she did not know "specifically." The prosecutor then asked what defendant told her about "the gun." She answered: "He didn't tell me anything." The prosecutor asked the same question again, and Swanson testified: "[Defendant told me that] [Hernandez] shot the guy that was at the gas station." The prosecutor then asked: "What, ...

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