People v. Leak

SUPREME COURT CASES

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People v. Leak

State: Illinois

Court: 1st District Appellate

Docket No: 1-07-3374 Rel

Case Date: 02/26/2010

Preview:Sixth Division February 26, 2010 No. 1-07-3374 THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. EDWARD LEAK, JR., Defendant-Appellant. ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County 05 CR 18294

Honorable Diane G. Cannon, Judge Presiding

JUSTICE McBRIDE delivered the opinion of the court: Following a jury trial, defendant, Edward Leak, Jr., was found guilty of first degree murder and of having procured another to commit that murder for money. Defendant was subsequently sentenced to a term of 75 years' imprisonment. On appeal, defendant contends that: (1) the State failed to prove him guilty beyond a reasonable doubt; (2) the trial court erred by failing to declare a mistrial when an assistant State's Attorney testified that defendant invoked his right to counsel; (3) the trial court abused its discretion by prohibiting defendant from crossexamining a witness regarding her alleged bias; (4) the trial court erred by allowing testimony as to hearsay statements made by a coconspirator; and that (5) the court erred by conducting a simultaneous but separate jury trial with a codefendant. For the reasons that follow, we affirm. Prior to trial, the court determined that defendant would be tried along with his codefendant, John Brown, in simultaneous but separate jury trials. The court also granted a motion in limine filed by the State seeking to allow Alfred Marley, another alleged coconspirator, to testify to statements made by Brown pursuant to the coconspirator exception to the rule against hearsay.

1-07-3374 The following evidence was presented at defendant's trial. John McCall testified that he was the general manager of the Leak and Sons funeral home and that he had worked with defendant, who was a Chicago police officer and who had been a director at the funeral home for 15 years. McCall also knew the victim in this case, Fred Hamilton, who worked as a dispatcher at the funeral home from 1996 to 2003. McCall testified that the victim left the funeral home because funds were discovered missing and the victim had access to "some checks, they were cashed and he cashed them or we assumed he did." The victim, however, was technically not fired because he left the day that McCall and others began to investigate the missing funds. McCall testified that the victim subsequently contacted him and made certain allegations against defendant. On cross-examination, McCall testified that he did not tell defendant of the allegations that the victim made against him and that, after the victim left the funeral home, defendant filed a complaint against the victim with the police department regarding the missing funds. Corey Ankum testified that he worked at defendant's family's funeral home from 1998 to 2000 and that defendant and the victim also worked there during that time. In late 2003 or early 2004, after the victim no longer worked at the funeral home, defendant approached Corey in a nightclub and asked him if he had seen the victim. Corey replied that he was "not here for that." Defendant then said, "when I see that mother fu---- I'm going to kill him." Finally, Corey testified that he was interviewed by the police in 2005 and that he told them that defendant said something to the effect of "I'm going to kill Fred, tell your boy I'm looking for him, I'll kick his a--."

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1-07-3374 Ned Hamilton, the victim's brother, testified that he had an encounter with defendant in the fall of 2003. Defendant came to the restaurant where Ned worked and asked if he had seen the victim. Ned responded that he had not and defendant said, "tell your brother that I'm looking for him. I know a lot of people out here and we gonna get him." Michelle Stokes testified that she dated defendant during the late months of 2003 and the early months of 2004. Stokes testified that she lived in an apartment above her nephew from 2001 to 2004 and that she met Brown through her nephew in early 2004. Stokes saw Brown in her nephew's apartment and also testified that defendant had been in her apartment. According to Stokes, the only time defendant had been in her nephew's apartment was when her nephew cut defendant's hair, although she testified that defendant knew both of her nephews and that he would talk to them. Charmain Ankum, Corey Ankum's sister, testified that she was the victim's girlfriend and that they had one child together, Jaylin Hamilton. In the summer of 2003, Charmain learned that the victim was fired from the funeral home and she testified that he thereafter began to act "paranoid" and "scared of certain things," such as "phone calls" and "people." Around Thanksgiving of 2003, Charmain saw defendant circling the house in which she and the victim lived. She recognized defendant's vehicle and its personalized license plates, which said "drop cop," because on several occasions she had seen defendant getting out of that car in front of the funeral home where he and the victim both worked. She related this information to the victim. On February 3, 2004, Charmain spent the day with the victim at the daycare center where she worked. At approximately 6:30 p.m., Charmain and the victim were leaving the daycare

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1-07-3374 center when Charmain noticed a brown van with a beige stripe and a broken headlight parked across the street from her vehicle. Charmain could not see inside of the van because it had tinted windows. Charmain testified that it was dark outside at the time and that there was snow on the ground. When Charmain and the victim got to her car, Charmain noticed "an antenna of some sort" sticking out of the vehicle's front passenger tire. The victim also looked at the tire and then he and Charmain walked back to the daycare center and called for a tow truck. When the tow truck company called to say the tow truck was in the area, Charmain and the victim left the daycare center and the victim asked Brian Miller, who also worked at the daycare center, to accompany them to the car because the victim was concerned about the brown van. The victim got into the tow truck and rode to Charmain's car while Charmain and Miller walked in that direction. The victim pulled the car into the street so it could be loaded onto the tow truck and then Charmain observed the brown van circling the block and asked the victim if he had seen it as well. The victim asked Charmain if she could see the license plates, but she could not because the van was too far away. The victim then walked over and stood in front of Charmain and Miller. The victim subsequently looked down the block and then told Miller and Charmain to "walk away" and "run" because "it doesn't look right." A man then came from a nearby gangway, bumped into Charmain, and went directly toward the victim while pulling a black gun out of his pocket. Charmain described this person as wearing a black ski mask that covered his face, gloves, mustard colored pants, and a black jacket. The armed man fired three or four shots at the victim as he chased the victim around the tow truck. The shooter knelt over the victim, who was trying to shield himself by climbing under a car, and then rolled the victim onto his back.

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1-07-3374 The victim was saying, "no," "don't shoot me, don't do this," and "just go back and tell him I'm sorry," and then the armed man shot him again. Charmain and Miller turned and ran away and Charmain turned and saw the man shooting the victim again. Charmain called the police as she was running away and heard more shots when she got to the corner of the street. She hailed a cab and was driven back to the scene, where the police had already arrived. The paramedics were trying to resuscitate the victim, but he died at the scene. Charmain was later taken to the police station, where she related these events to the police. She also identified the clothing worn by the man whom she saw shoot the victim. On cross-examination, Charmain testified that she only saw one person shooting the victim but that she was on the side of a building when some of the shots were being fired and that she "wasn't really looking that way" because she was on the phone calling the police. She never saw the victim with a person named John Brown. Charmain also testified that the funeral home where defendant worked is several blocks away from the daycare center. After the victim's death, Charmain learned that there was an insurance policy on the victim and that defendant was the beneficiary. Charmain further testified that the victim drove various cars, including a Lexus, a Mercedes, and a Range Rover. After the victim died, Charmain also learned that the victim had obtained a life insurance policy on himself that would pay for the note on one of his vehicles. Brian Miller testified to substantially the same sequence of events regarding the shooting as did Charmain. He added that he also noticed a small metal piece sticking into the front passenger-side tire of Charmain's vehicle. Miller also saw the victim throw the tow truck driver at the shooter and the shooter push the tow truck driver out of the way. As he and Charmain

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1-07-3374 were running away from the scene, Miller noticed somebody "running in the same direction through the gangway going parallel, like the same direction as us." This person looked like the person who shot the victim because he was wearing a black leather coat and a black, hooded sweatshirt. When he and Charmain stopped running away from the scene, Miller could still see this person standing with another man at the end of the alley behind a McDonald's. Miller could not tell what this person looked like compared to the other man because the two men were some distance away. One of the men, however, was taller than the other. Miller got into the cab with Charmain and did not see the two men again. Miller testified that there was an alley right behind the McDonald's and that the two were separated by a fence. He then got into the cab with Ankum and did not see the two men again. After being driven back to the scene, Miller walked in the direction of where he had seen the two men but did not see them. He was then stopped by the police and handcuffed and placed in a squad car and while this was happening he saw the same brown van in a nearby grocery store parking lot. On cross-examination, Miller testified that as he and Charmain were running away from the scene and before they rounded a corner and were behind a building, he could see the scene and only saw one person shooting at the victim. After rounding the corner, he continued to run down the street and saw the man with the gun coming out of a gangway and running parallel to his position. He later saw that person standing in an alley with another man, but then got into the cab with Charmain and so he did not see what happened to these two men. Finally, Miller testified that the brown van was pulling out of the parking lot as he was stopped by the police and that it stopped momentarily as he was pointing it out to the police.

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1-07-3374 Ernest Sanders testified that he worked for a tow truck company and that, on the night of the murder, he received a dispatch to perform a tire change on a vehicle at 7947 South Prairie. He proceeded to that location, found the vehicle, and waited for approximately five minutes until he saw Charmain, Miller and the victim walking down the street. The victim entered Sanders' vehicle and the two drove around the block while Charmain and Miller walked toward the vehicle. The victim told Sanders that the front passenger tire was flat but Sanders inspected the tire and, although he found what looked like a straw sticking out it, determined that the tire was not flat. The victim told Sanders that someone had cut his spare tire and that he would feel more comfortable if the car was towed. From this point, Sanders testified to substantially the same sequence of events regarding the shooting as did Charmain and Miller, but added that the gun he saw in the shooter's hand was chrome. James Davis testified that he was visiting his parents, who lived near the scene of the shooting, on the evening of February 3, 2004. Davis was watching television when he heard a diesel engine and saw a tow-truck out the window. Several minutes later, Davis heard two shouts of someone saying "hey hey," followed by what he believed to be two gunshots. Davis looked out the window and saw the victim lying on his stomach. The shooter was standing over the victim, who was still alive and had his arm raised while pleading, "don't shoot me, don't shoot me." The shooter then fired two shots into the victim and walked down a gangway. Davis moved to another portion of the house and soon saw someone who had the same build and appeared to have the same jacket as the shooter. This person, who was alone, exited the gangway, entered Davis's neighbor's yard, and then entered another alley until he was out of

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1-07-3374 sight. Davis went outside and unsuccessfully attempted to resuscitate the victim. Alfred Marley testified that he pled guilty for his involvement in the victim's murder in exchange for a recommendation by the State's Attorney's office that he serve a term of 27 years' imprisonment and that no other promises were made to him in return for his testimony in this case. Marley also acknowledged that he had a felony conviction for possession of a controlled substance for which he received a three-year prison sentence and a prior burglary conviction for which he received a seven-year prison sentence. According to Marley, he knew Brown "from the neighborhood" and used to spend time with him. Brown contacted Marley in January of 2004 and offered to pay him $1,500 for his help in performing "a hit" on someone. Brown said that the hit was for a police officer named "Ray." Brown also said that the money was to come from that police officer and he also "said something about [an] insurance policy." Marley agreed to do the hit with Brown. He did not know the identify of the intended victim at that time but subsequently learned that it was the victim in this case, Fred Hamilton. Marley further testified that he and Brown tried to shoot the victim in January of 2004 but that the gun jammed when Marley attempted to pull the trigger and he did not fire a shot. On the day of the murder, Brown picked Marley up at his home in his blue van and they drove to the area of Charmain's daycare center. Brown parked his van near the daycare center and then he and Marley walked over to Charmain's jeep and Marley punctured the vehicle's tire. Marley testified that he did not remember what was used to puncture the tire, but that he thought it was a knife. Marley and Brown then walked around the block and waited for the victim to

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1-07-3374 return to the jeep. A maroon or red car pulled up to a corner and Brown said, "that's his guy right there." Brown and Marley walked toward that vehicle and "he said he was a police officer" so Marley did not get into the car but instead continued to walk right past it. Marley testified that the person in the maroon car was an African-American male but that he could not see the person's face. While Brown was in the maroon car speaking to its driver, Randy, a friend of Marley's, pulled up in his two-toned Chevrolet van. Randy and Brown then walked down the street talking and when they returned Brown entered the maroon car while Marley and Randy got into Randy's car, which was parked in a parking lot across the street from the daycare center. They then waited for the victim to come out of the daycare center and walk to his car. Eventually Randy received a phone call and then told Marley that Brown said to "come on now" because the victim was walking out of the daycare center. Marley crossed the street behind the daycare center and walked down an alley in the direction of Charmain's jeep. Marley then heard "a bunch" of gunshots and soon thereafter saw a man running, who said to Marley that there was a man who ran out of a gangway and was shooting at another man. Marley continued to walk toward the jeep and saw the victim lying on the ground while Brown was moving in the nearby gangway. Marley shot the victim two or three times. Marley was asked if he meant to pull the trigger and shoot the victim, to which he replied, "not really. Just went off at the time. The point was going over there to shootin' [sic], yeah." Marley also testified that he shot the victim because he wanted to get paid. Marley then walked toward the gangway and met with Brown, who was wearing a black

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1-07-3374 or blue coat and a ski mask. They walked toward a McDonald's parking lot where Brown said they were supposed to meet the police officer in the maroon car. Marley and Brown jumped a fence to get to the parking lot, but the man in the maroon car was not there so they walked toward the street. The police then pulled in front of them and a female and male officer each exited the squad car. Marley walked toward the squad car and Brown went down the alley. The police chased after Brown and Marley was able to get away. Marley threw his gun in the bushes and walked home. He did not see Brown after that night but learned the next day that he had been arrested. Marley was not paid for his participation in the murder, and he was picked up by the police on April 28, 2005, while he was at Randy's home working on a car. Marley testified that after he was arrested, he spoke to Assistant State's Attorney (ASA) Robert Heilingoetter and gave a videotaped statement admitting his participation in the victim's murder. He did so prior to requesting an attorney, to pleading guilty, or to negotiating a recommended sentence with the State's Attorney's office. On cross-examination, Marley testified that when he was released from jail in January or February of 2004, he used narcotics while he was on supervised release. Marley also was a member of street gang at one point prior to when Brown contacted him about doing the hit. Marley testified that Brown initially asked him to do the hit in January of 2004 and he said he would think about it and that Brown came to his house and picked him up in his car approximately one week later and brought the subject up again. Brown said the hit was on a man named Fred, and Marley agreed to participate. Marley did not know Brown was planning on killing the victim at that time. They drove until they saw the jeep and Brown gave Marley a gun

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1-07-3374 and told him to shoot the victim. However, the gun jammed and the victim got away. Marley further testified that he wore a dark blue coat with a hood and a hooded sweatshirt on the night of the murder. According to Marley, Brown gave him a knife to puncture the jeep's tire and Marley punctured the tire with the knife until he heard air coming out of it. Marley also testified that Brown gave him a revolver to use during the shooting and that Brown had an automatic weapon. Chicago police officer Robert Walker testified that he was working on the night of February 3, 2004, and that at 8:30 p.m. he responded to a call that a person had been shot. Officer Walker and his partner, who were both in uniform and driving a marked squad car, proceeded to the area of 79th Street and King Drive and saw two men running from the same area in which the victim had been shot. The two men jumped a fence and continued to run through a McDonald's parking lot. Officer Walker announced his office and ordered them to stop. One of these men stopped running and walked toward the officer's squad car while the other turned and ran. Officer Walker pursued the man who turned and ran and eventually caught him hiding behind a car in an alley. He ordered the man to lie on the ground and observed a black ski mask and a cell phone within a "couple of inches" of him. Officer Walker identified this person as Brown and testified that he was also wearing a black leather jacket and black gloves. He handcuffed Brown, placed him into a squad car, and recovered the ski mask and cell phone. On cross-examination, Officer Walker testified that the man who was with Brown was able to escape while the police pursued Brown. Officer Walker described this person as wearing a blue puffy leather jacket and having short hair. Chicago police officer Joyce McGhee testified that she was Officer Walker's partner on

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1-07-3374 the night of the murder. Officer McGhee testified to substantially the same sequence of events as did Officer Walker, including having seen the two individuals running from the McDonald's parking lot. She added that when she first saw Brown and ordered him to stop running, Brown was holding a cell phone and appeared to be having a conversation. She also testified that the man who was with Brown was approximately 5 feet 9 inches tall, had a dark complexion, and was wearing a fluffy powder blue coat. As noted, this person was able to escape while the police pursued Brown. On cross-examination, Officer McGhee acknowledged that in a supplemental police report she did not indicate that one of the men she saw running from the alley was talking on a cell phone. The parties stipulated to the testimony of Dr. Aldo Facer, who performed an autopsy on the victim. According to that stipulation, Dr. Facer observed nine gunshot wounds to the victim's body, specifically to his head, shoulder, neck, arm and leg. Dr. Facer also recovered spent bullets from the victim's body. Chicago police officer Aguilera testified that he and his partner transported Brown to the police station in their squad car after other officers arrested Brown in the alley. At the police station, officer Aguilera recovered a black leather jacket and a pair of gloves from Brown. Chicago police officer William Moore, a forensic investigator, was assigned to the homicide at approximately 9 p.m. on the night of the murder. He photographed and recovered live .40-caliber cartridges, spent .40-caliber cartridge cases, three fired bullets, and one metal fragment from a fired bullet. The cartridge cases and fired bullets were recovered near the victim's body or on the victim's neck. The officer then went to an alley approximately 1

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