People v. Mullen, No. 1-98-1555

1st District, May 22, 2000

FIRST DIVISION

PRESIDING JUSTICE O'MARA FROSSARD delivered the opinion of the court:

Defendant, Charles Mullen, and codefendant, Louis Townsend, were charged with first degree murder, aggravated vehicularhijacking, vehicular invasion and armed violence. After a bench trial, both defendants were found guilty of first degreemurder and not guilty of all other charges. Herein we address only the appeal of Mullen. Mullen was sentenced to 25 yearsin the Illinois Department of Corrections. Mullen argues on appeal that the evidence was insufficient to prove him guiltybeyond a reasonable doubt, that the trial court improperly admitted evidence of prior consistent statements, and that the trialcourt improperly excluded testimony of a defense witness. For the following reasons, we affirm.

FACTS

Venus Norfleet testified that on July 16, 1996 she saw a group of 10 to 15 men, including defendant, running after a pickuptruck traveling east on Ohio Street. She went back into her apartment building, looked out the window and saw that thetruck had collided with her car. She then saw the men drag the victim, Hugo Cariaga, out of the truck. She saw a man in thecrowd pull a tool from the victim's tool belt and begin hitting the victim on the head while the others kicked and hit him. Asshe watched the beating, she noticed her neighbor Ernell Freeman also watching from in front of his home. She dialed 911,reporting the beating. She saw defendant standing over the victim while codefendant Townsend kicked the victim andanother man hit the victim with a baseball bat. As the victim was beaten, one of the men in the crowd got into the victim'struck and drove away. Defendant and Townsend, together with the rest of the group, walked away. Norfleet denied that shetold her neighbor, Rosalind Russell, that she did not recognize any of the offenders.

Jose Meraz, the victim's coworker, testified that he had been driving in front of Cariaga when he saw Cariaga pulled fromthe truck and beaten. Meraz left to get help, and upon returning, the victim was lying face down on the ground. Paramedicsand the police arrived on the scene. Meraz was unable to identify any of the offenders.

Ernell Freeman testified he was in front of his home on Ohio Street when he saw a group, including defendant, runningdown the street chasing a pickup truck. The truck passed Freeman and hit a parked car. Freeman saw Sam Quinn poundingon the back window and recognized Quinn, the defendant and the others from the neighborhood. They were members of theGangster Disciples. Freeman stood 10 to 20 feet away and saw the group pull Cariaga out of the truck and begin to hit, kickand beat him. Freeman testified the beating went on for three to four minutes and he watched Mullen, codefendantTownsend and others kick Cariaga "a bunch" of times. The group of young men walked away together leaving Cariagalying on the ground, and a black male drove away in Cariaga's truck. Freeman testified that on May 19, 1997, in thepresence of defendant's cousin, Geraldine Mullen, defendant's attorney took a statement from him. Freeman, who could notread or write, signed the statement denying that either defendant or codefendant beat the victim. Freeman also testified thesigned statement was not true, he did not know why he signed it and he was afraid of Mullen, Mullen's family and Mullen'sgang affiliation.

Freeman also admitted that he drank a "few" 40-ounce bottles of beer before he witnessed the victim being beaten. Hefurther stated that when defense counsel read the recantation statement to him out loud he agreed with the statement. Onredirect, Freeman acknowledged that he saw codefendant Townsend and defendant chasing the victim's truck. He alsoacknowledged that when he testified before the grand jury, he stated that both defendant and codefendant Townsend kickedthe victim.

Detective Whalen, within hours of the beating, spoke to Venus Norfleet. She named one of the offenders and told DetectiveWhalen that Freeman was a witness. Detective Whalen spoke to Freeman a few hours after the beating on July 17, 1996.Freeman recognized codefendant Townsend's picture among the photos he was shown. He also named defendant as one ofthe offenders. The next day, July 18, 1996, both Freeman and Norfleet went to the police station and identified defendant.On July 19, 1996, Freeman and Norfleet returned to the police station and identified codefendant Townsend in a lineup.According to the medical examiner, the victim died as a result of injuries consistent with being struck multiple times with ablunt object and consistent with being kicked multiple times.

Defendant's grandmother, Odeal Mullen, testified that defendant was on her front porch at 637 North Christiana with hisgirlfriend when the beating occurred and that a short time later Sam Quinn, Mrs. Mullen's other grandson, ran into thehouse with blood on his hands and told her that he had beaten up a man on Spaulding. Anna Mae Mayes, Mrs. Mullen'sneighbor, also testified that defendant was sitting on the front porch with his girlfriend; however, she could not recall whatday or week it had been when she saw defendant. Miriam Towns, defendant's girlfriend, testified that she saw a group ofboys, including Sam Quinn, standing on the street corner as she walked to defendant's house. She stayed on the front porchwith defendant and after about 15 minutes she saw the group of boys running down the street but she did not see a pickuptruck.

Latasha Morgan, who has known both defendant and codefendant Mullen for her entire life, testified that she saw the eventsof July 16, 1996, from her front window, which looks out onto Spaulding Avenue. She stated that she saw about 15 peopleoutside, although she could not see what they were doing because they were over a block away. She also conceded that thedistance prevented her from recognizing any of the offenders, although she asserted that she saw neither defendant norMullen at the scene.

Leroy Johnson testified that he had known Mullen and Townsend for at least 15 years. On July 16, 1996, a truck came"blazing" down Ohio Street. He saw a group of approximately 15 or 20 men "snatch this guy" out of the truck and start"jumping on him." He stated Townsend and Mullen were not with this group. Johnson admitted that he did not actuallywitness the pickup truck colliding with the parked cars on Spaulding Avenue and that although he knew the police hadarrested Townsend and Mullen, he never came forward to tell the police that they were not involved.

Danette McKinley testified that defendant and Townsend are her friends. She observed the beating from Ohio betweenChristiana and Spaulding. At first she saw a crowd of people running down Ohio toward Spaulding. She started runningalong with the crowd but stopped between Christiana Street and Spaulding Avenue and saw a white man on the groundbeing beaten by a large group of young black men. She did not see either Townsend or Mullen at the scene of the beating.On cross-examination, she stated she did not see a crowd of people chasing the truck down Ohio Street. She also could notrecall how many cars were on the street that night or the color of any of the cars. She also did not remember whether shesaw some of the other witnesses who testified for defendant at the scene.

Rosalind Russell testified that she learned about the incident a couple of days later from Venus Norfleet. Russell is a closefriend of Mullen's family and has known Mullen for six or eight years. She stated that Norfleet told her that she did notknow why the police were harassing her and that she did not see anything. Russell, however, did not contact the police withthis information. The State called Joseph Mackey, an investigator, in rebuttal, who testified that he spoke to Russell onSeptember 15, 1997. Mackey testified that Russell told him that Norfleet had told her that she witnessed the beating.

ANALYSIS

I. Reasonable Doubt

Defendant contends that he was not proven guilty beyond a reasonable doubt. The issue of whether a defendant has beenproven guilty beyond a reasonable doubt is resolved by viewing the evidence in the light most favorable to the prosecution.People v. Hobley, 159 Ill. 2d 272, 313 (1994). In reviewing the sufficiency of evidence, the court determines if any rationaltrier of fact could have found the essential elements of the crime beyond a reasonable doubt. People v. Batchelor, 171 Ill. 2d367, 376 (1996). The trier of fact is responsible for determining the credibility of the witnesses, the weight to be given theirtestimony, and reasonable inferences to be drawn from the evidence presented. People v. Bofman, 283 Ill. App. 3d 546, 553(1996). Further, the identification of a single witness is sufficient to sustain a conviction if the witness viewed the accusedunder circumstances that allowed a positive identification. People v. Green, 298 Ill. App. 3d 1054, 1064 (1998).

A reviewing court will not substitute its judgment for that of the trier of fact on questions involving the credibility ofwitnesses and the weight of the evidence. People v. Herrera, 257 Ill. App. 3d 602 (1994). However, a reviewing court willreverse a conviction if the evidence is so unreasonable, improbable or unsatisfactory as to justify a reasonable doubt ofdefendant's guilt. People v. Smith, 185 Ill. 2d 532 (1999). In a bench trial it is for the trial judge to determine the credibilityof witnesses, to weigh evidence and draw reasonable inferences therefrom and to resolve any conflicts in the evidence.People v. Slim, 127 Ill. 2d 302, 307 (1989). Therefore, as a reviewing court, it is our duty to carefully examine the evidencewhile giving due consideration to the fact that the trial court saw and heard the witnesses. Smith, 185 Ill. 2d at 541.

Defendant argues that Norfleet's testimony is insufficient to prove defendant guilty of first degree murder under a theory ofaccountability because her testimony only indicated defendant was merely present during the beating. Defendant furtherargues that Freeman's testimony was so contradictory that no reasonable trier of fact could convict on that testimony. Wefirst address whether the evidence was sufficient to prove defendant guilty under a theory of accountability.

A. Sufficiency of Evidence Under Accountability Theory

In Illinois, a person is legally accountable for the conduct of another if "[e]ither before or during the commission of anoffense and with the intent to promote or facilitate such commission, he solicits, aids, abets, agrees or attempts to aid, suchother person in the planning or commission of the offense." 720 ILCS 5/5-2(c) (West 1996). A defendant may beaccountable for acts performed by another if the defendant shared the criminal intent of the principal or if there was acommon criminal design, plan or purpose. People v. Taylor, 164 Ill. 2d 131 (1995). A common design can be inferred fromthe circumstances surrounding the commission of the crime, including presence during the perpetration of the crime,maintaining a close affiliation with the co-perpetrators after the commission of the crime, and failure to report the crime.Taylor, 164 Ill. 2d at 141. While mere presence at the scene of a crime is not enough to render one accountable for a crime,there is no requirement that a defendant actively participate in order to be found guilty under a theory of accountability.Taylor, 164 Ill. 2d at 140.

In People v. Perez, 189 Ill. 2d 254 (2000), the Illinois Supreme Court reversed the defendant's conviction for first degreemurder based on an accountability theory where the defendant was merely present at the time of a gang-related shooting andfled the scene of the crime. In Perez, the defendant drove by a group of people and was hailed by a member of the ManiacLatin (Disciples) Gang, Anthony Rivera. As the defendant approached the group of people, Rivera asked him whether oneof the men standing in the group was a member of the rival Latin Kings gang. Defendant pointed his finger at the victim.Rivera then fired five or six gunshots at the victim. The Court held that while defendant was present at the scene of thecrime, knew of its commission and fled the scene, the evidence was not sufficient to prove that he intentionally aided in orencouraged the crime's commission. Perez, 189 Ill. 2d at 268. The evidence at trial which indicated defendant sometimesassociated with members of the Disciples, did not know of the ongoing altercations between the victim and Rivera and didnot know that anyone at the scene was armed was insufficient to prove defendant guilty of murder based on anaccountability theory. Perez, 189 Ill. 2d at 268-69.

This rationale, however, cannot be applied to the present case. In Perez, the defendant walked into a situation where he didnot see any signs of impending violence and he did not know Rivera, the shooter. Here, there was evidence that defendantshared the criminal intent of the group who killed the victim. Norfleet testified that defendant was with a group of 10 to 15men running after the victim's truck. She saw one of the men pull the victim out of the truck. Norfleet testified that shewatched as the group of men beat the victim. She saw codefendant Townsend kicking the victim while Mullen stood overthe victim as another man beat the victim with a baseball bat. She later saw the group of people, including Mullen, walkaway from the victim.

Presence during the crime without dissociating oneself from the crime, continued association with the perpetrator after thecriminal act, and flight from the crime scene all serve as factors in determining a defendant's accountability. People v.Harris, 294 Ill. App. 3d 561 (1998). Here, defendant chased the victim, stayed during the beating, and stood over the victimas codefendant Townsend kicked the victim while another man hit the victim with a bat. Defendant did not offer to help, hedid not discourage or disapprove of the crime, he came and left with the group that actively participated in the beating andhe did not report the crime. Thus, although Norfleet did not see Mullen hitting or kicking the victim, a rational trier of factcould find that defendant was accountable because he was not merely present during the beating. Defendant was part of thegroup who chased the victim, pulled the victim out of his truck and beat the victim. Unlike Perez, in this case, defendantwas a part of the group engaged in violence, he shared the criminal intent of the group and participated in the commoncriminal design to harm the victim. Thus, the evidence was sufficient to prove defendant guilty of first degree murder undera theory of accountability.

Moreover, Freeman testified that defendant chased the victim and kicked the victim. Freeman watched as Sam Quinn pulledthe driver out of the truck and began beating him. He recognized Quinn and the others, including defendant, from theneighborhood and knew they were members of the Gangster Disciples. He watched the group kick, hit and beat the driver.He saw Mullen and codefendant Townsend kick the victim "a bunch" of times. He saw the same group of people, includingMullen, walk away from the victim, leaving him bleeding in the middle of the street. Thus, Freeman's testimony providedadditional evidence for the trier of fact that defendant was not only part of a common design to beat the victim, but activelyparticipated in the beating.

B. Sufficiency of Eyewitness Testimony

Defendant further argues that Freeman's testimony was so unreliable and impeached that a reasonable trier of fact could notconvict based on his testimony. Freeman gave a recantation statement 10 months after the incident in which he stated thathe did not see defendant at the scene. In his recantation, Freeman explained that he identified defendant because heconfused him with Sam Quinn, defendant's cousin. Defendant argues that Freeman's signed recantation exoneratesdefendant from any wrongdoing or, in the alternative, undermines Freeman's credibility.

The State points out that Freeman, within hours of the crime in his first discussion with the police, unequivocally nameddefendant as one of the offenders whom he saw chase and kick the victim. He identified defendant two days after theincident and testified before the grand jury about the defendant's active participation in the beating of the victim. At trial,defense counsel thoroughly cross-examined Freeman regarding his May 19, 1997, recantation statement.

Defendant relies on People v. Wise, 205 Ill. App. 3d 1097 (1990), to support his argument that Freeman's testimony was soimpeached as to render it meaningless. However, Wise is distinguishable. In Wise, before trial, the eyewitness signed twostatements which stated that defendant was not involved in the robbery. The eyewitness disavowed both statements andclaimed that he did not know what he signed. At trial, the witness testified that defendant grabbed him from behind in abear hug while another man grabbed the victim's gold chain. On appeal, the court noted that although the testimony of asingle witness, if positive and credible, even if contradicted, is sufficient to support a conviction, in Wise, the testimony ofthe eyewitness did not merely contain minor discrepancies but was severely impeached by inconsistencies and lack ofcorroborative evidence.

In this case, however, there were two eyewitnesses whose testimony was corroborated. Freeman saw defendant,codefendant and others kick the victim "a bunch of times." Although Freeman later signed a statement that recanted hisearlier statements, his testimony was not so impeached as to render it incredible. He denied the truth of the recantation andexplained that he was afraid of Mullen, Mullen's family and Mullen's gang affiliation. Moreover, this is not a case where awitness makes an identification months after the crime; rather, Freeman named defendant within hours of the beating.Within two days of the crime he identified defendant in a showup, and he stated that he had known the defendant from theneighborhood for 10 years. In addition, Norfleet corroborated Freeman. She stated that she had also known defendant for 10years as one of her sister's students and from the neighborhood. She stated that she saw defendant at the scene, standingover the victim, while Townsend and another man kicked and beat him. Both Freeman and Norfleet testified that the areawhere the beating took place was sufficiently lighted.

Defendant further argues that Norfleet's testimony is suspect because her brother had been killed by Gangster Disciples andshe wanted to retaliate against them. Norfleet was extensively cross-examined regarding this allegation and the trier of factwas in the best position to determine the credibility of Norfleet's testimony. Moreover, the testimony of both Freeman andNorfleet was corroborated in part by other witnesses. Both Freeman and Norfleet described observing the victim beingbeaten with objects and kicked repeatedly. Those observations were corroborated by the medical examiner, who found thevictim died from trauma consistent with being struck multiple times with a blunt object and being kicked multiple times.Jose Meraz although unable to identify the defendant corroborated the testimony of Norfleet and Freeman by confirmingthe fact that 10 to 15 men chased the victim and then beat him after pulling him from his truck. Thus, unlike the factualscenario in Wise, defendant was not convicted based solely on the testimony of a single impeached, uncorroborated witness.

Defendant further contends that Freeman's identification of him is unreliable because he consumed several 40-ounce bottlesof beer on the night he witnessed the beating. We note the issue of identification testimony in the context of evidencesufficiency was recently addressed in People v. Smith, 185 Ill. 2d 532 (1999). In that case only a single witness identifiedthe defendant as the shooter. Much of the testimony of the witness contradicted the State's more reliable occurrencewitnesses who were unable to identify defendant as the shooter. Moreover, the only eyewitness to the crime admitted druguse at the time of the crime, had a motive to lie because a suspect was her sister's boyfriend, and did not notify the policeuntil two days after the crime. Based on the deficiencies in the testimony of the single identification witness, the supremecourt found insufficient evidence to support defendant's conviction. Smith, 185 Ill. 2d at 545.

Unlike the deficiencies in Smith, here, based on the totality of the circumstances, there was sufficient evidence ofeyewitness reliability. A number of factors necessarily guide the court's determination of the reliability of identificationtestimony. These factors include: (1) the opportunity of the witness to observe the offender at the scene of the crime; (2) thedegree of attention the witness gives to the event; (3) the accuracy of any prior identifications; (4) the level of certainty atthe "identification confrontation"; and (5) the time between the crime and the identification confrontation. People v. Slim,127 Ill. 2d at 307-308 (1989). Applying these factors to the identification of Mullen by Norfleet and Freeman, we note thatNorfleet and Freeman had more than adequate opportunity to observe defendant as their attention was riveted for severalminutes on the violent beating taking place just a few feet away from them. The lighting conditions were good. Moreover, ashort period of time passed between the crime and the identification of defendant by Norfleet and Freeman. In his firstdiscussion with police on July 17, 1996, Freeman named defendant; Norfleet also named one of the offenders. It is unclearfrom the record which defendant Norfleet initially named. However, following their discussion with Norfleet and Freeman,the police arrested Mullen. Both Freeman and Norfleet identified defendant two days after the incident. They both hadknown defendant for 10 years from the neighborhood. Both Freeman and Norfleet told the police what they saw withinhours of the crime. These identifications lacked neither accuracy nor certainty. The court recognized that Freeman had beendrinking, yet found his identification reliable, noting that his testimony was corroborated by the other witnesses.

Finally, the trial court was under no obligation to accept the testimony of defendant's witnesses over the identification of theState's witnesses. Here, defendant's alibi was supported by the testimony of his girlfriend, his grandmother, neighbors andfriends. However, the trier of fact is not required to accept alibi testimony over positive identification of an accused,particularly where the alibi testimony is provided by biased witnesses. People v. Whitley, 49 Ill. App. 3d 493 (1977). Noneof these witnesses, who were all closely associated with defendant, came forward at the time of the initial investigation.That fact can be properly considered by the trial court when evaluating credibility. People v. Berry, 264 Ill. App. 3d 773(1994). Latasha Morgan observed the beating from a block away and did not notify the police even though she claimed tohave recognized some of the offenders. Rosalind Russell was friends with Mullen and his family. Her testimony wascontradicted by the fact she told the State's Attorney investigator that Norfleet told her that she witnessed the beating. BothLeroy Johnson and Danette McKinley contradicted other defense witnesses about how the beating occurred and events afterthe beating.

The alibi testimony was reasonably rejected by the trier of fact where it was provided by witnesses related to the defendant,or who had close ties to him, and who failed to come forward. Moreover, these witnesses placed the defendant one-halfblock from the scene during the general time period when the crime occurred. At the bench trial in this case the trial judgefound the prosecution evidence credible. Based on the record we conclude there was sufficient evidence to support the trialcourt finding defendant guilty beyond a reasonable doubt of first degree murder.

II. Admission of Prior Consistent Statements

Defendant argues the trial court improperly admitted and relied on the prior consistent statements of Norfleet and Freeman.The question of whether a defendant is prejudiced by the admission of a prior consistent statement of a witness is waived ifthe defendant fails to contemporaneously object and the issue is not raised in a posttrial motion. People v. Wilson, 229 Ill.App. 3d 80, 86 (1992). Defendant has waived the issue regarding admission of Freeman's grand jury statement by failing toobject during trial and failing to raise this issue in his posttrial motion. People v. Enoch, 122 Ill. 2d 176, 186-87 (1988). Therecord shows it was codefendant Townsend's attorney who objected during trial to a question regarding Freeman's priorgrand jury statement. An objection from the codefendant is insufficient for purposes of preserving an issue on appeal fordefendant. People v. Williams, 262 Ill. App. 3d 808 (1994).

Waiver aside, the admission of evidence is within the sound discretion of the trial court and its ruling will not be disturbedunless there was an abuse of discretion. People v. Beard, 273 Ill. App. 3d 135, 142 (1995). Generally, the testimony of awitness may not be corroborated by proof of prior statements consistent with the trial testimony. People v. Shum, 117 Ill. 2d317, 340 (1987). Prior consistent statements may not be admitted merely because a witness has been discredited orimpeached. People v. Bobiek, 271 Ill. App. 3d 239, 244 (1995). Two exceptions to this rule are that (1) prior consistentstatements are properly admitted to rebut a charge that the witness is motivated to testify falsely or (2) to rebut a charge thattestimony is of recent fabrication. People v. Williams, 147 Ill. 2d 173, 227 (1991). Charges of recent fabrication and chargesof a motive to testify falsely are separate exceptions to the general rule which prohibits proof of prior consistent statements.People v. Antczak, 251 Ill. App. 3d 709, 716 (1993). The party seeking to introduce the prior consistent statement has theburden of establishing that the statement predates the alleged recent fabrication or predates the existence of the motive totestify falsely. People v. Deavers, 220 Ill. App. 3d 1057 (1991). The prior consistent statement is admissible to show thatthe witness told the same story before the time of the alleged fabrication. People v. Titone, 115 Ill. 2d 413, 423 (1986).When these standards governing the admissibility of prior consistent statements are satisfied, the statements are admissiblenot as substantive evidence but for rehabilitation purposes. People v. Lambert, 288 Ill. App. 3d 450, 454 (1997).

However, statements of identification are admissible as substantive evidence to corroborate an in-court identification.People v. Bowen, 298 Ill. App. 3d 829, 835 (1998). Prior identification statements are admitted as provided by section 115-12 of the Code of Criminal Procedure of 1963 (725 ILCS 5/115-12 (West 1996)):