People v. Nutall, No. 1-98-0883

1st District, March 28, 2000

SECOND DIVISION

JUSTICE McBRIDE delivered the opinion of the court:

On November 21, 1997, defendant was found guilty by a jury of the murder of Gus Patterson under an accountability theory before the Honorable Loretta Hall Morgan. 720 ILCS 5/9-1(a)(1) (West 1996); 720 ILCS 5/5-2(c) (West 1996). Prior to defendant's sentencing, Judge Morgan passed away and as a result, the Honorable Mary Ellen Coughlan presided over defendant's sentencing hearing. Judge Coughlan sentenced defendant to thirty years imprisonment for his involvement in Patterson's murder.

On appeal, defendant argues that the trial court: (1) deprived him of his sixth amendment right to confront witnesses by limiting his cross-examination of a witness; (2) abused its discretion when it refused to give his non-Illinois Pattern Jury Instructions (IPI) regarding the law of accountability; and (3) abused its discretion in sentencing him to 30 years' imprisonment.

Before defendant's trial, the prosecution presented a motion in limine to bar defense counsel from asking witness Christopher Brandon whether or not he should have been in custody as a result of pleading guilty to the charge of delivery of a controlled substance. Defense counsel claimed that Brandon was supposed to be in custody serving a six-month sentence as part of his probation but had been released due to a clerical error. Defense counsel argued that because the witness was supposed to be in custody but was not, he was entitled to explore Brandon's motive to testify favorably for the prosecution. The trial court held that although defense counsel could ask Brandon questions about whether he had been convicted, what offense he had been convicted of, whether he had spent time in prison, whether he was on probation, and when he was released from prison; he would be prohibited from eliciting any information about a clerical error affecting Brandon's custodial status. In ruling the trial judge stated that there was no actual confirmation that a clerical error had occurred; that there was no evidence to support defendant's claim that the witness had a six-month sentence to serve; and that even if such information were accurate it did not bear on Brandon's credibility as a witness and thus, the alleged error was not relevant.

The first witness called by the prosecution was Christopher Brandon. Brandon testified that he and the decedent Gus Patterson had been friends for several years. On the night of the shooting Brandon and Patterson were riding their bicycles in the vicinity of 93^rd and Essex in Chicago. As they were riding along the street they noticed a large crowd of people. Then someone in the crowd yelled "get those hooks." Brandon said that the term "hooks" was a nickname for a gang called the Blackstones, to which he and Patterson belonged. Brandon also stated that as he and Patterson rode by the crowd someone yelled "get the gun folks." Brandon then observed two males get into a black and white car. Before Brandon and Patterson could leave the block, Brandon said that he and Patterson were chased by both male and female members of the crowd who threw bottles at them.

Brandon and Patterson rode their bikes off the block in an attempt to avoid the two males they had previously seen get into the black car. They rode their bikes the wrong way down a one-way street and eventually entered a viaduct. When they came out of the viaduct Brandon noticed the black car he had first seen at 93^rd and Essex. The car pulled along side of them and Brandon heard someone yell out "[w]hat's up now bitch ass n******." Brandon then watched the driver reach out his window and fire a shot from a gun which struck Gus Patterson. After Patterson was shot, the car pulled away and Patterson fell off his bike and began to bleed from his mouth. Brandon stopped riding and pulled Patterson to his side. Patterson was eventually assisted by two other individuals who called an ambulance. As a result of his wounds Gus Patterson died.

In assisting police in their investigation, Brandon led police to the location where he first saw the black and white car. While he was with the police Brandon saw the same car and pointed it out to police. Later, Brandon viewed a lineup and he positively identified Rogers Christal as the both the driver of the car and the person who actually shot Patterson. Brandon could not positively identify defendant as the passenger, but did say that he looked similar to the person he saw in the passenger seat of the black car the day Patterson was shot. Brandon then left the witness stand and diagramed on a piece of paper the events he had just testified to.

On direct examination Brandon further testified that in 1994 he pled guilty to having a weapon on school grounds and spent one year in an Illinois Youth Center for that offense. He also said that he recently received two years' probation for delivery of a controlled substance and as a result spent some time in jail. During cross-examination, defense counsel questioned Brandon about his 1994 conviction for possession of a handgun on school grounds and brought out that Brandon spent one year in a juvenile incarceration facility. Defense counsel also established that Brandon's conviction for delivery of a controlled substance occurred when Brandon sold crack cocaine to an undercover police officer. Brandon further testified that the week before defendant's trial he had pled guilty to the delivery charge in addition to receiving probation. Defense counsel also elicited that Brandon had just gotten out of jail the morning of defendant's trial.

Detective Rickey Boone of the Chicago Police Department testified that he was assigned to investigate the murder of Gus Patterson. Boone testified he and other officers went to the home of defendant's mother searching for defendant. Although they did not find defendant at that time, they left their business cards with instructions for defendant to contact them when he arrived at this location. Thereafter, Boone was contacted by defendant's mother and police went back to her home and arrested defendant. After advising defendant of his Miranda warnings Boone and his partner Detective Spencer interviewed defendant who initially denied any involvement in Patterson's shooting. Boone also interviewed Antonio McDonald. McDonald directed police to the location of the gun used in the shooting and the gun was recovered.

Boone met with defendant once again, but this time he was accompanied by Assistant State's Attorney Smitko. Before questioning the defendant, Smitko advised the defendant of his Miranda rights. Once again, defendant denied any involvement in Patterson's shooting, however, when he was questioned this time and told the gun had been recovered, defendant decided to give a statement. When defendant actually gave this statement both Boone and Smitko were present.

Assistant State's Attorney Smitko confirmed that upon first interviewing defendant, defendant denied any involvement in Patterson's shooting. Smitko then spoke with both Rogers Christal and Antonio McDonald. After confronting the defendant with the results of these conversations, defendant acknowledged that he was present during the shooting. Defendant then chose to give a handwritten statement. Defendant's statement indicated that on the night of Patterson's shooting he saw two people riding their bicycles. As the people on bicycles approached, defendant heard one of them say "is that him," with other answering "yes." Although defendant never saw either of these persons with a gun, he did say that he saw one of them reach behind his back. Thinking this person had a gun defendant ran into an alley.

While in the alley defendant saw Rogers Christal who told defendant to come with him in his car. Defendant said that he knew Christal planned to shoot the two individuals on their bicycles before he got into Christal's car. Once in the car defendant stated that Christal placed a gun in between the two of them. Christal and defendant then caught up with Patterson and Brandon and Christal asked defendant if he was going to shoot at either of them. Defendant responded that he would not because he didn't want to shoot across Christal. According to defendant's statement, Christal grabbed the gun and while steering the car with one hand and with the other hand he shot twice at Brandon and Patterson. After firing the weapon, Christal and defendant returned to 92^nd and Essex and parked Christal's car. Defendant's statement then reflects that Christal "told him to get rid of the gun." Defendant admitted that he took the gun and gave it to Antonio McDonald to get rid of it. Afterwards, defendant went home.

Defendant gave a slightly different version of the shooting incident at trial. Defendant admitted that he was a member of the Gangster Disciples and arrived at the corner of 92^nd and Essex by receiving a ride from Rogers Christal. Besides giving him a ride there, Christal told defendant he would also give him a ride home later. Defendant stated he saw two individuals ride up the block with their baseball caps positioned in a manner that indicated they were members of the Blackstone Gang. Defendant watched these individuals ride up to 93^rd and Essex and circle around. Eventually, they came close enough to defendant that he heard one of them say, "Is that them, is that them?" One of the two responded "yes" and the other responded by saying "get him." Defendant testified that Brandon was one of the two people he saw that day and that he thought Brandon was reaching for a gun. Defendant then ran into a gangway and denied hearing or yelling anything to Brandon or Patterson as they rode their bikes. Defendant did not see anyone throw anything at either Brandon or Patterson. When he came out of the gangway, defendant saw Rogers Christal walking toward his car, a black 1979 Chevrolet. Christal told defendant he would still give him a ride home. When he got into Christal's car, defendant thought Christal might be holding a gun. Once in the car defendant realized that Christal did in fact have a gun which was placed in between the defendant and Christal. Defendant, however, states that he was unaware of this gun before entering Christal's car. Defendant asked Christal why he had the gun, to which Christal responded, "for our protection." Upon seeing Brandon and Patterson, Christal asked defendant if those were the two individuals they had seen earlier on bikes and defendant told him that he did not know. As they approached Brandon and Patterson, Christal asked defendant to shoot either Patterson or Brandon but defendant declined, saying he did not want to shoot across Christal. Defendant denied that he planned to shoot anyone on the day Patterson was shot. After Patterson was shot, Christal and defendant returned to 92^nd and Essex where Christal gave defendant the gun and told him to get rid of it. Defendant then gave this gun to Antonio McDonald.

After defendant concluded his testimony but before closing arguments, defense counsel requested the trial court to give a non-IPI Instruction with respect to the issue of mere presence and whether or not it makes an individual accountable for the conduct of another. This request was denied and both the prosecution and defense counsel proceeded to closing arguments. The jury found defendant of the murder of Gus Patterson.

Due to the death of Judge Morgan, Judge Coughlan presided over defendant's sentencing hearing. During defendant's sentencing hearing, defense counsel argued that Judge Morgan had previously indicated at a Supreme Court Rule 402 conference (134 Ill. 2d R. 402), that based on the facts before her, in exchange for a plea of guilty she would impose a prison term of twenty years. Defense counsel also said that he and defendant were told that defendant would not be penalized for taking his case to trial. Consequently, at the sentencing hearing defendant asked the trial court to impose the statutory minimum of twenty years. Because Judge Coughlan was not present for defendant's 402 conference she said she did not feel bound by any discussions between the defendant and Judge Morgan with respect to possible prison terms. In imposing sentence, Judge Coughlan detailed the facts of the shooting, found that defendant failed to show any remorse for his actions and sentenced defendant to a prison term of thirty years.

Immediately after the sentence was imposed, defense counsel asked the trial court to reconsider its sentence in light of the pretrial representations made to defendant at the 402 conference. Counsel argued that these representations directly impacted defendant's decision whether or not to proceed to trial. The trial court denied this motion. Subsequently, defense counsel followed his oral motion to reconsider with a written motion for the trial court to reconsider its sentence. During this hearing, defense counsel renewed his argument that representations were made to defendant in the pretrial 402 conference and he also argued that defendant should not be deemed as culpable for the murder of Gus Patterson as the co-defendant who pled guilty. The trial court rejected this argument and this appeal followed.

Defendant's first contention on appeal is that he was denied his constitutional right to confront witnesses when he was not allowed to explore the details of Christopher Brandon's custodial status or lack thereof. U.S. Const., amend. VI. Specifically, defendant contends that he was denied his constitutional right of confrontation because defense counsel was prohibited from eliciting that Brandon was sentenced to serve six months in Cook County Jail, but was released early due to a clerical error. Because Brandon was the only occurrence witness who testified to hearing comments such as "get those hooks" and "get the gun folks," defendant argues that the prosecution's case hinged solely on Brandon's testimony. Additionally, because this testimony could have been considered by the jury in assessing the defendant's state of mind and that this "might have contributed to its crossing this very line in this accountability case ***," defense counsel should have been allowed to explore Brandon's potential bias with respect to the alleged clerical error. Simply put, if Brandon's sentence was erroneously reduced, Brandon may have felt compelled to testify favorably for the State fearing that the clerical error would be corrected if he did not.

A defendant's right to cross-examine a witness concerning possible biases, prejudices, or ulterior motives is protected by both the Federal and State Constitutions. People v. Ramey, 152 Ill. 2d 41, 67, 604 N.E.2d 275 (1992); U.S. Const., amends. VI, XIV; Ill. Const., 1970, art. I,