People v. Thompson, No. 1-97-4558
1st District, May 18, 2000
FOURTH DIVISION
| THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. MICHAEL THOMPSON, Defendant-Appellant. | Appeal from the Circuit Court of Cook County. No. 95 CR 17061 Honorable Stanley Sacks, Judge Presiding. |
JUSTICE HALL delivered the opinion of the court:
Defendant, Michael Thompson, was charged with two counts of first degree murder. Jamal Harmon, Eugene Wiseman, andCraig Newton were also charged by the same indictment with first degree murder but were not tried with defendant.Following a jury trial, defendant was found guilty of first degree murder under an accountability and transferred intenttheory. Defendant filed a timely motion for a new trial on July 24, 1997, and an amended motion for a new trial on July 25,1997. Both were denied. On September 18, 1997, defendant was sentenced to serve a 75 - year prison term. Defendant fileda motion to reconsider sentence. On October 23, 1997, defendant was resentenced to 60 years. Defendant filed a timelynotice of appeal on November 11, 1997.
On appeal defendant contends: (1) that the State failed to prove him guilty beyond a reasonable doubt of first degreemurder; (2) that several remarks made by the prosecutor during closing arguments prevented him from receiving a fair trial;(3) that the circuit court erred in admitting improper and prejudicial evidence; and (4) that the circuit court erred by refusingto give the cautionary accomplice jury instruction. For the following reasons, we reverse and remand this cause for a newtrial. The following facts are relevant to our determination in this appeal.
BACKGROUND
On June 19, 1995, A.Z., an innocent female bystander, was shot and killed in Marquette Park during a gang fight. Theincident involved two rival street gangs, the Black Disciples and the "Krazy Get Down Boys" (KGB's). In the summer of1995, defendant was a member of the Black Disciples holding the rank of co-minister. Harmon, Wiseman and Newton werealso Black Disciples. In the summer of 1995, Eddie Frazier, Jr., Derrick Johnson and April Alston were also BlackDisciples.
Blanca Morales testified that on the evening of June 19, 1995, she, the victim, and a friend named Matilda drove intoMarquette Park and parked next to a bridge by a pond inside the park. The three exited the car and stood looking at thewater. Morales saw a group of Hispanics standing on a nearby bridge. Suddenly, numerous gunshots came from behindwhere the females were standing. The females ducked behind the car. After the gunshots ceased, Morales discovered thevictim lying on the ground with blood coming from her arm. Morales, with the help of Matilda and the people from thebridge, put the victim in her car and drove her across a field to Holy Cross Hospital. The victim was pronounced dead atHoly Cross Hospital.
Both Frazier and Johnson testified that on June 18, 1995, they were in Marquette Park with two females when they wereapproached by a group of KGBs. One of the KGBs hit Frazier in the head with a gun. As Frazier and Johnson startedrunning, the KGBs began shooting at them. Johnson testified that he told Harmon about the incident that night.
Alston admitted that, at the time of the trial, she was in custody in Cook County jail facing a charge for heinous battery.This charge was not connected to the present case. Alston testified that she expected no leniency in exchange for hercooperation with the State in this case.
On June 19, 1995, at 8 p.m., Alston was on the defendant's front porch with defendant and some other Black Disciples.Alston testified that she saw defendant, Harmon, and Newton go upstairs into the defendant's house. After a short time shesaw Harmon leave the house carrying a black gym bag that he placed in the trunk of Newton's car. She could not see whatwas inside the black gym bag. She testified that defendant told her to get into Newton's car. She did. Defendant droveHarmon, Wiseman, and a Black Disciple named Rickey to the edge of Marquette Park in Harmon's car. Newton and Alstonfollowed in Newton's car. Once at the park, Alston testified that she got out of Newton's car and got into Harmon's car. Shesaw Harmon, Wiseman, and Rickey get out of Harmon's car and open the trunk of Newton's car. Alston and defendant thendrove away from Marquette Park and returned to defendant's front porch. On the way back to defendant's house, defendanttold her that there was going to be a retaliation in the park.
Alston testified that Newton, Wiseman, Rickey, and Harmon returned to defendant's house about 10 to 15 minutes later.She saw Harmon take the black gym bag out of Newton's trunk and bring it into defendant's house.
In May 1996, after being contacted by defendant and his wife, Alston gave defense counsel a court-reported recantation ofher prior statements. Alston's trial testimony was consistent with both her police statement and her grand jury testimonyexcept that in those pretrial statements she denied membership in the Black Disciples.
Frazier testified that he retired from the Black Disciples on June 20, 1995. During this trial, Frazier was in custody on anoutstanding McLean County warrant from breaking a person's jaw. Frazier testified that he expected no consideration fromthe State on his pending case in exchange for his cooperation in this case.
Frazier testified that on June 19, 1995, he was on defendant's porch for about six minutes before he left and went home.Frazier heard defendant talking to Wiseman about a hit in the park that night. When Frazier later returned to defendant'shouse, Wiseman showed Frazier a .38-caliber gun and stated that they had taken care of business for him. Frazier identifiedPeople's exhibit no.13 as a gun he had seen in defendant's house about a year before.
In the fall of 1995, after being contacted several times by defendant and his wife, Frazier gave a court-reported recantationof his earlier statements. His trial testimony, however, was consistent with his earlier statements to police and his grand jurytestimony.
Johnson testified that on June 19, 1995, at 9 p.m., he was on the defendant's front porch. He heard defendant tell Harmonand Wiseman to park at 70th and California and walk through Marquette Park because the KGBs should be there. He thentold them to "spray the mother f- -kers," which Johnson interpreted as a command to shoot KGBs. He saw defendant,Harmon, and Newton go upstairs in defendant's house. When they came out, about five minutes later, Harmon was carryingan Uzi machine gun pistol while defendant carried a black gym bag. He said that he and Frazier had seen the same Uzimachine gun and black gym bag one year earlier on defendant's bed. Johnson identified People's exhibit no. 13 as the gunthat he saw Harmon carry out of defendant's house. After Harmon, Wiseman, Newton and Rickey returned to defendant'sporch, defendant told Johnson "we got the mother f- - kers. Tell Eddie that it was taken care of."
After being contacted several times by defendant and his wife, Johnson gave a court-reported recantation of his priorstatements. However, his trial testimony was entirely consistent with his earlier statements to police and his grand jurytestimony.
Detective Bloore testified that Newton led police to a garage at 6924 S. Laflin, where the police recovered an Uzi machinegun pistol in a white bag. Ernest Warner, an expert in firearms, testified by stipulation that the bullet was a 9 millimeter, butwas unsuitable for comparison due to its damaged condition. He further testified that the bullet had the same classcharacteristics as the 9 millimeter Uzi recovered by the police and that the bullet could have been fired by that gun.
DISCUSSION
I. CLOSING ARGUMENT
Defendant argues that several errors occurred in the State's closing argument. We need only discuss one. Defendant arguesthat the prosecutor improperly accused defense counsel, Mr. Sherwin, of trying to "fix" this case:
"Sexton: Is it real surprising they went to his office? And how about this, folks, you think it's a coincidence that notjust one or two, all three of the witnesses who happened to be witnesses against Michael Thompson, they all go to thelawyer's office. I mean he's talking about how he's entitled to the documents, what are we talking about here? We'retalking about the law firm of Sherwin and Thompson here. Thompson is the leg man. He's the one who's going to getthe witnesses in, get them to change their testimony and set it up and hand it over to his lawyer. So he can fix the casethen."
Comments, such as these, disparaging the integrity of defense counsel and implying that the defense presented wasfabricated at the direction of counsel have consistently been condemned. People v. Starks, 116 Ill. App. 3d 384, 451 N.E.2d1298 (1983); People v. Emerson, 97 Ill. 2d 487, 455 N.E.2d 41 (1983). Accusations of deception and trickery by defensecounsel serve no purpose except to prejudice the jury. People v. Beringer, 156 Ill. App. 3d 309, 509 N.E.2d 578 (1987).
The State argues that these comments were proper because they referred to defendant, not to defense counsel. We disagree.The clear implication of these comments was that defendant and defense counsel were engaged in some nefarious plan toobtain witness recantations and to "fix" defendant's case. The State further argues that any error associated with thesecomments was harmless because the trial court sustained an objection to these comments and admonished the jury todisregard the implication that defense counsel did anything improper. The act of promptly sustaining the objection andinstructing the jury to disregard such argument is usually sufficient to cure any prejudice. People v. Childress, 158 Ill. 2d275, 633 N.E.2d 635 (1994). But not always. We find that the prejudice from the comments in this case was of such amagnitude that the jury was poisoned. The court's admonishments after the fact could not erase the serious damage that wasalready done.
In general, a prosecutor is given great latitude during closing argument. People v. Cisewski, 118 Ill. 2d 163, 514 N.E.2d 970(1987). However, prosecutors must remember that there are limits. We find that the prosecutor far exceeded those limits inthis case. Improper comments during closing argument warrant reversal where the argument as a whole was so seriouslyprejudicial that it deprived the defendant of a fair trial. We find that the prosecutor's comments so seriously prejudiceddefendant that he was denied a fair trial and is entitled to a new one.
II. REASONABLE DOUBT
Our disposition makes it unnecessary for us to consider the remaining issues raised by defendant on appeal. However, wenote our belief that the evidence at trial was sufficient for the trier of fact to conclude that defendant was guilty beyond areasonable doubt.
A criminal conviction will not be set aside unless the evidence is so improbable or unsatisfactory that it creates a reasonabledoubt of defendant's guilt. People v. Campbell, 146 Ill. 2d 363, 586 N.E.2d 1261 (1992); People v. Collins, 106 Ill. 2d 237,478 N.E.2d 267 (1985). When a defendant challenges the sufficiency of the evidence, we must decide whether, afterconsidering all of the evidence in the light most favorable to the prosecution, any rational trier of fact could have found theessential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 99 S. Ct. 2781, 61 L. E. 2d560 (1979); People v Howery, 178 Ill. 2d 1, 687 N.E.2d 836 (1997).
A person commits first degree murder if he performs the acts that cause the death of a person, and either intends to kill ordo great bodily harm to that person or another, or knows that such acts will cause death to that person or another. 720 ILCS5/9-1(a)(1)(West 1996). To convict a defendant of murder based on an accountability theory, the State must prove beyond areasonable doubt that: (1) the defendant solicited, aided, abetted, agreed, or attempted to aid another person in the planningor commission of the murder; (2) the defendant's participation occurred either before or during the commission of themurder; and (3) the defendant had the concurrent, specific intent to promote or facilitate the commission of the murder. 720ILCS 5/5-2(c)(West 1996); People v. Batchelor, 171 Ill. 2d 367, 665 N.E.2d 777 (1996). Active participation is not arequirement for imposing criminal liability under an accountability theory since a defendant may aid and abet withoutactively participating in the overt act. Batchelor, 171 Ill. 2d at 376. The intent to promote or facilitate a crime may beshown by evidence that the defendant shared the criminal intent of the principals or by evidence that there was a commoncriminal plan or design. Batchelor, 171 Ill. 2d at 376.
The law of accountability incorporates the "common design rule," which provides that, where two or more persons engagein a common criminal design, any acts in furtherance thereof committed by one party are considered to be the acts of allparties to the common design and all are equally responsible for the consequences of such further acts. People v. Smith, 278Ill. App. 3d 343, 662 N.E.2d 480 (1996). When a defendant is convicted on an accountability theory, he shares equal guiltwith the principal perpetrators of the crime. People v. Brown, 267 Ill. App. 3d 482, 641 N.E.2d 948 (1994).
Under the doctrine of transferred intent, if a defendant shoots at one person, with the intent to kill, but kills an unintendedvictim, he may be convicted of the crime of murder for the death of the unintended victim.
Defendant argues that he could not be proved guilty beyond a reasonable doubt of first degree murder on an accountabilityand transferred intent theory because the State failed to identify the shooter or the target. Defendant points out that therewas no testimony as to who actually shot the victim. No witness testified that he saw any Black Disciples in Marquette Parkon the night in question. Defendant argues that no rational inference can be drawn from the evidence that either Harmon,Wiseman, Newton or Rickey was the shooter. We disagree.
Defendant relies on Fagan v. Washington, 942 F.2d 1155 (7 Cir.1991), where the seventh circuit found that the State didnot prove the accomplice defendant guilty of murder under an accountability theory because the prosecution did not provethe identity of the principal shooter beyond a reasonable doubt. In that case, the defendant and several fellow BlackGangster Disciple (BGD) gang members went to a game room that was known to be a Vice Lords hang out. The BGDswere seeking revenge against the rival Vice Lord gang members. Defendant and Dede, another BGD, fired several shotsinto a group standing out in front of the game room. Defendant and Dede were about 45 feet away from the group whenthey fired. The evidence established that neither defendant nor Dede fired the fatal bullet. Thus, defendant was found guiltybased on an accountability theory.
The seventh circuit recognized that it did not matter whether Fagan or some other member of his gang fired the fatal bullet.
"The group had vowed revenge. Their scheme encompassed the murder of anyone whom they believed to be a ViceLord (whether or not he really was). Their common design embraced the killing of Billy Green on the sidewalk infront of the game room by any member of the group. But not by a non-member." Fagan, 942 F.2d at 1160.
The evidence conclusively established that defendant and Dede were not the shooters. There was absolutely no evidencethat any other BGD that was there was armed or close enough to the victim to have fired the fatal shot. In light of the totallack of supporting evidence, the seventh circuit found that the trial court had erred in assuming that the fatal bullet musthave come from a gun fired by one of the BGDs.
The present case is distinguishable from Fagan. Here there is sufficient evidence to support the inference that the fatal shotwas fired by a Black Disciple, specifically either Harmon, Newton, Wiseman, or Rickey. The evidence in this caseestablished that, in the summer of 1995, defendant was a high-ranking leader of the Black Disciples. Harmon, Newton,Wiseman, and Rickey were all below defendant in the gang hierarchy.
On June 18, 1995, two Black Disciples, Frazier and Johnson, had a run-in with a group of KGBs in Marquette Park. Frazierwas pistol whipped and both men were shot at by the rival gang. On the evening of June 19, 1995, Frazier and Johnsonwere on defendant's front porch with defendant and several other Black Disciples. Frazier heard defendant and Wisemandiscussing a hit in the park that night. Frazier was paged by his father and went home. He returned to defendant's houseabout 45 minutes later.
Harmon and Newton arrived at defendant's house in their cars. Johnson heard defendant tell Harmon and Wiseman to parkon 70th and California and to walk through the park and the KGBs should be right there. Defendant also told them to"spray" (shoot) the KGBs. Johnson saw defendant, Harmon, and Wiseman enter defendant's house. The three emergedmoments later with Harmon carrying a 9 millimeter Uzi and defendant carrying a black gym bag. These items were placedin the trunk of Newton's car. The bullet eventually removed from the victim's body was a 9 millimeter.
Defendant drove Harmon, Wiseman and Rickey in Harmon's car to the edge of Marquette Park. Alston and Newtonfollowed in Newton's car. Once at the edge of Marquette Park, Alston joined defendant in Harmon's car and they droveaway, leaving the others at the park. As Alston and defendant pulled away, Alston saw Harmon, Wiseman, Newton, andRickey looking in Newton's open trunk, where the 9 millimeter Uzi and black gym bag had been previously placed. As theyleft Marquette Park, defendant told Alston that there was going to be a retaliation in the park for what happened to Frazierand Johnson.
Moments later, Harmon, Wiseman, Newton, and Rickey returned to defendant's house. Johnson saw Harmon bring theblack gym bag back into defendant's house. Defendant told Johnson that "they got the mother f- -kers and tell Eddie it wastaken care of." Wiseman showed Frazier a .38-caliber gun and said that they had taken care of business for him.
Following the shooting, the police were led to the 9 millimeter Uzi by Newton. The firearms expert testified that the 9millimeter bullet recovered from the victim's body could have come from the 9 millimeter Uzi recovered by police. BothJohnson and Frazier identified the 9 millimeter Uzi recovered by police as the same Uzi they saw in defendant's bedroomon a prior occasion. Johnson further identified it as the 9 millimeter Uzi he saw Harmon carry out of defendant's house justmoments before the shooting.
The reasonable inference to be drawn from this evidence is that Harmon, Newton, Wiseman, and Rickey were in MarquettePark, armed with the Uzi and a .38, and intending to kill any one they thought was a KGB.
The fact that defendant was not present at the time of the shooting is irrelevant as the evidence clearly established thatdefendant actively participated in the planning of the offense, provided his codefendants with the weapon that fired the fatalbullet, and drove his codefendants to the scene of the offense. See 720 ILCS 5/5-2(c)(West 1996); People v. Nino, 279 Ill.App. 3d 1027, 665 N.E.2d 847 (1996); People v. Smith, 278 Ill. App. 3d 343, 662 N.E.2d 480 (1996).
Defendant argues that the people on the bridge could have fired the fatal shot. However, Morales testified that the shotscame from behind her and she was facing the bridge. Moreover, there is no evidence that the people on the bridge werearmed. Defendant further argues that Matilda, the victim's friend, could have fired the fatal shot. There is simply noevidence that she was armed. Defendant suggests that the fatal shot could have been fired by a shooter from another gang.There was no evidence that any other armed gang was present in the area at the time of the shooting.
The evidence is sufficient to support the inference that either Harmon, Newton, Wiseman, or Rickey was the shooter.
Defendant further argues that he cannot be held accountable because the State did not prove which of the four actually firedthe fatal bullet. According to defendant, where the prosecution fails to identify the principal shooter there is no intent to killto be transferred nor common design to be agreed upon by the unknown shooter and the defendant. Defendant's reliance onPeople v. Peterson, 273 Ill. App. 3d 412, 652 N.E.2d 1252 (1995), and People v. Lopez, 72 Ill. App. 3d 713, 391 N.E.2d105 (1979), is misplaced.
In Peterson, the two defendants argued and began shooting at one another, injuring an innocent bystander. The trial courtfound both defendants guilty of aggravated discharge of a firearm because they engaged in a course of criminal conduct, theforeseeable result of which was injuring an innocent bystander. On appeal, the court held that the defendants were acting atcross purposes, shooting at each other. The gunfight was spontaneous. There was no evidence that either defendant aided orabetted the other in furtherance of a common criminal design. Because the evidence did not establish that each defendantintended to promote or facilitate the other's conduct, the court held that the two defendants could not be held accountablefor each other's conduct. The reasons they were not held accountable for each other's actions had nothing to do with the factthat the prosecution could not prove which defendant actually shot the bystander.
Similarly, in Lopez, the court found the evidence did not support a finding of accountability. Again, as in Peterson, thisfinding had nothing to do with the fact that the prosecution could not establish which defendant actually shot the victim.Rather, it had to do with the fact that there was no evidence of a common criminal plan or design or that the defendantshared the criminal intent of the principals.
Despite defendant's contention to the contrary, neither the Peterson court nor the Lopez court held that a defendant maynever be held accountable for the conduct of a group unless the shooter from that group is specifically identified. Nor dideither court hold that the doctrine of transferred intent can never be applied in conjunction with the doctrine ofaccountability unless the shooter is specifically identified.
The prosecutor does not have to establish which member of a group fired the fatal bullet, as long as everyone in the group isaccountable for each other's actions. See People v. Cooks, 253 Ill. App. 3d 184, 625 N.E.2d 365 (1993)(court found that theevidence sufficiently demonstrated a common design and a community of unlawful purpose between defendant and thesecond unknown shooter); People v. Foster, 198 Ill. App. 3d 986, 556 N.E.2d 1214 (1990); People v. Burrage, 269 Ill. App.3d 67, 645 N.E.2d 455 (1994)(two defendants properly convicted of attempted murder under theories of accountability andtransferred intent even though there was no conclusive evidence as to which defendant fired the shot that actually hit thevictim); People v. Shelton, 293 Ill. App. 3d 747, 688 N.E.2d 831 (1997)(in a case where unintended victims were shot,defendant could have been convicted of murder based on an accountability theory if the jury believed that he ordered hisfellow gang members to fire into a crowd).
Next defendant argues he was not proved guilty beyond a reasonable doubt because the State failed to identify the gun usedin the shooting. First it should be noted that the State is not required to locate a gun and prove that it was the gun actuallyused in the shooting. People v. Nitz, 242 Ill. App. 3d 209, 610 N.E.2d 1289 (1993); People v. Carter, 57 Ill. App. 3d 84,372 N.E.2d 1093 (1978). Second, there was sufficient testimony to identify the gun used to shoot the victim. Dr. Cogantestified that the victim died of a gunshot wound to the back. Ernest Warner, the police firearms expert, testified that thebullet recovered from the victim was a 9 millimeter and could have come from the Uzi shown to him at trial. Both Johnsonand Frazier identified the Uzi shown to them at trial as the same gun they saw on defendant's bed about a year before theshooting. Moreover, Johnson identified it as the same gun he saw Harmon carry out of defendant's house on the night of theshooting. The police were led to the gun by Newton, a codefendant in the case.
Finally, defendant attacks the credibility of Alston, Frazier, Johnson, and Assistant State's Attorney Thomas, arguing thattheir testimony cannot constitute proof beyond a reasonable doubt. This argument also fails. It is well settled that credibilitydeterminations are exclusively within the province of the jury. People v. Nitz, 143 Ill. 2d 82, 572 N.E.2d 895 (1991). Herethe jury heard the testimony of each of these witnesses, was made aware of the infirmities in each witness's testimony andchose to believe these witnesses. We cannot now substitute our judgment for that of the trier of fact.
After considering all of the evidence in the light most favorable to the prosecution, we find that a rational trier of fact couldhave found beyond a reasonable doubt that the essential elements of the crime were met by the evidence. This does notmean that we are making a finding as to defendant's guilt or innocence that would be binding on retrial. Rather, ourconsideration of the sufficiency of the evidence admitted at trial will remove the risk of subjecting defendant to doublejeopardy. See People v. Berringer, 156 Ill. App. 3d 309, 509 N.E.2d 578 (1987). Accordingly, for the reasons set forth above, the judgment of the circuit court of Cook County is reversed and this cause isremanded for a new trial.
Reversed and remanded.
HOFFMAN, P.J., and SOUTH, J., concur.