People v. Wesley ( 2008 )

FIRST DIVISION
May 12, 2008
No. 1-06-3172
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
ANDREW WESLEY, ) Honorable
) Michael Brown,
Defendant-Appellant. ) Judge Presiding.
JUSTICE WOLFSON delivered the opinion of the court:
Following a jury trial, defendant Andrew Wesley was
convicted of two counts of first-degree murder and sentenced to a
55-year prison term. On appeal, he contends: (1) the State
failed to prove its case beyond a reasonable doubt; (2) his
constitutional right to confrontation was violated; and (3) one
of his convictions for first degree murder must be vacated under
the one-act, one-crime rule. We affirm, but amend the mittimus
to reflect only one conviction of first-degree murder.
FACTS
On May 15, 2005, Leroy Graham and the victim, Malik Jones,
began arguing over whether Jones could continue to sell marijuana
at the parking lot of the Three Stooges liquor store. While the
two men argued, a group of people gathered around them. When
Jones turned and started to walk away, a black man wearing a
black “hoodie” with braids in his hair stepped out of the crowd
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and shot Graham five to six times. Jones died as a result of the
gunshot wounds. Four eyewitnesses subsequently identified
defendant as the shooter.
On July 11, 2005, defendant was arrested for Jones’ murder.
Detective Patrick Golden interviewed defendant on July 12, 2005.
After waiving his Miranda rights, defendant told Detective Golden
that he was not Graham’s friend and that he was not at the Three
Stooges liquor store when defendant was shot. During his second
interview, defendant again denied any knowledge regarding Jones’
shooting. Following Deborah Johnson’s and Gregory Jenkins’ line-
up identification of defendant as the shooter, Detective Golden
re-interviewed defendant. Detective Golden testified that during
the third interview, he “advised [defendant] that several
individuals had identified him as the shooter.” At that point,
defendant admitted he was untruthful in his first two initial
statements.
Defendant admitted to Detective Golden that he was present
at the Three Stooges liquor store and witnessed the fight between
Graham and Jones. Defendant was standing next to Graham until he
went into the liquor store twice. When defendant came out of the
liquor store for the second time, he saw Deborah Johnson
attempting to get Jones to leave the crowd “when an unknown
individual approached out of the crowd who had a black hoodie
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sweatshirt on, raised his arm, produced a handgun, and shot [the
victim] five to six times.” Defendant told everyone to leave the
parking lot before the police arrived. Defendant denied he shot
Jones. Defendant admitted he wore braids in his hair at the time
of the murder.
Assistant State’s Attorney Bryan Hofeld also interviewed
defendant. Defendant told ASA Hofeld that he was at the Three
Stooges liquor store when the shooting occurred. Defendant was
unable to see who the shooter was. When ASA Hofled asked why
defendant would lie to the police if he was not involved in the
shooting, and why people would identify defendant as the shooter
if he was not the shooter, defendant was unable to offer an
explanation.
The jury found defendant guilty of murder. He was sentenced
to a 55-year prison term.
DECISION
I. Reasonable Doubt
Defendant contends the State failed to prove him guilty of
first degree murder beyond a reasonable doubt. Specifically,
defendant contends the State’s eyewitnesses were incredible and
provided inconsistent and contradictory testimony regarding the
events surrounding the shooting.
On review, the relevant question is whether, viewing the
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evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the defendant guilty
beyond a reasonable doubt. People v. Cunningham, 212 Ill. 2d
274, 278, 818 N.E.2d 304 (2004); People v. Ornelas, 295 Ill. App.
3d 1037, 1049, 693 N.E.2d 1247 (1998). It is the responsibility
of the trier of fact to determine the credibility of witnesses
and the weight to be given their testimony, to resolve conflicts
in the evidence, and to draw reasonable inferences from the
evidence. People v. Williams, 193 Ill. 2d 306, 338, 739 N.E.2d
455 (2000). A criminal conviction will not be reversed unless
the evidence is so improbable or unsatisfactory that a reasonable
doubt of defendant’s guilt is justified. People v. Moore, 171
Ill. 2d 74, 94, 662 N.E.2d 1215 (1996).
At trial, Deborah Johnson, the victim’s girlfriend,
testified she heard Graham say to defendant “gun that [expletive]
down.” Defendant was standing next to Graham. After Graham made
the statement, Johnson saw defendant pull a gun from his
waistband and shoot Jones six times. Johnson testified that
after defendant shot Jones, she heard Graham say to him, “kill
the rest of these [expletive].” Defendant did not shoot anyone
else. Johnson denied Graham made any sort of gesture indicating
defendant should shoot Jones, and denied that Graham pointed the
gun. On cross-examination, however, Johnson said Graham “guided
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[defendant’s] hand to the level where Malik Jones was walking”
but by the time defendant fired, Graham’s hand was no longer on
the gun. Johnson also admitted on cross-examination that she had
initially told the police that her eight-year-old son was present
when the shooting occurred, and that she lied to police when she
told them she did not know what Graham and Jones were arguing
about. Johnson did not hear Graham ask defendant whether
defendant had his gun.
Demetrius Clair, a friend of the victim, testified he was
standing next to Jones during Jones’ argument with Graham.
During the argument, “Leroy had his head down, and he looked at
the guy with the black hoodie on, and he did a hand motion.”
Clair then saw defendant fade off into the crowd. Clair told
Jones the defendant was “fittin’ to go get a gun.” Clair turned
around, walked three step, and then heard 4 to 5 gunshots.
Gregory Jenkins testified that on May 28, 2005, he was
arrested for possession of a controlled substance. Following his
arrest, he was interviewed by Detective Kevin Bor and ASA Hofeld.
Jenkins said he gave the police information regarding the
victim’s murder so the charge would be dismissed. Although
Jenkins acknowledged he gave a written statement regarding the
murder, he said the statements contained in his handwritten
statement were not true.
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The State was allowed to read Jenkins prior statement into
evidence. According to his statement, Jenkins was in Marcus
Scott’s car drinking when he saw Jones and Graham arguing across
the parking lot. Jenkins heard Graham turn to defendant and say,
“Go get that.” Jenkins saw defendant walk towards the liquor
store while Jones and Graham continued to argue. When Jones
turned and began walking away, defendant walked out of the liquor
store and Graham pointed at Jones. Defendant then pulled a gun
out of his waistband and shot Jones six to seven times. Jenkins
testified to the same facts before the grand jury. During his
grand jury testimony, Jenkins also testified that “[Jones] told
Andrew to do something, and he did so by making a hand movement
and that’s when Drew walked somewhere around the liquor store.”
Jenkins was serving a two-year sentence for delivery of a
controlled substance at the time of his testimony.
Marcus Scott testified that he was arrested for drug
conspiracy on September 14, 2005. Following his arrest, Scott
met with the police and Assistant State’s Attorney Kim Ward.
Although Scott denied he was present at the shooting during
defendant’s trial, he admitted he signed each page of the
statement he made to the police.
The State was allowed to read Scott’s prior statement into
evidence. According to his statement, Scott saw defendant come
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out of the liquor store and shoot Jones numerous times. Marcus
admitted he testified to the same facts before the grand jury.
Marcus said that Assistant State’s Attorney Shelly Keane told him
to testify to these facts and if he did, his drug conspiracy
charge would be dismissed.
Contrary to defendant’s contention, we find the eyewitnesses
testimony presented by the State identifying defendant as the
shooter, mixed with defendant’s acknowledgment that he was
present when the murder occurred, could establish defendant’s
guilt beyond a reasonable doubt. Although the witnesses’
accounts of the location of the shooter and what Graham said
prior to the shooting varied slightly, the witnesses were
consistent in identifying defendant as the shooter. “Minor
inconsistencies in testimony do not, by themselves, create a
reasonable doubt.” People v. Cunningham, 309 Ill. App. 3d 824,
827 (1999). Viewing the evidence in the light most favorable to
the prosecution, we cannot say the evidence is so improbable or
unsatisfactory that a reasonable doubt of defendant’s guilt
remains as a matter of law.
II. Right to Confrontation
Defendant contends his conviction must be reversed and
remanded for a new trial because the State introduced
inadmissible hearsay evidence, in violation of his sixth
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amendment right to confrontation. Specifically, defendant
contends Marcus Scott’s, Detective Golden’s, and ASA Hofeld’s
testimony that “several individuals” identified defendant as the
shooter amounted to inadmissible hearsay evidence in violation of
his right to confrontation.
Defendant does not contend the allegedly inappropriate
hearsay statements admitted at trial violated Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177(2004). Instead, he contends the hearsay statements simply
violated his right of confrontation. Recently, however, the U.S.
Supreme Court clarified that the rule delineated in Crawford is
the only rule governing Confrontation Clause protection. See
Whorton v. Bockting, __ U.S. __, 127 S. Ct 1173, 113, 167 L. Ed.
2d 1 (2007)(“But whatever improvement in reliability Crawford
produced in this respect must be considered together with
Crawford’s elimination of Confrontation Clause protection against
the admission of unreliable out-of-court nontestimonial
statements. Under Roberts, an out-of-court nontestimonial
statement not subject to prior cross-examination could not be
admitted without a judicial determination regarding reliability.
Under Crawford, on the other hand, the Confrontation Clause has
no application to such statements and therefor permits their
admission even if they lack indicia of reliability.”) Because
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defendant chose not to challenge the statements under Crawford,
we find the Confrontation Clause has no application to the
statements challenged in this case.
We also find defendant forfeited his contention that the
witnesses’ testimony regarding “several individuals” identifying
defendant as the shooter amounted to inadmissible hearsay.
Defendant admits he did not object to the witnesses’ complained
of testimony at trial, and he did not raise the issue in his
post-trial motion.
Defendant attempts to circumvent forfeiture by contending
the inadmissible hearsay testimony admitted in this case amounted
to plain error. The plain error doctrine allows a court to
address a forfeited error affecting substantial rights in two
instances: (1) where the evidence in the case is so closely
balanced that the jury’s guilty verdict may have resulted from
the error, and not the evidence; or (2) where the error is so
serious that the defendant was denied a substantial right, and
thus a fair trial. People v. Herron, 215 Ill. 2d 167, 178-79,
830 N.E.2d 467 (2005). The evidence in this case was not closely
balanced, however. Four eyewitnesses identified defendant as the
shooter, and defendant admitted he was present when the murder
occurred. Moreover, the alleged evidentiary errors were not so
serious as to deny defendant a right to a fair trial.
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Alternatively, defendant contends his trial counsel was
ineffective for failing to properly preserve the alleged errors.
See People v. Jura, 352 Ill. App. 3d 1080, 1093-94, 817 N.E.2d
968 (2004) (defense counsel’s failure to challenge the
admissibility of the various hearsay statements prejudiced the
defendant and deprived him of a fair trial).
The only complained of testimony we take issue with in this
case is the allegedly improper hearsay statement contained in
Marcus Scott’s handwritten statement. In the handwritten
statement, Scott said Brandon Foster, who was Graham’s “right
hand man,” approached him and said that three people had
identified defendant as the shooter, and that “they better hope
that [Graham] doe[sn’t] find out” who identified defendant. The
complained of portion of Scott’s statement is inadmissible
hearsay. The trial court, however, decided to allow that portion
of the statement into evidence with a limiting instruction
informing the jury that they were to consider it only “for the
limited purpose of what was on [sic] the witness’s state of mind
and his motive for testifying and any interest or bias he has for
the testimony that he has in the courtroom,” and “not to take it
as fact that Graham set these things in motion, but only the
limited purpose of the witnesses credibility on the stand.” We
find any prejudice caused by the statement was cured by the trial
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court’s limiting instruction. People v. Simms, 285 Ill. App. 3d
598, 609, 673 N.E.2d 1119 (1996).
III. Mittimus
Defendant contends, and the State agrees, his mittimus
should be corrected to reflect only one conviction for first
degree murder. Pursuant to the one act, one crime rule,
defendant could only be convicted once for the murder of Malik
Jones. See People v. Kuntu, 196 Ill. 2d 105, 130, 752 N.E.2d 380(2001). Accordingly, we amend the mittimus to reflect only one
conviction for first degree murder. People v. Bishop, 218 Ill.
2d 232, 249, 843 N.E.2d 365 (2006).
CONCLUSION
We affirm the circuit court’s judgment, but amend the
mittimus to reflect only one conviction of murder.
Affirmed; mittimus amended.
CAHILL, P.J., and GARCIA, J., concur.
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