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8 November 2000

No. 2--99--0433

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT

JUSTICE RAPP delivered the opinion of the court:

A jury in the circuit court of Kane County convicted defendant, BonzellLamar Joyner, of the murder of Armando Mendez. The trial court sentenceddefendant to natural life imprisonment. Defendant appeals, raising thefollowing contentions: (1) that the State failed to prove him guilty beyond areasonable doubt; (2) that prosecutorial misconduct deprived him of a fairtrial; (3) that he was deprived of the assistance of counsel at proceedings onposttrial motions; and (4) that the trial court erred in sentencing him tonatural life imprisonment. We affirm the conviction but modify the sentence.

Defendant was charged with first-degree murder (720 ILCS 5/9--1(a) (West1994)) for the October 27, 1994, shooting death of Armando Mendez. The Statesought the death penalty. Prior to trial, defendant waived his right to asentencing hearing before a jury. A jury trial was held in April 1997.

The record indicates that shortly after 10:50 p.m. on October 27, 1994,Aurora police responded to a shooting at Harper's gas station located at 1116

East New York Street, Aurora. Harper's consists of a lighted canopy overseveral gas pumps and a small building with a window through which business isconducted. Officers found the victim lying in front of the building with alarge pool of blood around his head. The victim's 1979 Cadillac was locatedone-half block east of Harper's on East New York Street. The vehicle's hazardlights were on, and a gas can was sticking out of the gas fill located underthe rear license plate.

Israel Ramos testified that on the night in question he was driving onEast New York Street with his friend Jaime Juarez when he saw a vehiclestalled and a group of men fighting. Israel pulled into Harper's and saw afew black men beating a Hispanic man. The black men hit the Hispanic manacross the back with a garbage can. During the beating, the Hispanic mantried to cover himself and get to the gas station attendant's window.

Israel further testified that a blue Chevrolet automobile pulled up. Aperson wearing a black "hoodie" and some sort of sports jacket walked in frontof Israel's car holding his hand at his waist. The hood was tied tightlyaround the man's head so that his face could not be seen. The hooded man thenwalked up behind the victim, pointed a gun at the back of his head, and firedonce. The shooter walked back toward the blue Chevrolet, and the man who wasdriving the blue Chevrolet told the shooter not to get in the vehicle. Theshooter attempted to lift the door handles on the passenger side, but thedoors were locked. The blue Chevrolet left the scene, and the shooter ranaway.

Jaime Juarez testified that he was a passenger in Israel Ramos's car onthe night in question. Jaime saw a Hispanic male at Harper's who was runningfrom four or five black males. The Hispanic man was trying to get into thebuilding. The black males were taking turns punching and kicking the Hispanicman and bouncing a garbage can off his body. As Israel pulled into Harper's,other vehicles pulled up, including a blue Chevrolet. One of the black maleswho was in the group beating the Hispanic man walked toward the blueChevrolet, reached into the front passenger window, and then walked backtoward the victim. The black male walked up to the Hispanic man, put a gun tohis head, and fired. The shooter then walked back to the blue Chevrolet andlifted up on the door handles, but could not get into the vehicle. The blueChevrolet pulled out of Harper's and the shooter ran.

Jaime said that the shooter was very thin and not tall. The shooter waswearing black pants and a pullover black and blue "hoodie" with a Georgetownbulldog emblem. Jaime also remembered someone wearing a red and black flannelshirt among those beating the victim.

Tracy Parish testified that she was working at Harper's on the night inquestion. That night, a man came to the window and asked to borrow a gas can. Tracy told him that she could only sell him a gas can but that he should trythe gas station west of Harper's. Tracy watched the man walk to the west,then shortly thereafter back to the east toward his disabled vehicle. Next,she saw three or four black men punching and throwing stones at the man nearhis disabled vehicle. The man would fall down, get back up, and they wouldknock him down again as he made his way toward Harper's. As the man gotcloser to the building, the black men picked up a garbage can and hit him overthe head. One of the black men held the man up against the window of thebuilding and pulled out a small shiny gun. Tracy dropped to her knees andheard a gunshot. Tracy described the shooter as a black male with high cheekbones, a wide forehead, and wearing a hood. Tracy did not identify defendantin court. However, the morning after the shooting, a police investigatorshowed her a photo lineup consisting of six photographs, including defendant. Tracy pointed to the picture of defendant and said that she was 70% sure hewas the shooter because of his high cheek bones and wide forehead.

On cross-examination, Tracy said that she did not think the shooter wasamong the group of people who were beating the victim. Tracy specified thatthe shooter held the victim against the window, held the gun in his righthand, and placed the gun against the victim's temple. Tracy believed theshooter had a flannel shirt on over a hooded sweatshirt. She did not see anysports logos on the shooter's clothing.

The State called Keith Smith, a truck driver who lived in theneighborhood at the time of the shooting. Keith testified that as he drovehome from work on the night in question he saw a car blocking the right laneof East New York Street and five black men beating a Hispanic man. TheHispanic man ran toward Harper's and a couple of the black men chased him. The Hispanic man appeared to knock on the booth in an attempt to get someassistance.

Keith pulled into Harper's with his headlights shining on the beating. The black men picked up a garbage can and used it to beat the Hispanic manover the back. When the victim was lying on the ground, the black men kickedhim several times.

Keith saw one of the shorter black individuals walk away from thebeating out of his line of sight. A few moments later, the man returned andraised his right arm to the victim's head. Keith heard a loud noise, and thevictim collapsed. The shooter looked at the victim and then turned and lookedaround.

At this point in Keith's testimony the following exchange took place:

"Q. And when he looked around, did you have occasion then to seehim?

A. Yes, I did.

Q. Can you describe what you saw for us?

A. Um, it was just a look on his face, um, maybe pride,satisfaction, whatever.

[Defense Attorney]: Objection, Your Honor, move to strike.

THE COURT: Sustained. You're instructed to disregard. Proceed."

Keith saw the shooter from about 12 to 15 feet away. Keith made an in-court identification of defendant as the shooter.

Keith further testified that the shooter went to a blue Chevrolet andattempted to open the front passenger door, but the occupants would not lethim into the vehicle. The blue Chevrolet drove away, and the shooter ran.

Keith testified that he had seen the individuals involved in theincident, including defendant, around the neighborhood almost on a dailybasis. In 1994, it was not unusual to come home and find defendant siting onhis front step. Keith explained that the individuals involved in the beatingwere all wearing dark-colored clothing and that one of the individuals wore aplaid jacket. Keith identified the individual with the plaid jacket as PriestPryor.

On cross-examination, Keith stated that he was never asked to identifythe shooter or anyone else involved in the incident prior to trial. On thenight of the shooting, Keith told the police that he could identify theindividuals involved if he saw them again and that he recognized the shooter,but he did not indicate that the shooter had sat on his front step in thepast.

Next, the State called Darryl Bailey, a member of the Gangster Disciplestreet gang, who was also charged with first-degree murder for his role in theArmando Mendez homicide. Darryl explained that he had entered into anagreement with the State to testify at the trial of defendant and otherdefendants involved in the crime. In exchange for his cooperation, Darrylwould plead guilty to several unrelated charges and would be sentenced to 12months in prison in one case and to 48 months' probation in another. Thefirst-degree murder charge would be dismissed. Although not testified to attrial, the agreement indicates that the State would dismiss the first-degreemurder charge upon Darryl's completion of the agreement because Darryl hadbeen shot twice since he agreed to testify.

Darryl stated that he knew defendant to be a member or associate of theGangster Disciples. Darryl identified defendant in court. Darryl testifiedthat defendant carried the rank of "enforcer" in the gang. The enforcer isresponsible for administering punishments in the form of physical beatings togang members who violated gang rules. Darryl's testimony concerningdefendant's rank of enforcer was stricken, and the jury was instructed todisregard it because Darryl's knowledge of this fact was based upon hearsay.

Darryl testified further that, on the evening in question, he wastalking with a Gangster Disciple named Eric Mott when they noticed a Cadillacwith tinted windows pull up on East New York Street. Darryl and Eric ran awaybecause they thought someone was going to shoot. Next, Gangster DisciplesJason Foster, Patrick Kirkwood, and Gabe Robinson pulled up in Foster's car. Eric told them that there was a "King," meaning a member of the Latin Kingsstreet gang, up on the corner. Darryl, Patrick Kirkwood, Eric Mott, GabeRobinson, and Kevin Scott ran to the Cadillac, and Jason Foster drove away. When the Hispanic man came back to the car, Patrick Kirkwood asked him if hewas a King and to "throw down the crown," meaning to invert the Latin Kinggang sign in disrespect, if he was not a King. The Hispanic man failed tomake the gang sign so Patrick Kirkwood hit him in the face. The Hispanic manran toward Harper's, and the Gangster Disciples chased him. Priest Pryor,another Gangster Disciple, pulled up in his blue Chevrolet, got out of thecar, ran up, and hit the Hispanic man. The Gangster Disciples hit and kickedthe Hispanic man and threw a garbage can at him. Darryl stated that he wasnot participating at that point; rather, he was yelling for them to stopbefore they killed the man. Next, Jason Foster's car pulled up, and defendantgot out with a black gun. Darryl testified that he turned around, and heheard a gunshot as he ran away.

On cross-examination, Darryl admitted that he told the police that hewould say whatever he needed to in order to stay out of jail. Darryl did notthink that defendant was wearing a hood on the night in question.

The State also called Kevin Scott, who admitted he was a GangsterDisciple and was charged with first-degree murder for his role in the murderof Armando Mendez. Kevin entered into an agreement to testify at defendant'strial in exchange for the State's reduction of the first-degree murder chargeto aggravated battery and mob action. Kevin testified that he knew defendantto be a Gangster Disciple and identified defendant in court. Kevin statedthat Harper's and the area around it was in the "hood" of the GangsterDisciples and that they had to "beat down" any enemies, including Latin Kings,that entered their hood.

Kevin testified that, on the evening of the shooting, he was withLatrone and Patrick Kirkwood when they met up with Darryl Bailey and EricMott. At that point, Jason Foster's car pulled up and someone yelled "heyy'all, there's a King up on New York Street." A few men got into JasonFoster's car while Kevin, Eric Mott, and Darryl Bailey walked to East New YorkStreet. Kevin said that, when they got there, they saw the victim surroundedby Patrick Kirkwood, Latrone Kirkwood, and Gabe Robinson. Patrick Kirkwoodsaid "throw down the crown." When the victim did not, Patrick Kirkwoodpunched him in the face. The victim ran toward Harper's. A blue Chevroletpulled up and Priest Pryor and Taurus House got out. Priest Pryor and TaurusHouse ran up to the victim and began to punch and kick him. Kevin said thatby the time he and the others got to the victim, Priest Pryor had the victim'sface up against the cashier's window at Harper's. Everyone, including DarrylBailey, was kicking, punching, and hitting the victim with a trash can. According to Kevin, Jason Foster's car pulled up, defendant got out and said"get the f--- out [of] the way, everybody move." Defendant reached back intoJason Foster's car and brought out a small black gun. Defendant covered hisface, walked toward the victim and shot him once in the head. At that point,Jason Foster's car pulled out. Defendant tried to get into Priest Pryor'sblue Chevrolet as it pulled away, but he could not so defendant ran away.

On cross-examination, Kevin admitted that he would lie to get out oftrouble and that he initially told the police that he knew nothing about ashooting. When he heard the State was seeking the death penalty in his case,he told his lawyer to cut a deal.

The record indicates that the Aurora police stopped Priest Pryor's blueChevrolet approximately one mile from Harper's around midnight on the night ofthe shooting. A handprint was located on the rear passenger window. IllinoisState Police forensic scientist Joseph V. Ambrozich testified that the latenthandprint from the blue Chevrolet matched the handprint on the printcard ofdefendant. Ambrozich acknowledged that he could not determine the age of thehandprint.

Phillip Nigel Robbin (Nigel) testified on defendant's behalf. Nigelsaid that defendant is a friend he has known for six or seven years. According to Nigel, he picked up defendant at about noon on October 27, 1994.They drove around until 10:30 or 11 p.m., when they went to an apartment. Tammy Stewart and her aunt were at the apartment. At about 12:30 or 1 a.m.,he and Tammy took defendant home. Nigel stated that he and defendant werenever at or near Harper's gas station on October 27, 1994.

Shalanda Stewart testified that she had been defendant's girlfriend from1991 through 1994. Although she is not defendant's girlfriend anymore, shestill loves him and considers him a friend. On October 27, 1994, at about10:30 p.m., defendant came to her apartment with Nigel. Defendant was wearingmaroon pants and a multicolored shirt. Defendant left her apartment around11:30 p.m. with Tammy Stewart and Nigel.

Tammy Stewart and Annette Stewart also testified that defendant came tothe apartment around 10 p.m. and that Tammy and Nigel took defendant homearound midnight.

Defendant testified on his own behalf. He stated that on October 27,1994, a little after 10 p.m., he went to his girlfriend's apartment withNigel. Shalanda Stewart, Annette Stewart, Tammy Stewart, and Lynette Stewartwere at the apartment. Defendant testified that Nigel and Tammy Stewart tookhim home around midnight. Defendant said he was wearing a red, green, andwhite sweater and dark red pants that night.

Defendant testified further that he was an associate of the GangsterDisciples. He knows a Gangster Disciple named Priest Pryor who owns a blueChevrolet. Defendant stated that he was near that vehicle in Farnsworth Parksometime within the week prior to the shooting and, at that time, hespecifically remembered touching the rear passenger window with his hand. Defendant knew Pryor, House, Scott, Bailey, Foster, Robinson, Mott, and theKirkwoods and knew them to be Gangster Disciples, but he did not see any ofthem on October 27, 1994. Defendant testified that he was not at Harper's gasstation between the hours of 10 p.m. and midnight on October 27, 1994, andthat he did not shoot Armando Mendez.

When defendant spoke to the police about the events of October 27, 1994,defendant said that he was with Shalanda and Annette Stewart but failed tomention the other names because he did not want to get them involved. Defendant admitted that he lied to the police when he told them that he took acab to Shalanda's apartment. Defendant claimed that he did not want toinvolve Nigel because Nigel had been in trouble with the police.

The jury deliberated on the foregoing evidence and returned verdicts ofguilty on four counts of first-degree murder. The trial court found thatdefendant qualified for the death penalty under section 9--1(b)(11) of theCriminal Code of 1961 (720 ILCS 5/9--1(b)(11) (West 1994)).

Defendant filed a pro se motion to dismiss his court-appointed trialcounsel alleging ineffective assistance of counsel, as well as variousconflicts of interest that he claimed his trial counsel labored under. Themotion prayed for a new trial. The trial court appointed attorney Jay Wiegmanto represent defendant on the motion to dismiss counsel. Attorney Wiegmanfiled a motion to withdraw as appointed counsel stating that the allegationsraised in defendant's pro se motion were without merit.

No evidence was presented at the proceeding on defendant's pro semotion. Instead, attorney Wiegman stated his findings. The trial court alsoheard from defendant's trial counsel, who explained certain circumstancesregarding defendant's allegations, and the State argued that defendant'smotion should be denied. The trial court denied defendant's motion.

Subsequently, defendant filed a pro se motion to reconsider the rulingthat raised additional allegations of ineffective assistance of trial counsel. Attorney Wiegman determined that this motion was also without merit. Defendant argued his motion to the court, and his trial counsel explained thecircumstances regarding defendant's allegations. The State argued that themotion should be denied. The trial court denied defendant's motion toreconsider.

A posttrial motion for a new trial was denied. In sentencing defendant,the trial court found that two mitigating factors precluded imposition of thedeath penalty, namely, defendant's youth and his lack of significant criminalhistory. In finding defendant eligible for a term of natural lifeimprisonment, the trial court reiterated its finding that a death penaltyeligibility factor was present and found further that the murder of ArmandoMendez was accompanied by exceptionally brutal and heinous behavior,indicative of wanton cruelty. The trial court pronounced a sentence ofnatural life imprisonment. Defendant's motion to reconsider the sentence wasdenied. This timely appeal followed.

On appeal, defendant first argues that his conviction should bereversed because the State failed to prove him guilty beyond a reasonabledoubt. Defendant contends that the State failed to prove that he was theperson who shot Armando Mendez because no physical evidence connecteddefendant to the murder; the State did not present evidence to refutedefendant's alibi; and the eyewitness testimony was inconsistent, conflicting,and was given in part by two codefendants.

The relevant inquiry in reviewing the sufficiency of evidence iswhether, after viewing the evidence in the light most favorable to the State,any rational trier of fact could have found the essential elements of thecrime beyond a reasonable doubt. People v. Perez, 189 Ill. 2d 254, 265-66(2000). The identification of the accused by a single witness is sufficientto sustain a criminal conviction if the witness viewed the accused undercircumstances allowing a positive identification. People v. Lewis, 165 Ill.2d 305, 356 (1995).

Defendant argues that Keith Smith's testimony cannot reasonably beaccepted as reliable because his opportunity to observe was brief and therewere 1