People v. Joe

• Decision Date: 23 January 1991
• Docket Number: No. 5-88-0646,5-88-0646
• Citation: 207 Ill.App.3d 1079,152 Ill.Dec. 924,566 N.E.2d 801
• Parties: , 152 Ill.Dec. 924 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darryl JOE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 801

566 N.E.2d 801

207 Ill.App.3d 1079, 152 Ill.Dec. 924

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Darryl JOE, Defendant-Appellant.

No. 5-88-0646.

Appellate Court of Illinois Fifth District.

Jan. 23, 1991.

Daniel M. Kirwan, Deputy Defender and Rita K. Peterson, Asst. Defender, Office of the State Appellate Defender, Mount Vernon, for defendant-appellant.

John Baricevic, State's Atty., Belleville, Kenneth R. Boyle, Director, Stephen E. Norris, Deputy Director, and Kendra S. Mitchell, Staff Atty., Office of the State's Attys. Appellate Prosecutor, Mount Vernon, for plaintiff-appellee.

Justice HARRISON delivered the opinion of the court:

Following a jury trial held in the circuit court of St. Clair County on September 14-16, and 19, 1988, defendant, Darryl Joe, was found guilty of the first-degree murder of Dr. Barrett Coleman. (Ill.Rev.Stat.1987, ch. 38, par. 9-1(a)(3).) Defendant appeals this conviction and his sentence to a 60-year term of imprisonment. The following issues are presented for review: (1) whether defendant was proven guilty of the offense beyond a reasonable doubt; (2) whether he was denied a fair trial by prosecutorial remarks made during opening statements; (3) whether he was denied a fair trial by an error made in the timing of closing arguments; and (4) whether his sentence was based on the trial court's consideration of improper factors.

Defendant first contends that he was not proven guilty beyond a reasonable doubt because the circumstantial evidence offered by the State did not exclude every reasonable hypothesis of his innocence, citing People v. Deatherage (1984), 122 Ill.App.3d 620, 78 Ill.Dec. 47, 461 N.E.2d 631. However, our supreme court has made it clear that the reasonable hypothesis of innocence standard of review is no longer viable in Illinois. (People v. Pintos (1989), 133 Ill.2d 286, 291, 139 Ill.Dec. 832, 834, 549 N.E.2d 344, 346.) Instead, the reasonable doubt test as set forth in People v. Collins (1985), 106 Ill.2d 237, 261, 87 Ill.Dec. 910, 920, 478 N.E.2d 267, 277, cert. denied, 474 U.S. 935, 106 S.Ct. 267, 88 L.Ed.2d 274, should be applied in reviewing the sufficiency of evidence in all criminal cases, whether the evidence is direct or circumstantial. Pintos, 133 Ill.2d at 291, 139 Ill.Dec. at 834, 549 N.E.2d at 346.

The evidence in this case, when viewed in the light most favorable to the prosecution (see Collins, 106 Ill.2d at 261, 87 Ill.Dec. at 920, 478 N.E.2d at 277), establishes the following facts. Defendant's brother, Demetrius Joe, testified that he, defendant, and another brother, Kevin Joe, agreed to help Curtis Kitchen rob someone that Kitchen knew. Kitchen drove defendant and his two brothers to defendant's sister's home in order to retrieve a gun. Lisa Joe and Donivan Lasley, defendant's sister and her boyfriend, testified that defendant and Kevin came to her house that evening and left with two guns, a shotgun and a pistol. Lisa then saw defendant and Kevin get into a car driven by Kitchen.

Demetrius testified that from Lisa's house Kitchen drove him and his brothers around the corner from where the victim was seated in a parked car. Defendant and Kevin got out of Kitchen's car and walked in the direction of the victim's car. Demetrius saw the lights on the victim's car come on and the vehicle drive away. Demetrius and Kitchen followed the victim's car to a nearby junk yard and parked a short distance away. Demetrius told Kitchen he was leaving and had just exited the car when he saw Kevin and defendant running back toward Kitchen's car.

Lea Reed and Jerry Butler were sitting in a parked car when Butler heard a gunshot and both saw two boys running along the street behind a car, which the boys entered. Reed and Butler heard a man calling for help and went to him. Reed testified that the man identified himself as Dr. Coleman and told her that two boys had robbed and shot him.

Charles Cary testified that he was walking near Butler's car when he heard a gunshot. Cary saw a car driving away, with defendant, Kevin and a third person running behind it. Defendant and Cary exchanged greetings as defendant jumped in the car and it sped away. A short time later, defendant and Kevin were seen at Cotina Valentine's house where witnesses Cary, Allie Fischer and Paula McCray observed the two pacing the floor and acting nervous. Cary testified that defendant pulled out a gun and gave it to Kevin, who unloaded it. Cary identified People's Exhibit No. 3 as the gun defendant was holding.

Although Allie Fischer denied her earlier statement to police that she had seen defendant with a gun, she testified to overhearing a conversation between Kevin and defendant, during which Kevin told defendant, " '[M]an, when you shoot somebody you don't [sic ] supposed to shoot to kill.' " According to Fischer, defendant replied, " '[M]an, when I shoot somebody, when I shoot I suppose [sic ] to kill.' "

Firearms expert Thomas Gamboe identified People's Exhibit No. 3 as the weapon that had fired the projectile recovered from Dr. Coleman's body. Forensic scientist Garold Warner identified a latent fingerprint recovered from the exterior of Dr. Coleman's car door as belonging to defendant, although Warner could not determine when the print had been made.

Defendant argues that because Demetrius did not see defendant or Kevin with the murder weapon when they left Kitchen's car, there can be no inference that defendant was at the scene with the murder weapon. However, the jury need not be satisfied beyond a reasonable doubt as to each link in the chain of circumstances which are relied upon to establish guilt, if all the evidence, taken together, convinces the jury beyond a reasonable doubt of the defendant's guilt. (People v. Foster (1979), 76 Ill.2d 365, 374, 29 Ill.Dec. 449, 452, 392 N.E.2d 6, 9.) Defendant was seen with a handgun before the shooting and with a gun identified as the murder weapon shortly after the shooting. This evidence, along with defendant's statement to Kevin following the shooting, was sufficient to allow a rational trier of fact to infer that defendant was at the scene with the murder weapon.

The remaining weaknesses in the State's case pointed to by defendant are similarly nonfatal to a jury's finding of guilt. Defendant argues that Demetrius' testimony is less than credible because he testified against his brother as part of a plea agreement in the case. Defendant correctly asserts that as an accomplice, Demetrius' testimony should be viewed with caution and suspicion. (See People v. Newell (1984), 103 Ill.2d 465, 470, 83 Ill.Dec. 229, 231, 469 N.E.2d 1375, 1377). However, it is the function of the trier of fact to determine the credibility of the witnesses, the weight to be given their testimony, and the inferences to be drawn from the evidence. (People v. Waln (1988), 169 Ill.App.3d 264, 273, 120 Ill.Dec. 407, 413, 523 N.E.2d 1318, 1324.) Therefore, where accomplice testimony has satisfied the jury of a defendant's guilt beyond a reasonable doubt, a court of review should not disturb the jury's verdict unless it is plainly apparent that the necessary degree of proof is lacking. (Waln, 169 Ill.App.3d at 272, 120 Ill.Dec. at 413, 523 N.E.2d at 1324.) Here, where the jury was aware of Demetrius' motivation to testify and where that testimony was corroborated in several respects by other witnesses, we cannot say that it was unreasonable for the jury to have believed Demetrius' account.

We similarly find that it was not unreasonable for the jury to infer that defendant's fingerprint, found on the victim's car, was made the night of the shooting. Although no method for dating a latent print exists, and evidence was presented concerning other opportunities for defendant to have made the print, these matters were explored on cross-examination and argued to the jury, and the jury found against the defendant. See People v. Eyler (1989), 133 Ill.2d 173, 192, 139 Ill.Dec. 756, 764, 549 N.E.2d 268, 276.

Finally, defendant contends that a note sent by the jury during deliberations, asking the court whether there was an option other than first-degree murder, should be interpreted as indicating that the jury was not convinced of defendant's guilt beyond a reasonable doubt. We agree with the State that this assertion is "an exercise in pure speculation." Regardless of the jury's concern at the time the note was written, their ultimate verdict of guilt and their responses when polled confirm their belief in defendant's guilt, and we will not disturb that determination.

Defendant next contends that he was denied a fair trial by the State's reference in its opening statement to charges for which defendant was not on trial. Defendant was originally charged on March 9, 1988, with armed robbery, attempted murder, armed violence, aggravated battery and aggravated kidnapping. Following Dr. Coleman's death, defendant was charged, on May 6, 1988, with first-degree murder. On September 8, 1988, an amended information was filed charging defendant alternatively with first-degree murder with intent under section 9-1(a)(1) and first-degree murder while attempting or committing a forcible felony under section 9-1(a)(3) (Ill.Rev.Stat.1987, ch. 38, pars. 9-1(a)(1), (3).) During the prosecutor's opening statement at trial, he remarked to the jury: "[F]our men were arrested for the shooting of Dr. Coleman. This defendant was one of them. They were originally charged with armed robbery, aggravated battery, a number of offenses. Those offenses were elevated upon Dr. Coleman's death, to the offense of first-degree murder."

Defendant claims that the prosecutor's reference to the original charges was prejudicial to defendant because the prosecutor's remark concerning the "elevated" charges did not let the jury know that defendant was not being tried on those charges or that they had been dismissed, thus allowing the jury to speculate that the charges...