People v. Mccarter

• Decision Date: 26 July 2011
• Docket Number: No. 1–09–2864.,1–09–2864.
• Citation: 2011 IL App (1st) 092864,352 Ill.Dec. 635,954 N.E.2d 718
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Brandon McCARTER, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 092864
954 N.E.2d 718
352 Ill.Dec. 635

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Brandon McCARTER, Defendant–Appellant.

No. 1–09–2864.

Appellate Court of Illinois, First District, Sixth Division.

June 24, 2011.Rehearing Denied July 26, 2011.

[954 N.E.2d 721]

Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Defender, Jessica D. Fortier, Jonathan Krieger, Assistant Appellate Defenders, Chicago, for Defendant–Appellant.Anita Alvarez, State's Attorney (Alan J. Spellberg, Mary Needham, William L. Toffenetti, Assistant State's Attorneys, of counsel), for Plaintiff–Appellee.[352 Ill.Dec. 638] OPINION Presiding Justice GARCIA delivered the judgment of the court, with opinion.

¶ 1 Following a bench trial, Brandon McCarter was convicted of murder, aggravated[352 Ill.Dec. 639]

[954 N.E.2d 722]

kidnapping, armed robbery, aggravated vehicular hijacking, and concealment of homicidal death. The defendant challenges all five of his convictions, only two of which we find cannot stand. We reverse the defendant's conviction for armed robbery because we find no admissible evidence to establish that the victim was ever robbed. Because we reverse the armed robbery conviction, we vacated the judgment of conviction entered on count VIII for aggravated kidnapping, based on the commission of armed robbery. However, the defendant was found guilty of six counts of aggravated kidnapping, with the five remaining counts merged in count VIII. We remand to the circuit court to enter judgment on a good aggravated kidnapping count. We reverse the defendant's conviction for aggravated vehicular hijacking where no evidence was presented that the defendant ever deprived the victim of possession of his car.¶ 2 BACKGROUND

¶ 3 Defendant Brandon McCarter was charged in a 14–count indictment with murder (5 counts), armed robbery (1 count), aggravated vehicular hijacking (1 count), aggravated kidnapping (6 counts), and concealment of homicidal death (1 count). The charges arose after the body of Tyree Bias was discovered in a burning car in a wooded area in Chicago. The defendant was charged, along with his brother Jamie McCarter, with the murder of Bias. We affirmed Jamie McCarter's conviction following a separate jury trial. People v. McCarter, 385 Ill.App.3d 919, 325 Ill.Dec. 17, 897 N.E.2d 265 (2008). The instant defendant was convicted of all charges following a bench trial. He received consecutive sentences on each of his convictions: 35 years for murder, 10 years for armed robbery, 10 years for aggravated vehicular hijacking, 10 years for aggravated kidnapping, and 5 years for concealment of homicidal death. The following evidence material to this appeal was introduced at his trial.

¶ 4 Around 6 a.m. on July 8, 2003, Vanessa Jackson was in her car delivering newspapers near the intersection of 137th Street and Wentworth Avenue in Chicago. Ms. Jackson observed a dark car parked on a gravel road, blocking her way, causing her to drive around the car. She saw three men in the car, one man in each front seat and one man seated behind the driver. She later saw two men standing alongside the car. One man had a T-shirt pulled up over his head, and the other man was wearing a hooded sweatshirt. A few minutes later, Ms. Jackson saw the two men running across a field and, about 15 minutes after that, Ms. Jackson saw the men at a nearby pay phone. Ms. Jackson was unable to identify either of the men.

¶ 5 Around 6:30 a.m. on July 8, 2003, Officer Reilly responded to a call regarding a brush fire at 136th Street and Wentworth. Tire tracks led north into a wooded area where a black car was found crashed through a fence into the brush. The car and the surrounding brush had caught fire. The source of the fire was later determined to be the car itself. Tyree Bias's severely burnt body was found in the driver's seat.

¶ 6 Later that day, Sergeant Daniel Dempsey met with Bias's girlfriend Lakesha Johnson. Ms. Johnson admittedly lied to Sergeant Dempsey when she told him that Bias left her house between 7:30 and 8:00 a.m. that morning. After meeting with Ms. Johnson, Sergeant Dempsey learned that Bias had died of a gunshot wound to the back of the head. Sergeant Dempsey reexamined the scene and found a wad of burnt money in Bias's car.

¶ 7 On July 15, Ms. Johnson was brought into police custody and questioned about Bias's death. After being in custody for around 72 hours, Ms. Johnson gave [352 Ill.Dec. 640]

[954 N.E.2d 723]

both a written and videotaped statement to Assistant State's Attorney (ASA) Patrick Enright. In her written statement, Ms. Johnson told ASA Enright that Bias was a drug dealer. She explained that the defendant and Bias were rival drug dealers who were not getting along. Five days before Bias's murder, the defendant told Ms. Johnson that he was going to get her a car. The defendant said to Ms. Johnson, “that if things got bad with Tyree [Bias] when they were going to take what they needed, he was going to take care of business.” Ms. Johnson explained in her written statement that she understood the defendant's statements to mean that the defendant was going to shoot Bias and take his money. On July 6, Ms. Johnson told the defendant that Bias was coming home from jail later that day. On July 7, the defendant said to Ms. Johnson, “it's almost time for you to get that car” and “it's going down tomorrow.” Ms. Johnson explained that she understood these statements to mean that the defendant was going to rob and kill Bias.

¶ 8 In her written statement, Ms. Johnson also described what she saw the morning of July 8, 2003. Around 5:15 a.m., Bias left her home. About 10 minutes later, Ms. Johnson saw Bias pull back into her driveway. She then saw the defendant's brother, Ernest McCarter, park his car in front of her house. The defendant and a second brother, Jamie McCarter, got out of Ernest McCarter's car and approached Bias's car. Jamie McCarter was holding a handgun, and the defendant was holding what appeared to be a sawed-off shotgun. The defendant and Jamie McCarter were both dressed in black, hooded sweatshirts. The defendant got into the passenger seat of Bias's car and Jamie McCarter sat behind Bias, pointing his gun at the back of Bias's head. Bias then backed out of the driveway and drove away.

¶ 9 Finally, Ms. Johnson recited, in her written statement, the contents of a conversation she had with the defendant and Jamie McCarter two days after the killing. Jamie McCarter said “did you see that bitch flinch when I shot him” and admitted that he shot Bias in the back of the head while Bias was in the car. Jamie McCarter also told Ms. Johnson that he and the defendant placed Bias's foot on the gas pedal, put the car in drive, ran to the park, and went to a pay phone. Jamie McCarter later altered his story. He told Ms. Johnson that they were standing outside of Bias's car when he shot Bias. Jamie McCarter also claimed to Ms. Johnson that he had taken $3,000 from Bias.

¶ 10 At trial, Ms. Johnson testified that she fabricated the story in her written statement because she was threatened by the police. She was repeatedly impeached by the State with the testimony she gave at Jamie McCarter's trial and with her prior statements to the police. Ms. Johnson's entire written statement that she gave to ASA Enright was admitted, without a defense objection, under section 115–10.1 of the Code of Criminal Procedure of 1963. 725 ILCS 5/115–10.1 (West 2008).

¶ 11 Gerard Jimerson was also questioned by the police and testified on behalf of the State. At trial, he acknowledged that after he spoke to an assistant State's Attorney, he was relocated and provided with a month's rent and security deposit. On the morning of Bias's death, Mr. Jimerson was awakened at his home on 127th Street by the defendant and Jamie McCarter. The defendant told Mr. Jimerson that he had thrown drugs and a gun away while running from the police and needed a ride home. Mr. Jimerson drove the defendant and Jamie McCarter home. Mr. Jimerson also testified that a couple of days later, the defendant and Jamie McCarter were both crying and told him that “the hanging [352 Ill.Dec. 641]

[954 N.E.2d 724]

come before the catching, and he is not about to do a hundred years in jail.” The defendant also told Mr. Jimerson that before he got caught for murdering Bias, he would kill Mr. Jimerson and his family.

¶ 12 Ernest McCarter gave the police written and videotaped statements after being held in custody for several days. On cross-examination at the defendant's trial, Ernest McCarter testified that the police promised not to charge him with murder if he agreed to testify against the defendant and Jamie McCarter. On direct, Ernest McCarter testified that the defendant and Bias were members of rival gangs that were at war. Around 7:30 or 8 a.m. on the morning of Bias's murder, Mr. Jimerson, along with the defendant and Jamie McCarter, arrived at Ernest McCarter's house. Ernest McCarter testified that Jamie McCarter placed a .38–caliber handgun under his mattress. Later that day, the defendant told Ernest McCarter that he got a “trophy.” Ernest McCarter explained that getting a “trophy” meant that someone from a rival gang had been killed. The defendant told Ernest McCarter that Bias was the trophy.

¶ 13 Ernest McCarter also testified that the defendant told him about the events surrounding Bias's murder. The version testified to by Ernest McCarter, however, differed from the version contained in Ms. Johnson's written statement. The defendant told Ernest McCarter that he and Jamie McCarter flagged down Bias in his car. The defendant and Jamie McCarter convinced Bias to drive them around to look for drugs they lost and then Jamie McCarter shot Bias in the back of the head near a side street in Riverdale. The defendant and Jamie McCarter jumped out of the car, which sped forward and crashed through a fence. The defendant left his shirt...