People v. Tolliver, 1-01-3147.

Citation807 N.E.2d 524,282 Ill.Dec. 900,347 Ill. App.3d 203
Decision Date12 March 2004
Docket NumberNo. 1-01-3147.,1-01-3147.
PartiesThe PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Jonathan TOLLIVER, Defendant-Appellant.
CourtUnited States Appellate Court of Illinois

Jenner & Block, Chicago (Christopher O'Connor, of counsel), for Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Peter Fischer, of counsel), for Appellee.

Justice SHEILA M. O'BRIEN delivered the opinion of the court:

We affirm defendant Jonathan Tolliver's convictions for the first degree murder of Michael Ceriale and for possession of a controlled substance with intent to deliver and his concurrent sentences of 60 years' and 15 years' imprisonment.

Michael Ceriale, a Chicago police officer, was fatally shot while conducting an undercover narcotics investigation.

Defendant was tried before a jury for the murder of Ceriale, for possession of a controlled substance with intent to deliver and for criminal drug conspiracy. He was found guilty of possession with intent to deliver, and acquitted of the charge of criminal drug conspiracy. A mistrial was declared on the murder charge because of a hung jury on that charge.

Defendant was retried before another jury for the murder of Ceriale, found guilty and sentenced to concurrent sentences of 60 years for murder and 15 years for possession of a controlled substance with the intent to deliver. He filed this appeal.

Upon appeal, defendant contends that: (1) the State failed to prove him guilty beyond a reasonable doubt of murder or possession of a controlled substance with the intent to deliver; (2) the trial court erred in admitting testimony related to defendant's arrest for possession of a controlled substance with intent to deliver; (3) he was denied a fair trial by admission of excessive evidence about street gangs; (4) the trial court erred in allowing evidence of gang intimidation where no evidence of intimidation was tied to defendant; (5) he was denied a fair trial by multiple incidents of prosecutorial misconduct; (6) he was denied a fair trial by the prosecutor's closing argument; (7) the trial court abused its discretion in excluding exculpatory evidence; (8) defendant was denied a fair trial by cumulative error; (9) the trial court erred in denying defendant's motion to bar retrial on the grounds of double jeopardy; and (10) the trial court erred in sentencing defendant as an adult on the possession charge.

The trial testimony summarized here is from defendant's first and second jury trials.

The State's Witnesses

Chicago police sergeant Mark Moore of the organized crime division, narcotic and gang investigation section, testified about the operation and security of illegal drug sales of the Gangster Disciples street gang. "Outside security" was two gang members who watched outside the building for police or for rival gang members. Inside the building, gang members known as "servers" or "holders" held the drugs and handled the sales. Another armed gang member searched people as they entered and left the building.

Security worked in two shifts and with one weapon, a .357-caliber firearm which was passed from shift to shift along with six extra bullets.

Moore testified that the drug operation at 4101 South Federal Street was controlled by the Gangster Disciples street gang. Gangs have bylaws and rules and a broken rule is a "violation." The Gangster Disciples consider "tricking" or testifying against each other as one of the worst violations. Gang members who "trick" are badly beaten or killed.

Chicago police officer Joseph Ferenzi testified that in the early morning hours of August 15, 1998, he and Chicago police officer Michael Ceriale, plainclothes partners, were conducting drug surveillance at 4101 South Federal Street. They parked their unmarked car in front of Hartigan grammar school, exited the car and walked to an elevated, wooded area called "the coal mine." The area was well lit by street-lights, wall lighting on the school, and lights on all floors of nearby 4101 South Federal Street.

Ferenzi testified that they saw three women sitting on a bench at 4101 South Federal Street, another person standing and talking to the women and a black male in dark clothing sitting on a milk crate approximately 150 feet away. The officers thought that the male or the people on the bench were "outside security." The male on the milk crate looked in the direction of the officers, got up and walked into the breezeway. He returned to the milk crate with two other men, one a thin, lightskinned black male approximately 6 feet to 6-feet-2 inches tall wearing an orange baseball cap turned backwards, an orange jersey with a light-colored number "50" and dark pants, and the other, a black male shorter in height, with dark hair, wearing a red top with light-colored writing and light-colored shorts or overalls.

Ferenzi testified that these two males stopped and pointed at the officers. Ceriale said, "Joe, I think they made us. The guy in the orange hat and orange jersey." Ferenzi replied, "Yeah, I see him." The two males eventually walked across the grass and stopped. The male in orange clothing moved closer to the officers and looked at them.

Then, Ferenzi heard a noise "like an M80" and saw sparks flying from the outstretched hands of the male in orange clothing. Ceriale screamed and fell to the ground while the shooter and the male in red ran back into the breezeway. Ceriale said, "He shot me," referring to the male in orange.

Ferenzi did not see the face of the shooter during the shooting. Ferenzi called for an ambulance just after 3:30 a.m.

Detective James Jones testified that he spoke with Ceriale after the shooting, while Ceriale was still coherent. Ceriale told Jones that he was shot by a slender, tall, male black wearing an orange baseball cap turned backwards, an orange sports jersey with white or light lettering featuring a "zero" and another number, and dark-colored pants who ran back towards 4101 South Federal Street after the shooting.

Officers Amina Greer and Ethel Green testified that they monitored the radio call of an "officer down", and arrived on the scene at 3:40 a.m. Greer and Green had a description of the offender as a "male black wearing an orange baseball cap turned backwards and an orange jersey shirt." Green saw defendant standing with three other males in the crowd of approximately 100 people and noted that defendant matched the description. Green and Greer approached defendant, who gave his name and age as 18 years old. Defendant said he was coming from a party and going home to 4101 South Federal Street.

Green testified that defendant was fidgety, nervous, making rapid eye movements, and breathing fast and would not look at her. Green patted defendant down for weapons and found none.

Ferenzi viewed four suspects at the scene. He identified a tall, light-skinned male black wearing an orange baseball cap turned backwards, an orange jersey with "50" in light-colored writing and dark pants as the shooter.

That male was the defendant.

At trial, six witnesses called by the State testified contrary to their prior grand jury testimony and their prior statements.

Lacole Dismuke testified contrary to her grand jury testimony and her prior statements. At trial, Lacole denied witnessing the shooting and denied telling the police about the shooting or about a Gangster Disciple drug operation at 4101 South Federal Street. She testified that she ran to apartment 810 at 4037 South Federal Street after the shot. Lacole testified that when she returned to apartment 609 later that morning, her sister showed her a gun and she handled the gun.

Lacole testified that early another morning, she was awakened by five police detectives with drawn guns who transported her to police headquarters for questioning. She testified that she was questioned for hours by Detective Jones and that Jones refused to accept that she knew nothing of the shooting. Jones repeatedly told her she was in "deep shit," which she believed meant that her fingerprints were found on the gun used in the shooting. She was afraid she would be jailed because she was already on probation for a weapon charge.

Lacole testified that Detective Jones told her what to say before the grand jury. She feared his police authority and testified to the grand jury as he suggested, although he did not threaten or touch her. Jones coached her sister and Tameesha Bolden as to their testimony also.

Lacole testified she was visited by approximately 15 relatives of codefendant Robert Brandt several days after testifying before the grand jury. The Brandts said they were angry that Lacole had testified; they threatened to "blow up" her apartment, "whip her ass," and kill her niece.

She did not immediately call the police after the Brandt incident. She later returned to the grand jury and again testified that she witnessed the shooting, and further, she testified to the incident with the Brandt family. When one of the grand jurors asked Lacole if those who threatened her were Gangster Disciples, Lacole responded, "some of them was."

Detective Jones denied that he or any officers told her she was in "deep shit." He testified that Lacole told police details concerning the drug operation at 4101 South Federal Street.

Tameesha Bolden testified contrary to her grand jury testimony and her prior statements. At trial, she denied knowing details about the shooting. She testified that her statements and grand jury testimony were from a paper given to her by Detective Rose and that she gave the statements because police told her that they had already arrested the defendant and that she would get home quicker if she memorized the paper. She told Detective Jones that the paper was not true.

Tameesha testified that defendant was not present when she was in the breezeway at 4101 South Federal Street at 3...

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    ...of gang-related expert testimony to explain motive and why a witness recanted an earlier statement. In People v. Tolliver, 347 Ill.App.3d 203, 282 Ill.Dec. 900, 807 N.E.2d 524, 541 (2004), appeal denied,211 Ill.2d 610, 291 Ill.Dec. 391, 823 N.E.2d 977 (2004), cert. denied,544 U.S. 1019, 125......
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