People v. McCarter , 2011 IL App (1st) 92864 ( 2011 )

ILLINOIS OFFICIAL REPORTS
Appellate Court
People v. McCarter, 2011 IL App (1st) 092864Appellate Court THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v.
Caption BRANDON McCARTER, Defendant-Appellant.
District & No. First District, Sixth Division
Docket No. 1–09–2864
Filed June 24, 2011
Rehearing denied July 26, 2011
Held On appeal, defendant’s convictions for murder, aggravated kidnapping
(Note: This syllabus and concealment of a homicidal death were affirmed, but his
constitutes no part of the convictions for armed robbery, aggravated kidnapping based on armed
opinion of the court but robbery and aggravated vehicular hijacking were reversed.
has been prepared by the
Reporter of Decisions for
the convenience of the
reader.)
Decision Under Appeal from the Circuit Court of Cook County, No. 04–CR–1788; the
Review Hon. Frank Zelezinski, Judge, presiding.
Judgment Affirmed in part and vacated in part; cause remanded for further
proceedings.
Counsel on Michael J. Pelletier, Alan D. Goldberg, Jessica D. Fortier, and Jonathan
Appeal Krieger, all of State Appellate Defender’s Office, of Chicago, for
appellant.
Anita M. Alvarez, State’s Attorney, of Chicago (Alan J. Spellberg,
Mary Needham, and William L. Toffenetti, Assitatant State’s Attorneys,
of counsel), for the People.
Panel PRESIDING JUSTICE GARCIA delivered the judgment of the court,
with opinion.
Justice McBride concurred in the judgment and opinion.
Justice R.E. Gordon dissented, with opinion.
OPINION
¶1 Following a bench trial, Brandon McCarter was convicted of murder, aggravated
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 (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
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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 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
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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 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
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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 in Bias’s car, so the defendant jumped the fence to retrieve his shirt
but set the shirt on fire instead. The defendant and Jamie McCarter ran to a pay phone to call
Mr. Jimerson. They walked to Mr. Jimerson’s house, who drove them home.
¶ 14 The defense did not present any witnesses. The trial judge found the defendant guilty on
all charges. This appeal followed.
¶ 15 ANALYSIS
¶ 16 The defendant raises six issues, challenging each of his five convictions and the
admission of Ms. Johnson’s prior inconsistent statement: (1) he was not proved guilty of
murder beyond a reasonable doubt because the State’s witnesses’ testimonies were
inconsistent and unreliable; (2) plain error was committed by the admission, as substantive
evidence, of portions of Lakesha Johnson’s prior inconsistent statement containing
inadmissible hearsay and inadmissible lay witness opinions; (3) he was not proved guilty of
armed robbery because the only evidence proving a robbery occurred was an inadmissible
hearsay statement in Ms. Johnson’s prior inconsistent statement; (4) he was not proved guilty
of aggravated kidnapping because the asportation was incidental to the other crimes
committed by the defendant; (5) he was not proved guilty of aggravated vehicular hijacking
because no “taking” of the victim’s car within the meaning of the statute occurred; and (6)
concealment of homicidal death was not proved beyond a reasonable doubt because no real
concealment occurred and the State failed to prove every allegation of the charge in the
indictment. We address the issues in the order raised by the defendant.
¶ 17 1. Evidence of Murder
¶ 18 The defendant first contends that the failure of the State’s witnesses to promptly come
forward with information related to Bias’s murder renders their testimony unworthy of belief.
Each of the witnesses provided information to the police only after being arrested. The
defendant specifically points out that Lakesha Johnson denied she knew anything about the
murder when she was first questioned by police on the day Bias’s body was discovered. A
week passed before she gave her written statement incriminating the defendant to the police
following her arrest. The defendant argues the surrounding circumstances make the evidence
provided by each of the witnesses not credible, which provides grounds for reversal under
People v. Charleston, 47 Ill. 2d 19 (1970).
¶ 19 The defendant also argues Ms. Johnson, Ernest McCarter, and Mr. Jimerson had motives,
opportunities, and time to fabricate their testimony, all of which undermines the credibility
of their testimony to the point that reasonable doubt remains. The defendant directs our
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attention to People v. Smith, 185 Ill. 2d 532 (1999), for support on this point.
¶ 20 Finally, the defendant argues that unbelievable testimony was given by Ms. Johnson,
Ernest McCarter and Mr. Jimerson because each witness was impeached numerous times and
gave inconsistent and contradictory accounts of the events leading up to Bias’s murder. The
defendant points out that Ernest McCarter’s testimony about where and how the defendant
got into Bias’s car differed from the account in Ms. Johnson’s handwritten statement. The
defendant argues that the inconsistencies in the evidence provided by the State’s witnesses
are irreconcilable, which compels reversal.
¶ 21 It is not the function of this court to retry the defendant. People v. Tenney, 205 Ill. 2d
411, 428 (2002). It falls within the province of the trier of fact to judge the credibility of
witnesses, resolve conflicts in the evidence, and draw conclusions based on all the evidence.
People v. Titone, 115 Ill. 2d 413, 422 (1986). A reviewing court will not substitute its
judgment for that of the trier of fact on these matters. People v. Ortiz, 196 Ill. 2d 236, 259
(2001). On review of a guilty verdict, a reviewing court asks only if any rational trier of fact
could have reached the same conclusion viewing the evidence in the light most favorable to
the prosecution. Id. The findings and judgment will not be reversed unless the evidence is
so improbable as to create reasonable doubt of the defendant’s guilt. Id. A reviewing court
must consider all of the evidence submitted at the original trial to resolve the question of the
sufficiency of the evidence. People v. Olivera, 164 Ill. 2d 382, 393-94 (1995).
¶ 22 That one witness’s testimony contradicts the testimony of other prosecution witnesses
does not render each witness’s testimony beyond belief. See People v. Cunningham, 212 Ill.
2d 274, 283 (2004). The trier of fact is free to accept or reject as much or as little of a
witness’s testimony as it pleases. People v. Logan, 352 Ill. App. 3d 73, 81 (2004); People v.
Goodar, 243 Ill. App. 3d 353, 357 (1993) (affirming a conviction even though there were
discrepancies between the accounts given by several witnesses). It is sufficient if all of the
evidence taken together satisfies the trier of fact beyond a reasonable doubt of the
defendant’s guilt. People v. Jackson, 232 Ill. 2d 246, 281 (2009).
¶ 23 A conviction, supported by a substantively admitted prior inconsistent statement, may
be upheld even though a witness recants on the stand the prior inconsistent statement
admissible under section 115–10.1 of the Code of Criminal Procedure of 1963 (725 ILCS
5/115–10.1 (West 2008)). People v. Craig, 334 Ill. App. 3d 426, 439 (2002). “[T]here are
no ‘suspect categories’ of properly admitted evidence that require a different standard of
appellate review. [Citation.] *** In other words, when a defendant is convicted and then
appeals, one standard of review applies to all evidence.” Id. A properly admitted prior
inconsistent statement under section 115–10.1 is, by virtue of its admissibility, reliable and
voluntary. People v. Morrow, 303 Ill. App. 3d 671, 677 (1999). The trier of fact may consider
a prior inconsistent statement introduced as substantive evidence under section 115–10.1 the
same as direct testimony by that witness. The trier of fact is free to accord any weight to such
properly admitted statements based on the same factors it considers in assessing direct
testimony. Id. “Once a jury or trial court has chosen to return a guilty verdict based upon a
prior inconsistent statement, a reviewing court not only is under no obligation to determine
whether the declarant’s testimony was ‘substantially corroborated’ or ‘clear and convincing,’
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but it may not engage in any such analysis.” (Internal quotation marks omitted.) (Emphasis
in original.) Morrow, 303 Ill. App. 3d at 677 (quoting People v. Curtis, 296 Ill. App. 3d 991,
999 (1998)).
¶ 24 Charleston and Smith, the cases the defendant places great reliance upon, are
distinguishable from the facts here.
¶ 25 In Charleston, our supreme court reversed the defendant’s conviction following a bench
trial. Charleston, 47 Ill. 2d at 20. The defendant was convicted of armed robbery and
attempted rape. An off-duty officer came upon the assault after he heard the victim’s
screams. Id. The assailant fled after the officer fired his gun, first as a warning, then at the
fleeing assailant. Id. The victim gave a thorough description of the assailant to the
responding police officers. The victim stated “she would know him if she saw him again.”
Id. at 21. The victim, however, failed to tell the officers “that she had gone to school with her
assailant, knew him and his name, and that he was a friend of her husband.” Id. The victim’s
explanation for her failure to give the responding officers the complete information she
possessed was inconsistent with her subsequent conduct. The victim explained her behavior
“in concealing the identity of her assailant for almost a week” by claiming a fear of the
defendant. Id. at 22. “ ‘I was scared. I figures that if he were bold enough to grab me he knew
me. He will get me again.’ ” Id. Yet, her fear of the defendant did not dissuade her from
identifying the defendant in a lineup six days after the alleged assault. Charleston, 47 Ill. 2d
at 22. The victim’s denial that she had ever seen the defendant with her husband or had ever
spoken with him was directly contradicted by the testimony of others. The defendant, his
fiancée, and another defense witness testified they had shared drinks with the victim and her
husband about three months before the alleged assault. Id. The defendant’s alibi defense,
supported by two witnesses, was not directly challenged. Id. Notably, the victim’s husband
did not testify. Id. The evidence in Charleston triggered the court’s duty to set aside a
conviction where reasonable doubt remains. “ ‘We attach great weight to the findings of the
trier of fact, including his appraisal of the credibility of the witnesses, but they are not
conclusive and it is our duty to set a conviction aside where the evidence is so unsatisfactory
as to raise a reasonable doubt of a defendant’s guilt.’ ” Charleston, 47 Ill. 2d at 22 (quoting
People v. Reese, 34 Ill. 2d 77, 80 (1966)). Based on the nature of the evidence presented in
Charleston, we are unpersuaded that the supreme court’s decision in that case, apart from the
general statement regarding when a conviction may be set aside, provides any guidance in
the case before us.
¶ 26 In Smith, our supreme court reversed a jury’s guilty verdict. Smith, 185 Ill. 2d at 534. The
State’s case in Smith hinged upon a single witness, who provided the only direct evidence
linking the defendant to the crime. Id. at 542. Importantly, the crucial witness contended that
the shooting, which resulted in the victim’s death, occurred when the defendant and the
victim were alone together. Id. However, at least three other witnesses testified that the
defendant was always with them up to and including the time of the shooting. Id. at 543.
There were also numerous other reasons to question the witness’s credibility, including her
out-of-court admission, which she denied on the stand, that she used drugs every day. Id. at
544. The witness also “did not tell the police that she had witnessed the shooting until two
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days later, when she found her sister at the 51st Street police station under suspicion of
involvement with the murder.” Id. Finally, the boyfriend of her sister was an “alternative
suspect” in the murder. Id. Ultimately, the court concluded that “given the serious
inconsistencies in, and the repeated impeachment of, [the witness’s] testimony, we find that
no reasonable trier of fact could have found her testimony credible.” Id. at 545. The court
noted: “[T]he circumstantial evidence tending to link defendant to the murder merely
narrowed the class of individuals who may have killed the victim, without pointing
specifically to defendant.” Id. Once again, we find the nature of the evidence presented in
Smith to be dissimilar to the evidence in the case before us.
¶ 27 Here, Ms. Johnson’s written statement alone provided substantial incriminating evidence
that the defendant was involved in the murder of Bias. See People v. Thomas, 354 Ill. App.
3d 868, 878-79 (2004). In addition to Ms. Johnson’s written statement, Mr. Jimerson and
Ernest McCarter implicated the defendant. Ms. Jackson’s testimony, which the defendant
does not challenge, largely corroborated, at least circumstantially, the accounts provided by
Ms. Johnson and Ernest McCarter that the defendant, while armed with a weapon, forcibly
entered Bias’s car and drove off. Unlike Charleston and Smith, this case did not turn on a
single witness presented by the prosecution. Unlike Smith, the direct and circumstantial
evidence beginning with the events at Bias’s home pointed specifically to the defendant in
the murder of the victim. See People v. Hall, 194 Ill. 2d 305, 333 (2000).
¶ 28 Nor is this a case in which the conflicts in the testimony were so numerous, confusing,
and contradictory as to raise reasonable doubt of the defendant’s guilt. See People v. Hister,
60 Ill. 2d 567, 571 (1975) (the testimony of each of the two eyewitnesses were so remarkably
different that it was “obvious that one or both of the witnesses was grossly mistaken or
untruthful” and the record was so “replete with other instances of inconsistent testimony
relating *** the description [of the co-defendants], the number of persons with them, the type
of automobile they were driving, who was armed and with what type of weapon, what other
witnesses were present *** the sequence and location of the events leading up to the
shooting, and the number of shots fired”). Nor do we find the testimony of the State’s
witnesses so contradictory that such evidence falls to the level of palpable improbability and
incredulity. See People v. Lindsey, 73 Ill. App. 3d 436, 447 (1979) (where a key witness’s
mental history was erroneously kept from the jury and the physical evidence contradicted the
witness’s claim that two girls were raped (later found to be virgins), that a stabbing occurred
(unsupported by evidence), that a strangulation by rope occurred (for which there was no
evidence), and there was no signs of a claimed aggravated assault, left the reviewing court
“with grave and substantial doubt of guilt”).
¶ 29 Rather, the facts in this case are most similar to those in People v. Logan, 352 Ill. App.
3d 73 (2004). In Logan, the defendant was convicted of murder for shooting two men by a
pay phone, fatally wounding one. Id. at 74-75. The State’s primary witness, after first telling
several different stories, provided the police with a written statement detailing her presence
with the defendant when he committed the murder. Id. at 74-76. There was also
corroborating evidence linking the defendant to the car driven by the assailant. Id. at 78. At
trial, the State’s primary witness recanted her prior written statement and grand jury
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testimony, which were substantively admitted into evidence under section 115–10.1. Id. at
79. Although the murder victim’s companion testified he was “ ‘positive’ ” the defendant
was not the person that shot him and the victim, he was not sure he could identify the shooter
if he saw him again. Id. at 78-80. The defendant was convicted of murder, and the appellate
court affirmed. Id. at 81. “[T]he jury obviously found [the State’s primary witness’s] pretrial
statement and grand jury testimony implicating defendant more credible than her trial
testimony, and we will not substitute our judgment therefor.” Id. at 80. The court concluded
that the witness’s prior statements, admitted under section 115–10.1, were alone sufficient
to sustain the guilty verdict. Id. In addition, corroborating evidence supported the conviction.
Id. That one shooting victim testified he was “positive” the defendant was not the shooter did
not compel reversal. “It is for the trier of fact to resolve any inconsistencies in the testimony,
and the trier of fact is free to accept or reject as much or as little as it pleases of a witness’s
testimony.” Id. at 80-81.
¶ 30 Like Logan, the trier of fact here obviously found Ms. Johnson’s prior statement more
credible than her trial testimony. In explaining its verdict, the trial court stated:
“Right now [Ms. Johnson] doesn’t want to get involved for the most part, denies
everything, and certainly is impeached, but looking at her memorialized testimony
of how she lays the facts *** in the detail that she provided it in light of the detail of
the unbiased witnesses, and it’s the Court’s position that the pieces of the puzzle all
fit together.” (Emphasis added.)
The trial judge was free to ignore Ms. Johnson’s testimony at trial in favor of her prior
inconsistent statement, introduced as substantive evidence, that incriminated the defendant
in Bias’s murder. See People v. McCarter, 385 Ill. App. 3d 919, 936 (2008) (Jamie McCarter
decision) (Ms. Johnson’s statement that she saw the defendant and Jamie McCarter “holding
Bias at gunpoint and entering his car within an hour of when the murder” occurred, along
with testimony from other witnesses, supported the jury’s verdict of guilty of murder).
¶ 31 While the defendant correctly points out that Ms. Johnson’s memorialized statement
describing the defendant and Jamie McCarter’s initial encounter with Bias differs from the
testimony of Ernest McCarter, this does not mean the trier of fact had to throw his hands in
the air on whom to believe. Once again, the trier of fact was free to place the greatest
importance on the testimony, shared by Ernest McCarter and Ms. Johnson, that the defendant
encountered Bias at Bias’s home. Logan, 352 Ill. App. 3d at 80-81; People v. Williams, 256
Ill. App. 3d 370, 373 (1993) (affirming defendant’s conviction after trial court explicitly
stated that it believed the testimony of one officer over the conflicting testimony of another
officer); People v. Hoffman, 45 Ill. 2d 221, 226 (1970) (rejecting the defendant’s argument
that the defendant was not proven guilty beyond a reasonable doubt in light of testimony of
defense witnesses that contradicted the arresting officers’ testimony). Certainly, if the trial
court accepted only the evidence from Ms. Johnson’s written prior inconsistent statement that
was consistent with Ernest McCarter’s testimony, such evidence supported the defendant’s
conviction. McCarter, 385 Ill. App. 3d at 936.
¶ 32 In sum, there is little in the defendant’s challenges to the testimony of all three
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prosecution witnesses that compels us to question the guilty finding by the trier of fact.
Taking all of the evidence in the light most favorable to the prosecution, we cannot say that
no rational trier of fact could have found credible portions of the testimony of the three
prosecution witnesses, consistent with the other incriminating evidence, such that the
essential elements of murder were proved beyond a reasonable doubt. The evidence was
more than sufficient to support the defendant’s murder conviction.
¶ 33 2. Admissibility of Prior Inconsistent Statement
¶ 34 The defendant contends that portions of Lakesha Johnson’s handwritten statement were
inadmissible hearsay. Although the defendant’s counsel raised this issue in his posttrial
motion, in order to preserve an issue for appeal, a defendant must also object at trial.
Omission of either step results in forfeiture. People v. Woods, 214 Ill. 2d 455, 470 (2005).
The defendant forfeited the issue here by failing to object at trial. The defendant argues,
however, that the error is subject to review under the plain error doctrine and his claim of
ineffective assistance of counsel.
¶ 35 The plain error rule is intended as a means of meliorating the harshness of the strict
application of the forfeiture rule. People v. Howell, 60 Ill. 2d 117, 120-21 (1975). The plain
error doctrine permits a reviewing court to address an unpreserved error when (1) the
evidence is so closely balanced that a clear and obvious error alone threatened to tip the
scales of justice against the defendant, or (2) an error so serious occurred that it affected the
fairness of the defendant’s trial and challenged the integrity of the judicial process. People
v. Herron, 215 Ill. 2d 167, 178-79, 186-87 (2005).
¶ 36 To prevail on an ineffective assistance of counsel claim, the defendant must demonstrate
(1) counsel’s performance fell below an objective standard of reasonableness, and (2) the
deficiency in counsel’s performance was prejudicial to the defense. Strickland v. Washington,
466 U.S. 668, 687 (1984); People v. Albanese, 104 Ill. 2d 504 (1984).
¶ 37 The claims of plain error and ineffective assistance of counsel to obtain review of
unpreserved trial errors overlap. If the defendant is able to establish that trial counsel
rendered constitutionally deficient representation, then he has proved plain error under the
second prong as well. The second prong of the plain error rule is triggered “if a defendant can
successfully prove ineffective assistance of counsel [because] this is considered a substantial
impairment of fundamental rights *** [under] the Herron test.” McCarter, 385 Ill. App. 3d
at 928.
¶ 38 The defendant argues that plain error was committed when Jamie McCarter’s statements
and Ms. Johnson’s opinions were admitted at trial through Ms. Johnson’s written statement,
which she disavowed at trial. The defendant claims that Jamie McCarter’s statements, within
Ms. Johnson’s prior inconsistent statement, were inadmissible because they did not fall under
the co-conspirator exception to the hearsay rule and violated the defendant’s right to
confrontation. The defendant contends that the issue should be reviewed as plain error under
the “closely balanced” prong because the “evidence against Brandon was not overwhelming”
and under the fundamental fairness standard, which we take as a means of invoking the
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second prong of plain error.
¶ 39 At the outset, we reject the defendant’s contention that his claim that the evidence cannot
be said to be “overwhelming” is sufficient to trigger review of the defendant’s claim under
the first prong of the plain error rule. See People v. Santiago, 409 Ill. App. 3d 927, 930 n.1
(2011) (plain error claim is forfeited when the defendant does not “argue[ ] that the evidence
was closely balanced” (emphasis in original) (internal quotation marks omitted)); People v.
Carrero, 345 Ill. App. 3d 1, 12 n.3 (2003) (“There is a real question whether the defendant’s
claim that the evidence against him was ‘not overwhelming’ is equivalent to the ‘factually
close’ standard” under prong one of plain error.). Following the decision in Jamie McCarter’s
appeal, we review the claim of plain error regarding the admission of Ms. Johnson’s prior
inconsistent statement only under his claim of ineffective assistance of counsel, which, if
proved, establishes plain error under the second prong. McCarter, 385 Ill. App. 3d at 928.
¶ 40 a. Personal Knowledge Requirement
¶ 41 Although not addressed by the defendant, whether error occurred in the admission of the
handwritten statement turns on its admissibility under section 115–10.1. 725 ILCS
5/115–10.1 (West 2008). Section 115–10.1 allows a prior inconsistent statement of a witness
to be admitted as substantive evidence if it “narrates, describes, or explains an event or
condition of which the witness had personal knowledge.” (Emphasis added.) 725 ILCS
5/115–10.1(c)(2) (West 2008). Of course, a written statement in narrative form may contain
both statements that satisfy section 115–10.1 and statements that do not. McCarter, 385 Ill.
App. 3d at 930-31. Examples of the latter are statements of secondhand accounts of events,
which remain inadmissible hearsay. McCarter, 385 Ill. App. 3d at 931.
¶ 42 In the appeal from Jamie McCarter’s conviction, Justice Joseph Gordon of this court
provided a primer on examining the admissibility of prior inconsistent statements in narrative
form. McCarter, 385 Ill. App. 3d at 931. The Jamie McCarter decision also provides us with
a resolution of the claim by the instant defendant because the Jamie McCarter decision
addressed the very same handwritten statement of Latasha Johnson at issue before us. We
adopt the ruling in Justice Joseph Gordon’s decision, which we quote at length.
“[W]e find that [Ms.] Johnson had personal knowledge of the events she purportedly
witnessed at her house–in particular, defendant and his brother leading Bias away at
gunpoint in his own car on the morning of Bias’s death–but she did not have personal
knowledge regarding the murder of Bias. Since she allegedly saw with her own eyes
the scene where Bias was led away, her prior inconsistent statements regarding that
scene are admissible as substantive evidence. See 725 ILCS 5/115–10.1 (West 2006).
By contrast, her account of the things she heard [Jamie McCarter] saying about the
murder is highly analogous to the substantively inadmissible statements in Morgason
and Cooper: as there is no evidence linking [Ms.] Johnson to the actual scene of the
murder, she could not have personal knowledge of the events [Jamie McCarter]
described and was purportedly bragging about.” McCarter, 385 Ill. App. 3d at 931
(citing People v. Morgason, 311 Ill. App. 3d 1005, 1011 (2000), and People v.
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Cooper, 188 Ill. App. 3d 971, 973 (1989)).
¶ 43 Consistent with the holding in the Jamie McCarter decision, the portions of Ms.
Johnson’s handwritten statement that were not based on her personal knowledge remained
inadmissible hearsay and, consequently, inadmissible under of section 115–10.1, “and the
court erred in allowing their introduction.” McCarter, 385 Ill. App. 3d at 932. In particular,
her statements, attributed to Jamie McCarter, about shooting Bias, putting Bias’s foot on the
gas pedal, and then running to a pay phone were inadmissible hearsay. Most important for
the armed robbery conviction, which we address below, Ms. Johnson’s statement that Jamie
McCarter said he “retrieved $3,000 from Tyree [Bias]” is also inadmissible hearsay as the
statement was not based on Ms. Johnson’s personal knowledge. Id. at 931.
¶ 44 b. Lay Opinion Testimony
¶ 45 The defendant also argues that the opinion testimony of Ms. Johnson regarding her
interpretations of the defendant’s statements made directly to her should not have been
admitted at trial. This too was resolved by our colleagues in the Jamie McCarter decision.
McCarter, 385 Ill. App. 3d at 934. This court held that the instant defendant’s statement that
“ ‘it’s going down,’ ” a statement he purportedly made to Ms. Johnson, which she took to
mean that the brothers planned to rob and kill Bias, was inadmissible opinion testimony.
McCarter, 385 Ill. App. 3d at 934. We again adopt the ruling of this court in the Jamie
McCarter decision. “We find that the complained-of statements in the instant case, as with
the statements in Brown, go beyond the realm of mere observation, crossing the line into
impermissible opinion testimony by lay witnesses.” McCarter, 385 Ill. App. 3d at 934 (citing
People v. Brown, 200 Ill. App. 3d 566 (1990)).
¶ 46 There is no question that it was error to admit certain portions of Ms. Johnson’s prior
inconsistent statement that was admitted in narrative form. The State admits as much: the
evidence complained of was “also erroneously admitted” in the trial of Jamie McCarter. But
consistent with our ruling in the Jamie McCarter decision, the State argues the defendant was
not prejudiced by the improper consideration of the evidence under a second-prong plain
error review or for purposes of the second prong of his ineffective assistance claim.
McCarter, 385 Ill. App. 3d at 936.
¶ 47 We understand the defendant to claim second-prong plain error as to his armed robbery
conviction only, which we address next.
¶ 48 3. Evidence of Armed Robbery
¶ 49 Proof of a criminal offense involves proof of two distinct propositions or facts beyond
a reasonable doubt: corpus delicti and the identity of the guilty party. People v. Lambert, 104
Ill. 2d 375, 378 (1984). Proof of corpus delicti requires both proof of injury or loss and proof
of criminal agency. Id. Corpus delicti cannot be proved by the defendant’s confession alone.
Id. When the defendant’s confession is relied upon to prove the offense, independent or
corroborating evidence must be present. Id. at 379.
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¶ 50 The defendant argues that the State failed to prove the corpus delicti of the armed
robbery as charged in the indictment, that is, the defendant took United States currency from
Bias. According to the defendant, the only evidence that Bias was the victim of a robbery was
Jamie McCarter’s statement in Ms. Johnson’s written statement that the circuit court erred
in admitting substantively under section 115–10.1, as we concluded in the previous section.
In her written statement, Ms. Johnson attributed to Jamie McCarter the claim that “he
searched [Bias’s] pockets and retrieved $3,000,” which we found inadmissible because it was
not based on Ms. Johnson’s personal knowledge. Supra ¶ 42.
¶ 51 The State argues proof that a robbery occurred was established by other properly admitted
evidence: the defendant’s statements “ ‘it’s going down’ ” and he was going to “ ‘take care
of business,’ ” together with Ms. Johnson’s testimony that Bias always had money on him
and “the facts of the crime as known by the remaining evidence.”
¶ 52 Consistent with the Jamie McCarter decision, we found Ms. Johnson’s testimony
interpreting statements attributed to the defendant to be improper opinion evidence. Supra
¶ 44-45. The reason to exclude this evidence was made clear in the Jamie McCarter decision.
When a witness merely narrates a third-party statement about which the witness has no
personal knowledge, cross-examination gives the trier of fact no insight into the truth of that
statement, which makes it difficult for the trier of fact to assess its reliability. McCarter, 385
Ill. App. 3d at 931. The defendant’s statements, relied upon by the State, provide no evidence
of robbery. Nor did Ms. Johnson’s testimony that Bias always had money on him tend to
prove a robbery occurred as money was recovered by the police from Bias’s body. That
leaves only proof of robbery “as known by the remaining evidence” to support the
conviction. The only remaining evidence supporting an armed robbery conviction in the
record is the statement attributed to Jamie McCarter in Ms. Johnson’s written statement that
he took $3,000 from Bias before he was killed.
¶ 53 The testimony admitted in this case is unlike that admitted in People v. Collins, 106 Ill.
2d 237, 262 (1985), where our supreme court affirmed armed robbery convictions against
a claim that the only evidence to support the convictions was hearsay testimony. In Collins,
hearsay was admitted through a witness that gave testimony before the jury. The jury was
instructed that this witness’s testimony should be viewed with suspicion and the jury “was
fully cognizant of the infirmities” in his testimony. Id. The witness, an accomplice, also
testified that “he went along with the others for a ‘piece of the action’ ” and that he received
$125 from one of the defendants. Id. The claimed hearsay concerned a third codefendant,
who was tried separately, and claimed to have said to the witness “that $1,800 had been taken
from the victims.” Id. The court noted that this “hearsay was elicited by the defendants
during [the witness’s] cross-examination. [Citation.]” Id. at 263. “Under the circumstances,
[the witness’s] testimony was properly considered by the jury and taken together with his
other statements was sufficient to establish that the defendants had committed armed
robbery.” (Emphasis added.) Id. at 263-64.
¶ 54 Here, Ms. Johnson’s written statement that Jamie McCarter claimed to take $3,000 from
Bias was erroneously introduced under section 115–10.1 because Ms. Johnson did not have
personal knowledge of Jamie’s statement. That statement amounted to the only evidence that
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a robbery took place. Unlike the testimony of the witness in Collins that he received $125
from part of the action, nothing in Ms. Johnson’s testimony, apart from the claim she
attributed to Jamie McCarter, tended to prove that any money was taken from Bias. We note
Sergeant Dempsey testified that he found a “wad of burnt up money” in Bias’s car, which
tended to show that money was not taken from Bias. Also, neither Ernest McCarter nor Mr.
Jimerson gave testimony that Bias was robbed by the defendant (or Jamie McCarter), though
the two State witnesses testified to being told details of the shooting by the defendant on the
day of Bias’s murder. We find nothing in record to support the State’s contention that the
“remaining evidence” established the crime of armed robbery.
¶ 55 The defendant’s conviction of armed robbery makes this case different from the Jamie
McCarter decision because Jamie McCarter was convicted only of first degree murder.
McCarter, 385 Ill. App. 3d at 920. It appears the four additional offenses, including armed
robbery, faced by the instant defendant, were never prosecuted against Jamie McCarter.
¶ 56 Consistent with the holding in the Jamie McCarter decision, defense counsel here
rendered deficient representation by failing to object to the portions of Ms. Johnson’s prior
inconsistent statement that were not based on her personal knowledge. The professional error
of defense counsel prejudiced the defendant because the inadmissible hearsay in Ms.
Johnson’s statement provided the only evidence of a robbery. Without that statement, there
was no evidence that the defendant, or one he was accountable for, took money from Bias
as alleged in the indictment. Hence, we have little doubt that “ ‘but for counsel’s
unprofessional errors, the result of the proceeding would have been different.’ ” People v.
Albanese, 104 Ill. 2d 504, 525 (1984) (quoting Strickland v. Washington, 466 U.S. 668, 694
(1984)).
¶ 57 Because the defendant successfully proved ineffective assistance of counsel, in doing so
he satisfied the second prong of the plain error rule. McCarter, 385 Ill. App. 3d at 928. Based
on plain error, we exercise our duty to set aside the armed robbery conviction where
reasonable doubt remains of the defendant’s guilt. See Charleston, 47 Ill. 2d at 22.
¶ 58 4. Evidence of Aggravated Kidnapping
¶ 59 Next, the defendant argues his aggravated kidnapping conviction should be reversed
because the asportation of Bias was incidental to his murder. The defendant contends the
detention of Bias lasted only long enough to commit the murder, which he contends makes
clear the defendant had no criminal intent to commit kidnapping.
¶ 60 The defendant asserts this claim should be reviewed de novo because the facts are not in
dispute. People v. Smith, 191 Ill. 2d 408, 411 (2000). However, when a defendant challenges
incriminating inferences that may have been drawn by the trier of fact from the evidence, the
challenge constitutes a claim against the sufficiency of the evidence. People v. Stewart, 406
Ill. App. 3d 518, 525 (2010). Because the defendant’s challenge is directed at the quantum
of evidence presented against him, the correct standard of review is that which applies to the
sufficiency of the evidence challenge: whether any rational trier of fact could have found the
defendant guilty beyond a reasonable doubt of aggravated kidnapping, taking the evidence
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in the light most favorable to the prosecution. People v. Siguenza-Brito, 235 Ill. 2d 213, 224
(2009) (reviewing whether an asportation was merely incidental to another offense or
whether it rose to the level of an independent crime of kidnapping); People v. Wilder, 356
Ill. App. 3d 712, 722 (2005) (same); People v. Jackson, 281 Ill. App. 3d 759, 768 (1996)
(same); People v. Lamkey, 240 Ill. App. 3d 435, 438 (1992) (same).
¶ 61 Kidnapping is elevated to aggravated kidnapping when an aggravating circumstance
under the statute is proved. See 720 ILCS 5/10–2(a) (West 2008). A person commits the
offense of kidnapping when he knowingly, by force or threat of imminent force, carries
another from one place to another with intent secretly to confine that other person against his
will. 720 ILCS 5/10–1 (West 2010). The instant defendant was convicted of six counts of
aggravated kidnapping, but sentence was imposed only on count VIII, which charged
aggravated kidnapping based on the commission of the felony of armed robbery. See 720
ILCS 5/10–2(a)(3) (West 2010).
¶ 62 Generally speaking, an aggravated kidnapping conviction cannot stand when “the
asportation or confinement of the victim was merely incidental to another crime.” People v.
Eyler, 133 Ill. 2d 173, 199 (1989). The defendant contends that this court’s decision in
People v. Smith, 91 Ill. App. 3d 523, 529 (1980), should guide our analysis regarding his
contention that kidnapping was incidental to murder. In Smith, we adopted four factors
suggested by a federal court of appeals as an approach to determine whether a separate
offense of kidnapping should lie. Smith, 91 Ill. App. 3d at 529 (citing Government of the
Virgin Islands v. Berry, 604 F.2d 221, 227 (3d Cir. 1979)). We summarize the four factors:
(1) the duration in terms of time and distance of the asportation or detention; (2) whether the
asportation or detention occurred during the commission of a separate offense; (3) whether
the asportation or detention is inherent in the separate offense; and (4) whether the
asportation or detention created a significant danger to the victim independent of that posed
by the separate offense. Smith, 91 Ill. App. 3d at 529.
¶ 63 Under the first factor of time and distance, an asportation of 1 1/2 blocks has been held
sufficient to support a separate kidnapping charge (People v. Casiano, 212 Ill. App. 3d 680,
687-88 (1991)), as has an asportation lasting only a few minutes (People v. Siguenza-Brito,
235 Ill. 2d 213, 226-27 (2009) (asportation lasted four to five minutes)). Here, the defendant
and Jamie McCarter, armed with weapons, approached Bias in his driveway and drove away
in Bias’s car around 5:25 a.m. Bias was next observed in an isolated area some 35 minutes
later still behind the steering wheel. The duration and distance of the asportation in this case
exceeded that in Casiano and Siguenza-Brito, so the first factor does not favor a claim that
kidnapping was incidental to murder.
¶ 64 The second factor looks to the nature of the separate offense. Smith, 91 Ill. App. 3d at
529. Generally, when the asportation occurs prior to the commission of the separate offense,
a kidnapping charge will lie. See Siguenza-Brito, 235 Ill. 2d at 226-27; Casiano, 212 Ill.
App. 3d at 688; Jackson, 281 Ill. App. 3d at 769; People v. Cole, 172 Ill. 2d 85, 104-05
(1996). Here, a fair inference is that Bias was detained for about 35 minutes before he was
murdered. There is no evidence that the defendant did anything to Bias during those 35
minutes other than hold him at gunpoint. Given the nature of Bias’s killing, a shot to the back
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of the head by the rear-seat passenger, it seems clear that the purpose of transporting Bias
away from his home was to kill him. The nature of the killing does not favor treating the
offense of kidnapping as merely incidental to murder. See Cole, 172 Ill. 2d at 104-05(aggravated kidnapping charge proper where the defendant drove the victim to an isolated
area before shooting and killing him); Jackson, 281 Ill. App. 3d at 768-69 (aggravated
kidnapping conviction affirmed where the defendant transported the victim a distance of
several blocks to an abandoned bridge to commit the murder).
¶ 65 The cases cited by the defendant do not aid his claim to the contrary. In Lamkey, 240 Ill.
App. 3d at 440, the defendant jumped out of a doorway, grabbed the victim, pulled her into
a hallway, and sexually molested her. Id. at 436-37. The detention of the victim lasted two
minutes; apparently only long enough to commit the sexual assault. Id. at 437. Here, Bias
was transported some distance from his home and held in his car approximately 17 times
longer than the detention lasted in Lamkey. In Smith, the defendants approached the victim
while he was in his car and forced their way into the car. Smith, 91 Ill. App. 3d at 525. The
defendants then drove the victim around for approximately 20 minutes, during which time
the defendants took the victim’s money, his wallet, and finally his car. Id. at 525. The court
held “the gist of the case” was robbery and determined the kidnapping was merely incidental
to the robbery because the defendants used the 20 minutes to take control of the victim’s
personal property and car, after which the defendant immediately released the victim. Id. at
529. Here, the defendant held Bias at gunpoint for approximately 35 minutes before killing
Bias. We are unpersuaded that the defendant should be found not culpable for kidnapping
simply because the defendant waited to commit the murder until the car was driven to an
isolated area.
¶ 66 The third factor has no application under the facts of this case as no credible claim can
be made that asportation is “inherent” in the murder committed by the defendant. Jackson,
281 Ill. App. 3d at 769 (noting that forced movement of a victim from one location to another
is not inherent in the offense of murder).
¶ 67 Finally, the fourth factor provides no support to the defendant because the asportation of
Bias to an isolated area heightened the danger to the victim. Smith, 91 Ill. App. 3d at 529. We
reject out-of-hand the defendant’s argument that the asportation did not create a significant
danger to Bias because the “danger of murder is the same–death–regardless of where it
occurs.” See Jackson, 281 Ill. App. 3d at 769 (finding dangers independent of those posed
by murder by the taking of the victim from a public place to an abandoned bridge). This case
is similar to Cole, 172 Ill. 2d at 104-05 (aggravated kidnapping charge proper where the
defendant drove the victim to an isolated area before shooting and killing him). There, the
defendant was convicted of murder and aggravated kidnapping. Id. at 91. The Cole defendant
ordered the victim and another person to get into a car. Id. at 104-05. After driving to an
isolated area, the defendant shot and killed the victim. The court held sufficient evidence
existed in the record to support the trial judge’s finding that the defendant’s actions
supported an aggravated kidnapping conviction; the confinement of the victim in the car was
not merely incidental to the murder. Id. at 104.
¶ 68 The evidence here was more than sufficient to find the asportation of Bias was not
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incidental to his murder by the defendant. The defendant was properly found guilty of
aggravated kidnapping.
¶ 69 Nonetheless, because the sentence was imposed on the aggravated kidnapping count
alleging the commission of the felony of armed robbery, which was not proved (supra ¶ 47-
56), we remand to the circuit court to enter sentence on one of the other aggravated
kidnapping counts. People v. Dixon, 91 Ill. 2d 346, 353 (1982) (cause remanded for
sentencing where the trial judge wrongly concluded that convictions “merged into the other
*** offenses upon which he did impose sentence”); see People v. Robinson, 267 Ill. App. 3d
900, 907 (1994) (“The proper remedy for a failure to enter judgment is to remand to the
circuit court for entry of judgment.”). The conviction of aggravated kidnapping is affirmed.
¶ 70 5. Evidence of Aggravated Vehicular Hijacking
¶ 71 The defendant next argues the State failed to establish that the defendant took Bias’s car
within the meaning of the vehicular hijacking statute. “A person commits vehicular hijacking
when he or she takes a motor vehicle from the person or the immediate presence of another
by the use of force or by threatening the imminent use of force.” (Emphasis added.) 720
ILCS 5/18–3(a) (West 2008).
¶ 72 The defendant contends that in order to “take” a motor car from another, a defendant
must physically remove the owner from the car or dispossess the owner of the car from his
car. The State argues that the defendant took Bias’s car within the meaning of the statute by
“taking control over the victim’s car in his presence.” Thus, the question before us does not
concern the sufficiency of the evidence; rather, the question is whether the facts as
established by the State’s evidence are legally sufficient to make out the offense of
aggravated vehicular hijacking. This presents a question of statutory construction, which we
review de novo. People v. Smith, 191 Ill. 2d 408, 411 (2000); People v. Lewis, 234 Ill. 2d 32,
44 (2009).
¶ 73 To support his contention that aggravated vehicular hijacking has not been proved under
the facts of this case, the defendant directs our attention to People v. Cooksey, 309 Ill. App.
3d 839 (1999), where the defendant took the keys to the victim’s car, ran 25 feet to the car,
and drove off. The question before this court concerned “the interpretation of the term the
‘immediate presence.’ ” Id. at 847. In Cooksey, we noted the “intent of the legislature was
to create a new offense when someone forcibly removes someone from his or her car or
otherwise forcibly dispossesses someone of his or her car.” Id. at 848. The precise question
of whether the defendant “took” the victim’s car within the terms of the offense of vehicular
hijacking was not addressed.
¶ 74 We have found no published decision that answers whether “takes” in the vehicular
hijacking statute encompasses a situation where the defendant forces the victim to drive his
own car to another location. We look to the use of that term in other sections of the Criminal
Code to determine its scope. “Where a word is used in different sections of the same statute,
the presumption is that the word is used with the same meaning throughout the statute, unless
a contrary legislative intent is clearly expressed.” People v. Maggette, 195 Ill. 2d 336, 349
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(2001); see People v. Aguilar, 286 Ill. App. 3d 493, 497-98 (1997) (using cases interpreting
the robbery statute to determine the meaning of the phrase “by the use of force or by
threatening the imminent use of force” used in the vehicular hijacking statute (emphasis
omitted) (internal quotation marks omitted.)).
¶ 75 The term “takes” is used in the Criminal Code to describe the offense of robbery. 720
ILCS 5/18–1(a) (West 2008) (“[a] person commits robbery when he *** takes property”).
Neither the State nor the defendant claims that the term “takes” has a different meaning in
the vehicular hijacking statute than in the robbery statute; nor does either suggest that the
legislature intended contrary meanings for the same term.
¶ 76 In People v. Strickland, 154 Ill. 2d 489, 525 (1992), the supreme court reversed the
defendant’s conviction for armed robbery, holding that the “taking” element of the offense
was not proved. In that case, the defendant and his brother approached a car occupied by a
man with his two young relatives. Id. at 499. The defendant and his brother ordered the man
at gunpoint to drive them to California. Id. The defendant and his brother got into the
backseat of the car, with the young relatives occupying the front seat with the driver. Id. The
victim then drove the car from a far suburb into downtown Chicago. Id. At a downtown
intersection, the victim saw a police car, “stopped his own vehicle in front of the squad car
and got out to alert the officer.” Id. at 500. The defendant and his brother ran off on foot. Id.¶ 77 The court began its analysis on whether the armed robbery conviction could stand with
the proposition that the offense of robbery “is complete when force or threat of force causes
the victim to part with possession or custody of property against his will.” (Internal quotation
marks omitted.) Strickland, 154 Ill. 2d at 525-26 (quoting People v. Smith, 78 Ill. 2d 298, 303
(1980)). The court noted that the defendant’s “actions certainly denied [the victim] a large
measure of control over his vehicle.” Strickland, 154 Ill. 2d at 526. The car, however, “was
never removed from [the victim’s] actual possession.” Id. The court concluded “that the State
failed to establish one of the elements of armed robbery, and the defendant’s conviction for
that offense must therefore be reversed.” Id.¶ 78 In this case, like in Strickland, there was no evidence introduced at trial showing that
Bias was ever dispossessed of his car. The record establishes that the defendant and his
brother, while armed with weapons, kidnapped Bias from the driveway of his home by
entering his car, with Bias behind the wheel. Approximately 35 minutes later, Bias was
discovered in his burned out car still behind the wheel. We also note that the supreme court
in Strickland implicitly rejected the argument the State makes before us that “taking control
over the victim’s car in his presence” was sufficient to make out a “taking” when the
supreme court gave no significance to the Strickland defendant’s actions that “denied [the
victim] a large measure of control over his vehicle.” Strickland, 154 Ill. 2d at 526.
¶ 79 Under these facts, we are compelled to conclude that the State failed to establish the
taking element. We reverse the defendant’s conviction of aggravated vehicular highjacking.
¶ 80 6. Evidence of Concealment of Homicidal Death
¶ 81 Finally, the defendant challenges his conviction of concealment of homicidal death with
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a two-pronged attack. He first contends the State failed to prove “the allegations set forth in
the indictment charging Brandon with the concealment of Tyree Bias’s death.” He next
contends the evidence only proved “that the homicide occurred in an isolated place.” Under
either prong, the defendant contends reasonable doubt remains of the defendant’s guilt of this
offense.
¶ 82 “A person commits the offense of concealment of homicidal death when he [knowingly]
conceals the death of any other person with knowledge that such other person has died by
homicidal means.” 720 ILCS 5/9–3.1 (West 2008) (renumbered and amended by Pub. Act
96–710, § 25 (eff. Jan. 1, 2010)). Each essential element of the offense must be proved
beyond a reasonable doubt. People v. Campbell, 146 Ill. 2d 363, 374 (1992).
¶ 83 We address the defendant’s second contention first.
¶ 84 a. Allegations in the Indictment
¶ 85 The indictment alleged that the defendant “committed the offense of concealment of
homicidal death in that he, concealed the death of Tyree Bias with knowledge that he had
died by homicidal means, to wit, [the defendant] put the body of Tyree Bias into a car in
violation of” section 9–3.1(a) of the Criminal Code. 720 ILCS 5/9–3.1(a) (West 2008) (now
codified as 720 ILCS 5/9–3.4 (West 2010)).
¶ 86 The State does not dispute the defendant’s claim that the record does not contain any
evidence from which a rational trier of fact could have found the defendant put the body of
Bias into a car. The State contends, however, the allegation regarding the placing of the body
into the car was surplusage. The State asserts the indictment was otherwise properly pled and
the evidence at trial was sufficient to prove the defendant guilty of concealment of homicidal
death beyond a reasonable doubt, although in a manner different than alleged in the
indictment.
¶ 87 A charging document alleging a criminal offense must meet five pleading requirements:
(1) the name of the offense; (2) the statutory provision allegedly violated; (3) the nature and
elements of the offense charged; (4) the date and county of the offense; and (5) the name of
the accused. 725 ILCS 5/111–3 (West 2010). The State is not required to plead evidentiary
details. People v. Meras, 284 Ill. App. 3d 157, 164 (1996). “So long as the statutory language
used describes specific conduct then there is no need for the charge to specify the exact
means by which the conduct was carried out.” (Emphasis added.) People v. Wisslead, 108
Ill. 2d 389, 397 (1985). Immaterial matters, or matters if omitted from an indictment would
not render it insufficient or cause damage to material averments, may be regarded as
surplusage. People v. Figgers, 23 Ill. 2d 516, 519 (1962).
¶ 88 Notably, the defendant does not claim that the language in the indictment he contends
was not proved constitutes an essential element of the offense of concealment of homicidal
death. Nor has the defendant presented us with any authority that the failure to prove
“surplusage” alleged in the indictment constitutes grounds for challenging a conviction. See
People v. Williams, 28 Ill. 2d 280, 285 (1963) (whether the defendant shot the victim in the
back or in the chest was surplusage in the indictment for murder by shooting); Meras, 284
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Ill. App. 3d at 164 (“means by which the killing was accomplished” was not an element of
first degree murder). Nor will we provide such authority in this case.
¶ 89 We reject the defendant’s claim that the State’s failure to prove the defendant “put the
body of Tyree Bias into a car” somehow undermines his conviction for concealment of
homicidal death.
¶ 90 b. Evidence of Concealment
¶ 91 The defendant asserts that no concealment occurred; rather, the evidence only established
that the murder “occurred in an isolated place.” To support this claim, the defendant
analogizes the facts of this case to the facts in People v. Vath, 38 Ill. App. 3d 389 (1976). In
Vath, the Fifth District reversed the defendant’s conviction for concealment because the
evidence established nothing more than the murder victim was left along an isolated country
road. Id. at 395.
¶ 92 We reject the defendant’s claim that the evidence in this case amounts to no more than
the evidence presented in Vath. The evidence here included, as the defendant acknowledges,
that Bias’s body was so severely burned that it was rendered “unrecognizable.” The
defendant also concedes that “Ernest testified that [the defendant] told him he lit his own
shirt on fire” when he returned to the car after it crashed through the fence into the brush.
Much as the defendant argued in his challenge to the sufficiency of the evidence that he was
guilty of murder, the defendant points to the conflicting evidence, some from Ernest
McCarter himself, regarding the source of the fire to challenge his conviction for
concealment of homicidal death.
¶ 93 The evidence is overwhelming that the defendant had knowledge that Bias “died by
homicidal means.” 720 ILCS 5/9–3.1 (West 2008) (renumbered and amended by Pub. Act
96–710, § 25 (eff. Jan. 1, 2010)). The trial judge was also free to draw the reasonable
inference that the defendant knowingly sought to conceal Bias’s murder by setting his shirt
on fire in an effort to conceal the manner of his death. See People v. Kirkman, 170 Ill. App.
3d 106, 110 (1988); Cf. Vath, 38 Ill. App. 3d at 395 (the offense proscribes concealing the
death by “making a homicide appear an accident”). In Vath, the court rejected the State’s
argument “that an inference can be drawn that defendant ‘dumped’ the body on the secluded
road to impede discovery of the crime” because there was no affirmative act of concealment
by the defendant. Vath, 38 Ill. App. 3d at 395.
¶ 94 In the instant case, there is no room in the evidence for the defendant to dispute that
Bias’s car burned after Bias was killed, which we find sufficient to prove his guilt of
concealment of homicidal death beyond a reasonable doubt. Kirkman, 170 Ill. App. 3d at
110.
¶ 95 CONCLUSION
¶ 96 The evidence introduced at trial was sufficient to find the defendant guilty beyond a
reasonable doubt of murder and concealment of homicidal death. We affirm those
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convictions. It was plain error to admit portions of Ms. Johnson’s prior inconsistent
statement to prove the defendant committed armed robbery. We vacate the armed robbery
conviction and the conviction on count VIII charging aggravated kidnapping based on armed
robbery. However, we remand to permit the circuit court to enter a judgment of conviction
on a count charging aggravated kidnapping other than count VIII, with a new sentencing
hearing on the new count if necessary. We also reverse the defendant’s conviction for
aggravated vehicular hijacking as the facts established by the State’s evidence failed to prove
that Bias was ever dispossessed of his car.
¶ 97 Affirmed in part and vacated in part; cause remanded for further proceedings.
¶ 98 JUSTICE ROBERT E. GORDON, dissenting:
¶ 99 The majority reverses defendant’s convictions for armed robbery and vehicular hijacking.
Since I cannot join in these reversals, I must respectfully dissent, for the reasons explained
below.
¶ 100 I. Armed Robbery Conviction
¶ 101 The majority reverses defendant’s armed robbery conviction on the ground that defendant
established ineffective assistance of counsel. Supra ¶ 56.
¶ 102 Claims of ineffective assistance of counsel are governed by the two-prong test set forth
by the United States Supreme Court in Strickland v. Washington, 466 U.S. 668, 694 (1984),
and adopted by the Illinois Supreme Court in the case of People v. Albanese, 104 Ill. 2d 504(1984). To prevail on a claim of ineffective assistance of counsel, a defendant must show
both (1) that counsel’s performance was deficient; and (2) that this deficient performance
prejudiced defendant. People v. Petrenko, 237 Ill. 2d 490, 496 (2010) (citing Strickland, 466
U.S. at 694).
¶ 103 To satisfy the first prong, a defendant must show that counsel’s performance was
objectively unreasonable under prevailing professional norms; and to satisfy the second
prong, a defendant must show that there is a reasonable probability that, but for counsel’s
unprofessional errors the result of the proceeding would have been different. Petrenko, 237
Ill. 2d at 496-97 (citing Strickland, 466 U.S. at 694).
¶ 104 I find that defendant has failed to satisfy both prongs.
¶ 105 A. Second Prong
¶ 106 The majority finds prejudice under the second prong, because trial counsel allegedly
failed to object to the admission of two portions of Ms. Johnson’s statement. Those two
portions included (a). statements by Jamie McCarter; and (b). Ms. Johnson’s understanding
of statements that defendant made directly to her. Supra ¶ 37. The majority holds that,
without these statements, the State could not prove that the deceased was also the victim of
a robbery. Supra ¶ 50-51.
¶ 107 With respect to the statements by Jamie McCarter, the majority acknowledges that
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defendant argued that these statements “did not fall under the co-conspirator exception to the
hearsay rule.” Supra ¶ 37. However, the majority offers no analysis of why the statements
do not fall under the co-conspirator exception. Instead, the majority rules the statements
inadmissible simply because they did not fall within another hearsay exception, that was “not
[even] addressed by the defendant.” Supra ¶ 40.
¶ 108 A statement needs to be admissible under only one exception to be admissible. The fact
that it is not also admissible under some other exception–not even argued by defendant–has
no effect on its admissibility. Thus, I would find that McCarter’s statement was admissible.
¶ 109 Since Jamie McCarter’s statement that he searched the victim’s pockets and retrieved
$3,000 was sufficient evidence of a robbery, I cannot agree with the majority’s holding that
the State’s evidence of a robbery was deficient. Supra ¶ 56.
¶ 110 The majority stated “Sergeant Dempsey testified that h0e found ‘a wad of burnt up
money’ in Bias’s car, which tended to show that money was not taken from Bias.” Supra
¶ 53. Simply because the robbers failed to locate all the money, I do not understand how that
leads to the conclusion that they did not take any money. If anything, the officer’s discovery
substantiates Jamie McCarter’s statement that there was substantial money present for the
taking.
¶ 111 For these reasons, I would find that defendant has failed to show that, but for the alleged
error, there is a reasonable probability that the proceeding would have been different.
Petrenko, 237 Ill. 2d at 496-97 (citing Strickland, 466 U.S. at 694). Thus, defendant has
failed to satisfy the second prong of the Strickland test.
¶ 112 B. First Prong
¶ 113 Defendant has also failed to satisfy the first prong. As stated above, to satisfy the first
prong, a defendant must show that counsel’s performance was objectively unreasonable
under prevailing professional norms. Petrenko, 237 Ill. 2d at 496-97 (citing Strickland, 466
U.S. at 694).
¶ 114 The majority finds that trial counsel “rendered deficient representation by failing to
object to the portions of Ms. Johnson’s prior inconsistent statement that were not based on
her personal knowledge.” Supra ¶ 55. I find this statement unpersuasive on several different
levels.
¶ 115 First, it reduces the two prongs of the test into one. It finds that, since an objection would
have been successful, defendant was prejudiced by counsel’s failure to make it, and therefore
counsel’s performance must have been deficient. The purpose of the first prong is to ensure
that counsel’s performance is not judged by hindsight. Strickland, 466 U.S. at 689 (counsel’s
performance must be evaluated without the “distorting effects of hindsight”); Petrenko, 237
Ill. 2d at 496-97 (first prong is based on prevailing professional norms). The second prong,
and the second prong alone, evaluates prejudice: whether there was a reasonable probability
that, but for the alleged error, the outcome would have been different. Petrenko, 237 Ill. 2d
at 496-97. The first prong asks a different question. Even if the outcome would have been
different, was counsel’s performance still so deficient as to be objectively unreasonable
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under prevailing professional norms. Petrenko, 237 Ill. 2d at 496-97. The majority does not
evaluate this question.
¶ 116 Second, the majority finds that defense counsel was ineffective solely for the failure to
make one objection and only one objection, namely, that the personal knowledge requirement
barred admissibility of the statement as a prior inconsistent statement. Supra ¶ 55 (trial
counsel “rendered deficient representation by failing to object to the portions of Ms.
Johnson’s prior inconsistent statement that were not based on her personal knowledge”). In
other words, the majority finds that the only exception which could have allowed
admissibility was the exception for prior inconsistent statements and that, since the statement
was inadmissible under this exception, counsel was allegedly ineffective for failing to make
this objection. If, however, the statement was admissible under another exception, such as
the co-conspirator’s statement, this logic fails.
¶ 117 Third, the majority fails to consider whether trial counsel had a valid, though ultimately
unsuccessful, trial strategy for deciding not to object. “In demonstrating, under the first
Strickland prong, that his counsel’s performance was deficient, a defendant must overcome
a strong presumption that, under the circumstances, counsel’s conduct might be considered
sound trial strategy.” People v. Houston, 226 Ill. 2d 135, 144 (2007). As the majority pointed
out, since the statement about the $3,000 was not repeated by other witnesses, it created a
conflict among the state’s witnesses. It could have been a valid trial strategy to let this
conflict stand.
¶ 118 For these reasons, I cannot find that defense counsel’s performance was so deficient as
to fall below prevailing professional norms. Since neither the first nor the second prong of
the Strickland test is satisfied, I cannot join in the majority’s reversal of defendant’s armed
robbery conviction on this ground.
¶ 119 II. Aggravated Vehicular Hijacking
¶ 120 The majority reversed defendant’s conviction for aggravated vehicular hijacking, on the
ground that there was no evidence that Bias, the vehicle’s owner, was dispossessed of his
vehicle. Supra ¶ 78. As the majority observed, Bias was found murdered in his own burned-
out vehicle. Supra ¶ 77. The majority fails to consider whether burning the vehicle deprived
the owner, or his successor in interest, of the vehicle’s possession or custody. One would
think that destruction is the ultimate form of dispossession.
¶ 121 For these reasons, I dissent from the majority’s reversal of defendant’s convictions for
armed robbery and aggravated vehicular kidnapping. As a result, I also dissent from the
portion of the opinion which directs the trial court to enter a judgment of conviction for
aggravated kidnaping based on a different count other than the armed robbery count. I would
affirm the judgment in all respects.
¶ 122 Thus, I must respectfully dissent.
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