People v. Williams
Annotate this Case
NO. 4-95-0126
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
CONTRELL WILLIAMS, ) No. 94CF835
Defendant-Appellant. )
) Honorable
) Jerry L. Patton,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Defendant Contrell Williams and codefendant Tyrone
Humphrey were charged with the September 5, 1994, first degree
murder (720 ILCS 5/9-1(a) (West 1994)) of Sheri Ellis, a clerk at
a Huck's convenience store. The two trials were severed.
Following a jury trial, defendant was found guilty, and in
January 1995, defendant was sentenced to natural life in prison
without parole. Defendant appeals his conviction and his sen-
tence. We affirm.
The codefendant, Tyrone Humphrey, lived with Tosha
Krause at 835 East Whitmer, in Decatur. Tosha testified that
defendant and Humphrey borrowed her 1979 Oldsmobile Cutlass
during the evening hours of September 5. Her car had a loud
muffler at the time. The two were gone about 45 minutes before
returning the car. Richard Jackson, who lived near the Huck's
store, testified that on September 5, about 11:30 p.m., he heard "a loud noise like a car drive, a couple doors slam." He looked
out his window and saw a car parked on the curb directly in front
of his house. After watching for 10 or 15 minutes, Jackson saw
two people running from the direction of Huck's, carrying a
lightweight bag. They drove off quickly and did not turn the
car's lights on until it reached the corner. The car had a loud
muffler. Jackson testified that a photograph of the Krause 1979
Cutlass closely resembled the car he saw September 5.
Decatur police officer Roger Ryan testified he recov-
ered four empty .380 Winchester shell casings at the Huck's
scene, as well as a spent bullet and a bullet fragment. In the
back storeroom Ryan observed that the metal case which housed the
surveillance video cassette recorder (VCR) was broken, and the
VCR had been removed. There were VHS tapes for each day of the
week, but the tape labelled "Monday" was missing. (September 5,
1994, was a Monday.)
Larry Joe Krause testified that on September 5 he was
living with his sister Tosha at 835 East Whitmer. After defen-
dant and Humphrey borrowed the 1979 Cutlass, they returned
between midnight and 1 a.m. on September 6, while Krause was
watching television. Defendant was carrying what appeared to be
a VCR in his hands. Defendant told Krause the two had robbed
Huck's and taken a VCR. The next morning defendant asked Krause
if he knew anybody who wanted to buy a VCR. Krause and defendant
were watching the television news at 10 p.m., September 6, when
the story about the Huck's robbery aired. Krause looked at
defendant and said, "'It wasn't you all, was it?'" The defendant
answered, "'Yeah.'"
Antonio Gray testified that he was incarcerated in the
Macon County jail while defendant was incarcerated there, and
defendant had spoken to him on three different occasions regard-
ing the murder. Defendant told Gray that he and his cousin
Humphrey had robbed the Huck's store. Defendant took $30 from
the clerk, then shot her. Defendant then went to the storeroom
and removed the VCR. As he left the store defendant shot the
clerk two more times. Gray asked why defendant shot the clerk,
since he was wearing a mask, and she could not see his face.
Defendant responded that he could not stop because it felt so
good to him. Defendant told Gray what he did with the VCR--he
"crunched it up real good and threw it on a roof or something."
Officer Ryan testified that he recovered a VHS tape and
pieces of a VCR from the roof of a house at 843 East Whitmer on
September 7. The VHS tape bore the label "Monday." Another
witness testified that the serial number on the recovered VCR
matched the serial number of the VCR which had been installed in
the Huck's store in 1993. Ryan recovered two latent prints from
the VCR pieces seized on the roof. Those prints matched the
defendant's prints. Another print matched a fingerprint of
Humphrey.
There was more to the testimony of Gray and Krause.
Gray testified defendant told him that defendant and Humphrey on
one occasion got into a car with "two white guys driving."
Humphrey pulled a gun and robbed the men, then took them some-
place and proceeded to shoot them. Defendant told Gray the gun
was well hidden. Krause testified that sometime after June 29,
1994, defendant told him "two white guys picked them up and took
them; took them for a ride, and they took them out of the car and
killed them and took the car and left." On another occasion
defendant told Krause that "we" had robbed Ali's Market.
The State introduced evidence that two white men, Shane Storm
and Cary Matthew Whitacre, were killed near Lake Decatur on
August 10, 1994, and that five .380 Winchester shell casings were
recovered from the area immediately around the two bodies.
Massound Aliabadi testified that he owned Ali's Market in
Decatur, and that on July 29, 1994, three black males robbed his
store. Aliabadi was shot several times during the robbery. Five
.380 Winchester shell casings and two spent bullets were recov-
ered from the scene. Krail Lattig, an expert witness on firearms
and ammunition, testified that he compared the shell casings from
the Huck's, Storm-Whitacre, and Ali's Market crime scenes, and
determined that a single gun fired all of the cartridges. He
also compared the spent bullets recovered from each of the crime
scenes, and determined that a single gun fired each of the
bullets. The gun was never recovered.
The trial court admonished the jury that the evidence
of other crimes was being admitted only "on the issue of the
defendant's preparation, plan, identity of a weapon, and identity
of the defendant." Defendant and Humphrey were later convicted
of the murders of Whitacre and Storm. See People v. Humphrey,
No. 4-95-0447 (July 23, 1996) (unpublished order under Supreme
Court Rule 23) (affirming conviction); People v. Williams, No. 4-
95-0695 (September 12, 1996) (unpublished order under Supreme
Court Rule 23) (affirming conviction). Defendant was convicted
in the Ali's Market incident in May 1995.
Defendant testified that he visited his aunt on Septem-
ber 5, arriving about 9:45 p.m., and leaving about 2 or 3 a.m.
He denied going to the Huck's store, denied killing Sheri Ellis,
and testified he had no knowledge of the robbery or homicide.
Defendant testified that a black male at Longview Apartments, a
person he did not know, sold him a VCR for $15 on September 6.
Defendant did not know how to hook up the VCR, so he threw it in
the backyard at his girlfriend's house. Defendant testified he
had no knowledge of the Storm-Whitacre homicides or the Ali's
Market robbery. He testified Gray's testimony regarding his
alleged admissions was not true. Defendant denied making any of
the statements that Krause attributed to him regarding the Storm-
Whitacre, Ali's Market, or Huck's incidents.
I
Defendant first argues the trial court erred in admit-
ting evidence of his participation in the other crimes. Evidence
of other offenses is admissible if relevant for any purpose other
than to show propensity to commit a crime. People v. Jones, 156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993). It is not neces-
sary that the evidence fit into a specific enumerated exception
in order for the evidence to be admissible. People v. Stewart,
105 Ill. 2d 22, 61-62, 473 N.E.2d 840, 859-60 (1984). It is only
necessary that there be some clear connection between the other
crime and the crime charged which creates a logical inference
that if defendant committed the other crime, he committed the
crime charged. People v. Overlin, 241 Ill. App. 3d 530, 539, 608 N.E.2d 925, 930 (1993); People v. Kimbrough, 138 Ill. App. 3d
481, 486-87, 485 N.E.2d 1292, 1297 (1985).
The fact that there is a link between a number of
crimes does not necessarily mean that they are admissible, even
if there is clear evidence that defendant committed each of the
crimes. There will be evidence that defendant committed each of
the crimes even when the only purpose for admission is to show a
propensity to commit crime. People v. Biggers, 273 Ill. App. 3d
116, 123, 652 N.E.2d 474, 479 (1995). In the present case, if
the only evidence was the ballistics evidence that the same gun
was used in each crime, it would appear that the evidence of
other crimes should not be admitted. There would be no logical
inference that if defendant was involved in the Storm-Whitacre
murders, or the Ali's Market robbery and shooting, that he
committed the Huck's store murder. Proof of three murders
instead of one would be justified only by the desire to show
defendant's propensity to commit crime. The other murders did
not facilitate the commission of the Huck's murder. This is not
a case like People v. Cole, 29 Ill. 2d 501, 505, 194 N.E.2d 269,
271 (1963), where evidence of prior narcotics transactions was
admitted because it explained the ease with which the purchase
was made. "There the prior events facilitated the otherwise
implausibly simple controlled sale--the crime charged." People
v. Romero, 66 Ill. 2d 325, 331, 362 N.E.2d 288, 290 (1977).
It may be easier to justify introduction of evidence of
the Huck's murder in the Storm-Whitacre case, or the Ali's Market
case, than vice versa. In Storm-Whitacre, for example, it could
be shown (1) the weapon used was the same weapon used in the
Huck's murder; (2) there is strong evidence defendant committed
the Huck's murder (fingerprints on the VCR); (3) accordingly
there is a logical inference that defendant was involved in the
Storm-Whitacre murders. The syllogism does not work the other
way around. There is no such logical inference that if defendant
committed the Storm-Whitacre murders he committed the Huck's
murder.
What is important in this case are the admissions to
Gray and Krause. In People v. Tellez, 235 Ill. App. 3d 542, 601 N.E.2d 1284 (1992), defendant (a policeman) admitted to John
Branco (who had connections to organized crime) that he had
committed the charged murder in 1986, and another murder in 1984.
At trial defendant testified he fabricated those admissions as
part of a private undercover investigation he was conducting.
There was strong evidence defendant committed the 1984 murder,
however, and the court admitted that evidence to refute
defendant's claim of fabrication. Tellez, 235 Ill. App. 3d at
555, 601 N.E.2d at 1292. In People v. King, 109 Ill. 2d 514, 488 N.E.2d 949 (1986), defendant confessed to the police that he
committed an armed robbery on December 22, and the charged armed
robbery and murder at a nearby location on December 19. Bullets
found at each location were fired from the same gun. A gun was
produced which defendant identified as the murder weapon. At
trial defendant testified the police had coerced him into making
an untrue confession. Defendant sought to exclude evidence of
the December 22 armed robbery, but the evidence was admitted.
"Evidence regarding the [December 22] Church's Chicken robbery
was relevant to establish the accuracy of the confession." King,
109 Ill. 2d at 531, 488 N.E.2d at 958. "The evidence of the
other crime tended to corroborate the defendant's statements in
his confession concerning the two offenses, his role in each, and
the weapon." King, 109 Ill. 2d at 531, 488 N.E.2d at 958.
That is not to say that, simply because a witness may
be more believable when he testifies to defendant's admission of
three crimes than when he testifies to defendant's admission of
one crime, that testimony will always come in as "corroboration."
Evidence of other crimes is not admissible simply to enhance the
credibility of the State's key witness who testifies those crimes
have been committed. Romero, 66 Ill. 2d at 330-31, 362 N.E.2d at
290. The evidence of defendant's commission of the other crime
was not very strong in Romero.
In the present case, unlike Tellez and King, defendant
does not admit he made the statements and then attempt to explain
them. In the present case defendant denies he made the state-
ments at all. In the present case the only issue is whether Gray
and Krause are telling the truth. Looking at it from defendant's
point of view, are Gray and Krause more believable because they
told a big lie (admitted three murders and a shooting) than if
they told a smaller one (admitted just this murder)? There is no
issue here such as whether defendant intentionally falsified the
statements because he was doing undercover work, or because he
was coerced into making a false statement. It could be argued
the evidence of other crimes in this case came in only to enhance
the credibility of Gray and Krause. There is more, however, to
this case. When Gray and Krause first disclosed what defendant
had told them, they were unaware there was evidence linking the
Huck's store murder, the Storm-Whitacre murders, and the Ali's
Market robbery and shooting. The things defendant told them
about the three crimes would only have been known by someone who
had knowledge of those crimes. The other crimes evidence in this
case was important evidence which established that defendant made
the admissions to Gray and Krause. See King, 109 Ill. 2d at 531,
488 N.E.2d at 958. There was no error in admitting the evidence
of other crimes.
The trial court's limiting instruction advised the jury
that the other-crimes evidence was admitted first of all, only on
the issue of the defendant's "preparation" and "plan." Evidence
of other crimes may be admitted where all the crimes are part of
a common design or plan, as where the defendant steals a car to
use in a bank robbery. M. Graham, Cleary & Graham's Handbook of
Illinois Evidence 404.5, at 192, 194 (5th ed. 1990). We do not
see preparation or plan as justifying admission of the evidence
here. The trial court also saw the evidence as admissible on the
issue of "identity of a weapon." In Stewart, the murder weapon
found in defendant's apartment was registered to Cornelius Jones.
Jones was allowed to testify the weapon was taken from him in an
armed robbery the year before, and the robber fled in a Buick
Electra which looked like one owned by the defendant. In the
present case, however, no weapon was ever found. The three
crimes were committed with the same weapon, but there was no
evidence tying defendant to any weapon. We do not see that the
evidence of other crimes was admissible here because it somehow
showed identity of a weapon. See also King, 109 Ill. 2d 514, 488 N.E.2d 949 (defendant identified gun as weapon he used in two
crimes, then claimed he was coerced into a false confession).
The last reason given by the trial court for admission of the
other crimes was on the issue of "identity of defendant." As
discussed above, we believe the evidence of the other crimes,
when coupled with defendant's admissions to Gray and Krause, did
tend to establish defendant's identity as the perpetrator of the
Huck's murder.
Defendant argues the modus operandi exception arises
most often when the identity of the perpetrator is at issue,
People v. Denny, 241 Ill. App. 3d 345, 358, 608 N.E.2d 1313, 1322
(1993), and the modus operandi exception does not apply in this
case. "Modus operandi" refers to a pattern of criminal behavior
so distinctive that separate crimes are recognized as the handi-
work of the same wrongdoer. Modus operandi requires a high
degree of similarity between the facts of the crime charged and
the other offense. People v. Cruz, 162 Ill. 2d 314, 348-49, 643 N.E.2d 636, 653 (1994). We agree the facts of the three crimes
here would not support application of the modus operandi excep-
tion, but we disagree that the modus operandi exception is the
only way to show identity of the defendant. Again, there are two
questions here: (1) are the several crimes connected, and (2) is
there a logical inference that if defendant committed one crime
he logically committed the other. Modus operandi goes to the
first factor, whether the several crimes are connected. There
are other ways to show a connection. "In some cases there are
definite distinctive links between the two cases." Biggers, 273
Ill. App. 3d at 123, 652 N.E.2d at 479. It is clear in this case
that the Huck's murder, Storm-Whitacre murders, and Ali's Market
shooting are connected. There is clear ballistics evidence that
the same gun was used in each crime. It is irrelevant that the
modus operandi was different with each crime.
II
Defendant next argues that the State's failure, which
all parties agree was unintentional, to disclose Krause's prior
convictions, was error requiring reversal. The State failed to
disclose that Krause had three misdemeanor theft convictions, a
felony conviction for theft over $300, and two subsequent felony
convictions for theft with a prior felony conviction. The trial
court, in ruling on defendant's motion for new trial, concluded
there was error but that it would not have affected the outcome
of this case.
A prosecutor violates the due process rights of the
accused when the State, notwithstanding a specific defense
request for production of evidence, fails to disclose evidence
that is material to the suspect's guilt or innocence. Brady v.
Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
Evidence is "material," for purposes of Brady, when it would tend
to raise a reasonable doubt of defendant's guilt--when it is
reasonably likely that it would have affected the outcome of the
case. People v. Sims, 167 Ill. 2d 483, 507, 658 N.E.2d 413, 424
(1995). The question is whether the government's evidentiary
suppression "'undermines confidence in the outcome of the tri-
al.'" Kyles v. Whitley, 514 U.S. ___, ___, 131 L. Ed. 2d 490,
506, 115 S. Ct. 1555, 1566 (1995), quoting United States v.
Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 491, 105 S. Ct. 3375, 3381 (1985).
We agree with the trial court that it is not reasonably
likely the failure to disclose the convictions would have affect-
ed the outcome of this case, and that confidence has not been
undermined in the outcome of this trial. Much of what Krause
testified to was supported by other evidence. Defendant's use of
the 1979 Cutlass on September 5 was confirmed by Tosha and other
witnesses. Defendant's fingerprints were on the VCR taken from
the Huck's store. Defendant admitted his participation in the
other crimes to Gray as well as to Krause, and there was ballis-
tics evidence which supported defendant's admission to Krause
that the three crimes were connected.
III
Defendant argues the State was erroneously allowed to
corroborate the testimony of Krause with Krause's prior consis-
tent statements. On cross-examination, the prosecutor asked
Krause whether, when he spoke to the police on September 7, he
told them what he testified to before the jury, to which Krause
responded in the affirmative. At trial the defense sought to
establish that Krause had two motives to falsify his testimony:
(1) he wanted to help his sister, Tosha, who had originally
denied loaning her car to defendant, and had been charged with
obstruction of justice; and (2) he wanted to avoid being charged
with "fencing," as he had allegedly told defendant he would try
to sell the VCR defendant took from Huck's.
Generally, proof of a prior consistent statement by a
witness is admissible to rebut a charge or inference of recent
fabrication or motive to testify falsely, as long as the prior
statement is made before the alleged motive to fabricate existed.
People v. Ashford, 121 Ill. 2d 55, 71, 520 N.E.2d 332, 338
(1988). Krause and Tosha were taken to the police station at the
same time on September 7, and interviewed separately. Krause had
no knowledge Tosha had obstructed justice when he gave his state-
ment to the police, and she was not charged with obstruction of
justice until September 8. The trial court properly admitted the
prior consistent statement to rebut the inference of recent
fabrication. In any event, the statement was not extensive, was
only cumulative, and its admission could not have been prejudi-
cial.
IV
Finally, defendant argues that the trial court improp-
erly determined that this murder "was accompanied by exceptional-
ly brutal or heinous behavior indicative of wanton cruelty" (730
ILCS 5/5-8-1(a)(1)(b) (West 1994)) and sentenced him to a term of
natural life imprisonment on that basis. The State argues that
defendant has waived this issue by failing to object to his
sentence in the trial court or by failing to file a post-trial
motion to reduce his sentence. In People v. Lewis, 158 Ill. 2d 386, 634 N.E.2d 717 (1994), the supreme court ruled that the
filing of a post-trial motion to contest sentencing issues was
permissive and not mandatory pursuant to section 5-8-1(c) of the
Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38,
par. 1005-8-1(c)). Lewis, 158 Ill. 2d 386, 634 N.E.2d 717,
citing People v. Turner, 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10 (1992). Section 5-8-1(c) of the Code was since
amended to read as follows:
"A motion to reduce a sentence may be
made, or the court may reduce a sentence with-
out motion, within 30 days after the sentence
is imposed. A defendant's challenge to the
correctness of a sentence or to any aspect of
the sentencing hearing shall be made by a
written motion filed within 30 days following
the imposition of sentence." (Emphasis
denotes language added.) 730 ILCS 5/5-8-1(c)
(West 1994) (as amended by Pub. Act 88-311,
15, eff. August 11, 1993 (1993 Ill. Laws 2604,
2615)).
Although there is some dispute, we believe the amendment did not
change the rule set out in Lewis. People v. Cook, 279 Ill. App.
3d 718, 725-26, 665 N.E.2d 299, 303-04 (1995); cf. People v.
McCleary, 278 Ill. App. 3d 498, 501, 663 N.E.2d 22, 24 (1996);
see People v. Porter, Nos. 4-96-0359, 4-96-0430 cons. (November
22, 1996), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___. The
same language which the supreme court interpreted in Lewis is
still present in the statute. The amendment only provides that
if a motion is filed it must be in writing and filed within 30
days. Cook, 279 Ill. App. 3d at 726, 665 N.E.2d at 304. Post-
trial motions are essential in jury trials in order to give the
trial court an opportunity to rule on the claimed error. They
are not so useful in cases like this, where it was the trial
court which imposed the sentence and the post-trial motion would
only repeat arguments the trial court had already heard and
rejected.
In People v. Andrews, 132 Ill. 2d 451, 548 N.E.2d 1025
(1989), a robbery victim was killed in his car with a single shot
to the head. The trial court found that the murder was "accompa-
nied by exceptionally brutal or heinous behavior indicative of
wanton cruelty" (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-
3.2(b)(2)), because the murder was senseless and unresisted. The
supreme court reversed, saying that all murders are brutal and
heinous to a certain degree, but that the legislature did not
intend to convert every offense into an extraordinary offense
subject to an extended-term sentence. In the present case,
however, defendant shot the victim not once but four times, all
to the head and neck area. See People v. Keller, 267 Ill. App.
3d 602, 641 N.E.2d 891 (1994) (extended sentence where victim
shot six times). The victim here was shot twice, a period of
time elapsed, and then the victim was shot twice more for no
apparent reason. The victim was still alive when the second
shooting occurred. Defendant's statements to Gray, and other
statements considered by the trial court during the sentencing
hearing, show a callous attitude and lack of remorse not found in
Andrews. The trial court acted within its discretion in imposing
an extended sentence.
For the foregoing reasons, the judgment of the trial
court is affirmed.
Affirmed.
McCULLOUGH and GARMAN, JJ., concur.
IN THE APPELLATE COURT
OF ILLINOIS
FOURTH DISTRICT
THE PEOPLE OF THE STATE OF ILLINOIS, ) Appeal from
Plaintiff-Appellee, ) Circuit Court of
v. ) Macon County
CONTRELL WILLIAMS, ) No. 94CF835
Defendant-Appellant. )
) Honorable
) Jerry L. Patton,
) Judge Presiding.
_________________________________________________________________
JUSTICE COOK delivered the opinion of the court:
Defendant Contrell Williams and codefendant Tyrone
Humphrey were charged with the September 5, 1994, first degree
murder (720 ILCS 5/9-1(a) (West 1994)) of Sheri Ellis, a clerk at
a Huck's convenience store. The two trials were severed.
Following a jury trial, defendant was found guilty, and in
January 1995, defendant was sentenced to natural life in prison
without parole. Defendant appeals his conviction and his sen-
tence. We affirm.
The codefendant, Tyrone Humphrey, lived with Tosha
Krause at 835 East Whitmer, in Decatur. Tosha testified that
defendant and Humphrey borrowed her 1979 Oldsmobile Cutlass
during the evening hours of September 5. Her car had a loud
muffler at the time. The two were gone about 45 minutes before
returning the car. Richard Jackson, who lived near the Huck's
store, testified that on September 5, about 11:30 p.m., he heard "a loud noise like a car drive, a couple doors slam." He looked
out his window and saw a car parked on the curb directly in front
of his house. After watching for 10 or 15 minutes, Jackson saw
two people running from the direction of Huck's, carrying a
lightweight bag. They drove off quickly and did not turn the
car's lights on until it reached the corner. The car had a loud
muffler. Jackson testified that a photograph of the Krause 1979
Cutlass closely resembled the car he saw September 5.
Decatur police officer Roger Ryan testified he recov-
ered four empty .380 Winchester shell casings at the Huck's
scene, as well as a spent bullet and a bullet fragment. In the
back storeroom Ryan observed that the metal case which housed the
surveillance video cassette recorder (VCR) was broken, and the
VCR had been removed. There were VHS tapes for each day of the
week, but the tape labelled "Monday" was missing. (September 5,
1994, was a Monday.)
Larry Joe Krause testified that on September 5 he was
living with his sister Tosha at 835 East Whitmer. After defen-
dant and Humphrey borrowed the 1979 Cutlass, they returned
between midnight and 1 a.m. on September 6, while Krause was
watching television. Defendant was carrying what appeared to be
a VCR in his hands. Defendant told Krause the two had robbed
Huck's and taken a VCR. The next morning defendant asked Krause
if he knew anybody who wanted to buy a VCR. Krause and defendant
were watching the television news at 10 p.m., September 6, when
the story about the Huck's robbery aired. Krause looked at
defendant and said, "'It wasn't you all, was it?'" The defendant
answered, "'Yeah.'"
Antonio Gray testified that he was incarcerated in the
Macon County jail while defendant was incarcerated there, and
defendant had spoken to him on three different occasions regard-
ing the murder. Defendant told Gray that he and his cousin
Humphrey had robbed the Huck's store. Defendant took $30 from
the clerk, then shot her. Defendant then went to the storeroom
and removed the VCR. As he left the store defendant shot the
clerk two more times. Gray asked why defendant shot the clerk,
since he was wearing a mask, and she could not see his face.
Defendant responded that he could not stop because it felt so
good to him. Defendant told Gray what he did with the VCR--he
"crunched it up real good and threw it on a roof or something."
Officer Ryan testified that he recovered a VHS tape and
pieces of a VCR from the roof of a house at 843 East Whitmer on
September 7. The VHS tape bore the label "Monday." Another
witness testified that the serial number on the recovered VCR
matched the serial number of the VCR which had been installed in
the Huck's store in 1993. Ryan recovered two latent prints from
the VCR pieces seized on the roof. Those prints matched the
defendant's prints. Another print matched a fingerprint of
Humphrey.
There was more to the testimony of Gray and Krause.
Gray testified defendant told him that defendant and Humphrey on
one occasion got into a car with "two white guys driving."
Humphrey pulled a gun and robbed the men, then took them some-
place and proceeded to shoot them. Defendant told Gray the gun
was well hidden. Krause testified that sometime after June 29,
1994, defendant told him "two white guys picked them up and took
them; took them for a ride, and they took them out of the car and
killed them and took the car and left." On another occasion
defendant told Krause that "we" had robbed Ali's Market.
The State introduced evidence that two white men, Shane Storm
and Cary Matthew Whitacre, were killed near Lake Decatur on
August 10, 1994, and that five .380 Winchester shell casings were
recovered from the area immediately around the two bodies.
Massound Aliabadi testified that he owned Ali's Market in
Decatur, and that on July 29, 1994, three black males robbed his
store. Aliabadi was shot several times during the robbery. Five
.380 Winchester shell casings and two spent bullets were recov-
ered from the scene. Krail Lattig, an expert witness on firearms
and ammunition, testified that he compared the shell casings from
the Huck's, Storm-Whitacre, and Ali's Market crime scenes, and
determined that a single gun fired all of the cartridges. He
also compared the spent bullets recovered from each of the crime
scenes, and determined that a single gun fired each of the
bullets. The gun was never recovered.
The trial court admonished the jury that the evidence
of other crimes was being admitted only "on the issue of the
defendant's preparation, plan, identity of a weapon, and identity
of the defendant." Defendant and Humphrey were later convicted
of the murders of Whitacre and Storm. See People v. Humphrey,
No. 4-95-0447 (July 23, 1996) (unpublished order under Supreme
Court Rule 23) (affirming conviction); People v. Williams, No. 4-
95-0695 (September 12, 1996) (unpublished order under Supreme
Court Rule 23) (affirming conviction). Defendant was convicted
in the Ali's Market incident in May 1995.
Defendant testified that he visited his aunt on Septem-
ber 5, arriving about 9:45 p.m., and leaving about 2 or 3 a.m.
He denied going to the Huck's store, denied killing Sheri Ellis,
and testified he had no knowledge of the robbery or homicide.
Defendant testified that a black male at Longview Apartments, a
person he did not know, sold him a VCR for $15 on September 6.
Defendant did not know how to hook up the VCR, so he threw it in
the backyard at his girlfriend's house. Defendant testified he
had no knowledge of the Storm-Whitacre homicides or the Ali's
Market robbery. He testified Gray's testimony regarding his
alleged admissions was not true. Defendant denied making any of
the statements that Krause attributed to him regarding the Storm-
Whitacre, Ali's Market, or Huck's incidents.
I
Defendant first argues the trial court erred in admit-
ting evidence of his participation in the other crimes. Evidence
of other offenses is admissible if relevant for any purpose other
than to show propensity to commit a crime. People v. Jones, 156 Ill. 2d 225, 239, 620 N.E.2d 325, 330 (1993). It is not neces-
sary that the evidence fit into a specific enumerated exception
in order for the evidence to be admissible. People v. Stewart,
105 Ill. 2d 22, 61-62, 473 N.E.2d 840, 859-60 (1984). It is only
necessary that there be some clear connection between the other
crime and the crime charged which creates a logical inference
that if defendant committed the other crime, he committed the
crime charged. People v. Overlin, 241 Ill. App. 3d 530, 539, 608 N.E.2d 925, 930 (1993); People v. Kimbrough, 138 Ill. App. 3d
481, 486-87, 485 N.E.2d 1292, 1297 (1985).
The fact that there is a link between a number of
crimes does not necessarily mean that they are admissible, even
if there is clear evidence that defendant committed each of the
crimes. There will be evidence that defendant committed each of
the crimes even when the only purpose for admission is to show a
propensity to commit crime. People v. Biggers, 273 Ill. App. 3d
116, 123, 652 N.E.2d 474, 479 (1995). In the present case, if
the only evidence was the ballistics evidence that the same gun
was used in each crime, it would appear that the evidence of
other crimes should not be admitted. There would be no logical
inference that if defendant was involved in the Storm-Whitacre
murders, or the Ali's Market robbery and shooting, that he
committed the Huck's store murder. Proof of three murders
instead of one would be justified only by the desire to show
defendant's propensity to commit crime. The other murders did
not facilitate the commission of the Huck's murder. This is not
a case like People v. Cole, 29 Ill. 2d 501, 505, 194 N.E.2d 269,
271 (1963), where evidence of prior narcotics transactions was
admitted because it explained the ease with which the purchase
was made. "There the prior events facilitated the otherwise
implausibly simple controlled sale--the crime charged." People
v. Romero, 66 Ill. 2d 325, 331, 362 N.E.2d 288, 290 (1977).
It may be easier to justify introduction of evidence of
the Huck's murder in the Storm-Whitacre case, or the Ali's Market
case, than vice versa. In Storm-Whitacre, for example, it could
be shown (1) the weapon used was the same weapon used in the
Huck's murder; (2) there is strong evidence defendant committed
the Huck's murder (fingerprints on the VCR); (3) accordingly
there is a logical inference that defendant was involved in the
Storm-Whitacre murders. The syllogism does not work the other
way around. There is no such logical inference that if defendant
committed the Storm-Whitacre murders he committed the Huck's
murder.
What is important in this case are the admissions to
Gray and Krause. In People v. Tellez, 235 Ill. App. 3d 542, 601 N.E.2d 1284 (1992), defendant (a policeman) admitted to John
Branco (who had connections to organized crime) that he had
committed the charged murder in 1986, and another murder in 1984.
At trial defendant testified he fabricated those admissions as
part of a private undercover investigation he was conducting.
There was strong evidence defendant committed the 1984 murder,
however, and the court admitted that evidence to refute
defendant's claim of fabrication. Tellez, 235 Ill. App. 3d at
555, 601 N.E.2d at 1292. In People v. King, 109 Ill. 2d 514, 488 N.E.2d 949 (1986), defendant confessed to the police that he
committed an armed robbery on December 22, and the charged armed
robbery and murder at a nearby location on December 19. Bullets
found at each location were fired from the same gun. A gun was
produced which defendant identified as the murder weapon. At
trial defendant testified the police had coerced him into making
an untrue confession. Defendant sought to exclude evidence of
the December 22 armed robbery, but the evidence was admitted.
"Evidence regarding the [December 22] Church's Chicken robbery
was relevant to establish the accuracy of the confession." King,
109 Ill. 2d at 531, 488 N.E.2d at 958. "The evidence of the
other crime tended to corroborate the defendant's statements in
his confession concerning the two offenses, his role in each, and
the weapon." King, 109 Ill. 2d at 531, 488 N.E.2d at 958.
That is not to say that, simply because a witness may
be more believable when he testifies to defendant's admission of
three crimes than when he testifies to defendant's admission of
one crime, that testimony will always come in as "corroboration."
Evidence of other crimes is not admissible simply to enhance the
credibility of the State's key witness who testifies those crimes
have been committed. Romero, 66 Ill. 2d at 330-31, 362 N.E.2d at
290. The evidence of defendant's commission of the other crime
was not very strong in Romero.
In the present case, unlike Tellez and King, defendant
does not admit he made the statements and then attempt to explain
them. In the present case defendant denies he made the state-
ments at all. In the present case the only issue is whether Gray
and Krause are telling the truth. Looking at it from defendant's
point of view, are Gray and Krause more believable because they
told a big lie (admitted three murders and a shooting) than if
they told a smaller one (admitted just this murder)? There is no
issue here such as whether defendant intentionally falsified the
statements because he was doing undercover work, or because he
was coerced into making a false statement. It could be argued
the evidence of other crimes in this case came in only to enhance
the credibility of Gray and Krause. There is more, however, to
this case. When Gray and Krause first disclosed what defendant
had told them, they were unaware there was evidence linking the
Huck's store murder, the Storm-Whitacre murders, and the Ali's
Market robbery and shooting. The things defendant told them
about the three crimes would only have been known by someone who
had knowledge of those crimes. The other crimes evidence in this
case was important evidence which established that defendant made
the admissions to Gray and Krause. See King, 109 Ill. 2d at 531,
488 N.E.2d at 958. There was no error in admitting the evidence
of other crimes.
The trial court's limiting instruction advised the jury
that the other-crimes evidence was admitted first of all, only on
the issue of the defendant's "preparation" and "plan." Evidence
of other crimes may be admitted where all the crimes are part of
a common design or plan, as where the defendant steals a car to
use in a bank robbery. M. Graham, Cleary & Graham's Handbook of
Illinois Evidence 404.5, at 192, 194 (5th ed. 1990). We do not
see preparation or plan as justifying admission of the evidence
here. The trial court also saw the evidence as admissible on the
issue of "identity of a weapon." In Stewart, the murder weapon
found in defendant's apartment was registered to Cornelius Jones.
Jones was allowed to testify the weapon was taken from him in an
armed robbery the year before, and the robber fled in a Buick
Electra which looked like one owned by the defendant. In the
present case, however, no weapon was ever found. The three
crimes were committed with the same weapon, but there was no
evidence tying defendant to any weapon. We do not see that the
evidence of other crimes was admissible here because it somehow
showed identity of a weapon. See also King, 109 Ill. 2d 514, 488 N.E.2d 949 (defendant identified gun as weapon he used in two
crimes, then claimed he was coerced into a false confession).
The last reason given by the trial court for admission of the
other crimes was on the issue of "identity of defendant." As
discussed above, we believe the evidence of the other crimes,
when coupled with defendant's admissions to Gray and Krause, did
tend to establish defendant's identity as the perpetrator of the
Huck's murder.
Defendant argues the modus operandi exception arises
most often when the identity of the perpetrator is at issue,
People v. Denny, 241 Ill. App. 3d 345, 358, 608 N.E.2d 1313, 1322
(1993), and the modus operandi exception does not apply in this
case. "Modus operandi" refers to a pattern of criminal behavior
so distinctive that separate crimes are recognized as the handi-
work of the same wrongdoer. Modus operandi requires a high
degree of similarity between the facts of the crime charged and
the other offense. People v. Cruz, 162 Ill. 2d 314, 348-49, 643 N.E.2d 636, 653 (1994). We agree the facts of the three crimes
here would not support application of the modus operandi excep-
tion, but we disagree that the modus operandi exception is the
only way to show identity of the defendant. Again, there are two
questions here: (1) are the several crimes connected, and (2) is
there a logical inference that if defendant committed one crime
he logically committed the other. Modus operandi goes to the
first factor, whether the several crimes are connected. There
are other ways to show a connection. "In some cases there are
definite distinctive links between the two cases." Biggers, 273
Ill. App. 3d at 123, 652 N.E.2d at 479. It is clear in this case
that the Huck's murder, Storm-Whitacre murders, and Ali's Market
shooting are connected. There is clear ballistics evidence that
the same gun was used in each crime. It is irrelevant that the
modus operandi was different with each crime.
II
Defendant next argues that the State's failure, which
all parties agree was unintentional, to disclose Krause's prior
convictions, was error requiring reversal. The State failed to
disclose that Krause had three misdemeanor theft convictions, a
felony conviction for theft over $300, and two subsequent felony
convictions for theft with a prior felony conviction. The trial
court, in ruling on defendant's motion for new trial, concluded
there was error but that it would not have affected the outcome
of this case.
A prosecutor violates the due process rights of the
accused when the State, notwithstanding a specific defense
request for production of evidence, fails to disclose evidence
that is material to the suspect's guilt or innocence. Brady v.
Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963).
Evidence is "material," for purposes of Brady, when it would tend
to raise a reasonable doubt of defendant's guilt--when it is
reasonably likely that it would have affected the outcome of the
case. People v. Sims, 167 Ill. 2d 483, 507, 658 N.E.2d 413, 424
(1995). The question is whether the government's evidentiary
suppression "'undermines confidence in the outcome of the tri-
al.'" Kyles v. Whitley, 514 U.S. ___, ___, 131 L. Ed. 2d 490,
506, 115 S. Ct. 1555, 1566 (1995), quoting United States v.
Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 491, 105 S. Ct. 3375, 3381 (1985).
We agree with the trial court that it is not reasonably
likely the failure to disclose the convictions would have affect-
ed the outcome of this case, and that confidence has not been
undermined in the outcome of this trial. Much of what Krause
testified to was supported by other evidence. Defendant's use of
the 1979 Cutlass on September 5 was confirmed by Tosha and other
witnesses. Defendant's fingerprints were on the VCR taken from
the Huck's store. Defendant admitted his participation in the
other crimes to Gray as well as to Krause, and there was ballis-
tics evidence which supported defendant's admission to Krause
that the three crimes were connected.
III
Defendant argues the State was erroneously allowed to
corroborate the testimony of Krause with Krause's prior consis-
tent statements. On cross-examination, the prosecutor asked
Krause whether, when he spoke to the police on September 7, he
told them what he testified to before the jury, to which Krause
responded in the affirmative. At trial the defense sought to
establish that Krause had two motives to falsify his testimony:
(1) he wanted to help his sister, Tosha, who had originally
denied loaning her car to defendant, and had been charged with
obstruction of justice; and (2) he wanted to avoid being charged
with "fencing," as he had allegedly told defendant he would try
to sell the VCR defendant took from Huck's.
Generally, proof of a prior consistent statement by a
witness is admissible to rebut a charge or inference of recent
fabrication or motive to testify falsely, as long as the prior
statement is made before the alleged motive to fabricate existed.
People v. Ashford, 121 Ill. 2d 55, 71, 520 N.E.2d 332, 338
(1988). Krause and Tosha were taken to the police station at the
same time on September 7, and interviewed separately. Krause had
no knowledge Tosha had obstructed justice when he gave his state-
ment to the police, and she was not charged with obstruction of
justice until September 8. The trial court properly admitted the
prior consistent statement to rebut the inference of recent
fabrication. In any event, the statement was not extensive, was
only cumulative, and its admission could not have been prejudi-
cial.
IV
Finally, defendant argues that the trial court improp-
erly determined that this murder "was accompanied by exceptional-
ly brutal or heinous behavior indicative of wanton cruelty" (730
ILCS 5/5-8-1(a)(1)(b) (West 1994)) and sentenced him to a term of
natural life imprisonment on that basis. The State argues that
defendant has waived this issue by failing to object to his
sentence in the trial court or by failing to file a post-trial
motion to reduce his sentence. In People v. Lewis, 158 Ill. 2d 386, 634 N.E.2d 717 (1994), the supreme court ruled that the
filing of a post-trial motion to contest sentencing issues was
permissive and not mandatory pursuant to section 5-8-1(c) of the
Unified Code of Corrections (Code) (Ill. Rev. Stat. 1989, ch. 38,
par. 1005-8-1(c)). Lewis, 158 Ill. 2d 386, 634 N.E.2d 717,
citing People v. Turner, 233 Ill. App. 3d 449, 456, 599 N.E.2d 104, 109-10 (1992). Section 5-8-1(c) of the Code was since
amended to read as follows:
"A motion to reduce a sentence may be
made, or the court may reduce a sentence with-
out motion, within 30 days after the sentence
is imposed. A defendant's challenge to the
correctness of a sentence or to any aspect of
the sentencing hearing shall be made by a
written motion filed within 30 days following
the imposition of sentence." (Emphasis
denotes language added.) 730 ILCS 5/5-8-1(c)
(West 1994) (as amended by Pub. Act 88-311,
15, eff. August 11, 1993 (1993 Ill. Laws 2604,
2615)).
Although there is some dispute, we believe the amendment did not
change the rule set out in Lewis. People v. Cook, 279 Ill. App.
3d 718, 725-26, 665 N.E.2d 299, 303-04 (1995); cf. People v.
McCleary, 278 Ill. App. 3d 498, 501, 663 N.E.2d 22, 24 (1996);
see People v. Porter, Nos. 4-96-0359, 4-96-0430 cons. (November
22, 1996), ___ Ill. App. 3d ___, ___, ___ N.E.2d ___, ___. The
same language which the supreme court interpreted in Lewis is
still present in the statute. The amendment only provides that
if a motion is filed it must be in writing and filed within 30
days. Cook, 279 Ill. App. 3d at 726, 665 N.E.2d at 304. Post-
trial motions are essential in jury trials in order to give the
trial court an opportunity to rule on the claimed error. They
are not so useful in cases like this, where it was the trial
court which imposed the sentence and the post-trial motion would
only repeat arguments the trial court had already heard and
rejected.
In People v. Andrews, 132 Ill. 2d 451, 548 N.E.2d 1025
(1989), a robbery victim was killed in his car with a single shot
to the head. The trial court found that the murder was "accompa-
nied by exceptionally brutal or heinous behavior indicative of
wanton cruelty" (Ill. Rev. Stat. 1985, ch. 38, par. 1005-5-
3.2(b)(2)), because the murder was senseless and unresisted. The
supreme court reversed, saying that all murders are brutal and
heinous to a certain degree, but that the legislature did not
intend to convert every offense into an extraordinary offense
subject to an extended-term sentence. In the present case,
however, defendant shot the victim not once but four times, all
to the head and neck area. See People v. Keller, 267 Ill. App.
3d 602, 641 N.E.2d 891 (1994) (extended sentence where victim
shot six times). The victim here was shot twice, a period of
time elapsed, and then the victim was shot twice more for no
apparent reason. The victim was still alive when the second
shooting occurred. Defendant's statements to Gray, and other
statements considered by the trial court during the sentencing
hearing, show a callous attitude and lack of remorse not found in
Andrews. The trial court acted within its discretion in imposing
an extended sentence.
For the foregoing reasons, the judgment of the trial
court is affirmed.
Affirmed.
McCULLOUGH and GARMAN, JJ., concur.
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