People v. Bannister

Opinion

SECOND DIVISION FILED: December 4, 2007

No. 1-04-2894

THE PEOPLE OF THE STATE OF ) APPEAL FROM THE ILLINOIS, ) CIRCUIT COURT OF ) COOK COUNTY Plaintiff-Appellee, ) ) No. 90 CR 1812 v. ) ) JAMES BANNISTER, ) THE HONORABLE ) JAMES SCHREIER, Defendant-Appellant. ) JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the opinion of the court:

Following a jury trial in 1991, the defendant, James Bannister, was convicted of two counts

of first degree murder and sentenced to natural life imprisonment. His convictions and sentence were

affirmed on direct review. People v. Young, 263 Ill. App. 3d 627, 635 N.E.2d 473 (1994). He

subsequently sought relief under the Post-Conviction Hearing Act (725 ILCS 5/122-1 et seq. (West

1992)), asserting, inter alia, actual innocence premised on newly discovered evidence of the

recantation of trial testimony against him. The defendant’s postconviction petition initially was

dismissed without an evidentiary hearing on this question. On appeal, this court reversed and

remanded for an evidentiary hearing on the recantation issue. See People v. Bannister, No. 1-97-

2876 (1998) (unpublished order under Supreme Court Rule 23). Following the evidentiary hearing,

the trial court granted the defendant’s request for postconviction relief, vacated his convictions, and

ordered a new trial. The defendant was retried in a bench trial in 2004 and again found guilty of two

counts of first degree murder and sentenced to natural life in prison.

On appeal, the defendant challenges his convictions, asserting that (1) his retrial violated his

right to be free from double jeopardy, (2) he was denied due process and deprived of a fair trial based No. 1-04-2894

upon the plea agreement entered into between the prosecution and co-defendant Michael Johnson,

(3) by entering into the plea agreement with Johnson, the State usurped the Governor’s exclusive

right to pardon or commute sentences, (4) the trial court erred in allowing the State to prosecute him

under an indictment that allegedly had been obtained through the use of perjured testimony, (5) the

trial court erred in permitting the State to call Deanda Wilson as a witness where Wilson’s prior

inconsistent testimony had been found to be untruthful, (6) he was deprived of due process and a fair

trial by cumulative error, and (7) the State failed to prove his guilt beyond a reasonable doubt. For

the following reasons, we affirm the defendant’s conviction and sentence.

To resolve the issues raised on appeal, it is necessary to consider the facts and procedural

history of the defendant’s prior prosecution. The defendant was charged with the November 9, 1989,

murders of Dan Williams and Thomas Kaufman in gang-related shootings near the Stateway Gardens

housing complex. Also charged with the murders were co-defendants, James Young, Michael

Meyers, Kevin Young, Thomas Carter, Eric Smith, and Michael Johnson. The defendants were tried

jointly by a jury, with the exception of Michael Johnson, who was granted a severance and tried

separately. The evidence presented at the consolidated trials of the defendant and other co-

defendants is summarized as follows.

The shootings originated from the ground and first-floor porches of the building at 3517-3519

South Federal Street. The shooters chased Williams toward an Illinois Institute of Technology (IIT)

research building across the street, where he stumbled to the ground. Both Williams and Kaufman,

a security guard stationed inside the doors of the IIT building, were killed by the gunfire. The State

presented evidence in support of its theory that Williams had been shot, in a case of mistaken identity,

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to avenge the sexual assault of co-defendant Kevin Young’s girlfriend by members of a rival street

gang, one of whom was also named “Williams.”

At the joint trial of the six co-defendants, the only direct evidence against the defendant was

the testimony of Deanda Wilson, who was then 12 years old and a member of the Del Vikings street

gang. Wilson testified that, on the night of the shooting, he was with Willie Sims on the first-floor

porch of 3519 South Federal Street when he saw the defendant and the six co-defendants, all of

whom were dressed in black, approach the building. The seven individuals were all members of the

Gangster Disciples street gang, a rival of the Del Vikings gang.

According to Wilson, the defendant and co-defendant Eric Smith arrived at the building first

and waited near a janitor’s closet under the building, at one point passing within 10 feet of him.

Wilson and Sims then went to the second-floor porch where Wilson saw three co-defendants

standing below him in front of the building and two co-defendants standing on the first-floor porch

of a connected building. Williams was near a play lot in front of the building when someone called

out to him. Following a verbal exchange, all seven men, including the defendant, stepped out from

their positions and fired at Williams, who stumbled toward the IIT building and fell between its doors.

Wilson was cross-examined regarding certain alleged inconsistencies in his testimony, such as whether

the shooters were wearing masks over their faces and whether he could actually see the defendant

and Smith from his vantage point.

Several other witnesses corroborated certain aspects of Wilson’s testimony, including his

version of how Williams was chased and shot by several men before he fell near the doors of the IIT

building and Wilson’s description of the shooters’ dark clothing and the manner in which they left the

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scene. In addition, Denise Brady and Ruth Wilson, Deanda’s mother, corroborated Wilson’s

identification of co-defendants Kevin Young and Thomas Carter.

The defendant presented an alibi defense, calling four witnesses who testified that he was at

home at the time of the shooting. At the conclusion of the trial, the jury found the defendant guilty

of two counts of first degree murder, and he was sentenced to life imprisonment. The defendant’s

convictions and sentence were affirmed on direct appeal. Young, 263 Ill. App. 3d at 627.

In April 1993, the defendant filed a pro se petition for postconviction relief in which he

requested a new trial, and a supplemental petition was filed by counsel in July 1995. The

supplemental petition raised several issues, including actual innocence based on newly discovered

evidence of Wilson’s recantation of his trial testimony implicating the defendant. The postconviction

petition was supported by the affidavit of Wilson, who attested that he was 15 years old and a

member of the Gangster Disciples. In his affidavit, Wilson recanted his trial testimony in which he

identified the defendant as one of the shooters he saw on November 9, 1989. Wilson also gave a

court-reported statement in which he stated that he had seen seven people involved in the shooting

but could positively identify only four. According to Wilson’s statement, although he had identified

seven shooters at the co-defendants’ joint trial, he was not certain about the identity of three of those

people, including the defendant. He did see two people standing under the building, as he had

testified at trial, but he was unable to identify them because they were wearing masks. Wilson further

attested that when he went to the police station, a detective showed him pictures of seven men, and

those were the people he said were involved in the shooting. Wilson claimed that before he testified

4 No. 1-04-2894

at trial, he told both a detective and an assistant state’s attorney that he was not certain about the

identity of all seven of the shooters.

The court initially dismissed the petition without conducting an evidentiary hearing on the

issue of Wilson’s recantation. In so ruling, the court found that the recantation was unreliable and

untrustworthy. The court particularly noted that, since trial, Wilson had switched allegiance to the

Gangster Disciples, the street gang to which the defendant belonged. In denying the defendant’s

request for postconviction relief based on ineffective assistance of counsel, the trial judge remarked,

“as I look back, I believe I would have found [the defendant] not guilty in a bench trial * * * [the]

[j]ury thought otherwise * * * I don’t think [defense counsel’s decision not to call two witnesses]

amounts to incompetence.”

In denying the defendant’s motion to reconsider the dismissal of his postconviction petition,

the trial judge stated,

“I repeat this is a difficult situation for me because it’s one of the few times in 20

years I ever disagreed with a jury’s verdict on a particular defendant * * * had it been

a bench trial[,] I would have found [the defendant] not guilty, given the identification

and his alibi. But it was for the jury to decide. They could have reasonably found him

guilty, * * * there is nothing under the law * * * that would require me to change the

result brought about by the jury.”

On appeal from the dismissal of the defendant’s postconviction petition, this court reversed and

remanded, holding that the circuit court should have conducted an evidentiary hearing on the question

of Wilson’s recantation of his trial testimony implicating the defendant.

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On remand, the circuit court conducted an evidentiary hearing and found that, with respect

to the defendant and co-defendant Smith, Wilson’s trial testimony was not accurate and truthful and

that there was no corroboration for his implication of the defendant and Smith in the shooting. The

court concluded that, as to the defendant and co-defendant Smith, the outcome of the trial “would

probably have been different if not for Wilson’s perjured testimony.” Accordingly, the court granted

the defendant’s postconviction petition requesting a new trial, vacated his convictions and sentence,

set bond, and remanded the defendant to the custody of the Cook County Sheriff pending retrial. The

defendant subsequently filed multiple discovery requests and demands for trial. The defendant was

retried by the court after waiving his right to a jury.

In the second trial, the State presented the testimony of co-defendant Johnson, who had been

tried separately, convicted of both murders, and sentenced to natural life imprisonment. Johnson

acknowledged that he had consented to testify against the defendant as part of a plea agreement with

the State. Under the terms of the plea agreement, Johnson promised to testify truthfully in exchange

for the State’s promise to move for vacatur of his two murder convictions and sentence, accept a

guilty plea on one count of murder, nolle prosequi the other murder charge, and recommend that the

court impose a sentence of 60 years’ imprisonment on the single murder conviction. The plea

agreement also provided that Johnson promised to testify in a manner that was consistent with his

prior statements to police and to prosecutors, but the agreement would be rendered null and void if

any of the representations contained in Johnson’s prior statements, upon which the agreement was

predicated, were found to be false. The agreement, which was signed by Johnson, his attorney, and

two assistant state’s attorneys, also provided that it was subject to the approval of the trial court

6 No. 1-04-2894

judge. In addition, Johnson testified that he had asked to be transferred from the super maximum

security facility in which he had been incarcerated and that the State had promised to request a

transfer to a different penitentiary, but Johnson understood that decision was completely within the

discretion of the Illinois Department of Corrections.

Johnson further testified that in 1989, he had been a member of the Gangster Disciples street

gang for approximately 10 years. On the evening of November 9, 1989, he was walking through the

Stateway Gardens housing complex with James Young and Michael Meyers when they met the

defendant, Eric Smith, Thomas Carter, and Kevin Young near the building at 3651 South Federal

Street. All seven men went upstairs to apartment 309, which was the home of Tiya Young, Kevin

Young’s niece. There, they talked for about an hour, discussing a plan to shoot members of the Del

Vikings street gang in revenge for the previous sexual assault of A.W., who was Kevin Young’s

girlfriend.

After this discussion, the group left the apartment and went to 3618 South Federal Street.

At that time, all seven men were armed with guns. Johnson testified that he had a .25-caliber

automatic, and the defendant had a .357-caliber revolver. When the group arrived at the second

building, they encountered a man known as “Rick James,” who greeted the defendant by his

nickname. Kevin Young shot at “Rick James,” and then all seven men ran to the building at 3547-

3549 South Federal Street, where they waited for about 20 minutes before returning to Tiya Young’s

apartment. There, the group talked and smoked for 45 to 60 minutes.

After leaving Tiya Young’s apartment, the group walked to 3617 South Federal Street and

encountered Daniel Nicholson, who was in a wheelchair. Johnson stated he stood on the first-floor

7 No. 1-04-2894

porch with Carter and the defendant while Kevin Young, Smith, Meyers, and James Young followed

Nicholson into the hallway. All seven men had their guns out while Kevin Young robbed Nicholson

of some gold chains and other items. After robbing Nicholson, the group walked north to the

building at 3547-3549 South Federal Street. Johnson testified that he then told the others that he was

going upstairs to his apartment to get a ski mask and some “wave” caps, which are like scarves.

After retrieving the ski mask and caps, he rejoined the others, gave caps to Kevin Young and Carter,

and kept a ski mask for himself.

Thereafter, the seven men walked together to the building located at 3517-3519 South Federal

Street. According to Johnson, he and Meyers walked to the side of the building near the back

hallway. Smith, Kevin Young, and Carter stood in the breezeway behind an area referred to as the

“mailbox.” The defendant and James Young stood on the 3519 side of the building. Johnson stated

that, at that time, he was wearing a ski mask, and Meyers was wearing a “wave” cap. As he and

Meyers walked through the back hallway, they met Gregory Gordon, Willie Sims, and two women

who were standing near the elevators. They also saw Denise Brady, Antoinette Barry, and Joe

Johnson, who were coming out of the stairway.

Johnson testified that he then heard Smith say, “come here, mother***.” After hearing

gunshots, he walked with Meyers to the front of the building to see what was happening. Johnson

stated that he saw Williams running while the defendant, Smith, Carter, Kevin Young, and James

Young were firing their guns at him. Kevin Young stood behind the “mailbox,” just inside the

breezeway, with Smith and Carter. The defendant and James Young were on the ramp from the 3519

side of the building. The defendant, James Young, Kevin Young, Smith, and Carter stepped out from

8 No. 1-04-2894

underneath the building while shooting at Williams. Johnson testified that he shot at Williams as he

ran to a play lot, jumped the fence, and ran toward the IIT building.

According to Johnson, when the shooting eventually stopped, he picked up a .25-caliber

automatic shell casing from his gun and put it in his pocket. All seven of the shooters then went to

an apartment in the building at 3547 South Federal Street and waited a few minutes until the police

left the area. Johnson stated that he then went with Meyers, James Young, Kevin Young, Carter, and

the defendant to an apartment in another building, but Smith drove away in a car. After about five

minutes, the remaining members of the group left the apartment, and he went to the home of his aunt.

About a week later, he sold the gun that he had used in the shooting.

Johnson’s testimony was substantially consistent with the statement he gave the police on

December 29, 1989, the day after his arrest. Johnson acknowledged that he initially denied any

involvement in the shootings and, prior to his 1991 trial, he had moved to suppress his statement,

asserting that he had not been advised of his constitutional rights before being questioned. At the

retrial of the defendant, Johnson testified that the basis for his motion to suppress had been untrue

because he had been advised of his rights prior to giving the statement. The defendant cross-

examined Johnson as to the specific terms of the plea agreement and his motivation for entering into

the agreement.

Daniel Nicholson testified that he had been confined to a wheelchair since 1981 and, on

November 9, 1989, he was visiting his sister who lived in Stateway Gardens. Between 9 and 10 p.m.,

he left his sister’s apartment and went to visit A.W. at 3617 South Federal Street. While waiting

outside, he saw Kevin Young, Carter, James Young, Smith, Meyers, Johnson, and the defendant.

9 No. 1-04-2894

All seven men pulled guns, and Kevin Young and Meyers robbed him of three gold chains, a watch,

and two diamond rings. Afterward, Smith told him to just roll down the ramp and not look back.

Nicholson stated that, as he was leaving, he saw Williams and told him that he had just been robbed

and that Williams should go to the front of the building. Despite his warning, Williams walked to the

back of the building. As he was going up the ramp of his sister’s building, he heard someone say,

“[c]atch that mother***.” Looking backward, he saw that Williams was running from several people

who were chasing him. He also heard several gunshots and saw flashes of gunfire.

Gregory Gordon testified that in November of 1989, he lived in Stateway Gardens at 3517-

3519 South Federal Street. Between 9 and 10 p.m. on November 9, 1989, he was with a person

known as “Big Will.” As the two men stood near the ground-floor elevators on the 3517 side of the

building, they saw seven men, all of whom were dressed in dark clothing, walk into the hallway of

the building. Some of the men had bandanas or scarves over their faces. Gordon stated that he

recognized Meyers, Johnson, Carter, Smith, and Kevin Young, all of whom were holding guns in their

hands. While he pressed the elevator button, he heard someone say, “[c]ome here, mother***,” and

several gunshots. When the elevator doors opened, he got inside along with “Big Will,” two girls,

and another guy. In the elevator, he heard another volley of gunshots before he got off on the 10th

floor. According to Gordon, he then walked to the edge of the porch and looked down, where he

saw someone crawling on the ground near the IIT building. He then looked over the porch on the

other side of the building and saw seven men walking in a line toward the building at 3547-3549

South Federal Street. Gordon testified that he subsequently viewed police photographs and identified

Kevin Young, Smith, Carter, Meyers, and Johnson as five of the seven men he had seen on the night

10 No. 1-04-2894

of the shootings. He also identified photographs of the defendant and James Young as people he

recognized from the neighborhood, but he was unable to state specifically that they were members

of that group.

Gordon acknowledged that on August 29, 1990, he signed a statement exonerating Smith,

but he explained that he was coerced into doing so. Gordon testified that he feared for his life and

was forced to give that statement by Demetrius Jackson, who had a gun and whom he believed was

a member of the Gangster Disciples.

The State also called Deanda Wilson, who was then serving a sentence for murder in a

Minnesota prison. Wilson denied seeing the shootings of Williams and Kaufman at all. Wilson stated

that he was at a completely different building and knew nothing of the murders until he heard

gunshots. Wilson testified that he looked out of a window after the shooting was all over, and he did

not see any of the shooters. The prosecution introduced Wilson’s prior inconsistent statements made

during his testimony at the defendant’s first trial, Johnson’s trial, and during the proceedings before

the grand jury. Wilson admitted that he had previously testified that the defendant was present at the

scene and shot at Williams, but stated that those statements were untrue.

As in his first trial, the defendant again presented an alibi defense and called several witnesses

who testified that he was at home on the night of the shootings. Upon consideration of all of the

evidence presented, the court found the defendant guilty on both counts of first degree murder. The

defendant subsequently filed post-trial motions for a new trial and for acquittal and dismissal based

on double-jeopardy violations. The court denied these motions and sentenced the defendant to

natural life in prison. The defendant has appealed his convictions and sentence.

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We initially address the defendant’s argument that his retrial violated his constitutional

guarantees against double jeopardy. The State responds that the defendant has forfeited this issue

on review by failing to timely raise it in the trial court and by requesting that the court grant him a

new trial following postconviction relief. The State also asserts that, even if this issue had been

preserved for review, retrial of the defendant was proper. We agree with the State on both

propositions.

The United States and Illinois constitutions provide that no person shall be twice put in

jeopardy for the same offense. U.S. Const., amend. V; Ill. Const. 1970, art. I, sec. 10. The

constitutional guarantee against double jeopardy forbids a second, or successive, trial for the purpose

of affording the prosecution another opportunity to supply evidence it failed to muster in the first

proceeding. People v. Olivera, 164 Ill. 2d 382, 393, 647 N.E.2d 926 (1995), citing Burks v. United

States, 437 U.S. 1, 11, 98 S. Ct. 2141 (1978). Although the guarantee against double jeopardy

precludes the State from retrying a defendant after a reviewing court has determined that the evidence

introduced at trial was legally insufficient to convict, the double jeopardy clause does not preclude

retrial of a defendant whose conviction has been set aside because of an error in the proceedings

leading to the conviction. Olivera, 164 Ill. 2d at 393, citing People v. Mink, 141 Ill. 2d 163, 173-74,

565 N.E.2d 975 (1990). In addition, retrial is permitted even though evidence is insufficient to

sustain a verdict once erroneously admitted evidence has been discounted, and, for purposes of

double jeopardy, all evidence submitted at the original trial may be considered when determining the

sufficiency of the evidence. Olivera, 164 Ill. 2d at 393, citing Lockhart v. Nelson, 488 U.S. 33, 40,

109 S. Ct. 285 (1988); People v. Avery, 180 Ill. App. 3d 146, 157, 534 N.E.2d 1296 (1989).

12 No. 1-04-2894

It is firmly established that the constitutional right to not be twice put in jeopardy for the same

offense is a personal privilege which may be forfeited. People v. Scales, 18 Ill.2d 283, 285, 164

N.E.2d 76 (1960); People v. Dieterman, 243 Ill. App. 3d 838, 843, 613 N.E.2d 298 (1993). Where

a new trial is granted on the defendant’s request, that is, in itself, not a bar to a second trial on the

same or amended indictment. People v. Placek, 184 Ill. 2d 370, 377, 704 N.E.2d 393 (1998). The

defendant cannot, by his own conduct, avoid the jeopardy on which he stands and then assert it as

a bar to subsequent jeopardy. Placek, 184 Ill. 2d at 377. The right has been forfeited where the

accused seeks and obtains a new trial, or where he does not raise the defense of former jeopardy

before judgment in the trial court. Scales, 18 Ill. 2d at 285-86.

In this case, the defendant specifically requested a new trial in his postconviction petitions,

and he did not object to the trial court’s decision to set bond and hold him for retrial following the

grant of postconviction relief. In fact, the record demonstrates that, after his first convictions were

vacated, the defendant affirmatively demanded a new trial on more than one occasion. The defendant

did not raise his double-jeopardy claim until he filed post-trial motions after the trial court had again

entered judgments of conviction on retrial. Thus, he has, by his own conduct, forfeited the issue of

double jeopardy on appeal. See Scales, 18 Ill.2d at 285-86.

The defendant seeks to avoid this result by relying on certain remarks made by the circuit

court during the postconviction proceedings. He contends that these comments constituted a finding

by the court that the prosecution had failed to present sufficient evidence at the defendant’s first trial

to support his conviction. We find this contention is refuted by the record.

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In particular, the defendant refers to the dismissal of his postconviction petition where the

court stated, “as I look back, I believe I would have found [the defendant] not guilty in a bench trial

* * * [the] [j]ury thought otherwise * * * I don’t think [defense counsel’s decision not to call two

witnesses] amounts to incompetence.” Also, in denying the defendant’s motion to reconsider the

dismissal of his postconviction petition, the trial judge stated,

“I repeat this is a difficult situation for me because it’s one of the few times in 20

years I ever disagreed with a jury’s verdict on a particular defendant * * * had it been

a bench trial[,] I would have found [the defendant] not guilty, given the identification

and his alibi. But it was for the jury to decide. They could have reasonably found him

guilty, * * * there is nothing under the law I feel that would require me to change the

The defendant misconstrues the court’s determination and relies on certain isolated remarks,

taken out of context, to support his argument that the court found a lack of sufficient evidence to

convict at the first trial. Yet, it is clear that the court’s comments, considered in their entirety, reflect

the opposite conclusion. The trial judge specifically found that, although he might have found the

defendant not guilty, the jury thought otherwise, and the determination of the defendant’s guilt was

for the jury to decide. In addition, the court found that the jury could have reasonably found the

defendant guilty and that there was nothing under the law that would compel a different result. The

trial court’s remarks demonstrate that the court did not make a factual determination that the

prosecution had presented insufficient evidence to support the defendant’s guilt at the first trial.

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Here, postconviction relief was granted based on Wilson’s recantation of his previous

testimony and not based on a lack of sufficient evidence to convict. Therefore, retrial was proper,

and all the evidence submitted at the original trial may be considered when determining the sufficiency

of the evidence. See Olivera, 164 Ill. 2d at 393, citing Lockhart, 488 U.S. at 40; Avery, 180 Ill. App.

3d at 157. Upon consideration of the evidence adduced at the first trial, including the testimony of

Wilson, we agree with the trial court’s determination that the prosecution had presented sufficient

evidence to support defendant’s convictions. Accordingly, the defendant’s second prosecution did

not violate his right to be free from double jeopardy.

We next consider the defendant’s contention that he was deprived of due process and a fair

trial based upon the plea agreement entered into between the prosecution and Johnson. In support

of this argument, the defendant relies upon the fact that the plea agreement provided that Johnson

would testify consistently with his prior statements to police and prosecutors. Whether a defendant’s

constitutional rights are violated by a consistency provision in a witness’ plea agreement is an issue

of first impression in Illinois. However, other states have considered the question and held that

consistency provisions are permissible where they are accompanied by terms that require the witness’

testimony to be truthful. We find the reasoning of these cases to be instructive here.

In State v. Bolden, 979 S.W.2d 587 (1998), the defendant and a co-defendant were charged

with first degree murder. Bolden, 979 S.W.2d at 589. The co-defendant testified against the

defendant pursuant to a plea agreement requiring that he testify truthfully as to the defendant’s

involvement in the murder, in accordance with a prior statement he had given to a law enforcement

officer. Bolden, 979 S.W.2d at 589. The defendant appealed his conviction, arguing that he had been

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denied his right to due process and a fair trial because the co-defendant’s plea agreement required him

to testify to specific facts. Bolden, 979 S.W.2d at 590.

The Supreme Court of Tennessee held that particular testimony of a witness as a condition

of a plea agreement is not a violation of due process so long as the testimony is required to be

truthful. Bolden, 979 S.W.2d at 591-92, citing State v. Burchett, 224 Neb. 444, 399 N.W.2d 258,

266-67 (1986); State v. Clark, 48 Wash. App. 850, 743 P.2d 822, 828-29 (1987); Sheriff, Humboldt

County v. Acuna, 107 Nev. 664, 819 P.2d 197, 200-01 (1991). The court observed that “ ‘it is only

where the prosecution has bargained for false or specific testimony, or a specific result, that an

accomplice’s testimony is so tainted as to require ... preclusion.’ ” Bolden, 979 S.W.2d at 591,

quoting Burchett, 224 Neb. at 456, 399 N.W.2d at 266-67. The court distinguished on their facts

cases in which the plea agreement required only that the witness testify in a particular fashion or that

the testimony produce a specific result, without regard to the truthfulness of the testimony. Bolden,

979 S.W.2d at 592 n.3, citing People v. Medina, 41 Cal. App. 3d 438, 455, 116 Cal. Rptr. 133, 141

(1974); People v. Green, 102 Cal. App. 2d 831, 832-39, 228 P.2d 867, 868-72 (1951).

The Bolden court noted that because the plea agreement specifically required the co-defendant

to testify truthfully, that condition “necessarily engulfed” the other terms in the agreement, which was

“hinged upon truthful testimony.” Bolden, 979 S.W.2d at 592. The court held that the co-

defendant’s testimony did not violate the defendant’s rights to due process and a fair trial even though

it had been induced by a plea agreement that required truthfulness and consistency with a prior

statement. Bolden, 979 S.W.2d at 593.

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The Court of Appeals of Michigan reached the same result in People v. Jones, 236 Mich. App.

396, 600 N.W.2d 652 (1999), where it upheld immunity agreements that provided that the witnesses

had previously given truthful statements to police concerning the murder with which the defendant

was charged and would testify truthfully at trial. Jones, 236 Mich. App. at 406-08, 600 N.W.2d at

656-57. The court observed that although the immunity agreements may provide some incentive for

the witnesses to conform their trial testimony to their prior accounts of the incident, they did not

violate the defendant’s rights where the prosecution expressly conditioned its grants of immunity on

the promises that the witnesses would provide truthful testimony. Jones, 236 Mich. App. at 406, 600

N.W.2d at 657. The Jones court concluded that when a prosecutor makes the decision to bargain

with a witness on the basis of representations made by the witness during negotiations with the State,

it is reasonable for the prosecutor to rely on the witness’ assertion that such representations are

truthful and to expect that the witness’ trial testimony would be essentially consistent with the original

information upon which the State’s promise of leniency was induced. Jones, 236 Mich. App. at 407,

600 N.W.2d at 657, citing Acuna, 107 Nev. at 668, 819 P.2d at 199. In Arizona v. Rivera, 210

Ariz. 188, 109 P.3d 83 (2005), two accomplices testified against the defendant pursuant to separate

plea agreements providing that each accomplice avowed that the information she had provided during

a pretrial interview with prosecutors was a complete, accurate, and truthful account of the events

surrounding the murder. Rivera, 210 Ariz. at 189, 109 P.3d at 84. In addition, each plea agreement

provided that the accomplice understood and acknowledged that the State had entered into the plea

agreement based on that avowal, and that the accomplice promised that she would testify truthfully

at the defendant’s trial. Rivera, 210 Ariz. at 189, 109 P.3d at 84. The Supreme Court of Arizona

17 No. 1-04-2894

concluded that the defendant’s rights were adequately protected because the plea agreements did not

compel the accomplices to disregard their oaths of truthfulness or bind them to a particular script or

result. Rivera, 210 Ariz. at 191-92, 109 P.3d at 86-87. In so holding, the Rivera court found that

State v. Fisher, 176 Ariz. 69, 73, 859 P.2d 179, 183 (1993) was factually distinguishable because the

plea agreement in that case required only that the witness testify in a manner that was consistent with

a prior statement regardless of the truth of that statement. Rivera, 210 Ariz. at 192, 109 P.3d at 87,

citing Fisher, 176 Ariz. at 73, 859 P.2d at 183.

Here, the plea agreement repeatedly and explicitly obligated Johnson to testify truthfully. The

agreement also provided that Johnson would testify in a manner that was consistent with his prior

statements to police and to prosecutors, but if any of the representations contained in his prior

statements were found to be false, the agreement would be rendered null and void. Thus, truthfulness

was the overriding requirement of the agreement, and any falsehoods in Johnson’s prior statements

would nullify the accord. The agreement neither compelled Johnson to disregard his oath of

truthfulness nor bound him to a particular script or result. By its terms, the requirement of

truthfulness “necessarily engulfed” the other provisions in the agreement, which was “hinged upon

[Johnson’s] truthful testimony.” See Bolden, 979 S.W.2d at 592. Accordingly, we find that

Johnson’s testimony was not tainted by the plea agreement, and the admission of his testimony,

induced by the plea agreement, did not violate the defendant’s rights to due process and a fair trial.

In addition, the defendant claims that he was denied due process where the trial judge

participated in Johnson’s plea agreement and failed to recuse himself from presiding over the

defendant’s second trial. We find that this contention is not supported by the record. Contrary to

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the defendant’s assertion, the trial judge did not sign and was not a party to Johnson’s plea

agreement. In addition, the court did not approve Johnson’s plea agreement until more than a month

after the defendant’s second trial had concluded and he had again been found guilty. In light of these

facts, we find that the defendant’s claim that the trial judge committed reversible error by failing to

recuse himself is unfounded.

We also reject the defendant’s assertion that the State’s plea agreement with Johnson

“usurped the sole right to pardon or commute sentences allocated to the Governor of Illinois.”

Initially, we observe that the defendant lacks standing to challenge the validity and enforceability of

Johnson’s plea agreement because he was not a party to it.

It is established that fully negotiated plea agreements, though part of the criminal justice

structure, are generally governed by contract law principles. People v. Evans, 174 Ill. 2d 320, 332,

673 N.E.2d 244 (1996); People v. Malin, 359 Ill. App. 3d 257, 262, 833 N.E.2d 440 (2005). Under

contract law, there is a strong presumption against creating contractual rights in third parties, and this

presumption can only be overcome by a showing that the language and circumstances of the contract

manifest an affirmative intent by the parties to benefit the third party. Estate of Willis v. Kiferbaum

Construction Corp., 357 Ill. App. 3d 1002, 1007, 830 N.E.2d 636 (2005), citing Bates & Rogers

Construction Corp. v. Greely & Hansen, 109 Ill. 2d 225 (1986). Here, the defendant was not a

beneficiary of the plea agreement between Johnson and the State. As a result, he has no standing to

contest the validity or enforcement of Johnson’s plea agreement.

Moreover, even if the defendant had standing to assert this claim, it is clear that the plea

agreement entered into between Johnson and the State was neither a pardon nor a commutation of

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sentence. A pardon is an executive action that officially nullifies punishment or other legal

consequences of a crime. Black’s Law Dictionary 1137 (7th ed. 1999). A commutation of a sentence

is the executive’s substitution of a punishment that is less severe than that originally imposed on a

criminal defendant. Black’s Law Dictionary 274 (7th ed. 1999). Neither of these situations requires

the convicted defendant to undertake any promise or obligation in order to receive the benefit. By

contrast, the agreement between Johnson and the State was a negotiated accord that obligated both

the prosecution and Johnson to take certain actions in order to satisfy its terms.

The supreme court has recognized that “[t]here is no question that ‘the disposition of criminal

charges by agreement between the prosecutor and the accused, sometimes loosely called “plea

bargaining,” is an essential component of the administration of justice.’ ” People v. Henderson, 211

Ill. 2d 90, 102, 809 N.E.2d 1224, (2004), quoting Santobello v. New York, 404 U.S. 257, 260, 92

S. Ct. 495, 498 (1971). In addition, the court has held that “the plea-bargaining process, and the

negotiated plea agreements that result from that process, are ‘vital to and highly desirable for our

criminal justice system.’ ” Henderson, 211 Ill. 2d at 102-03, quoting People v. Evans, 174 Ill. 2d 320,

325, 673 N.E.2d 244 (1996).

In this case, the plea agreement required Johnson to testify truthfully against the defendant,

withdraw all of his appeals and postconviction petitions, and forever waive any and all future appeals,

postconviction petitions or motions to vacate pleas. The record demonstrates that Johnson had an

amended supplemental postconviction petition pending in January 2004, and he moved to voluntarily

dismiss his postconviction appeal in accordance with the terms of the plea agreement. In exchange

for Johnson’s truthful testimony and his promise to forego future appeals and postconviction

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petitions, the State promised to move to vacate Johnson’s existing sentence, accept his guilty plea

on one count of first degree murder, move to nolle prosequi the other murder charge, and to

recommend that Johnson receive a sentence of 60 years in prison, which was the maximum sentence

for first degree murder. These mutual obligations demonstrate that the plea agreement between

Johnson and the State cannot be construed as a pardon or a commutation of sentence.

Our analysis is not altered by the fact that Johnson had already been tried and convicted.

Illinois courts have consistently held that a defendant does not have an absolute right to have a guilty

plea accepted by the circuit court, and the court may reject a plea in the exercise of sound judicial

discretion. Henderson, 211 Ill. 2d at 103, citing Santobello, 404 U.S. at 262; People v. Peterson, 311

Ill. App. 3d 38, 45, 725 N.E.2d 1 (1999). Before a trial judge accepts any plea, the judge must first

determine if the plea has a factual basis, which protects those accused of crime “by ensuring that they

have not pleaded guilty by mistake or under a misapprehension, or been coerced or improperly

advised to plead to crimes they did not commit.” People ex rel. Daley v. Suria, 112 Ill. 2d 26, 32,

490 N.E.2d 1288 (1986). Here, the trial court found a factual basis for the guilty plea after having

presided over Johnson’s earlier trial and having heard Johnson’s testimony at the defendant’s retrial,

which recounted his participation in the murder of Williams, and the court did not accept Johnson’s

guilty plea until more than a month after the defendant was found guilty on retrial. Also, as noted

above, Johnson voluntarily dismissed a pending appeal on a postconviction petition pursuant to the

plea agreement. Under these circumstances, we find that the plea agreement was valid and

enforceable.

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In addition, even if the plea agreement were found to be invalid, the only consequence would

be that it could not have been enforced by either the State or Johnson. The defendant has cited no

authority holding that a determination that the plea agreement was invalid would have required the

suppression of Johnson’s testimony. Rather, a finding that the agreement was void would mean that

neither Johnson nor the State would have been obligated to fulfill their respective commitments under

the agreement, and Johnson would still be legally convicted of two murders. See People v. Caban,

318 Ill. App. 3d 1082, 1087-89 (2001) (holding that, where the sentence stipulated in the plea

agreement was not authorized by statute, the entire agreement was void, and the defendant’s plea was

properly vacated). For all of the reasons set forth above, we reject the defendant’s assertion that

Johnson’s plea agreement was invalid.

The defendant next claims that it was improper to retry him on the original indictment because

that indictment was based on perjured testimony by Wilson. In response, the State contends that the

defendant has forfeited this issue on appeal. We agree.

To preserve an issue for review, a defendant must both object at trial and raise the issue in a

written post-trial motion. People v. Bush, 214 Ill. 2d 318, 332, 827 N.E.2d 455 (2005); People v.

Enoch, 122 Ill. 2d 176, 186, 522 N.E.2d 1124 (1988). Here, the defendant did not challenge the

indictment prior to or during trial, nor did he raise it in his post-trial motion. Consequently, he has

forfeited this claim on appeal. See Bush, 214 Ill. 2d at 332; Enoch, 122 Ill. 2d at 186.

Moreover, even if this issue had been preserved for review, the defendant has failed to present

this court with an adequate record to support his assertion that the indictment against him was based

solely on the grand jury testimony of Wilson. It is established that the appellant has the burden of

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providing a sufficiently complete record on appeal so that the reviewing court is fully informed

regarding the issues to be resolved. People v. Moore, 373 Ill. App. 3d 367, 376, 869 N.E.2d 177

(2007); People v. Raczkowski, 359 Ill. App. 3d 494, 496, 834 N.E.2d 596 (2005). Where the issue

on appeal relates to the conduct of a proceeding, the issue is not subject to review absent a report or

record of the proceeding. Webster v. Hartman, 195 Ill. 2d 426, 432, 749 N.E.2d 958 (2001);

Raczkowski, 359 Ill. App. 3d at 496. Because the record before us does not include the entire report

of proceedings before the grand jury, it is impossible for this court to ascertain whether the indictment

against the defendant was based exclusively on Wilson’s testimony. 1 Accordingly, we must presume

that the trial court did not err in permitting the retrial of the defendant on the original indictment.

The defendant also argues that it was reversible error for the State to call Deanda Wilson as

a witness. In particular, the defendant contends that he was denied due process and a fair trial

because the court permitted the State to call Wilson despite the recantation of his testimony given at

previous trials and before the grand jury. The State again argues that the defendant has forfeited this

issue on appeal, and we must agree.

As stated above, in order to preserve an issue for review, a defendant must both object at trial

and raise the issue in a written post-trial motion. Bush, 214 Ill. 2d at 332; Enoch, 122 Ill. 2d at 186.

In this case, the defendant failed to object at trial to the introduction of Wilson’s testimony and,

therefore, has forfeited this issue on review. See Bush, 214 Ill. 2d at 332; Enoch, 122 Ill. 2d at 186.

1 This court granted the defendant’s motion to supplement the record on appeal to include the report of proceedings before the grand jury. Although the briefs indicate that Wilson testified before the grand jury, the supplemental record filed by the defendant contains only the testimony of Detective Winstead and does not include the testimony of Wilson or any other witnesses.

23 No. 1-04-2894

Despite this forfeiture, the defendant urges us to consider this issue under the plain-error rule,

which permits review where the trial evidence was closely balanced or when the error is “so

substantial that it affected the fundamental fairness of the proceeding, and remedying the error is

necessary to preserve the integrity of the judicial process.” People v. Hall, 194 Ill. 2d 305, 335, 743

N.E.2d 521 (2000); 134 Ill.2d R. 615(a). The defendant asserts that plain error was established

because the question of whether Wilson’s trial testimony was perjured had been finally decided during

the postconviction proceedings and had become the law of the case. We disagree.

The law of the case doctrine bars relitigation of an issue already decided in the same case.

See People v. Tenner, 206 Ill. 2d 381, 395, 794 N.E.2d 238 (2002); People v. Patterson, 154 Ill. 2d

414, 468, 610 N.E.2d 16 (1992). The case before us is the defendant’s direct appeal of his

convictions following the second trial, which is a separate and distinct proceeding from that involving

the defendant’s post-conviction petition. See People v. Harris, 224 Ill. 2d 115, 127, 862 N.E.2d 960

(2007) (recognizing that a postconviction proceeding collaterally attacking a conviction is a case

separate and apart from the case in which the conviction was entered). Because the defendant’s

direct appeal and the postconviction proceedings are not the same case, the doctrine of law of the

case does not apply here. See Tenner, 206 Ill. 2d at 395-96. In addition, we observe that the

defendant has not argued that either collateral estoppel or res judicata applied to the question of

whether Wilson’s testimony had been perjured, and we decline to address the issue since it was not

raised on appeal. See 210 Ill. 2d R. 341(h)(7); People v. Colon, 225 Ill. 2d 125, 157, 866 N.E.2d 207

(2007).

24 No. 1-04-2894

Moreover, the merits of the defendant’s argument have been rejected by People v. Craig, 334

Ill. App. 3d 426, 778 N.E.2d 192 (2002). As observed in Craig, section 115-10.1 of the Code of

Criminal Procedure (725 ILCS 5/115-10.1 (West 2004)) specifically authorizes the admission of prior

inconsistent statements as substantive evidence and dictates that the court did not err in permitting

the State to call Wilson as a witness.

Section 115-10.1 provides, in relevant part, as follows:

“In all criminal cases, evidence of a statement made by a witness is not made

inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at the hearing or trial, and

(b) the witness is subject to cross-examination concerning the statement, and

(c) the statement–

(1) was made under oath at a trial, hearing, or other proceeding, or

(2) narrates, describes, or explains an event or condition of which the

witness had personal knowledge, and

(A) the statement is proved to have been written or signed by the

witness, or

(B) the witness acknowledged under oath the making of the statement

either in his testimony at the hearing or trial in which the admission

into evidence of the prior statement is being sought, or at a trial,

hearing, or other proceeding, or

25 No. 1-04-2894

(c) the statement is proved to have been accurately recorded by a tape

recorder, videotape recording, or any other similar electronic means of sound

recording.” 725 ILCS 5/115-10.1 (West 2004); see also Craig, 334 Ill. App.

3d at 441. Under this provision, prior inconsistent statements are admissible as substantive evidence

as long as the statutory requirements have been met. See People v. Benford, 349 Ill. App. 3d 721,

730, 812 N.E.2d 714 (2004); People v. Kluppelberg, 257 Ill. App. 3d 516, 534, 628 N.E.2d 908

(1993).

In Craig, this court recognized that “ ‘a substantive policy reason for section 115-10.1 of the

Code was to prevent a turncoat witness from backing away from a former statement made under

circumstances indicating it was likely to be true by merely denying the statement.’ ” Craig, 334 Ill.

App. 3d at 441-42, quoting People v. Fauber, 266 Ill. App. 3d 381, 390-91, 640 N.E.2d 689 (1994).

The Craig court held that the defendant’s due process rights were not violated by the State’s

introduction as substantive evidence the prior inconsistent statements of two witnesses who recanted

their previous testimony at trial. Craig, 334 Ill. App. 3d at 441-42.

In this case, each term set forth in section 115-10.1 was satisfied by Wilson’s testimony at the

previous trials and during the grand jury proceedings. Consequently, the admission of Wilson’s prior

inconsistent statements as substantive evidence was proper, and we find no violation of the

defendant’s right to due process by its admission. See Craig, 334 Ill. App. 3d at 441-42.

The defendant next contends that his convictions must be reversed based on cumulative error.

In support of this contention, he relies upon the plea agreement with Johnson, the admission of

Wilson’s prior inconsistent statements as substantive evidence, his retrial based on the original

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indictment, and the fact that the State offered “incentives” for the testimony of Nicholson and

Gordon. We have previously disposed of the first three assignments of error. Regarding the final

allegation, we initially observe that the defendant has waived this issue on review by failing to raise

it at trial. See Bush, 214 Ill. 2d at 332; Enoch, 122 Ill. 2d at 186. In addition, we find that the

defendant was not denied due process where his counsel was able to cross-examine both Nicholson

and Gordon regarding any inducements or benefits that had been offered by the prosecution in

exchange for their testimony. Accordingly, we conclude that the defendant was not deprived of the

right to a fair trial based on cumulative error. See People v. Caffey 205 Ill. 2d 52, 117-18, 792

N.E.2d 1163 (2001); People v. Hall, 194 Ill. 2d 305, 350-51, 743 N.E.2d 521 (2000).

Finally, we address the defendant’s argument that his convictions should be reversed because

the State failed to prove him guilty beyond a reasonable doubt. In challenging the evidentiary basis

for his convictions, the defendant essentially disputes the credibility of the witnesses who testified

against him. Specifically, he claims that his convictions should be reversed where the testimony given

by Johnson, Nicholson, and Gordon was improbable and unconvincing because each of these

witnesses had received substantial benefits from the State in exchange for their testimony. We

disagree.

When a defendant challenges the sufficiency of the evidence, the appellate court must

determine “whether, after viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.”

Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); People v.

Cunningham, 212 Ill. 2d 274, 278, 818 N.E.2d 304 (2004). In such a case, it is not the role of the

27 No. 1-04-2894

reviewing court to retry the defendant. People v. Sutherland, 223 Ill. 2d 187, 242, 860 N.E.2d 178

(2006). A criminal conviction will not be set aside on the grounds of insufficient evidence unless the

evidence is so unreasonable, improbable, or unsatisfactory as to justify a reasonable doubt of the

defendant’s guilt. People v. Brown, 169 Ill. 2d 132, 152, 661 N.E.2d 287 (1996). In reviewing the

evidence we will not substitute our judgment for that of the trier of fact. Sutherland, 223 Ill. 2d at

242; People v. Collins, 214 Ill. 2d 206, 217, 824 N.E.2d 262 (2005). The determination of the weight

to be given the witnesses’ testimony, their credibility, resolution of inconsistencies and conflicts in

the evidence, and reasonable inferences to be drawn from the testimony are the responsibility of the

trier of fact. Sutherland, 223 Ill. 2d at 242.

The testimony of a single witness, is sufficient to convict if the testimony is positive and the

witness is credible. People v. Smith, 185 Ill. 2d 532, 541, 708 N.E.2d 365 (1999). Where the finding

of the defendant’s guilt depends on eyewitness testimony, a reviewing court must decide whether a

fact finder could reasonably accept the testimony as true beyond a reasonable doubt. Cunningham,

212 Ill. 2d at 279. Under this standard, the eyewitness testimony may be found insufficient “only

where the record evidence compels the conclusion that no reasonable person could accept it beyond

a reasonable doubt.” Cunningham, 212 Ill. 2d at 280. Although “the testimony of an accomplice

witness has inherent weaknesses and should be accepted only with caution and suspicion,” such

testimony, “whether corroborated or uncorroborated, is sufficient to sustain a criminal conviction if

it convinces the [trier of fact] of the defendant’s guilt beyond a reasonable doubt.” People v. Tenney,

205 Ill. 2d 411, 429, 793 N.E.2d 571 (2002), citing People v. Smith, 177 Ill. 2d 53, 74, 685 N.E.2d

880 (1997). Moreover, a conviction will not be reversed simply because the defendant claims that

28 No. 1-04-2894

a witness was not credible. Smith, 177 Ill. 2d at 74; People v. Byron, 164 Ill. 2d 279, 299, 647

N.E.2d 946 (1995).

In this case, the direct evidence against the defendant consisted primarily of the testimony of

Johnson, who testified in detail regarding his own involvement and that of the defendant in the

murders of Williams and Kaufman. Johnson explained the motivation behind the murder of Williams,

who was believed to be a member of the Del Vikings street gang that was responsible for the previous

sexual assault of Kevin Young’s girlfriend. He also described the series of events that culminated in

the two murders. He explicitly related the manner in which the seven co-defendants met on the

evening of November 9, 1989, armed themselves with various weapons, traveled between several

buildings in the housing complex, and robbed Nicholson before encountering Williams. Johnson

testified that after Smith called out to Williams, all seven members of the group shot at him while he

attempted to flee toward the IIT building. Both Williams and Kaufman were killed by these shots.

Johnson’s testimony alone was sufficient to sustain the defendant’s murder convictions. In

addition, several aspects of his testimony were corroborated by the testimony of Nicholson and

Gordon. In particular, Nicholson testified that the defendant was armed with a gun and was part of

the group of men who robbed him shortly before the shootings occurred. Gordon’s testimony

corroborated Johnson’s description of the events that occurred immediately before the shootings.

As stated earlier, it was the right and obligation of the trial judge to determine the weight and

credibility to be given the witnesses’ testimony, to resolve any inconsistencies and conflicts in the

evidence, and to decide the reasonable inferences to be drawn from the testimony. Sutherland, 223

Ill. 2d at 242; Tenney, 205 Ill. 2d at 428. The court was well aware of the terms of Johnson’s plea

29 No. 1-04-2894

agreement and, in accepting the plea, the court specifically found that Johnson’s trial testimony was

truthful. In addition, the court was informed of the benefits that both Nicholson and Gordon had

received in exchange for their testimony. Also, as the finder of fact, the trial court was entitled to

credit the testimony of the prosecution witnesses and to disregard the defendant’s alibi evidence. See

People v. Jimerson, 127 Ill. 2d 12, 46, 535 N.E.2d 889 (1989). In reviewing all of the evidence in

accord with the standard set forth above, we find that a rational trier of fact could have found the

defendant’s guilt beyond a reasonable doubt. Accordingly, we reject the defendant’s assertion that

the State failed to prove him guilty beyond a reasonable doubt.

For the foregoing reasons, we affirm the defendant’s convictions and sentence.

Affirmed.

HALL and KARNEZIS, J.J., concur.