## I L L I N O I S 

## O F F I C I A L 

## RE P O R T S Appellate Court

People v . Arm strong , 2013 IL App (3d) 110388

Appellate Court Caption THE PEOPL E OF THE STATE OF I LL I NOI S, Plaintiff-Appe l lee, v. CHRI STOPHER ARMS TRONG, De fenda nt-Appellant.

District & N o. Third District Docke t No. 3-11-0388

Filed April 10, 2013

Held (Note : Thi s syl lab us

con s t it ute s no par t of the opi nio n of the cour t but has bee n pre

par ed b y the Repo rt er of D e c i s i o n s f

o r t h e

c o n v e n i e n c e o

f t h e

rea der

. ) The evidenc e was sufficie nt to sustain defe ndant’s conviction for fi rst degree murder arising from a drug deal g one awr y , notwithstanding defe ndant’s contentions that no phy sical evidenc e linked defe ndant to the crime and the State’s case rested solely on a prior inconsistent statement of a witness who rec anted, since a conviction can be based on a rec anted statement, there was some corr oborative evidenc e, and the trier of fac t’s deter mination of cre dibility

was e ntirely

within its purview.

Dec ision Under
Review Appea l from the Circuit Court of Peoria County
, No. 09-CF- 1334; the Hon. Glenn H. Collier, Judge , presiding

.

J udg ment Affir med.Counsel on

Appea l J ay Wiegman (argued), of State Appellate Def ender ’s Offic e, of Ottawa, for a ppellant.

J err y Brady
, State’s Attorney
, of Peoria (Ter ry A. Mertel and Robert M. H a n s e n ( a rg u e d)
, both of State’s Attorney s Appellate Prosecutor’ s O f f ic e , of counse l), for the People.

Panel J USTI CE SCHMI DT delivere d the judgme nt of the court, with opinion. Presiding J ustice Wright and J ustice McDa de concur red in the judgme nt and opinion.

OP INION

¶ 1 Following a trial in the circ uit court of Peo ri a C o u n t y , a j ury fo u n d d ef endant, Christopher Armstrong
, guilty of first degree murder. The trial court sentenc ed defe ndant to 65 year s in the I llinois Depa rtment of Corre ctions. ¶ 2 Def

endant appeals from his conviction, claiming that the State failed to prove him guilty beyond a rea sonable doubt wher e no witness at trial was able t o i d en t ify defe ndant as the shooter and there was a lack of phy sical evidenc e linking defe ndant to the victim. We aff irm.

¶ 3 BA CKGROUND ¶ 4 Evidence prese nted at trial paints the picture o f a drug transac tion g one awr y

. On the evening of June 29, 2009, the victim, J onathan Pickett, contac ted J ames Pomerlee in an attempt to purcha se marijuana

. Pickett had bought marijuana from Pomerlee on previous

occa sions. Pickett told Pomerlee he was making this particula r purcha se on someone else’s behalf

. Pomerlee indicated t o Pickett that he could get him the m arijuana
, and tol d Pickett
to meet him at a g as station on the south end of Peoria. Pomerlee then asked Michae l L inwood to g ive him a ride to the g as station. L inwood’s g irlfriend, J oanna Wil liams, drove both Pomerlee and L inwood to the g as station to meet Pickett. Pomerlee testified at trial that he sat in the ba ckseat behind the driver

. ¶ 5 Pickett arrived at the g as station shortly afte r Pomerlee, L inwood and Wil liams arrive d. Pomerlee testified that Pickett was in a white sedan and was on the phone with the person for whom he was buying the marijuana

. Pomerlee testified that he does not know who Pickett

was on the phon e with at the ti me, but the uni dentified person told Pickett to meet him on Gre enlawn Street. Pickett then told Pomerlee to follow him. Pickett was in his own vehicle; Pomerlee followed in Wil liams’ vehicle (ag ain, Wil liams was driving and Pomerlee was in the backse at behind the driver)

. At this point, Pickett pa rked his ve hicle in f

ront of a house

-2-fi v e o r six houses down from the g as station on Gre enlawn Street. Pomerlee testifi ed t h at

Pickett was talking to someone on the porch of this home. Pickett then approa ched the house, asked a question, and turned and walked back down the steps. Testimony elicited earlier in the trial reve aled that Pickett was speaking with two Iraqi ref ug ees who wer e fix ing a broken door on the home and that h e asked the two men wher e “L acy” was. Pomerlee stated that Pickett was talking into his cell phone as he walked awa y from the house. Pickett then came back to the ve hicle Pomerlee was in and told Pomerlee to move down the stree t. ¶ 6 The respe ctive vehicles moved approxi m at el y t wo houses down on Gre enlawn Stre et. Pickett exit ed his car and approache d a diffe rent house, where he spoke to a person sitti ng

on the porch and shook the person’ s hand. Pickett turned around and returne d to his vehicle by himself. Pomerlee testified they waited for approx imately 10 to 20 minutes and, during that time, he could see Pi ck et t calling someone on the phone. At that point, Pomerlee testified that L inwood noticed a black male come from betwee n two houses on the opposite side of the street and approa ch Pickett’s vehicle. Pomerlee stated that he could see the man had a handgun, and that he approa ched Pickett’s car and told him to hand over the marijuana

. The man made Pickett g et out of his car ; Pickett’s hands wer e in the air. Pomerlee stated he could hear P i ck et t say , “I don’t have nothing, I don’t have nothing,” then say “they g ot it”

as he pointed to Wil liams’ vehicle. At Pomerlee and L inwood’s urg ing, Wil liams immediately put the car in reve rse and drove down the street backw ards. Pomerlee saw the

man and Pickett “tussling,” then heard a gunshot. Pickett’s assailant started to run toward the house wher e someone had been on the porch, then he turned around and shot Picke tt a g ain

as Pickett was attempting to g et to his fee t. As Wil liams, L inwood and Pomerlee left the

scene , Pomerlee tried calling Pickett on his cell phone, but g ot no answe r. Pickett later died of multiple gunshot wounds. ¶ 7 Pomerlee stated that the police came to his home in the early morning hours of J une 30,
app ro x i mately around 5 a.m., and he acc ompanied them down to the station to talk. The police showed him two differ ent photo lineups, out of which he was able to identify the man

on the porch across from wher e Pickett was shot as J acor ey Shettleworth. Pomerlee was not able to identify defe ndant as the shooter, even though his picture was in the photo arr ay

. On

cross-e x amination, Pomerlee had difficulty rec alling some of the events of that n i gh t

. He further testified that the shooter was wea ring blue s h o rt s, a white shirt and some kind of hoodie that cove red his fa ce. ¶ 8 J oanna Wil liams was also a witness for the prosec ution and testifi ed ab o u t t h e events leading up to Pickett’s death. Acc ording to Wil liams, Pickett’s assailant was wea ring black clothing and approa ched Pickett’s vehicle from a blue abandone d house on the left hand side of the stre et. S he further testified that Pomerlee and L inwood yelled at he r to bac k up and,

as she was doing s o, she saw Pickett and the other man wre stling. Wil liams then hear d at least three gunshots. Wil liams testified that she was never able to g et a look at the man’s fac e

or see who he was. Finally
, Wil liams stated that Pomerlee was seate d in the backse at behind the passeng er’ s seat, not the drive r’s seat. ¶ 9 L inwood first testified that he rode down to the g as station with Pomerlee and his theng irlfriend, Wil liams, so that Pomerlee could meet someone, but L inwood did not know who it was th at Pomerlee intended to meet. L inwood stated that it was Pomerlee, and only

-3-Pomerlee, that went around the corne r to the 700 block o f Gre enlawn. Acc ording to

L inwood, he and Wil liams drove around the block a couple time s –“B etwee n Ann and Bla ine,
you know, t o Gar den to Western t o Ann, y ou know. *** That’s the way

. ” L i n wo o d s t ated that Pomerlee was on Gre enlawn, and afte r awhile he came back by and they (Will iams and L inwood) picked him up. When asked if something happene d betwee n the time Pomerlee left and ult imately returne d, L inwood responde d that something had happene d, but that he did
not see what happene d. He stated that he heard some gunshots, but he did not know who shot the gun. L inwood stated he was never on Gre enlawn the night of the incident, but rathe r that he “wa s around the vicinity of Gre enlawn.” He tes t i fied that when he g ave Detec tive McDa niel the defe ndant’s name as the shooter, it was just beca use he had heard defe ndant’s

name thrown around the neighborhood about who the shooter might have been. He testified that he told the detec tive that if the detec tive would show him a picture o f the person, he could probably identify him. He stated that he was not sure, and that he only told the office r who he thought the shooter might have be en. ¶ 10 The prosec ution t h en i mp ea ch ed L i n wo o d ’s trial testimony with a transcript of the videotaped interview conducte d by Detec tive McDa niel the day afte r the sh o o ting. When asked if he told the police that he was on Gre enlawn that night, L inwood responde d, “yeah.” The prosec ution then a sked if he w as on the street, and L inwood answe red in the neg ative. L ater , L inwood admitted that he “saw the scuff ling and all that,” but he could not “ identify nobody fac e from some five car s down.” L inwood acknow ledg ed that while at the station for questioning, he was shown two differ ent photo arr ay s. L inwood admitt ed t h at h e picked d ef endant out of the photo lineup and initialed the lineup afte rwa rds. Despite t h e identification L inwood made at the station, he continued to state at trial that he did not know who the shooter was and that he only had heard–from word of mouth–who the shooter was. L inwood repe atedly stated at trial that it was not based on any thing he saw, but r ather what he hea rd, and he did not want to “convict nobody” base d on something he did not see. ¶ 11 J acorey Shettleworth, who at the time of trial was incar cer ated in the I llinois Depa rtment of Correc tions, testified that he knew defe ndant. Shettleworth had at one time been a suspect in Pickett’s shooting, but was rele ased from custody without ever being charg ed. He testified that defe ndant was somet i m es re fer red to as “Mo Chris” or “Stone Chris.” The bulk of Shettleworth’s testimony revolve d around the phone number 309-635-2310 found in his call list af ter his phone was sear ched. When Shettleworth was initially questioned the day afte r the shooting, he told detec tives during his videotaped interview that the number belong ed to the defe ndant. Specifica lly
, he stated that it belong ed to “Chris...dude you all talking about.” At trial, howeve r, S hettleworth stated that he did not reme mber talking t o the officers that day beca use he was intox icated. Shettleworth admitted to making a videotaped statement, but testified that he did not reme mber saying to the detec tive that the number 309-635-2310 belong ed to defe ndant. Shettleworth testified h e t o l d the detec tives that he did not know whose number

it was, and it was the de tectives who told him it was the defendant’s phone number. Shettl ew o rt h testified that he did not call defe ndant, but that someone must have used his phone to make those calls. ¶ 12 Detec tive Keith McDa niel testified that he met with J ames Pomerlee, Michae l L inwood, and J acor ey Shettleworth following the shooting. Both Pomerlee and L inwood i d en t i fi ed

-4-Shettleworth as the man on the porch who spoke to Pickett befor e he w as shot.

¶ 13 Portions of Detec tive McDa niel’s i n t erv i ew wi t h L i n wo o d and Shettleworth wer e videotaped and played to the jury at trial. On a digital video disc (DVD ), L inwood tells the office r that he was on Gre enlawn Str eet in a car right behind Pickett’s, and that he saw Pickett g et shot “with my eyes,” and that he could “see real g ood.” L inwood then identified defe ndant as the shooter and J acor ey Shettleworth as the pe rson on the porc h that spoke to Pickett befor e he was shot. When L inwood picked defe ndant o ut of the photo lineup he stated, “that was Mo Chris, the guy who shot [P ickett].” L inwood cont i nu ed to state that defe ndant did not have br aids now. ¶ 14 Call rec ords for Pickett’ s p h o n e an d S h et tleworth’s phone wer e both admitted into evidenc e. The rec ords s howed that Pickett made and rec eived a t o t al of 12 telephone calls betwee n 9:55 p.m. and 10:45 p.m. from 309-635-2310, the numb er t hat Shettleworth identified as defe ndant’s phone number. Shettleworth’s call rec ord showed that he rec eived four telephone calls from that same number betwee n 8:19 p.m. and 9:47 p.m. the day of the shooting. ¶ 15 T h e defe ndant did not testify and called Detec tive McDa n i el as h i s o n l y wi t n es s

. McDa niel’s testimony established that a neighborhood canva s afte r the shooting reve aled no other witnesses or information about the crime. McDa niel stated that defe ndant was arr ested approximately

six months after the shooting. ¶ 16 Following closing arguments, the jury found defe ndant guilty o f fi rs t degree murder. Def endant filed a posttrial motion raising th e issue of rea sonable doubt. The trial court denied that motion and imposed a 65-year sentenc e, which included the 25-year add-on for
persona l discharg e of a firea rm. Def endant filed a motion to rec onsider sentenc e, which was also denied. This timely

appea l followed.

¶ 17 ANALYSI S ¶ 18 Def

endant raises a single issue on appea l, namely
, that the State failed to prove his guilt beyond a rea sonable doubt wher e his convicti o n rested solely on the prior inconsistent
statement of a witness who rec anted at trial and wher e there was no phy sical evidenc e to link defe ndant to the shooting. ¶ 19 A criminal conviction will not be set aside on grounds of insufficient evidenc e unless the proof is so improbable or unsatisfac tory that there exis ts a rea sonable doubt of defe ndant’s
guilt. People v. Maggette
, 195 I ll. 2d 336, 353 (2001). When revie wing the sufficie ncy of the evidenc e to sustain a verdict on appea l, the relevant i nquiry is “w h et h er , afte r vi ewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential elements of the crime beyond a rea sonable doubt.” (Interna l quotation marks omitted.) People v. Pollock
, 202 I ll. 2d 189, 217 (2002); People v. Colli ns , 106 I ll. 2d 237, 261 (1985). This standard of revie w applies to both direc t and circ umstantial evidenc e. People v . W

heele r , 226 I ll. 2d 92, 114 (2007). ¶ 20 In support of his contention, defe ndant argues that none of the three eyewitnesses to the murder could identify defe ndant as the shooter. Thus, the State’s only evidenc e even circ umstantially linking defe ndant to the sh o o t i n g was the prior inconsistent statements

-5-L inwood and Shettleworth made to police immediately following the i n cident. Acc ording

to defe ndant, the prior inconsistent statements, without other corr oborating evidenc e linking him to the shooti ng , are insufficient to prove his guilt beyond a re asonable doubt. ¶ 21 Pursuant to s t atu t e, L i n wo o d ’s an d Shettleworth’s pretria l statements to Detec tive McDa niels implicating defe ndant constitute substantive evidenc e. 725 IL CS 5/115-10.1 (W es t 2010). Def

endant does not dispute that these prior inconsistent statements wer e properly admitted. Instead, defe ndant claims that these previous statements wer e insufficient to convict him absent some cor roborating e vidence

. ¶ 22 First, we find th at t h er e wa s s o m e co rr o b o ra t i v e evidenc e to support defe ndant’s convi ct i o n. Specifica lly
, that Pickett and defe ndant wer e in fre quent phone contac t in the hour leading up to the shooting. The murder occur red at approximately 10:45 p.m.; betwee n 9:55 p.m. and 10:45 p.m., there wer e approximately 12 to 13 calls betwee n Pickett’s number and the number identified by J acor ey Shettleworth as belong ing to defe ndant. Moreove r, the number orig inally identified as defe ndant’s was also on Shettleworth’s contac t list four times about an hour prior to the shooting. Despite Shettleworth’s rec anted testimony
, the fac t that the number was also in Shettleworth’s phone lends cre dibility to his statement that he knew the number and that it belong ed to d ef endant. It also lends some support to the i dea that it was de fenda

nt who lured Pickett to the location under the guise of buying dr ug s. ¶ 23 Even if there exis ted no corr oborative evidenc e, a rec anted prior inconsistent statement admitted under section 115-10.1 can support a conviction. People v. Craig
, 334 I ll. App. 3d 426 (2002); People v. Morrow
, 303 I ll. App. 3d 671 (1999). In Morrow
, this court held that the witness’s previous inconsistent statements alo n e were sufficie nt to prove defe ndant’s
guilt beyond a rea sonable doubt. Id. at 6 7 7. There
, the witness in question was Morrow’ s g irlfriend. Her statements to police and her grand jury testimony wer e essentially the same, specific ally that the victim paid the witness and another codef endant for sex. Whil e the three

wer e in the victim’s c ar, the code fenda nt attempted to steal the victim’s w allet. The victim

rea liz ed what codef

endant was d o i n g, and a strug g le ensued. Both the witness and the codef endant exit ed the victim’s car and ran to the defe ndant’s car , which was parke d behind the victim’s car

. The defe ndant went to the victim’s car , and the witness testified that she saw defe ndant shoot the victim. Id . at 674-75. ¶ 24 At trial, howeve r, the witness denied knowing the victim and also denied being with him

on the night of the murder. Id. This court found that while corr oborative evidenc e did exis t in th e ca s e, even had i t not, the witness’s prior inconsistent statements alone wer e enough
to uphold defe ndant’s conviction

. Id

. at 677. I f a prior st atement meets section 115-10.1’s test, a “finding of reliability and voluntarine ss is automatically made. *** Ac cording ly , no additional analy sis is neede d. *** [I ]t is the jury ’s decision to assign weight to the statement and to decide if the statement was indeed voluntary
, afte r hearing the decla rant’s inconsistent testimony .” (Interna l quotation marks omitted.) Id. (quoting People v. Pursley
, 284 I ll. App. 3d 597, 609 (1996)) ; see a lso People v . Curtis , 296 I ll. App. 3d 991 (1998). ¶ 25 It was simil arly held in People v. McCarter
, 2011 I L Ap p (1 s t ) 092864, ¶ 23, that a conviction which is supported by a substantively admitted prior inconsistent statement may be upheld despite the witness rec anting it on the stand. The trier of fac t is fre e to acc ord any

-6-we i ght to such properly admitted statement based on the same fac tors it considers i n

assessing dir ec t t es t i mony

. Id. The McCarter court went on to state that there are no “ ‘suspec t ca t ego ri es’ ” of properly admitted evidenc e that require a differ ent standard of appellate revie w. (I

nterna l quotation marks omitted.) Id. (quoting People v . Craig , 334 I ll. App. 3d 426, 439 (2002))

. There fore
, all properly ad m i t t ed evidenc e, including prior inconsistent statements, is affor ded the same weight by the re viewingcourt. ¶ 26 It is also clea rly within the province of the trier of fac t to asses s t h e cr ed i b i l i t y of witnesses, weigh evidenc e prese nted, resolve conflicts in evidenc e, and draw rea sonable infere nces from the evidenc e, and its deter mination is entitled to great de fer ence

. People v. Moss
, 205 I l l. 2d 139, 164-65 (2001); see also People v. Jack son , 232 I ll. 2d 246 (2009). Indeed, once a jury returns a guilty ver d i ct b as ed on a prior inconsistent statement, the revie wing court not only is under no obligation to deter mine wh et h er the decla

rant’s testimony was “substantially corr oborate d” or “cle ar and convincing ,” but it may not eng ag e in that analysis. (Interna l quotations marks omitted.) Mo r r o w , 303 I ll. App. 3d at 677 (quoting People v . Curtis , 296 I ll. App. 3d 991, 999 (1998)). ¶ 27 In light of the fore g oing, we find the evidenc e in th i s ca s e wa s sufficie nt to prove defe ndant guilty beyond a rea sonable doubt. The jury chose to believe the State’s evidenc e, which included the prior inconsistent st at em ents of L inwood and Shettleworth. This

cre dibility deter

mination was completely within its purview to make. The day afte r the shooting, L inwood told detec tives that he rec ognized defe ndant’s fac e, that he could see “re al
g ood,” and that he saw what happene d with his own eyes. He went on to pick defe ndant out of a photo lineup. L ending cre dibility to L inwood’s videotaped statements was the fac t that he knew defe ndant. L inwood was able to tell Detec tive McDa niels that defe ndant no longe r had braids in his hair. The fac t that t he statement was videotaped allowed the jury to see L inwood’s demea

nor and compar e it to that he exhibi ted on the stand at trial. Ag ain, it is for th e trier of fac t to weigh the statement, weigh the disavowal and deter mine which is to be believed. See People v . McBounds , 182 I ll. App. 3d 1002 (1989). ¶ 28 Additionally
, we note that L inwood’s trial tes t i m o n y wa s refuted by the testimony of Pomerlee and Wil liams. Both testified to being in the car behind Pickett’s on Gre enlawn Street and that L inwood was in the front seat. Their testimony clea rly p l ac ed L i n wood on Gre enlawn on the night of the incident. ¶ 29 Our analy sis could end at this point, but we find it important to addre ss those case s cited by defe ndant i n support of hi s contention. Defenda nt points the c o u rt t o People v. Parker
, 234 I ll. App. 3d 273 (1992), and People v. Arcos
, 282 I ll. App. 3d 870 (1996), where both defe ndants’ convictions wer e overturned on ins u ff i cienc y of the evidence grounds when a witness’s prior inconsistent statement was the only evidence l i n king the defe ndants to the
respe ctive crimes. We find defe ndant’s re liance on the se ca ses misplaced. ¶ 30 More rec ent l y i n P eo p l e v. C r a i g , 3 3 4 I l l

. App. 3d 426, 440 (2002), this court distinguished Parker

and Arcos : “Ultimately
, in deciding whether there was sufficie nt evidenc e to prove defe ndant
guilty beyond a rea sonable doubt, we must decid e wh ether case s such as Arcos and Parker require that convictions based solely upon prior inconsistent statements must also

-7-have corroborating evidenc e to support the conviction. *** [U] nder Morrow and Curtis
, additional corr oboration is not require d and we are not to eng ag e in looking for

corr oboration. In light of the fac t that Morrow follows the guidance from the supreme court in People v. W

ilson
, 66 I ll. 2d 346, 349 (1977) (‘wheth er ac complice testimony
, corr oborate d or uncorr oborate d, is a satisfac tory basis for conviction g oes to the weight of the evidence and i s, there fore
, in the province of the jury or the court’), and that the
supreme court denied the appea ls [i n Curtis and Mo r r o w ] [citations]
, we follow that analy sis.” Id. at 440. ¶ 31 We, too, adopt the Craig analy sis. As such, we find that afte r viewing the evidenc e in the light most favor able to the prosec ution, any rational trier of fac t could have found the essential ele ments of the crime beyond a re asonable doubt.

¶ 32 CONCLUSI ON ¶ 33 For the fore g oing rea sons, the judgme nt of the circ uit court of Peoria County is affirme d.

¶ 34 Affir

med.

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