                                                   FIRST DIVISION
                                                   May 12, 2008




No. 1-06-3172

THE PEOPLE OF THE STATE OF ILLINOIS,     )    Appeal from the
                                         )    Circuit Court of
     Plaintiff-Appellee,                 )    Cook County.
                                         )
          v.                             )
                                         )
ANDREW WESLEY,                           )    Honorable
                                         )    Michael Brown,
     Defendant-Appellant.                )    Judge Presiding.


     JUSTICE WOLFSON delivered the opinion of the court:

     Following a jury trial, defendant Andrew Wesley was

convicted of two counts of first-degree murder and sentenced to a

55-year prison term.   On appeal, he contends: (1) the State

failed to prove its case beyond a reasonable doubt; (2) his

constitutional right to confrontation was violated; and (3) one

of his convictions for first degree murder must be vacated under

the one-act, one-crime rule.   We affirm, but amend the mittimus

to reflect only one conviction of first-degree murder.

FACTS

     On May 15, 2005, Leroy Graham and the victim, Malik Jones,

began arguing over whether Jones could continue to sell marijuana

at the parking lot of the Three Stooges liquor store.    While the

two men argued, a group of people gathered around them.    When

Jones turned and started to walk away, a black man wearing a

black “hoodie” with braids in his hair stepped out of the crowd
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and shot Graham five to six times.    Jones died as a result of the

gunshot wounds.   Four eyewitnesses subsequently identified

defendant as the shooter.

     On July 11, 2005, defendant was arrested for Jones’ murder.

Detective Patrick Golden interviewed defendant on July 12, 2005.

After waiving his Miranda rights, defendant told Detective Golden

that he was not Graham’s friend and that he was not at the Three

Stooges liquor store when defendant was shot.    During his second

interview, defendant again denied any knowledge regarding Jones’

shooting.   Following Deborah Johnson’s and Gregory Jenkins’ line-

up identification of defendant as the shooter, Detective Golden

re-interviewed defendant.   Detective Golden testified that during

the third interview, he “advised [defendant] that several

individuals had identified him as the shooter.”    At that point,

defendant admitted he was untruthful in his first two initial

statements.

     Defendant admitted to Detective Golden that he was present

at the Three Stooges liquor store and witnessed the fight between

Graham and Jones.   Defendant was standing next to Graham until he

went into the liquor store twice.     When defendant came out of the

liquor store for the second time, he saw Deborah Johnson

attempting to get Jones to leave the crowd “when an unknown

individual approached out of the crowd who had a black hoodie


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sweatshirt on, raised his arm, produced a handgun, and shot [the

victim] five to six times.”   Defendant told everyone to leave the

parking lot before the police arrived.    Defendant denied he shot

Jones.   Defendant admitted he wore braids in his hair at the time

of the murder.

     Assistant State’s Attorney Bryan Hofeld also interviewed

defendant.   Defendant told ASA Hofeld that he was at the Three

Stooges liquor store when the shooting occurred.    Defendant was

unable to see who the shooter was.    When ASA Hofled asked why

defendant would lie to the police if he was not involved in the

shooting, and why people would identify defendant as the shooter

if he was not the shooter, defendant was unable to offer an

explanation.

     The jury found defendant guilty of murder.    He was sentenced

to a 55-year prison term.

DECISION

I. Reasonable Doubt

     Defendant contends the State failed to prove him guilty of

first degree murder beyond a reasonable doubt.    Specifically,

defendant contends the State’s eyewitnesses were incredible and

provided inconsistent and contradictory testimony regarding the

events surrounding the shooting.

     On review, the relevant question is whether, viewing the


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evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the defendant guilty

beyond a reasonable doubt.    People v. Cunningham, 212 Ill. 2d

274, 278, 818 N.E.2d 304 (2004); People v. Ornelas, 295 Ill. App.

3d 1037, 1049, 693 N.E.2d 1247 (1998).    It is the responsibility

of the trier of fact to determine the credibility of witnesses

and the weight to be given their testimony, to resolve conflicts

in the evidence, and to draw reasonable inferences from the

evidence.    People v. Williams, 193 Ill. 2d 306, 338, 739 N.E.2d

455 (2000).    A criminal conviction will not be reversed unless

the evidence is so improbable or unsatisfactory that a reasonable

doubt of defendant’s guilt is justified.    People v. Moore, 171

Ill. 2d 74, 94, 662 N.E.2d 1215 (1996).

       At trial, Deborah Johnson, the victim’s girlfriend,

testified she heard Graham say to defendant “gun that [expletive]

down.”    Defendant was standing next to Graham.   After Graham made

the statement, Johnson saw defendant pull a gun from his

waistband and shoot Jones six times.    Johnson testified that

after defendant shot Jones, she heard Graham say to him, “kill

the rest of these [expletive].”    Defendant did not shoot anyone

else.    Johnson denied Graham made any sort of gesture indicating

defendant should shoot Jones, and denied that Graham pointed the

gun.    On cross-examination, however, Johnson said Graham “guided


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[defendant’s] hand to the level where Malik Jones was walking”

but by the time defendant fired, Graham’s hand was no longer on

the gun.    Johnson also admitted on cross-examination that she had

initially told the police that her eight-year-old son was present

when the shooting occurred, and that she lied to police when she

told them she did not know what Graham and Jones were arguing

about.   Johnson did not hear Graham ask defendant whether

defendant had his gun.

     Demetrius Clair, a friend of the victim, testified he was

standing next to Jones during Jones’ argument with Graham.

During the argument, “Leroy had his head down, and he looked at

the guy with the black hoodie on, and he did a hand motion.”

Clair then saw defendant fade off into the crowd.    Clair told

Jones the defendant was “fittin’ to go get a gun.”    Clair turned

around, walked three step, and then heard 4 to 5 gunshots.

     Gregory Jenkins testified that on May 28, 2005, he was

arrested for possession of a controlled substance.    Following his

arrest, he was interviewed by Detective Kevin Bor and ASA Hofeld.

Jenkins said he gave the police information regarding the

victim’s murder so the charge would be dismissed.    Although

Jenkins acknowledged he gave a written statement regarding the

murder, he said the statements contained in his handwritten

statement were not true.


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     The State was allowed to read Jenkins prior statement into

evidence.   According to his statement, Jenkins was in Marcus

Scott’s car drinking when he saw Jones and Graham arguing across

the parking lot.   Jenkins heard Graham turn to defendant and say,

“Go get that.”   Jenkins saw defendant walk towards the liquor

store while Jones and Graham continued to argue.     When Jones

turned and began walking away, defendant walked out of the liquor

store and Graham pointed at Jones.     Defendant then pulled a gun

out of his waistband and shot Jones six to seven times.     Jenkins

testified to the same facts before the grand jury.     During his

grand jury testimony, Jenkins also testified that “[Jones] told

Andrew to do something, and he did so by making a hand movement

and that’s when Drew walked somewhere around the liquor store.”

Jenkins was serving a two-year sentence for delivery of a

controlled substance at the time of his testimony.

     Marcus Scott testified that he was arrested for drug

conspiracy on September 14, 2005.     Following his arrest, Scott

met with the police and Assistant State’s Attorney Kim Ward.

Although Scott denied he was present at the shooting during

defendant’s trial, he admitted he signed each page of the

statement he made to the police.

     The State was allowed to read Scott’s prior statement into

evidence.   According to his statement, Scott saw defendant come


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out of the liquor store and shoot Jones numerous times.      Marcus

admitted he testified to the same facts before the grand jury.

Marcus said that Assistant State’s Attorney Shelly Keane told him

to testify to these facts and if he did, his drug conspiracy

charge would be dismissed.

      Contrary to defendant’s contention, we find the eyewitnesses

testimony presented by the State identifying defendant as the

shooter, mixed with defendant’s acknowledgment that he was

present when the murder occurred, could establish defendant’s

guilt beyond a reasonable doubt.   Although the witnesses’

accounts of the location of the shooter and what Graham said

prior to the shooting varied slightly, the witnesses were

consistent in identifying defendant as the shooter.   “Minor

inconsistencies in testimony do not, by themselves, create a

reasonable doubt.”   People v. Cunningham, 309 Ill. App. 3d 824,

827 (1999).   Viewing the evidence in the light most favorable to

the prosecution, we cannot say the evidence is so improbable or

unsatisfactory that a reasonable doubt of defendant’s guilt

remains as a matter of law.

II.   Right to Confrontation

      Defendant contends his conviction must be reversed and

remanded for a new trial because the State introduced

inadmissible hearsay evidence, in violation of his sixth


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amendment right to confrontation.     Specifically, defendant

contends Marcus Scott’s, Detective Golden’s, and ASA Hofeld’s

testimony that “several individuals” identified defendant as the

shooter amounted to inadmissible hearsay evidence in violation of

his right to confrontation.

     Defendant does not contend the allegedly inappropriate

hearsay statements admitted at trial violated Crawford v.

Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177

(2004).   Instead, he contends the hearsay statements simply

violated his right of confrontation.     Recently, however, the U.S.

Supreme Court clarified that the rule delineated in Crawford is

the only rule governing Confrontation Clause protection.     See

Whorton v. Bockting, __ U.S. __, 127 S. Ct 1173, 113, 167 L. Ed.

2d 1 (2007)(“But whatever improvement in reliability Crawford

produced in this respect must be considered together with

Crawford’s elimination of Confrontation Clause protection against

the admission of unreliable out-of-court nontestimonial

statements.   Under Roberts, an out-of-court nontestimonial

statement not subject to prior cross-examination could not be

admitted without a judicial determination regarding reliability.

Under Crawford, on the other hand, the Confrontation Clause has

no application to such statements and therefor permits their

admission even if they lack indicia of reliability.”)     Because


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defendant chose not to challenge the statements under Crawford,

we find the Confrontation Clause has no application to the

statements challenged in this case.

     We also find defendant forfeited his contention that the

witnesses’ testimony regarding “several individuals” identifying

defendant as the shooter amounted to inadmissible hearsay.

Defendant admits he did not object to the witnesses’ complained

of testimony at trial, and he did not raise the issue in his

post-trial motion.

     Defendant attempts to circumvent forfeiture by contending

the inadmissible hearsay testimony admitted in this case amounted

to plain error.   The plain error doctrine allows a court to

address a forfeited error affecting substantial rights in two

instances: (1) where the evidence in the case is so closely

balanced that the jury’s guilty verdict may have resulted from

the error, and not the evidence; or (2) where the error is so

serious that the defendant was denied a substantial right, and

thus a fair trial.   People v. Herron, 215 Ill. 2d 167, 178-79,

830 N.E.2d 467 (2005).   The evidence in this case was not closely

balanced, however.   Four eyewitnesses identified defendant as the

shooter, and defendant admitted he was present when the murder

occurred.   Moreover, the alleged evidentiary errors were not so

serious as to deny defendant a right to a fair trial.


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     Alternatively, defendant contends his trial counsel was

ineffective for failing to properly preserve the alleged errors.

See People v. Jura, 352 Ill. App. 3d 1080, 1093-94, 817 N.E.2d

968 (2004) (defense counsel’s failure to challenge the

admissibility of the various hearsay statements prejudiced the

defendant and deprived him of a fair trial).

     The only complained of testimony we take issue with in this

case is the allegedly improper hearsay statement contained in

Marcus Scott’s handwritten statement.   In the handwritten

statement, Scott said Brandon Foster, who was Graham’s “right

hand man,” approached him and said that three people had

identified defendant as the shooter, and that “they better hope

that [Graham] doe[sn’t] find out” who identified defendant.    The

complained of portion of Scott’s statement is inadmissible

hearsay.    The trial court, however, decided to allow that portion

of the statement into evidence with a limiting instruction

informing the jury that they were to consider it only “for the

limited purpose of what was on [sic] the witness’s state of mind

and his motive for testifying and any interest or bias he has for

the testimony that he has in the courtroom,” and “not to take it

as fact that Graham set these things in motion, but only the

limited purpose of the witnesses credibility on the stand.”    We

find any prejudice caused by the statement was cured by the trial


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court’s limiting instruction.    People v. Simms, 285 Ill. App. 3d

598, 609, 673 N.E.2d 1119 (1996).

III. Mittimus

     Defendant contends, and the State agrees, his mittimus

should be corrected to reflect only one conviction for first

degree murder.   Pursuant to the one act, one crime rule,

defendant could only be convicted once for the murder of Malik

Jones.    See People v. Kuntu, 196 Ill. 2d 105, 130, 752 N.E.2d 380

(2001).   Accordingly, we amend the mittimus to reflect only one

conviction for first degree murder.    People v. Bishop, 218 Ill.

2d 232, 249, 843 N.E.2d 365 (2006).

CONCLUSION

     We affirm the circuit court’s judgment, but amend the

mittimus to reflect only one conviction of murder.

     Affirmed; mittimus amended.

     CAHILL, P.J., and GARCIA, J., concur.




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