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People v. Bailey







Appeals from the Circuit Court of Cook County; the Hon. Philip Romiti, Judge, presiding.


In cause No. 46610 defendant Melvin Bailey, following a jury trial in the circuit court of Cook County, was convicted on five counts of attempted murder and one count of conspiracy to commit murder. He was sentenced to concurrent terms of 10 to 15 years in the penitentiary. The appellate court reversed and remanded the cause for a new trial, holding that prejudicial hearsay testimony had been introduced by the State, thereby depriving Bailey of a fair trial. People v. Bailey, 18 Ill. App.3d 80.

In cause No. 46649 co-defendant Andrew McChristian was similarly charged and jointly tried with Bailey and Edward Dinkins. The latter was acquitted by the trial court at the close of the State's case in chief. The jury found McChristian guilty solely of the conspiracy charge. He was sentenced to the penitentiary for a term of 7 to 14 years. The appellate court, one justice dissenting, reversed, holding that the evidence presented did not sufficiently establish a conspiracy to commit murder as averred in the indictment. People v. McChristian, 18 Ill. App.3d 87.

We granted the State's petition for leave to appeal in both causes and have consolidated the matters.

About 9:30 p.m. on May 8, 1968, three police officers assigned to the Gang Intelligence Unit stopped a car on the south side of Chicago driven by David Barksdale and containing four other persons. Barksdale was known to officers Foulkes, Clark and Peck as the leader of a street gang named the Disciples. The officers searched Barksdale and the others for weapons but found none. A search of the passenger compartment of the car also failed to disclose any weapons. Barksdale and his passengers drove away with the officers closely following in an unmarked police car.

After driving about the area for several minutes Barksdale arrived at 6526 S. Ellis, where he stopped the car and raced its motor. Shouts were heard and then gunfire erupted. The police, who had stopped several car lengths behind Barksdale's car, exited their vehicle and arrested Bailey and McChristian, both of whom were members of a rival street gang called the Blackstone Rangers. The police recovered .45-caliber and .25-caliber automatic pistols and a .22-caliber "sawed-off" carbine. Dinkins was arrested as he apparently attempted to intercede on behalf of the other defendants. Meanwhile, Barksdale drove a short distance from the area and waited for the police to arrive. All then went to the police station.

In summary, officers Foulkes and Clark testified that as they stopped behind Barksdale's car at the Ellis Avenue location someone shouted "D's" and then "Blackstones," whereupon numerous individuals began to shoot from both sides of the street. As Barksdale drove off, Bailey ran from the curb into the street and fired several shots toward the car. Foulkes and Clark fired several shots at Bailey, who momentarily ducked behind a parked car. Clark saw Bailey throw an object under the vehicle and then flee down a gangway where he was apprehended. Clark recovered a "warm" .45-caliber pistol from under the car. This weapon was empty with the slide ejector in a rearward position. During this time Officer Peck, who also recognized Bailey, saw two others firing from the curb at Barksdale's car, and he chased one of them to a nearby porch where he arrested McChristian as the latter was attempting to unjam a loaded .25-caliber pistol. Clark and Peck were of the opinion that the shooting did not last more then 30 seconds. Evidence further indicated that Bailey and McChristian were members of the Main 21, the ruling hierarchy of the Blackstone Rangers, which at this time was involved in altercations with the Disciples.

When the defendants were transported to the police station, they saw Barksdale. Peck testified that at this juncture Bailey remarked to Barksdale, "We didn't get you this time." McChristian, who was chuckling, responded, "We will get him next time."

David Barksdale was called by the State, but after he refused to testify he was granted immunity and made a court's witness. He corroborated much of the testimony concerning the officers' initial stop and search of his vehicle. Barksdale knew the police were following and that he was "playing" with them as he drove into "Ranger territory." He stopped the car for several seconds at the Ellis Avenue location, and during this brief time he heard someone shout "D's" and then several shots were fired from both sides of the street, which caused him to drive quickly from the area. He claimed that one bullet struck the back of his car. Barksdale denied seeing Bailey at the time of the shooting and, although he admitted he saw McChristian sitting on a porch, he did not see the latter with a gun, nor did he see anyone firing at his car. When Barksdale arrived at the police station after the shooting, he saw the defendants and Dinkins, but he claimed they did not say anything to him although McChristian laughed.

Thereupon the State elicited from Barksdale the fact that on prior occasions, commencing about the time of the shooting and culminating on the day he testified, he made various statements to law-enforcement officials concerning the involvement of Bailey and McChristian in the shooting. He was less certain as to Dinkins' participation. One of these conversations occurred with an assistant State's Attorney, Matthew Walsh. Barksdale explained that at the times he implicated the rival gang members he lied because he was mad that he had been shot at.

At this juncture the trial court instructed the jury as follows:

"* * * It is proper to impeach or discredit a witness by proving statements made by such witnesses at some other time and place, different from the testimony in this case on trial, still any statement that any witness may have made at such other time and place is not to be considered by you as any evidence as to the guilt or innocence of the defendant or any of them. Evidence that on some former occasion a witness made a statement different from or inconsistent with his testimony in this case should only be considered by you in deciding the weight to be given to that witness."

Matthew Walsh was thereafter permitted to testify, over defense objections, as to a conversation he previously had with Barksdale. During their discussion, certain facts of the case were mentioned by Barksdale, who told Walsh of Bailey's remark to him which was made in the police station after the shooting and McChristian's response thereto. Barksdale also purportedly told Walsh that he was telling the truth, although he just shrugged his shoulders when Walsh asked him if he would testify in this manner at trial.

Andrew McChristian testified in his own behalf. He claimed that on the evening of the shooting he and Bailey were with several girls sitting on a porch when someone shouted "here comes David" and many people started to run. McChristian said that he attempted to flee into a crowded hallway but he and Bailey were unable to gain entrance. Bailey ran in another direction and McChristian lay down on a nearby porch until the gunfire ceased and Peck arrested him. McChristian claimed that he was unarmed and that Peck found the .25-caliber pistol near the curb. He further denied having any conversation with Bailey or Barksdale at the police station, and he specifically disclaimed stating that they would "get" Barksdale at some other time.

During closing arguments the State, over repeated defense objections, emphasized and detailed the prior out-of-court statements that Barksdale had made. The State further requested the jury to consider whether Walsh or Barksdale was telling the truth. The trial court instructed the jury, as it had previously, concerning the use of prior inconsistent statements of a witness.

We agree with the appellate court that the State's tactics pertaining to the use of Barksdale's prior inconsistent statements were improper. In People v. McKee, 39 Ill.2d 265, 270 we stated:

"In considering the admissibility of this testimony it is necessary to understand the difference between the right to impeach a witness and to cross-examine him as a court's witness. A witness may be made a court's witness and subjected to cross-examination by either side where, for sufficient reason shown, his integrity or veracity is doubtful and neither side desires to vouch for his testimony. The purpose of the rule is to prevent a miscarriage of justice by having an eyewitness to the crime fail to testify, but the cross-examination should be strictly restricted to the direct issues and not permitted on collateral matters. [Citations.] In effect, it is an attempt to arrive at the truth based on sworn testimony. The purpose of impeachment is to destroy credibility, not to prove the facts stated in the impeaching statement. What the witness stated out of court and out of presence of the defendant is pure hearsay and incompetent. Legally it is not evidence of defendant's guilt and cannot be received as proof of the fact at issue. [Citations.] As stated in People v. Grigsby, 357 Ill. 141, 149, `If the witness admitted making the previous statement, it would prove nothing except that he, an admittedly unreliable witness, had said so. If the witness denied ...

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