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People v. Donald

OPINION FILED DECEMBER 29, 1977.

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

ALAN DONALD, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. ROBERT L. MASSEY, Judge, presiding.

MR. JUSTICE ROMITI DELIVERED THE OPINION OF THE COURT:

The defendant, Alan Donald, was tried before a jury for murder, was convicted, and sentenced to 20 to 40 years in the penitentiary. Defendant seeks a new trial because of the following alleged trial errors: (1) the prosecution was improperly permitted to introduce evidence of statements made by the defendant which they had concealed before trial despite discovery requests for any such statements; (2) the defense was restricted in their cross-examination of a State witness concerning his visual identification of the type of gun allegedly used by the defendant; (3) the defense was prevented from adducing a prior inconsistent statement of that same witness; (4) the prosecution's rebuttal evidence was improper as rebuttal because it was collateral to all material issues and served no proper evidentiary purpose; (5) the prosecution's remarks during voir dire and closing argument were unfairly prejudicial and inflammatory. The defendant also contends that his sentence is excessive.

We affirm the judgment and sentence of the trial court.

Ulysses Scott was the State's key eyewitness to the shooting. He lived in the same apartment building as the defendant and the victim, Ricardo Wise. Scott had known the defendant for three to four years, and Wise about two years. On the day of the shooting, at about 2:30 in the afternoon, Scott was sitting with Wise in a car parked in the parking lot of their apartment building. They had spent the past night and that morning in the car, talking and drinking, though Scott testified that on that day he only drank one can of beer and two swallows of wine. At about 2:30 p.m. Scott saw the defendant sitting on a parked car about 20 or 25 feet away. The defendant called to Wise to come over. Wise walked over to the defendant. They stood together for several minutes, then Wise made what Scott interpreted as a motion of dismissal, and began walking away. Defendant pulled out a blue steel .38 pistol from his left side, pointed it at Wise and fired. He continued to fire as Wise fell, firing a total of four shots. Defendant put the gun back in his side, and began to walk and finally ran into his apartment building. At that time he was wearing a green cap, a green shirt with a maroon shirt underneath, and blue jeans.

Albert Brown, a cab driver, also testified for the State. On the day of the shooting at about 2:30 p.m. he was driving by that same apartment building when he heard a shot. He kept on driving, at about 15 to 20 miles per hour, but he looked to his right. He saw a man lying on the ground and another man standing over him with a gun. Brown heard two or three more shots, then the man with the gun put it under his jacket and walked to the building. Brown described the man as a Negro in his early twenties, five feet seven inches tall, weighing 135 to 140 pounds. He was wearing a green jacket, a green cap, and blue jeans; the gun was blue steel in color. Brown could not identify the man he saw. He had been about 100 feet away from the shooting.

Officer Tom Blackwell arrested the defendant. At the police station he asked the defendant a number of questions pertaining to personal data such as his height and weight. Over defense objection, Blackwell testified that in response to these questions defendant stated that he was five feet, seven inches tall, weighed 144 pounds, and was 19 years old.

After a pathologist testified that he recovered two bullets from the victim's body, a police firearms expert identified those bullets as being .38-caliber bullets.

The only witnesses for the defense were the defendant and his mother, Edna Walker. Edna Walker testified that between noon and 1 p.m. on the day of the shooting, she sent the defendant to buy some groceries and they then had lunch. After lunch, in the early afternoon, he left. He was wearing green pants and a blue shirt that day, and was not wearing a hat. Later that afternoon, between 4 and 5, three police officers came to her house and questioned her for half an hour. While they were there other officers with shotguns arrived, kicking open the door to gain entrance. The police asked where the defendant was and one of them gave Mrs. Walker a card with the number of the Grand Crossing police station on it, and then left. At 7 p.m. the defendant arrived. Mrs. Walker told him about the shooting of Wise and asked if he had done it. Defendant denied having shot Wise and asked her to call the police. She did so, using the number on the card given to her by the police. Defendant spoke to the police by phone and shortly thereafter four policemen arrived and took the defendant, accompanied by his mother, to the station.

The defendant testified that after having lunch with his mother at home that day he left the apartment at about 1 p.m. and went to the beach, where he spent the afternoon. He did not see anyone that he knew there. When it started to get dark he walked home, taking about an hour to do so. At home his mother told him that Wise had been shot and that police officers had been at the apartment looking for the defendant. She then called the police and defendant spoke to them. He told them that he had heard they wished to speak to him, and he asked them to come to his house and get him. Defendant denied having a gun that day and denied shooting Wise. When he was arrested he was still wearing the clothes in which he had begun the day, a blue shirt and green pants.

On cross-examination defendant stated that he did know Wise, although he indicated that he did not know him that well. He denied telling the police that he did not know Wise, stating that he told them he had "seen him." Defendant stated that he was 20 years old, five feet, seven inches tall, and weighed 154 to 157 pounds, the same weight as on the day of the shooting.

The State offered the testimony of three witnesses in rebuttal. Investigator Dennis Banahan, over defense objection, testified that defendant volunteered that he did not even know "that dude," apparently a reference to Wise. Investigator Robert Lewis testified that at about 5 p.m. on the day of the shooting he and two other officers talked to defendant's mother at her apartment. No other officers came while they were there. None of them carried shotguns and they did not kick in the door, rather, Mrs. Walker let them in when they knocked. Mrs. Walker was given a card containing two phone numbers for their office at Area 2, Homicide. Investigator Edward Czekala then testified that on that day from 5 p.m. to 8 p.m. he was at the Area 2 Homicide offices. He was assigned to the Wise shooting, so that if either the defendant or his mother had called, he would have been notified. During that time he did not receive such a phone call nor was he informed of any such call.

I.

Defendant contends that the trial court erred in allowing testimony concerning two statements made by him. On direct examination by the State, during its case-in-chief, a police officer testified that after being arrested and taken to the police station, defendant was asked about personal data relating to his height, weight and age. At that time defendant stated he was 19 years old, weighed 144 pounds, and was 5 feet, 7 inches tall. This, of course, tended to corroborate Albert Brown's description of the assailant as being 5 feet, 7 inches tall, in his early twenties, weighing about 135 to 145 pounds.

Then a State rebuttal witness, a police investigator, testified that during questioning the defendant volunteered that as to the victim: "I didn't much know [sic] about this thing. I didn't even know that dude." On cross-examination defendant had denied telling the police that he did not know Ricky ...


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