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People v. Banks





APPEAL from the Circuit Court of Cook County; the Hon. THOMAS R. FITZGERALD, Judge, presiding.


Defendant, Percy Banks, was charged by indictment with murder and armed robbery. (Ill. Rev. Stat. 1977, ch. 38, pars. 9-1, 18-2.) In a jury trial defendant was found guilty of murder and not guilty of armed robbery and was sentenced to serve 30 years in the Department of Corrections. On appeal defendant contends that he was not proven guilty beyond a reasonable doubt, that he was prejudiced by evidence of prior police contacts, and that the trial court erred in refusing to give the jury an instruction on the credibility of a narcotics addict. For the reasons which follow, we affirm defendant's conviction.

Shortly after midnight on February 23, 1979, Herman Mitchell was shot to death. The State's principal witness was Gladys Nash. Because of injuries Nash suffered in an automobile accident prior to trial, she was brought into court on, and testified from, a hospital bed.

Nash testified that on February 22, 1979, she went to the Apollo Lounge, located at 1659 South Pulaski. She arrived between 6 and 7 p.m. and stayed until midnight. Twice during the evening Nash left the bar to buy a pint of Richard's Wild Irish Rose wine at a liquor store across the street from the Apollo Lounge. Each time she brought the wine back to the lounge where she consumed it. She had at least one other drink which she purchased at the lounge. The owner of the Apollo Lounge, Bennie Williams, testified that Nash had three drinks of Harvey's Bristol Cream.

Between 11 and 11:30 p.m. Nash went to the washroom of the bar and injected herself with heroin. Nash testified that she had used heroin on and off for about five years and that at the time of the offense, February 23, 1979, she was taking heroin three or four times a week. She supported her habit in part through prostitution and admitted that she had been convicted of prostitution, theft, battery and unlawful use of weapons. She had been a prostitute for 15 years. At trial, however, Nash stated that she had not used any narcotics for four months.

During the evening Nash was at the Apollo Lounge she spoke with a number of persons including the victim, Herman Mitchell, Michael Rogers and defendant. Nash had known Mitchell, who worked as a bartender and "waitress" for the lounge, for seven or eight years, Rogers since grade school and defendant since kindergarten. Two other witnesses, Thel Young and Bennie Williams, testified that defendant was at the lounge on February 22, 1979. Young encountered defendant outside the lounge between 10 and 10:30 p.m. Defendant told Young that he was waiting for Herman Mitchell. Defendant also said that he felt uncomfortable waiting inside the bar because he did not have any money.

Williams testified that he had seen defendant in his establishment with "another fellow" twice on the night of February 22, first at 7:30 then later at 10 p.m. Defendant spoke with Mitchell several times that evening as he had on earlier occasions.

Near midnight Nash stepped outside of the lounge, stood alone for a few moments and then met defendant and Rogers. The three of them waited for Mitchell who was assisting Williams in closing the bar. Williams paid Mitchell $18 per night for his work in the lounge. After Williams paid him on February 22, Mitchell gave Williams a $20 bill for safekeeping. Mitchell had never before asked Williams to hold money for him. Mitchell left the lounge at approximately 11:50 p.m.

After Mitchell came out, Nash, defendant, Rogers and Mitchell entered Mitchell's 1968 Oldsmobile 98. According to Nash, defendant was driving, Mitchell was in the front passenger seat, Rogers was sitting behind defendant and Nash was sitting behind Mitchell. Ricky Johnson, who admitted to a prior criminal record, corroborated this testimony.

Nash testified that they went in search of drugs and made two stops before they were able to purchase some, but she denied that she used any. They then drove to an alley behind 1900 South Harding. There Mitchell offered defendant $20 for a sex act. Defendant accepted the $20 but asked for more. Mitchell refused saying that he had some bills to pay. At this point a struggle began between defendant and Mitchell, during which Michael Rogers "went to grab" Mitchell. Defendant then pulled out a small handgun and shot Mitchell twice behind the back of his head at close range as Mitchell was trying to get out of the car. Nash jumped out of the car and ran. She said the shooting occurred at approximately 12:30 a.m.

Nash did not report the murder to the police because she was afraid. When she did talk to the police, she initially denied any knowledge of the incident because she knew that defendant had not yet been arrested.

Mitchell's body was discovered at 3 p.m. on February 23, 1979, by a city garbage collection crew. The body was found lying face down in the snow in a vacant lot 10 to 15 feet west of the alley behind 1859 South Harding. A beat officer at the scene observed two small holes near the victim's right ear.

Dr. Tae An, an assistant medical examiner, testified that Mitchell had been shot twice on the right side of the head. The bullet wounds were one-half inch apart and approximately one-half inch above the top of the right ear. One bullet was deflected by the right temporal bone and was not suitable for comparison. The other bullet traversed the brain from right to left and from the back of the head to the front. That bullet was recovered and was identified as a .22 long rifle bullet. Because of the large amount of powder residue found, Dr. An concluded that Mitchell had been shot at very close range.

Homicide investigator Thomas Shine testified that he interviewed defendant about the Mitchell murder while defendant was in a police lock-up after February 22. Defendant told Shine that he had met Mitchell in November of 1978 and had visited him many times at Mitchell's home. Defendant said that he had had a homosexual relationship with Mitchell. Defendant told Shine that he had last seen Mitchell in late February 1979 but could not give an exact date. Defendant met Mitchell after Mitchell had left work. Mitchell loaned defendant some money and let him use his car. Mitchell's brother, McArthur Noel, testified, however, that Mitchell never loaned his car to anyone.

Defendant also told Shine that a girl named Gladys had told him that Mitchell had been shot to death. Defendant did not know who had killed Mitchell. Finally, Shine testified that defendant's co-defendant, Michael Rogers, had been discharged following a finding of no probable cause at a preliminary hearing.

Herman Mitchell's car was not found until April 1979. In the trunk of the car the police recovered a set of 1978 license plates registered to an automobile owned by defendant's father. The plates had been reregistered in the name of defendant's mother after her husband died in September 1977.

In defense, defendant's mother, Dorothy Banks, testified that the garage where the old plates had been kept was broken into in March 1979. She did not report the burglary to the police and did not know whether the plates were still in the ...

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