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People v. Miller

OPINION FILED NOVEMBER 12, 1981.

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

v.

ORVILLE MILLER, DEFENDANT-APPELLANT.



APPEAL from the Circuit Court of Cook County; the Hon. EARL E. STRAYHORN, Judge, presiding.

MISS JUSTICE MCGILLICUDDY DELIVERED THE OPINION OF THE COURT:

Following a jury trial, Orville Miller, the defendant, was found guilty of the attempt murder and aggravated battery of Garfield Johnson. The defendant was sentenced to an extended term of 60 years in prison for both offenses to be served consecutively with a term of 100 to 200 years in prison for a prior murder conviction.

On appeal, the defendant contends that he was denied a fair trial because: (1) the State introduced irrelevant and prejudicial evidence of gang association; (2) the prosecutor improperly referred to the convictions of the other co-defendants; *fn1 (3) the court permitted evidence to bolster the testimony of the complaining witness; (4) the court permitted improper rebuttal evidence; (5) the State created the impression that the defendant was guilty of prior criminal behavior; (6) the prosecutor made improper closing argument; and (7) the defense was not allowed to discredit the testimony of the complaining witness. The defendant also contends that he was not proved guilty beyond a reasonable doubt and that he was sentenced improperly to a consecutive rather than a concurrent term of imprisonment.

At trial, Opel Johnson, the victim's sister, testified that on November 8, 1975, at about 6 p.m., she was talking with some friends in a park. Teddy Parrish began to talk to her. As she was walking with Parrish, he pointed a gun at her side and led her into the front entrance of a building. He took her money and began to fondle her clothes. She began to cry and fought off his attempt to take her clothes off. Shortly thereafter, Opel escaped and returned home. She told her brother, Garfield, that Teddy had a gun and had taken her money. Opel testified that she had known Teddy Parrish for a couple of months and had seen him with the defendant, Rudy and Ricky Bell, David Lattimore and "Sundown" (William Doyle) in the area of 89th and Cottage Grove.

Garfield Johnson testified that on November 8, 1975, his sister told him that Teddy Parrish had a gun and had taken her money. At approximately 8:20 p.m. Garfield went with Reginald Vaughn to a liquor store on 90th and Cottage Grove. Teddy Parrish was standing in front of the store and David Lattimore was sitting in a car nearby. While Reginald went into the store, Garfield asked Teddy for his sister's money and searched Teddy's pockets. Garfield then walked across the street to a candy store.

When Garfield walked out of the store, he saw Parrish, Lattimore, Ricky Bell and the defendant standing in front of the store. As he began to walk, they followed him. Garfield testified that the defendant grabbed his right shoulder and shot him in the left shoulder. Garfield turned around and saw Parrish and the defendant with guns. Lattimore and Ricky then tried to put him on the hood of a car. Garfield was shot in the back four or five times by the defendant and Parrish as he was on his stomach on the car hood. He then slid off the car to the ground and was shot four or five more times by the defendant and Parrish. The four assailants then got into the defendant's car and drove away.

Garfield further testified that on the way to the hospital and at the hospital he told the police the names of the men who shot him. On cross-examination he stated that during a prior proceeding he testified that he did not see Parrish shooting him when he was on his stomach on the car hood and that he may have given the police the name "Michael" Lattimore instead of David Lattimore.

Investigator James Doyle of the Chicago Police Department testified that at approximately 8:30 p.m. on November 8, 1975, he transported Garfield Johnson to the hospital. Garfield told Doyle that he had been shot by "Bimbo" and Lattimore.

Investigator Peter Dignan of the Chicago Police Department testified that at 10 p.m. on November 8, 1975, at Jackson Park Hospital, he was told by Garfield Johnson that "Bimbo," Teddy, David Lattimore and Ricky Bell had shot him. Garfield told Dignan that "Bimbo" was Orville Miller.

As a defense witness, Vickie Nichols testified that she went to the D & J Variety Store located at 8950 South Cottage Grove on the night of November 8, 1975, between 7:15 and 7:30 p.m. In the store at that time were Hank Andrews, George Carter, Orville Miller, Rudy Bell and Jerry Streety. The defendant was a friend of her boyfriend, George Carter. She did not see the defendant with a gun that night. She stated that between 7:45 and 8 p.m. Garfield Johnson and Reginald Vaughn entered the store. Garfield made a purchase and left with Vaughn. Shortly thereafter, gunshots were heard and she and the defendant went outside with Andrews, Carter and Rudy following. Garfield was lying on the ground near the curb and Vaughn was standing over him.

Nichols testified that she had not discussed the shooting with any police officers. She knew the defendant had been charged with the offense a couple of months after the shooting. She stated that William Doyle, nicknamed "Sundown," had approached her two weeks before the trial and asked her to talk to the defendant's attorneys. Nichols testified that Doyle had not threatened her or influenced her testimony.

The second alibi witness, Jerry Streety, testified that he was working at the D & J Variety Store on November 8, 1975. That evening a person came into the store and said someone had been shot. Vickie Nichols, George Carter, Rudy Bell and the defendant were present in the store at that time. Rudy and the defendant left the store and drove away in the defendant's car. Streety further testified that he had not given this information to any State's Attorney or the police and had not talked to defense counsel until a week and a half before trial. Streety said that he had been visited by "Sundown," who had asked Streety to see the defendant's attorneys. About a week later, "Sundown" and Carter visited Streety again to ask him to see the defense counsel.

At the conclusion of the trial, the defendant was convicted of attempt murder and aggravated battery. His motion for a new trial was denied.

I

The defendant first argues on appeal that he was denied a fair trial because the State repeatedly introduced irrelevant and prejudicial evidence of gang association. *fn2. The defendant contends that gang association was implied when the State asked Opel Johnson who she saw Teddy Parrish with and when the State asked Garfield Johnson "[w]ho else did David Lattimore associate with besides Teddy?" The defendant argues that additional glaring references to gang affiliation occurred during the State's cross-examination of Vickie Nichols and Jerry Streety when the following questions were posed:

"Q: "Now, Lattimore, Parrish and the Bell brothers, George Carter, Hank Andrews and Orville Miller all hang out there at 90th and Cottage Grove, don't they?"

Q: "That's their place, right?" (Objection sustained.)

Q: "[Does Sundown] also hang around 90th and Cottage Grove?"

Q: "He [Sundown] was of the same organization [as] all these people were, wasn't he?" (Objection sustained.)

Q: "Well, did George Carter, Orville Miller belong to the same organization?" (Objection sustained.)

Q: "Did Orville Miller and your — and George Carter, did they ever wear any trinkets?" (Objection sustained.)

Q: "[The people that hung around the store] they were gang, weren't they?" (Objection sustained.)

Q: "And Sundown used to hang out with Orville Miller, didn't he?"

Q: "They are part of that group that used to hang out at 90th ...


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