Appeal from the Circuit Court of Cook County; the Hon. Romie
J. Palmer, Judge, presiding.
PRESIDING JUSTICE SULLIVAN DELIVERED THE OPINION OF THE COURT:
After a jury trial, defendant was convicted of murder *fn1 and given a 25-year sentence. On appeal, defendant contends that (1) he was entitled to a hearing on his motion for substitution of judges; (2) he was prejudiced because of the delayed production of statements by the State and because the court permitted the State to add a name to its list of witnesses; (3) the court erred in instructing the jury on felony murder and in failing to do so on the lesser included offense of voluntary manslaughter; and (4) he was not proved guilty beyond a reasonable doubt.
Prior to trial, the court granted a defense motion for substitution of judges and, after the cause was transferred to another judge, a second such motion was denied without a hearing.
At trial, Leroy Fleming testified that he, his brother Anthony (deceased), James Terrell, and Mark Cannon drove to Merrill Park in Terrell's Buick 225 to "smoke some reefer and drink beer"; that at the park Anthony was sitting in the front passenger seat and he (Fleming) was behind him, Terrell was at the wheel, and Cannon was in the back seat behind Terrell; that Vincent Moore and another man (Jeff) also went to the park and were in the car parked next to them; that they passed around a joint and, after 10 or 20 minutes, defendant — whom he had known for 3 to 5 years — approached from the rear of the car, opened the door, leaned in, and shot Anthony in the head with a revolver; and that no words had been exchanged prior to the shooting. Fleming said that defendant then ordered him out of the car at gunpoint and told him to lie on the ground; that Terrell later drove away, after telling him to take Anthony out of the car; that he and Anthony then laid in the snow until the police arrived; that the police took his brother to the hospital, and he went with them; that later, at the police station, he told the officers that a man named Ken had shot his brother; and that the next morning he went with the officers when they arrested defendant.
On cross-examination, Fleming stated that he had not known Vincent Moore prior to that day but he had known Jeff for about one year. He denied telling the police that two men had approached the car before the shooting and denied that he and Anthony had gone to the park to rob anyone. He admitted that in the statement he gave the police he did not state that defendant had leaned into the car when he shot deceased.
Police officer Barrett testified in pertinent part that on the evening of the shooting, she and a partner went to Merrill Park in response to a call, and that upon her arrival she saw deceased in the front seat of a car with what appeared to be a bullet wound in his forehead.
Investigator Manella testified that after the occurrence Fleming told him that he was in a car with his brother and two other persons when his brother was shot by a man named Ken, and that the next day Fleming went with him and other officers to arrest defendant. Investigator Corless testified that when he searched Terrell's car, he saw no blood but noticed that it appeared to have been recently cleaned. Officers Corless and Manella both testified that during questioning at the station, defendant told them that while he was standing next to a green Buick in Merrill Park talking to deceased, who was seated in the car, the latter displayed a weapon and began waving it around; that he told deceased to put the gun away, but he did not; and that in the ensuing struggle the weapon discharged, wounding deceased in the head.
Dr. Malak, who performed an autopsy on deceased, stated that he had a gunshot wound to the forehead between the eyes; that there was gunpowder around the wound indicating a very close range gunshot; that the autopsy four days later disclosed no gunpowder residue or evidence of an imprint of a tool or weapon on deceased's hands; and that washing of the hands, a lapse of time, and the type of ammunition used could affect the results of his test to determine whether a person had used a gun.
Eric Moore testified that on the night of the shooting he was in a game room with Donald Gatewood, Rory Green, Anthony Fleming, and a man named James; that Gatewood suggested they commit a robbery in Merrill Park, and he went there with Gatewood, Green, and defendant; that he, Gatewood, and Green had guns; that at the park he noticed two cars side by side — one a white Grand Prix to his left, and the other a green Buick to his right; that after they approached the cars from the rear, Green went to the driver's side of the white car; that he and Gatewood stood between the cars, and he thought that defendant went to the passenger side of the green car, which had four people in it; that after Gatewood opened the passenger door of the white car, he (Moore) heard a gunshot; that at this point defendant was on the passenger side of the green car; that he then walked around the green car and saw a man partly in and partly out of the car with his face in the snow; that people started getting out of the green car, and he heard Leroy Fleming scream, "You shot my brother"; and that, as he ran from the scene, Gatewood, Green, and defendant caught up with him.
On cross-examination, Moore admitted that he pleaded guilty to a charge of attempted armed robbery in connection with this case and was given six months in custody with two years' probation; and that, in a statement he gave police following his arrest, he did not mention either having gone to the other side of the Buick, having seen a person lying in the snow, or having seen defendant standing a few feet from the body lying in the snow. He also said that he went to the park to rob Vincent Moore and that deceased knew of the planned robbery.
Donald Gatewood testified that he was at the game room with Eric Moore when Green and defendant came in; that he and Green both had guns; that after leaving the game room they went to a bowling alley and a liquor store and then he and Eric Moore walked to Merrill Park followed by Green and defendant; that when he arrived at the park he saw two cars parked next to each other; that he walked between the cars and told one of the people in the Grand Prix to roll down the window, and while pointing a gun at the man in the passenger seat he asked where the "reefer" was; that while his head was in the car he heard a shot and then someone said, "You shot my brother"; that he walked around to the passenger side of the green car and saw a person lying half in and half out of the green car with his head in the snow; that he knew it was deceased; that he and Eric Moore then left the scene; and that he subsequently pleaded guilty to his involvement and was given six months in the UDIS program with two years' probation.
On cross-examination, Gatewood stated that deceased, Cannon, and Jeff Clark were a part of the armed robbery plan; that Clark was one of the men in the white Grand Prix; that he had obtained his gun from Eric Moore; and that Vincent Moore was the intended victim of the robbery.
Rory Green testified that he was currently charged with the murder of deceased; that he was at the game room when defendant asked to borrow his gun to use in a robbery; that he gave him the gun and then left the game room with him, Gatewood, and Eric Moore; that they walked to the park intending rob Vincent Moore; that he went to the driver's side of Moore's car and while there he heard a gunshot but, seeing nothing unusual, he proceeded to rob Moore of $150 and his wallet; that he then ran out of the park and, about a block away, met defendant, who told him he had shot someone by accident; that defendant handed him the gun he had given to him earlier and told him to wipe off the fingerprints; that he then went to Bruce Davis' house, where he hid the gun in some bushes in the backyard of the house next door; that he kept the money he had taken but gave the wallet to the police; and that two days later he took the police to where he had hidden the gun, but it was not there.
On cross-examination, after admitting that he expected leniency from prosecution for testifying against defendant, he said that he, Clark, Cannon, Terrell, Fleming, and deceased were all involved in the robbery; that defendant told him Vincent Moore would have marijuana and about $1,000; and that when the police first questioned him about ...