Appeal from the Circuit Court of Cook County; the Hon. Thomas
J. Maloney, Judge, presiding.
JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:
A jury found defendant guilty of murder (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a)(1), (a)(2)) and, after his motion for a new trial was denied, he was sentenced to 35 years' imprisonment.
On appeal defendant raises as issues whether the circuit court erred by: (1) denying him an adequate opportunity to prepare for trial; (2) prohibiting cross-examination of a State's witness as to his gang affiliations; and, (3) refusing to permit defendant to impeach his own witness with the witness' omission of certain facts from his police report.
On May 12, 1981, Michael Rodriguez, also known as "Monkeyman," was fatally shot near the intersection of Cleaver and Blackhawk Streets in Chicago. The following day, defendant was arrested and subsequently charged with murder and armed violence in connection with the slaying.
In its July 31, 1981, answer to defendant's motion for discovery, the State indicated that it might call as witnesses, among others, Robert Burden, "David Alonsa, aka Alonzo [sic]," and Mario Zuniga. Their addresses were not furnished. Defendant moved for specific discovery, under Supreme Court Rule 412(a)(i) (87 Ill.2d R. 412(a)(i)), of the current addresses and pretrial production of Alonso and Zuniga, alleging that the State had relocated these witnesses following a preliminary hearing, and that they could not be located at the addresses and phone numbers provided by the State after repeated defense requests for such information. The State indicated that, as their whereabouts were unknown, it would introduce their preliminary hearing testimony at trial; noted a continuing investigation to locate the witnesses; and that defendant would be advised as soon as they were located.
Jury selection for the trial began on Friday, May 7, 1982. The State said it would "possibly" argue on the following Monday to interject evidence of gang membership into its case. On Monday, May 10, however, the issue of gang membership was not raised. On May 11, the State suggested that the court rule on the issue because it appeared to be an essential part of the defense theory. Defense counsel then argued that the case was "being put on our defendant," and that reference to gang membership was necessary to show the motive for the killing and to shed light on why witnesses would testify in a certain way. The State then observed that it was neither for nor against allowing references to gang membership and had prepared its case accordingly.
Defense counsel requested and received an in camera hearing out of the presence of the State so that it could explain to the court the importance of the gang issue to its theory of defense. Although this hearing is not recorded, defense counsel at the conclusion of its case recited the theory earlier presented: Gonzalez, recently father of a son, had allegedly withdrawn from gang membership and, as a result, had been harassed and threatened by gang "collectors" and "enforcers," Alonso and Zuniga. Gonzalez defied their requests to sell drugs for the gang and was told by Alonso and Zuniga that, unless he at least contributed to gang coffers, "they would get him." Defense counsel noted that this theory gave Alonso a motive to fabricate, especially since he was at the scene of the homicide for which he might himself be accountable. Nevertheless, the circuit court ruled that "[t]here is to be no reference to gang affiliations in this case."
Meanwhile, with respect to another issue, on May 10, defense counsel noted that he and co-counsel had interviewed witness Robert Burden in January 1982, at which time Burden said he could not identify defendant as the offender; as a result, Burden was scheduled to be a defense witness. An appointment to interview Burden at 9 a.m. on May 7 was made with Burden's mother. Counsel further related that Burden's mother was contacted by the State after the appointment was made, and when she advised the caller of the next day's appointment at 9 a.m. with defense counsel, she was told that the State would have her son picked up at 8 a.m., which was done. When defense counsel arrived at the designated time, they learned that Burden had been picked up an hour earlier. As Burden remained in State custody, defense counsel argued, an interview was needed because of indications that Burden's testimony might be different and might therefore warrant a change in defense strategy. The circuit court granted time for such interview before continuing with jury selection; at the same time, counsel was permitted an interview with Alonso, who had been in State custody since May 6.
On May 11, shortly before opening statements by counsel, the State remarked that it would present Burden as its own witness and that he would deny the substance of his earlier statement made to defense counsel. Defense counsel then moved for a continuance until the next day so that they could "restructure" the defense and possibly bring in another attorney. The court denied this motion and characterized counsel's dilemma as "simple," requiring "one or the other" to withdraw from representing defendant in order to testify in rebuttal. Neither defense counsel withdrew.
Robert Burden, 14 years old at the time, testified for the State at trial. At about 7:30 p.m. on May 12, 1981, he was walking on Blackhawk toward a nearby park. He passed Monkeyman, whom he had known all his life, and crossed Blackhawk at its intersection with Cleaver. At that point he noticed three people in a gangway on Cleaver: defendant, Alonso and Zuniga. He had known Alonso and Zuniga two to three years; he "used to just see [defendant] a lot, I ain't know him." He observed defendant put something on his head, run across Cleaver and into the alley off Blackhawk. He lost sight of him for five to 10 seconds between buildings. When defendant reappeared, he pulled a gun and shot Monkeyman, on Blackhawk, four or five times, and then ran back the same way he had come. Burden was the first person to reach Monkeyman. He then went to call an ambulance. When he returned to the scene, police had arrived and Burden gave them an account of the crime and a description of the assailant. On cross-examination, Burden said he had spent the past four days in a hotel where he had shared meals with Alonso and discussed the case with police. There was no attempt to impeach Burden with his allegedly inconsistent statement to defense counsel made in January 1982.
David Alonso, age 19, also a State's witness, testified that at about 6:15 p.m. on May 12, 1981, he and Monkeyman played in a basketball game at a fieldhouse gym. He stepped out of the gym for a drink of water and saw defendant. In answer to defendant's question, he said that Monkeyman was in the gym, to which he then returned. After later leaving the gym, Alonso ran into defendant and Zuniga, who asked him to accompany them to a house on Cleaver to retrieve a tie. While in the gangway of the house, defendant handed his leather jacket to Zuniga. At this time Alonso observed Monkeyman cross from the southeast to the northwest corner of Cleaver and Blackhawk. Defendant put on a ski mask, ran west across Cleaver to the north alley of Blackhawk, and lowered the mask over his face. Alonso saw defendant run up behind Monkeyman and raise both hands; he then heard five or six shots. As Alonso began running south on Cleaver, he saw defendant, no longer wearing the mask, run back into the gangway. Defendant told Alonso and Zuniga later that he stashed the gun in a yard.
Daniel Noon, Chicago Police gang crimes specialist, testified that he was at the rear door of defendant's apartment when other officers knocked on the front door and identified themselves. As defendant started to walk out the back door, he was arrested. Police also recovered a brown leather jacket during the arrest.
The only defense witness called, Chicago Police Detective Gary Bulava, testified that he interviewed Burden on the day of the homicide and filed a report on the case. Burden did not tell him then that he saw defendant in the gangway with Alonso and Zuniga prior to the shooting, nor that defendant ran west through the alley. On cross-examination, Bulava said that Burden told him he could identify the offender. On redirect examination, Bulava further said that Burden indicated that he knew the assailant from the neighborhood. When defense counsel attempted to inquire whether Bulava's police report contained this information, the State's objection was sustained. The court noted ...