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People v. Shore





Appeal from the Circuit Court of Cook County; the Hon. James Heyda, Judge, presiding.


Following a bench trial, defendant was convicted of felony murder and sentenced to a term of 35 years. On appeal, he contends that (1) he was not proved guilty beyond a reasonable doubt; and (2) the trial court (a) improperly considered matters not in evidence in reaching its verdict, (b) abused its discretion in denying his post-trial motion to reopen the case, and (c) denied him a fair trial by shifting the burden of proof to him.

At trial, David "Bo" Burns (Burns) testified that he, Willie Adams (Adams), Chester Bland (Bland), Andrew Shaffer (Shaffer), and defendant were drinking beer and wine and smoking marijuana in front of an apartment building at 4014 South Drexel Avenue in Chicago at about 7 or 8 p.m. on August 10, 1982. An argument started between Adams and defendant and, when Adams said that he did not have a gun, defendant said, "Sucker, I got mine," and then drew a gun and stuck it in Adams' chest. At that point, Myra Sexton (Sexton), who was watching from the window of her apartment, called defendant inside the building, and after he came out the men went to the liquor store to purchase more beer and wine, thereafter returning to the front of the apartment building to drink it. At about 12:15 a.m., the victim — a security guard — walked past them on the opposite side of Drexel Avenue near the El Rukn headquarters, and upon seeing him, defendant said, "I am fitting to get this chump," and then ran across the street with his gun in his hand. As the victim turned, defendant shot him twice in the chest and then took his service revolver. Defendant then ran back across the street, carrying the revolver, and as he passed he said, "I got this chump."

At about 7 a.m. the following morning, defendant came to Shaffer's house where he (Burns) and Bland had spent the night, and when Shaffer asked defendant, "Man, what did you do?" he responded, "Man, I believe I killed this chump." Defendant also told them that he threw the victim's revolver into a red container and hid the murder weapon under some wood. After accompanying defendant to an area where he said the police had chased him, he (Burns), Bland, and Shaffer returned to Shaffer's house, but defendant remained to search for the weapons. Later that day, defendant returned to Shaffer's house with a .38-caliber revolver, opened it, removed two spent cartridges, flushed them down the toilet, and left. Several days later, when Burns learned the police were looking for him, he arranged to meet them in a lounge. Three officers took him to a police station, where one officer told him that defendant, who was also in custody, had named him as the killer. He then told the police what he observed on the night of the shooting. He had not contacted the police immediately, because in 1974 he was framed for a murder he did not commit and ultimately pleaded guilty to robbery in order to get out of jail, and he did not want to get involved with the police again. Burns also admitted to a conviction for possession of marijuana and that he was formerly a "foot soldier" in the El Rukn street gang. On cross-examination, he stated that while he was in custody, the police said that defendant tried to "give the case" to him and that they were going to charge him with this murder. He told the police that Shaffer, also known as "Rab," was present on the night of the shooting; that immediately afterwards, defendant said, "I just got this chump"; and that they searched for the guns the next morning, but that he did not tell them what had occurred at Shaffer's house or about the statements made there by defendant. He admitted that he had been afraid he would be charged for the crime, but he denied threatening defendant's family, stating that he remained downstairs when he and Shaffer went to defendant's apartment building to tell his mother they did not want to see defendant go to jail.

Bland, also a former El Rukn "foot soldier," testified to essentially the same version of events as did Burns, although he did not hear defendant say anything as he ran past after shooting the victim. He admitted on questioning by defendant's attorney that she and another person came to his house to question him about the shooting, but he told them he did not want to say anything before consulting with his attorney. He did not say that he would not tell them what really happened on the night of the murder because he was afraid that if he told the truth he would be charged with perjury. Several days after the shooting, he was taken to Area 1 headquarters, but the police did not tell him they believed he was involved in the murder or that he might be charged with it; neither did he think he would be charged. Although he told the police what occurred on the night of the shooting, he did not tell them that Shaffer had been present throughout the evening, and he did not tell them — nor did they ask — anything concerning the events of the following day. He did not initially contact the police because he did not want to become involved, and he acknowledged that he could have been prosecuted for contempt had he failed to comply with a subpoena he received to appear as a witness. Following Bland's testimony, the trial court granted the State's motion to withdraw the petitions for contempt citations against Burns and Bland, since both witnesses had voluntarily complied with the subpoena to testify.

Myra Sexton then testified that she was in front of her apartment building on the night in question with Shaffer, Burns, Bland, Adams, and defendant when the latter two began arguing about a television. She went inside her apartment and, as she watched from a window, she saw defendant draw a gun and point it at Adams. She called defendant upstairs and asked him to leave his gun with her and go "cool out" somewhere, but he left, taking the gun with him. She then closed her window, remained in her apartment, and did not see defendant again that night. She was a good friend of Burns and Bland and acknowledged discussing the shooting incident with them before she was taken to the police station, where she was interviewed for about seven hours. She also knows several members of the El Rukn street gang, but she was not a member of the women's division thereof.

Paulette Jones, a 17-year-old high school student, testified that in late August 1982, she and some friends were behind the "old folks home" across the alley from her father's church when one of the boys saw a gun lying next to some trash cans. They flagged down an unmarked police car, whose occupants retrieved the gun. It was stipulated that, if called, Officer Lipinski would testify that he was stopped by Paulette Jones and her friends and directed to a red container next to a senior citizens' home, where he found a .357-caliber Smith and Wesson revolver. The gun was registered to the victim, but it was not the weapon used to kill him.

Ernest Wells testified for the defense that shortly after midnight on August 10, 1982, he was driving southbound on Drexel Avenue when he heard gunfire, turned, and saw a man on the opposite side of the street standing over and pointing a gun at another man, who was lying on the sidewalk. The gunman fired a second shot at the victim, bent down, removed something from the victim's pocket, and then walked south toward 40th Street, where he crossed Drexel Avenue and was joined by another man, with whom he then ran away. He (Wells) made a U-turn, drove back to where the victim was lying, and when the police arrived he described the gunman as 18 or 19 years old, 140 to 150 pounds, five feet eight inches or five feet nine inches tall, with short hair and a "dark tan" complexion which was approximately the same as, or a little darker than, that of his girlfriend, whom he pointed out in the courtroom. Later, during arguments, the trial court specifically noted that "the defendant's complexion was very close to that lady * * * there was not much difference." A few days later, he viewed a lineup but did not identify any of the participants. He did not know defendant, and stated when viewing defendant in the courtroom that he had never seen him before. In response to questions by the court, Wells also stated that his observation of the gunman was for about five minutes from a distance of 200 feet, and that he did not want to get closer because the man had a gun. He also stated that it was dark outside and that, although the streetlights were on, he could see only the man's right profile.

Karen Shore, defendant's 16-year-old sister, testified that she was at home on the afternoon of December 1, 1982, when she heard a knock on the door. Her younger sister, Laydia, opened the door to two men whose names she subsequently learned were "Rab" and "Bo." The men asked Laydia if her mother or sisters were home, and when Laydia said, "No," she (Karen) ran to the door and slammed it. She then heard "Rab" say, "Tell your brother he just better not tell anything. I'll kill all you ____", whereupon her other sister, Phyllis, called the police. She stated that she knew "Rab" and "Bo" by sight but had never seen them with her brother, and she did not know their real names or what they were talking about until her mother told her later that they were going to be witnesses against defendant. Laydia Shore, defendant's 15-year-old sister, testified that when Karen slammed the door, she (Laydia) ran toward the back of the house and did not hear the men, whose names she too learned from her mother, say anything else.

The parties stipulated that defendant was 20 years old, six feet tall, and weighed 175 pounds; that Ernest Wells viewed a lineup in which defendant appeared but did not make an identification; that there was nothing in the police reports indicating that Burns told them that Shaffer was present on the night of the shooting or that defendant said, "I shot the chump," or that there was a search for the guns the following day. Certified copies of Burns' 1971 and 1975 convictions for disorderly conduct and criminal damage to property were admitted into evidence.

Drew Sosnowski, a former student intern at the public defender's office, testified that he was present on September 1, 1982, when Bland told defense counsel that what he told the police did not really happen and that he was afraid that if he told the truth he would be charged with perjury. Bland then refused to answer any additional questions before speaking to his attorney.

Defendant was found guilty of felony murder on January 6, 1983, and the case was continued until February 28, for post-trial motions and sentencing. On that date, defendant filed a motion to reopen the case for admission of evidence not presented at trial. At the hearing on the motion, defense counsel made an offer of proof as to the evidence sought to be admitted, during which Robert Lee Clark testified that on the night of August 10, 1982, after being together practically all day, he and defendant were riding their bicycles southbound on Drexel Avenue on their way home from the lake when he heard two shots and saw a man, whom he did not recognize, running across the street carrying a gun. The man hollered to a second person, and both men, neither of whom he knew or could describe, ran toward the housing project; he and defendant continued on to the apartment building where they lived. Although he learned about defendant's arrest the day after it occurred, he never told the police what he saw because he "knew what those studs would do" and he first told defense counsel what he knew "sometime around Christmas." Clark admitted that he had a juvenile conviction for auto theft and that he had known defendant for four or five years.

Defendant then testified on the offer of proof that shortly after midnight on August 10, 1982, he and Clark were riding their bicycles southbound on Drexel Avenue when he heard a shot followed by a pause and a second shot. He turned and saw a man, whom he recognized as David Burns, running across the street carrying a large silver object in his hand. Burns met up with a second man, and they both turned and pointed toward him (defendant). A "fat lady" carrying a baby then approached Burns and the other man, and it appeared that they "exchanged something" with her before running toward the housing project. He was not a gang member and did not own a gun or have an argument with Willie Adams. He had not been with Burns, Bland, and Sexton on the night of the shooting nor at Shaffer's house the following day. When arrested, he was afraid to tell the police what he knew, because the day after the shooting two men in a lounge asked him if he saw anything and, when he told them he had not, they said that if he did or if he said anything about what he saw, he would find himself in the morgue. On cross-examination, defendant denied telling the police that he had been home in bed on the night of the shooting, stating that he told them he had a tooth pulled and had stayed in bed during the day but that he went out with Clark that night. He also stated that although defense counsel represented him since shortly after his arrest, he did not tell her what he saw "until after the trial began" because of the threat he received and because he "just wanted to go ahead and let it all be over with and leave it alone." In response to questions by the court, defendant stated that everything Burns, Bland, and Sexton had testified to was untrue.

It was then stipulated that if called, Detectives Kerstein and Van-Bershott would testify that while in custody defendant told them that he arrived home from having a tooth pulled at about 5:30 p.m. on the day in question and that he stayed in bed the remainder of that night and the following morning. After arguments by counsel, the trial court denied defendant's motion to reopen the case, and this appeal followed.


Defendant first contends that he was not proved guilty beyond a reasonable doubt. Setting out numerous allegations of evidentiary deficiencies in chart form in his brief, defendant essentially maintains that his conviction should be reversed because (1) the two State witnesses who provided the only direct evidence of his involvement in this crime were not credible for the reason that (a) as former suspects themselves, they had motive to implicate him and to thereafter testify falsely, and (b) their testimony was contradicted and impeached; and (2) that the trial court's findings were unsupported by the record.

• 1 It is well settled that in a bench trial it is the function of the trial court, as the trier of fact, to determine the credibility of the witnesses and the weight to be accorded their testimony, to resolve inconsistencies and conflicts therein, and to render its decision accordingly (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64), and a reviewing court will not substitute its judgment for that of the trial court on these matters, nor will we reverse a conviction unless the evidence is so unreasonable, improbable, or unsatisfactory as to leave a reasonable doubt of defendant's guilt (People v. Kline (1982), 92 Ill.2d 490, 442 N.E.2d 154).

• 2 In support of his contention that Burns and Bland both had motive to implicate him in the murder and thereafter testify falsely, defendant first asserts that Burns admitted naming defendant as the murderer after being told by police that he "would get this case" unless he named defendant, and that Bland "nearly admitted" the same. Initially, we note that the statement defendant attributes to Burns is not a wholly accurate representation of that elicited by defense counsel on cross-examination, during which the following colloquy occurred:

"Q. When you were in the police station, the police had you in their custody, didn't they?

A. Yes, I was in custody.

Q. In fact, they told you they were going to give the case to you if you did not name Steve Shore, didn't they?

A. They told me —

Q. Answer my question, Mr. Burns, please, yes or no? * * *

A. They said Steve Shore tried to give the case to me.

Q. Answer the question, Bo.

[Assistant State's Attorney]: Objection, he did answer.

[Defense counsel]: It calls for a yes or no.

THE COURT: It can be answered yes or no. They told you they were going to give the case to you? Can you answer that yes or no? Is that what the police told you?

A. Yes."

When read in context, it is apparent that Burns, responding to counsel's inquiry as to whether his release from custody was conditioned upon his specifically naming defendant as the murderer, initially answered that the police told him that "Steve Shore tried to give the case to me." The question to which Burns ultimately gave a positive response was the more narrow one posed by the court, i.e., whether the police threatened to charge him with this offense. Similarly, with respect to defendant's assertion that Bland "nearly admitted" that his implication of defendant was induced by a fear that he would be charged, we note that Bland said the police never told him they thought he was involved or might be charged with this crime, nor did he think that he would be charged. Moreover, although the fact that a witness was previously arrested and/or charged with the same crime might raise an inference that his testimony was influenced by pressures from law enforcement authorities sufficient to affect his credibility (see People v. Green (1983), 118 Ill. App.3d 227, 454 N.E.2d 792), we note again that determinations concerning the credibility of witnesses and the weight to be given their testimony are matters for the trier of fact. Here, the fact that Burns and Bland had both been in custody and questioned and that Burns feared he might be charged with this murder were matters brought out on cross-examination and vigorously argued by defense counsel as indicia of their bias and lack of credibility. Nevertheless, the trial court found their accounts of the shooting to be credible and, because it had the opportunity to hear their testimony and observe their demeanor, we see no reason to substitute our judgment therefor. People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64.

• 3 Neither do we see any merit in defendant's contention that bias of Burns and Bland was established because they were members of the El Rukns, whose headquarters were only a block from the scene. Solely on the basis of this membership, defendant argues "these El Rukns managed to fool the police. They fooled Judge Heyda. They framed Steve Shore because they needed to put him out of the picture." Thus, defendant theorized that as El Rukns, Burns and Bland conspired to frame him, a concept rejected by the trial court but apparently adopted in the dissenting opinion here. We also reject it for a number of reasons, some of which will be discussed in more detail below.

First, there is nothing in the record refuting the testimony of Burns and Bland concerning the fact that they had disassociated themselves from the El Rukns. Second, the record does not disclose or explain the relationship between El Rukn membership and possible bias toward defendant. Third, the State had petitioned for contempt citations against Burns and Bland for failure to appear at trial in response to subpoenae served upon them. The suggestion in the dissenting opinion that this was a subterfuge finds no support in the record. Rather, because it indicates they were not eager participants in the investigation or trial, it is negative of any conspiracy. Fourth, the trial court commented that Myra Sexton was an "exceptionally good witness," and the defense does not indicate otherwise. It appears to us that had there been a conspiracy to frame defendant, it would have been easy — indeed logical — for Sexton to corroborate Burns and Bland; instead, she testified that she did not witness the shooting, stating that she was present only during the early evening hours. During that period, it should be noted that her testimony is corroborative of Burns and Bland. Fifth, in a further attack on the credibility of Burns and Bland, the defendant and the dissenting opinion point to a conflict in their testimony in that Burns testified to damaging statements made by defendant before and after the shooting, but Bland said that he did not hear those statements. We think, however, that had there been a conspiracy to frame defendant, Bland would surely have corroborated the testimony of Burns concerning those statements. Our further examination of the record discloses no support for a conspiracy to frame defendant.

• 4 Defendant next asserts that several inconsistencies between the testimony of Burns and Bland, as well as contradictions thereof by defense witnesses, undermine their credibility and raise a reasonable doubt of his guilt. In this regard, he first states that "Burns said defendant already had a pistol with him" prior to the early evening argument with Adams, but that Bland testified that he, Burns, and Shaffer accompanied defendant to obtain a gun. A close examination of the record reveals, however, that Burns was not asked, nor did he specify, where or when defendant obtained the gun; he merely testified, as did Bland, that at one point during that argument defendant drew a gun and pointed it at Adams. Thus, we see no inconsistencies with regard to this testimony. Furthermore, in our view, the details as to when and where defendant came into possession of the gun are merely collateral matters of questionable import. What is significant is that the State's witnesses made positive, consistent statements that defendant was with them throughout the evening and that at some time before midnight — the time of the shooting — he drew a gun and threatened Adams with it.

Defendant also points to a conflict between Burns' testimony — that defendant said, "I am fitting to get this chump" before shooting the victim and, "I just shot this chump" as he fled from the scene — and Bland's testimony — that he did not hear defendant make these statements despite being only three to four feet from Burns when they were allegedly made. Once again, however, the record discloses that Bland, who testified after Burns, was never asked whether he heard defendant say anything prior to the shooting, and although he stated that he did not hear defendant say anything as he ran away, in view of Bland's unequivocal testimony that he saw him shoot the victim, we do not find it significant that he did not hear defendant confirm what he had personally observed only moments earlier. See People v. Rodriquez (1981), 100 Ill. App.3d 244, 426 N.E.2d 586.

• 5 Similarly, we are not persuaded by defendant's argument that the credibility of Burns' and Bland's accounts of the shooting was seriously damaged because their testimony that defendant acted alone in this crime was contradicted by that of Wells, a disinterested eyewitness, who stated that after the shooting the gunman was joined by and ran away with a second man. We see no contradiction, however, as all three testified that the gunman was alone during the shooting. While Wells testified that the gunman walked toward 40th Street and crossed Drexel Avenue where he was joined by the other man, neither Burns nor Bland was asked whether defendant fled the area alone. There is also nothing in the record to indicate either knew what defendant did after he passed them following the shooting, or whether from their positions they would have been able to see the point where Wells said the gunman was joined by another man. Moreover, the versions of Burns and Bland concerning the occurrence were otherwise substantially corroborated by Wells' testimony that when he heard a gunshot, he turned and saw a man standing over a person lying on the sidewalk on the east side of Drexel Avenue, and that after the gunman fired a second shot he reached down and removed something from the victim's pocket and then ran westward, across Drexel, toward the housing project, where he was joined by a second man.

• 6 With respect to the contradictions by defendant's sisters (Karen and Laydia) of Burns' denial that he and Shaffer threatened defendant's family at his apartment, we first note — as did the trial court — that Karen testified that when she saw the man, whose nicknames she later learned were "Rab" and "Bo," she slammed the apartment door, whereupon "Rab" said that he would kill her and her family if defendant told anyone what he knew; whereas, her sister Laydia testified that she did not hear the men say anything after the door was closed. Thus, Laydia did not corroborate Karen's testimony regarding the alleged threat, as defendant asserts, and the trial court was therefore presented with a conflict only between the statements of Burns and Karen. As the supreme court has stated, "where * * * the evidence is irreconcilably conflicting, it is the peculiar prerogative of the trier of fact * * * to ascertain the truth." (People v. Hammond (1970), 45 Ill.2d 269, 278, 259 N.E.2d 44, 48.) In the instant case, the trial court chose to believe Burns, rather than Karen, observing that her sister did not hear the threats. Because the trial court had the opportunity to hear the evidence and observe the demeanor of both witnesses, we cannot say its determination as to her credibility was erroneous.

• 7 Nevertheless, it is also defendant's position that the testimony of Bland was completely negated by that of student intern Sosnowski, who stated that during an interview prior to commencement of this trial, Bland told him and defense counsel that what he related to the police did not really happen and he feared that if he told them the truth he would thereafter be charged with perjury, but that he would not answer any questions before consulting with his attorney. Bland not only denied making the statements testified to by Sosnowski, but also stated that he refused to answer defense counsel's questions without the benefit of private counsel. The trial court commented that, to the extent the testimony of Bland and Sosnowski conflicted, it believed the latter, and defendant syllogizes therefrom that everything Bland told the police and repeated at trial was a lie, and therefore that Bland's testimony as to seeing defendant commit the murder was entitled to no weight.

• 8 We reject defendant's reasoning, noting that while Bland was discredited to some degree by Sosnowski's testimony, we cannot assume — as defendant posits in his brief — that Bland's admission to defense counsel meant that "everything [he] told the police * * * was a lie," particularly since the trial court also found Bland's account of the shooting to be credible, and specifically noted that impeachment of a witness does not automatically mean that the whole of his testimony was fabricated. Moreover, it is well settled that the credible testimony of a single eyewitness is sufficient to sustain a conviction. (People v. Berland (1978), 74 Ill.2d 286, 385 N.E.2d 649, cert. denied (1979), 444 U.S. 833, 62 L.Ed.2d 42, 100 S.Ct. 64; People v. Rodriquez (1981), 100 Ill. App.3d 244, 426 N.E.2d 586.) Here, the trial court also stated that it believed Burns' testimony, which was corroborated by Sexton, who testified that defendant was drinking and smoking marijuana in front of her apartment a few hours before the shooting and that, during an argument with Adams, he (defendant) drew a gun and threatened Adams. The testimony of Burns was also corroborated in part by Wells, whose account of the shooting was essentially the same as Burns', and by the testimony of Paulette Jones regarding the discovery of the victim's revolver in a red container behind a senior citizens' home, which substantiated Burns' testimony as to where defendant said he hid the gun. Thus, even without Bland's testimony, we find that there was sufficient credible evidence to support defendant's conviction.

• 9 Finally, with respect to the sufficiency of the evidence, defendant asserts that the "myriad instances" of impeachment of both Burns and Bland at trial so severely impaired their credibility as to raise a reasonable doubt of his guilt. In his brief, defendant has charted numerous details which were included in their trial testimony but which were not told to the police when they were questioned about the crime. Specifically, defendant points out that neither Burns nor Bland told the police that Shaffer was with them throughout the evening in question; that he (defendant) came to Shaffer's house the following morning; that while there, he said he shot the victim and described where he hid the guns; that they accompanied him to search for the guns; or that he returned to Shaffer's house later that afternoon carrying a .38-caliber revolver from which he removed two spent cartridges. While it is true that a witness' failure "to state a particular fact under circumstances rendering it incumbent upon him to, or likely that he would, state such fact, if true, may be shown to discredit his testimony as to such fact" (People v. Henry (1970), 47 Ill.2d 312, 321, 265 N.E.2d 876, 882), we note that there is nothing in the record here indicating that either witness was questioned by the police concerning these matters. In view of their testimony that they wanted no involvement with the police, which was corroborated by the fact that they did not contact authorities to report what they had seen as well as by their reluctance to testify — both of which were noted by the trial court in its findings relating to defendant's theory that they conspired to "frame" him — we do not believe it likely that either Burns or Bland would have volunteered any information not specifically requested by the police. See People v. Green (1983), 118 Ill. App.3d 227, 454 N.E.2d 792; People v. Rodriquez (1981), 100 Ill. App.3d 244, 426 N.E.2d 586.

In the light of the foregoing, we are of the belief that there was sufficient credible evidence presented to the court to support its finding of guilt beyond a reasonable doubt.

• 10 Defendant next contends that he was denied a fair trial because the court improperly considered and was influenced by matters not in the record. We note, however, and defendant concedes, that absent a contrary showing, it is presumed that the court in a bench trial considered only competent evidence in arriving at its verdict. People v. Gilbert (1977), 68 Ill.2d 252, 369 N.E.2d 849; People v. Earullo (1983), 113 Ill. App.3d 774, 447 N.E.2d 925, cert. denied (1984), ___ U.S. ___, 79 L.Ed.2d 761, 104 S.Ct. 1441.

• 11 Here, defendant posits that the court's comment on the fact that he answered ready for trial on the first day the case appeared on the trial call implied that the court believed he "was acting in concert with the prosecution witnesses." A review of the record, however, reveals that the comment was made two months after defendant was found guilty during a hearing on his post-trial motion to reopen the evidence, at which defense counsel argued that the State's witnesses conspired to "frame him." In denying the motion to reopen, the court said:

"There is no question in my mind that Burns and Bland did not want to testify against defendant in this case. Defendant never thought they would come forward, which is one reason I suspect there was a demand for trial from the date that this case came to my call."

We find nothing therein to support defendant's assertion that the trial court "seemed to feel" there was a "conspiracy" between him and the State or its witnesses. Indeed, the record supports the trial court's statement that Burns and Bland were reluctant to testify, and there is further support for the court's conclusion — that he (defendant) did not believe the State had sufficient evidence to convict him and therefore chose to immediately proceed to trial — in defendant's own statement that "I didn't feel all this was going to happen to me. I just wanted to go ahead and let it all be over with and leave it alone." In view of the speculative nature of his assertions, we find that defendant has failed to rebut the presumption that the trial court considered only proper evidence in finding him guilty.

Defendant next contends that the trial court abused its discretion in denying his motion to reopen the evidence, arguing only that "where, as here, the need is great and the burden small * * * it is unfair to shut off the proofs" because the trial court should consider as much relevant evidence as possible.

• 12, 13 The decision whether to grant a defendant's motion to reopen the case for further testimony is within the sound discretion of the trial court and will not be disturbed absent a clear abuse of that discretion (People v. Siciliano (1954), 4 Ill.2d 581, 123 N.E.2d 725, cert. denied (1955), 349 U.S. 931, 99 L.Ed. 1261, 75 S.Ct. 774; People v. Henry (1982), 103 Ill. App.3d 1143, 432 N.E.2d 359), and the burden is on the party seeking to reopen to show sufficient reason therefor (People v. Housby (1975), 26 Ill. App.3d 92, 324 N.E.2d 465). In the present case, defendant was found guilty on January 6, 1983, and moved to reopen the case on February 28, 1983. The court permitted him to make an offer of proof in the form of testimony given under oath with cross-examination as to the evidence sought to be admitted. In the offer of proof, Robert Lee Clark testified that he and defendant were riding their bicycles southbound on Drexel Avenue on their way home from spending "practically all day" together at the lake when he heard two shots and saw a man running across the street with a gun in his hand. The man hollered to and was joined by a second man, and then they both ran into the housing project. Clark did not recognize, nor could he describe, either of the two men he saw running. Although he learned the next day that defendant had been arrested, he did not contact the police because he was afraid, and he first told defense counsel sometime in late December 1982 that he was with defendant at the time of the shooting.

Although defendant testified to essentially the same version of the shooting incident as did Clark, he also stated that after having a tooth pulled earlier that day he went home to bed, and later went to the store, before going out with Clark. He further testified that although he recognized the man carrying the gun as David Burns, he did not report what he saw to the police because of a threat made to him the following day by two unidentified men, and admitted not giving the information about Clark to his attorney until "after the trial began," i.e., some unspecified time after December 9, 1982.

It was also stipulated that, if called, two detectives who interviewed defendant at the police station six days after the shooting would testify that defendant told them he returned from the dentist at about 5:30 p.m. and remained at home in bed on the night of August 9 and the morning of August 10, 1982.

The trial court denied defendant's motion to reopen, finding that the proposed evidence was neither credible nor newly discovered, and that defendant had failed to exercise diligence in presenting it. These findings, which will be further discussed below, are clearly supported by the record. Moreover, the court further stated that even if the evidence were admitted, its findings and verdict would remain unchanged. Under these circumstances, it is our view that the court properly exercised its discretion in denying the motion and excluding the evidence.

• 14 Defendant correlatively contends that certain remarks by the court established that it had improperly shifted the burden of proof in this case to him and thereby denied him a fair trial. He first directs our attention to the following colloquy between defense counsel and the court regarding the credibility of the State's witnesses and what, if any, motivation they had to testify falsely:

"THE COURT: What about Myra [Sexton], what reason has Myra got? As you recall Myra was an exceptionally good witness * * *.

DEFENSE COUNSEL: Your Honor, I am not in a position to answer that question but what you are doing right now, with all due respect, you are shifting the burden of proof on me to explain why did these 3 people concoct a story * * *.

THE COURT: I agree."

Defendant argues that the court's response to counsel's allegation shows that it improperly placed the burden of proof in this case on the defense. However, as defendant notes, the above-quoted exchange took place not at trial but at the hearing on his motion to reopen the case wherein defense counsel's argument for admission of the evidence presented in the offer of proof was grounded on the theory that the State's witnesses had fabricated their testimony in order to "frame" defendant. As the issue of witness credibility had been vigorously argued by defense counsel and resolved by the court at trial, and because — as we have previously stated — the party moving to reopen the case must show sufficient reason for doing so (People v. Housby (1975), 26 Ill. App.3d 92, 324 N.E.2d 465), it was in fact the burden of the defense to show what new evidence there was to support that reopening; and it was that burden to which the trial court's response to counsel was directed.

• 15 The second comment cited by defendant was made during the court's ruling on the post-trial motion. The court stated:

"It is difficult for this court to believe a two-year Army veteran would sit there and listen to 3 witnesses testify about him shooting another person and waving a gun around only because the tall man and his friend said that if he, the defendant, saw [sic] anything he would find himself in the morgue.

He, the defendant, would have the Court believe that he just sat there while the actual murderer testified that he, the defendant, did it, because he was afraid."

Defendant insists that this was an improper comment on his failure to testify at trial and is further evidence that the court shifted the burden of proof to him. We disagree.

Initially, we note that in addition to the above, the court also commented:

"[E]ven though the testimony in this case is over prior to Christmas, defendant per his attorney, first tells her about another account at Christmastime. Even though the case is set for decision on January 6, 1983, no motion to reopen the proofs is filed or requested.

After a finding of guilty, defendant's attorney then first makes a motion to reopen proofs * * * [and] in her argument * * * on the motion * * * she indicates that she believes the defendant is innocent * * * even though [he] has been far from candid with even his own attorney.

When he finally saw what dynamite the State had against him he apparently started to worry and told his attorney * * * another account of what happened. Nothing is done even though all were aware that the Court would render its decision on January 6, 1983.

Defendant wanted his cake and he wanted to eat it also."

• 16 We think that when the remarks complained of are read in conjunction with these additional comments and in the context of the court's statement in its entirety, it becomes apparent that the trial court was commenting not on defendant's failure to testify at trial, but rather, on (a) the incredibility of his testimony on the offer of proof that he sat through the entire trial while State's witnesses — one of whom he believed to be the actual murderer — testified that he had committed the crime, without telling his own attorney that there was a witness who was with him the night of the shooting who knew he did not commit the crime; and (b) the lack of diligence in the presentation of the motion where, although defendant gave the information to his attorney during the trial, which was concluded on December 22, 1982, with the finding of guilt entered on January 6, 1983, the motion to reopen was not presented until February 28, 1983. Clearly, these were properly considered by the trial court in determining whether there was sufficient, credible reason to reopen the case.

In People v. Reese (1973), 54 Ill.2d 51, 294 N.E.2d 288, the supreme court considered the propriety of the denial of defendant's motion for a new trial on the ground of newly discovered evidence. Without deciding whether the evidence met the standards for "newly-discovered evidence," the court affirmed the trial court's denial of the motion, stating:

"`Applications for a new trial on the ground of newly discovered evidence are not looked upon with favor by the courts, and in order to prevent, so far as possible, fraud and imposition which defeated parties may be tempted to practice, as a last resort, to escape the consequence of an adverse verdict, such application should always be subjected to the closest scrutiny by the court, and the burden is upon the applicant to rebut the presumption that the verdict is correct and to show there had been no lack of diligence.'" (People v. Reese (1973), 54 Ill.2d 51, 59, 294 N.E.2d 288, 292.)

Although Reese, unlike the case before us, involved a post-trial motion for a new trial, we believe the principles expressed therein are nonetheless applicable to a post-trial motion to reopen the case, and we find that in the light of defendant's admitted failure to inform his attorney of the witness Clark, as well as the implausibility of his explanation for failing to confide in her, the trial court's comments were merely expressions of its findings on the motion and in no way indicated it had shifted the burden of proof in the case to defendant.

For the foregoing reasons, defendant's conviction and sentence are affirmed.


MEJDA, P.J., concurs.

JUSTICE PINCHAM, dissenting:

I dissent. The record in this case reveals that the State's evidence is woefully unpersuasive and that the trial judge committed grievous errors in his rulings and findings. Reversal of the defendant's murder conviction and sentence is therefore demanded. Inasmuch as the defendant vociferously protests his innocence and adamantly argues that the evidence fails to establish his guilt beyond a reasonable doubt, a chronology of the events of this case, the trial evidence and the court's findings and rulings necessarily follows.

On August 10, 1982, shortly after midnight, Garrison Hester, a security guard, was fatally shot and robbed of his service revolver while walking northbound on the east side of the 3900 block of South Drexel Boulevard in Chicago. Ernest Wells witnessed the murder-robbery. Wells was driving south on Drexel when he heard a shot. He looked around and saw a man standing on the opposite (east) side of Drexel pointing a gun at the victim, who was on the ground. The assailant fired another shot into the victim, went into the victim's pocket, turned around and walked south on the east side of Drexel toward 40th Street. Wells stopped his car on Drexel "to look at what was happening." The assailant walked about 50 feet, turned and started jogging westward across the median on Drexel. After the assailant arrived on the west side of Drexel, Wells saw another man join the assailant, and the two men ran off together.

Wells started his car, went to the next intersection, made a U-turn and came back to see what he could do for the victim. He drove to where the victim was lying on the sidewalk. As Wells was en route to get the police, he almost collided with a squad car. Wells immediately gave the police the following description of the assailant:

"A black man about 18 or 19 years old, with short hair, about 5'8 or 9, he wasn't black but he was about dark tan, darker than his [Wells'] girl friend [sic], * * * and weighed about 140 to 150 pounds."

When he witnessed the incident, Wells viewed the right profile of the assailant for five minutes from a distance of 200 feet. Wells did not immediately approach the victim, however, because the assailant had a gun.

Apparently, Wells believed that he could identify the assailant, because four days later he went to a police station and viewed a lineup. Defendant, Steve Shore, was in the lineup. Wells did not identify Shore as the assailant. In fact, Wells testified at trial that he did not know the defendant and "had never seen him before."

The State did not call Wells as a witness at trial. Instead, Wells was called by the defendant. Cross-examination by the State was waived.

The record reveals the defendant's description to be as follows:

"Six feet tall, 175 pounds, 20 years of age, medium to light complexion."

The record also reveals that the defendant's complexion was lighter than the complexion of Wells' girlfriend.

The trial judge concluded: "I believe Ernest Wells [sic] however, did not help the State or the defendant." (Emphasis added.)

I am of the opinion that the trial court unjustifiably refused to recognize that: (1) Wells' description of the assailant was not that of the defendant; (2) Wells never stated that he could not identify the assailant; (3) Wells did not identify the defendant in the lineup as the assailant, and (4) Wells testified at trial that he had never seen the defendant before. Like the trial court, this court also unjustifiably refuses to recognize Wells' extremely salient testimony. As will be discussed in more detail, the trial court's and this court's treatment of other facets of Wells' testimony is convoluted.

The defendant served in the United States Army from 1979 to the end of 1981, during which he received his high school G.E.D. diploma. After being honorably discharged from the Army, he returned to Chicago, lived with his family, and for six or seven months was employed as a maintenance man at the Fountainbleu Manor Nursing Home, 6200 North Winthrop. For three or four months thereafter he was employed at Kokomo's Meat Market, 5558 West Harrison, packing, shipping and selling meat. He was working there on the day of his arrest, August 14, 1982.

The record is completely silent and does not reveal why, how or under what circumstances this six-foot, 175-pound, 20-year-old medium-complected defendant, who had no prior criminal record, was arrested and placed in a lineup to be viewed by the homicide eyewitness, Ernest Wells, who promptly described the assailant as five feet eight or nine inches, 140 to 150 pounds, 18 to 19 years old and of a dark tan complexion.

It is readily discerned from the record, however, that while in police custody the defendant implicated David "Bo" Burns to the police. "Bo" Burns had been a five-year foot soldier of the El Rukn street gang, whose headquarters were at 39th and Drexel, "just a few steps away from where the shooting happened." Burns was incarcerated in 1974 for a murder which he contended he did not commit and was a "frame." He eventually pleaded guilty to the offense of robbery "to get out of the jail" and received five years' probation.

Burns ultimately became one of the State's star eyewitnesses to the homicide. He testified on direct examination as follows:

"Q. All right, do you recall when it was that you first spoke to any policeman in connection with this incident?

A. Yes, the police was looking for me and Chester [`Blood' Bland].

Q. And did you eventually speak to any officers?

A. Yes.

Q. When was it that you first spoke to some officers?

A. I called to the police station and they left a card with my brother. I called the police station and told the police to meet me inside the lounge and I'll be there.

Q. What lounge did you go to?

A. The Regency, the Hut, 41st and ...

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