Appeal from the Circuit Court of Cook County; the Hon. Stephen
A. Schiller, Judge, presiding.
JUSTICE LINN DELIVERED THE OPINION OF THE COURT:
Defendants, James Scott and Reginald Cole, were jointly indicted for the murder of Jerome Powell. Following a joint trial in the circuit court of Cook County, a jury found them guilty of murder and the court sentenced them to the Illinois Department of Corrections, Scott to a term of 35 years and Cole to a term of 27 years.
A review of the issues each defendant raises in his separately prosecuted appeal indicates that certain issues have been argued by both defendants. Accordingly, while we elect to address the two appeals in one opinion, we shall deal with the issues each has raised separately in addition to those both have argued.
On appeal, both defendants argue that the trial court's refusal to sever their joint trial resulted in extreme prejudice and prevented each of them from receiving a fair trial. In addition, Cole maintains that he was not proved guilty beyond a reasonable doubt, while Scott argues that (1) his custodial admission should have been suppressed as being obtained in violation of (a) his sixth amendment right to counsel and (b) the material witness rule (Ill. Rev. Stat. 1983, ch. 38, par. 114-11(d)); (2) the jury should not have found him guilty of murder because he presented evidence of self-defense; and (3) he was denied a fair trial because prosecutorial misconduct, including impeachment questioning and comments during closing argument, prejudiced his theory of self-defense.
We affirm the defendants' convictions of murder.
Testimony by several eyewitnesses presented at trial established that at approximately 11 p.m. on the evening of August 22, 1981, two men were seen walking down 29th Street toward State Street. One, identified as James Scott, was tall, thin, and wearing a green surgical suit; the other, identified as Reginald Cole, was short and stout. One witness watched as Scott approached a group of men standing in the center of the crosswalk at the corner, while Cole stood in the walkway of a building across the street and looked up and down several times. Scott walked up to one of the men, later identified as Jerome Powell, and fired a gun, whereupon Powell began to run. According to the witness, Scott fired at least three more shots, finally hitting Powell in the head. Both Scott and Cole then ran toward 2840 State Street.
The Chicago police arrived to find Powell lying at the side of the street, a bullet wound in his head. As an officer knelt to examine the injured man, an unidentified child handed him an eight-inch table knife, which he placed on the ground near the victim. In the police photographs, the knife could be seen approximately two feet from a pool of Powell's blood. A post mortem examination of the body revealed that death had resulted from a single wound to the head and that marks on the victim's arm were consistent with narcotics addiction.
Nearly two months later, on October 20, 1981, Scott was arrested pursuant to warrant, his photograph having been identified by the eyewitnesses. After police detective Roberts informed him of his Miranda rights and questioned him on three occasions, Scott made a written statement in which he admitted that he had acted as the lookout while Cole shot Powell in retaliation for Powell's earlier shooting of Cole's cousin.
On November 29, 1981, Roberts learned that Cole had been arrested under another name. When Roberts interviewed Cole and showed him Scott's statement, however, Cole told Roberts that he had been the lookout for Scott, who had shot Powell on orders from a gang leader. Cole stated to Roberts that he had watched as Scott first shot one of the men at the bus stop and then continued to fire as the man ran and finally fell. Both defendants then filed their first motions for severance of their joint trial, and both motions were denied.
At trial, both defendants testified. Cole stated that on the evening of Powell's shooting, he accompanied Scott to 29th and State at the direction of some members of the Black Disciple Nation, the gang to which both belonged, ostensibly to pick up some drugs. When they arrived at the designated location, however, the leader of a local Disciple faction directed Scott toward two men at a bus stop; Scott in turn told Cole to act as his lookout while Scott took care of "some Nation business." Cole argued that he did not want to get involved, but he was ordered by Scott's superior to follow orders. Cole testified that although he crossed the street and walked toward his lookout location, he had determined to catch a bus and leave the area. Cole stated that as he stood watching for the bus, he saw Scott arguing with two men on the other side of the street. Cole began walking away, but when he heard the gunshots, he started to run and, without looking back, caught a bus a block away.
In contrast, Scott testified at trial that he and Cole had traveled to 29th and State to visit Cole's cousin, who had been shot. Upon learning that the cousin was still hospitalized, the two men went to the apartment of one T.Y., a friend of Cole's, to smoke marijuana. As they were leaving T.Y.'s, they began to argue over whether to take a bus or a cab back to Cole's apartment. They separated, and Scott testified that he did not see Cole again until later that evening.
Meanwhile, as Scott walked past the bus stop on his way to visit his girlfriend, two men approached him asking for drugs. Scott, an admitted drug dealer for the gang, said he had none, whereupon one of the men, whom Scott identified as Powell, began to demand money. When Scott told him he "didn't have any," Powell pulled out a "shining object" and started swinging at Scott, hitting his clothing but not cutting his body. Scott, seeing a blade on the object, pulled out his gun ...