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People v. Faysom

OPINION FILED FEBRUARY 26, 1985.

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

v.

DAVID FAYSOM, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. R. Eugene Pincham, Judge, presiding.

JUSTICE HARTMAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied April 1, 1985.

A jury found defendant guilty of murder, armed violence, unlawful restraint, and pandering, and he was sentenced to concurrent terms of imprisonment of natural life for murder, 15 years for armed violence, and three years for pandering. On appeal, defendant raises issues involving prosecutorial misconduct during final argument, failure to suppress certain evidence, an improper jury instruction on accountability, his sentence, and his conviction of armed violence, based on unlawful restraint.

On the morning of October 9, 1981, 13-year-old Nicole Lee's nude body was discovered near a loading dock at 4223 West Lake Street in Chicago. Clothing and "drag marks" were found nearby. The victim had been shot three times; in the left chest, the right abdomen, and under the right armpit. The first two wounds had muzzle imprints, indicating that the gun and the skin were in contact; the third wound also resulted from a bullet fired at close range. According to the medical examiner, death was caused by bullet wounds of the chest and abdomen, with penetration of the heart and liver. No vaginal trauma was found. The victim was last seen alive by her mother on October 6, 1981, who reported her to the police as a runaway at that time. Defendant was arrested on November 2, 1981, and subsequently charged in connection with the homicide.

At trial, Karen Brandon, who was charged with murder, pandering, unlawful restraint, and armed violence, testified that she made an agreement with the State's Attorney's office, whereby the murder charge would be reduced to concealing a homicidal death in exchange for her truthful testimony at defendant's trial. In June 1981, she was 16 years old and lived with her five-month-old child and her mother in a housing project. She was introduced to defendant, who persuaded her to have sex with men for money. He instructed her what to do. Defendant took her and her friend Sheila Wilson out every night. She was to give all her money to defendant.

On October 6, 1981, she and defendant were in the area of Sheridan and Broadway. At about 11 p.m., they met Nicole Lee near the rapid transit station and, after about 30 minutes, they all took a train and bus to a restaurant at Cicero and Roosevelt. Brandon went out to "work" from the restaurant. When she returned, defendant said that Nicole "was ready to work." Both women did so: Nicole had two "dates" that night; Brandon had about eight. Brandon, Nicole and defendant went to a hotel for the night. Defendant had sex with both women. The following day, they walked around, with defendant "showing off" his "two ladies." Later they went to "work." Brandon had seven or eight "dates," and Nicole had one, because "she really didn't want to date." The next day defendant took the girls to Cicero and Roosevelt in his brother's car to "work." Nicole said she didn't want to do so because she was sick. Nicole and defendant argued for quite a while. Brandon went on "dates"; Nicole did not. Defendant became very angry. At about 1 a.m. on October 9, Brandon finished "working." Eventually, they drove to a dark alley on Lake Street. Nicole was in the back seat and Brandon in the front passenger seat. Defendant told Nicole "he didn't like anyone to play with him." He stopped the car. He ordered Nicole to take off her clothes, pointing a gun at her. She complied. He told her, "Show me your heart." When she did so, he shot her. Nicole told him to take her to a hospital and that she would make him money. He shot her again, in the lower stomach. She was still alive, pleading with him, when he shot her a third time. She said nothing more.

Defendant got out of the car, opened the back door, and dragged Nicole out to a nearby loading dock. He told Brandon to wipe the blood off the back seat, which she did, using Nicole's panties. She passed the victim's clothing out the window and he put them by her body. Brandon and defendant spent the night at a hotel. The next day, they went to a gas station, where he took out the back seat, looked for spent shells, and threw them away. She was present when he later gave the gun to "Uncle Jimmy" to sell. She did not know Jimmy's last name. When arrested on November 2, 1981, along with Sheila Wilson, she told police what happened, knowing that defendant was in custody at the time.

On cross-examination, Brandon testified that she told police the same story she related in court. She admitted that she told Sheila Wilson that she and defendant had each shot Nicole two times. This was a "lie," however. After she was arrested, she said defendant alone had shot Nicole and has been "sticking to that ever since." When she spoke to police on October 31, prior to her arrest, she denied that she or defendant were involved in the homicide. She later made a statement to an assistant State's Attorney, in the presence of a court reporter.

Also testifying at trial was Jimmy Gibson, defendant's cousin. He spoke to defendant and Brandon in his home in the middle of October 1981, when defendant wanted to sell him a gun. He and defendant then went to the Jones Restaurant; defendant went inside with the gun, and returned with $90 and no gun. Defendant gave Gibson $15. On cross-examination, Gibson stated that Brandon initially had the gun when they came to his home and gave it to defendant. LaMan Wilson testified that in October 1981 defendant came to the Jones Restaurant. Wilson gave defendant $90 for a gun. The police came in two weeks later, and he gave them the gun.

A Chicago police mobile unit technician "processed" the car allegedly used by defendant on October 9, 1981. He found a bullet hole in the rear seat and a fired bullet under the seat. A Chicago police firearms examiner tested the gun recovered from LaMan Wilson and compared test-fired bullets with bullets recovered from the car and Nicole Lee's body. He concluded that all were fired by the same weapon. Defendant presented the testimony of a Chicago police crime lab microanalyst, who examined vaginal swabs taken from the victim's body, finding no evidence of spermatozoa.

Herbert Faysom, defendant's father, testified that he first saw Brandon during March or April 1981 at the Yellow Cab Company, where both he and defendant worked. She was there so frequently that he had defendant fired for "bringing girls on the job." In his home one day, he saw that Brandon had a gun in her purse. He asked her why she kept it, and she told him she needed it when she works. When he found out what sort of work she did, he put defendant out and did not allow either of them to come to his home. He identified the gun in evidence as the one he saw in Brandon's possession. He never saw defendant with a gun. The defense rested.

Defendant was found guilty and sentenced, as noted above. After his motion for a new trial was denied, defendant brought this appeal.

I

• 1 Defendant contends that he was denied a fair trial because of various instances of prosecutorial misconduct during final argument. He first cites the prosecutor's references to the victim's family to the effect that the family of the victim will be thinking about this tragedy through endless sleepless nights and daylight hours. He further noted that the thoughts of those who participated in the trial will be like a few drops in Lake Michigan when compared to the grief of the family of Nicole ...


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