Appeal from the Circuit Court of Lake County; the Hon. Fred A.
Geiger, Judge, presiding.
JUSTICE REINHARD DELIVERED THE OPINION OF THE COURT:
Defendant, Anthony Massie, was charged by information with four counts of murder (Ill. Rev. Sat. 1983, ch. 38, pars. 9-1(a)(1), (2)), one count of felony murder (Ill. Rev. Stat. 1983, ch. 38, par. 9-1(a)(3)), and one count of attempted armed robbery (Ill. Rev. Stat. 1983, ch. 38, par. 8-4(a)). Following a jury trial, defendant was found guilty of murder and attempted armed robbery, and was sentenced to concurrent terms of 40 years' imprisonment for murder and 15 years' imprisonment for attempted armed robbery.
Defendant raises the following contentions on appeal: (1) that he was not proved guilty beyond a reasonable doubt; (2) that the trial court erred by allowing the jury to consider as substantive evidence a prior inconsistent statement of a prosecution witness identifying the defendant; (3) that the trial court erred by allowing his impeachment by the use of three alleged prior "convictions" where the record indicates that these were not properly introduced, that these were prior adjudications of delinquency rather than convictions, and that these were only two rather than three adjudications; (4) that he was denied a fair trial by the closing arguments of the prosecutor; and (5) that his sentence should be reduced because it was excessive and grossly disparate from that received by an accomplice.
We briefly summarize the relevant trial testimony. Sergeant William Biang testified that in the early morning hours of September 25, 1983, he responded to a call concerning a possible shooting in the 800 block of Prescott in Waukegan and found Jesus Rivera lying in the street in front of 812 Prescott with no pulse. Michael Blackwell testified that, while in his residence at 812 Prescott on September 25, 1983, he heard two "pops" or gunshots outside at about 1 a.m. He went to the window and saw Rivera lying face down in the street. Mr. Blackwell did not see anyone else in the area and did not hear any conversations outside prior to the "pops." Laura Cox and Maria Villalobos testified that they were with Rivera earlier in the evening at a bar near the scene of the incident. Maria also stated that when they exited the bar together, she noticed three or four black males hanging around in front of an old store.
Leslie Webb, a 16-year-old, testified that he was with defendant and Michael Brown during the early morning hours of September 25, 1983, when he saw defendant shoot Rivera. Webb stated that earlier in the evening, Michael Brown came over to his house and they decided to go walking around. They then met up with Thomas Brown, a guy named Dennis, and "Amp," defendant's known nickname, who was wearing a blue hooded sweat shirt and a baseball cap. Webb recalled that while they were standing around, talking and drinking beer, he overheard defendant ask Michael Brown if he wanted to hold a gun. He also overheard defendant tell Michael that he wanted to rob a Puerto Rican. Webb, however, never saw the gun at this time.
Webb testified further that when they saw Rivera walking down Prescott, defendant took off after Rivera. He and Michael followed. When they caught up with Rivera, defendant pulled out a gun and said "stick-up." Rivera then advanced on defendant, backing him off momentarily. Michael kicked at Rivera to prevent Rivera from advancing on defendant any further. Defendant then shot twice striking Rivera with the second bullet. Defendant ordered Michael and Webb to remove the money from Rivera, but they refused. All three then ran to defendant's house. Webb recalled defendant entering the house with the gun, but he did not see the gun when defendant returned. All three then walked to Carolyn Dobbins' house, defendant's girlfriend, but were turned away by Carolyn's mother, who said Carolyn was asleep. Webb also testified that he gave a statement concerning the incident prior to the police dismissing the charges against him for his part in the shooting incident.
Michael Brown also testified that he saw defendant shoot Rivera. He stated that he had gone to Webb's house on the night of September 24 and that they went out walking. Along the way, they met up with defendant, Dennis, and Thomas Brown. Michael related to the jury that defendant said he was ready for the Kingsmen (a gang) and showed him a gun. Defendant was wearing a hooded sweat shirt and baseball cap on this night. While they were drinking some beer and hanging out in front of an old 7-11 store, defendant talked about robbing a Puerto Rican. They eventually saw Rivera walking down the street and approached him. Defendant said, "Stick-up, give me your money," while pointing a gun at Rivera. Michael recalled that he kicked at Rivera when Rivera, who appeared to be intoxicated, advanced upon defendant. Defendant then fired two shots at Rivera. Michael continued that, after Rivera fell, defendant told both Webb and himself to take any money off Rivera but they both refused. They ran to defendant's house after the shooting and then walked to Carolyn Dobbins' house. Mrs. Dobbins answered the door and told defendant that Carolyn was in bed.
Michael also testified that even though defendant had fights with his brother in the past, he and defendant still went out and "hung around" together on occasion. In addition, he stated that although he pleaded guilty to the charge of armed robbery, testified at this trial in return for a lighter sentence, and was still waiting to be sentenced, he gave a signed statement to the police reiterating his trial testimony prior to making a "deal" to testify against defendant.
Thomas Brown testified that on the night in question, he was hanging out with defendant, Dennis, Webb, and his brother, Michael, drinking a quart of beer when he heard defendant state that they should jump a Puerto Rican. He testified further that when they saw Rivera walking down Prescott, defendant ran after Rivera. Webb and Michael Brown followed defendant. He further testified that Dennis and himself circled around the area where the incident occurred. He saw defendant tussling with Rivera and saw Michael Brown trying to push Rivera. He then stated that he only saw an arm extended, that he heard two shots fired, and that it was too dark to see who fired the gun. In addition, he could not remember what defendant was wearing that night.
After cross-examination, the State on redirect asked Thomas if he recalled telling Detective Juarez that he saw defendant run after Rivera, that he saw Rivera and defendant arguing, that he saw a gun in defendant's hand, and that he saw defendant fire the gun at Rivera. Thomas responded, Yes.
Defendant called Cicilio Vega, who testified that on the night of the incident, he was driving through the area when he heard a gunshot and went looking for it. He drove to 8th and Prescott and saw Rivera staggering in the street. He also saw one guy, then another guy, and still two more guys go running up to Rivera while a fifth guy, Leslie Webb, stood by and watched. He also testified that he knew defendant, although they are members of rival gangs, that he saw the man who shot Rivera, and that it was not defendant.
In addition, Vega testified that the first time he spoke with the police, he only said he saw two guys running away from Rivera and that he did not remember telling anyone that defendant shot Rivera. Later, Vega was recalled by the defense and stated that although he had testified earlier that he never told anyone that he saw defendant shoot Rivera, he now remembered that he had told a juvenile officer a few days prior to trial that he saw defendant shoot the gun. He lied to the juvenile officer in order to set defendant up because of their gang rivalry.
Mega Dobbins, Carolyn Dobbins' mother, testified that she did not remember defendant coming to her house in the early morning hours of September 25, 1983. Maurice Dobbins, Carolyns' brother, testified that he was at home sleeping on September 25 and that he did not recall hearing anyone at the front door. Several other persons testified that they were with defendant at his home playing cards on the night of the incident. They also testified that defendant and Michael Brown's family did not get along.
Carolyn Dobbins testified that she is defendant's girlfriend and that on the night of September 24, she was with defendant at his house playing cards. She recalled that they remained there until about 12:30 a.m. when defendant walked her home where he stayed until after 1 a.m. In addition, she told the jury that she knew defendant and Michael Brown's family lived in the same building and did not get along. Further, she told the jury that when she was first questioned by police, she did not tell them that defendant was not with her on September 24 and 25.
Officer Miguel Juarez and Officer James Felton were called by defendant. Officer Juarez stated that Webb gave two different accounts of the occurrence when interviewed on two separate occasions. Officer Felton stated that Michael Brown never changed his story when he talked with the police, but he never mentioned that Thomas Brown was at the scene of the incident. David Woods, a friend of defendant, testified that about two months after the incident, he overheard Webb, Michael and Thomas Brown ...