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People v. Smith

OPINION FILED DECEMBER 10, 1985.

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

v.

MICHAEL SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. Christy Berkos, Judge, presiding.

PRESIDING JUSTICE STAMOS DELIVERED THE OPINION OF THE COURT:*FN1 *FN1 ON JULY 23, 1985, WE ENTERED AN ORDER DISPOSING OF THE APPEAL UNDER SUPREME COURT RULE 23. DEFENDANT-APPELLANT FILED A PETITION FOR REHEARING. AN ANSWER TO SAID PETITION WAS FILED AS WAS A REPLY. WE ENTERED AN ORDER ALLOWING THE PETITION FOR REHEARING AND ON THIS DATE HAVE FILED AN ORDER VACATING THE RULE 23 ORDER. THIS OPINION IS ISSUED AS THE RESULT OF THE PETITION FOR REHEARING.

Defendant was convicted of murder in a jury trial and was sentenced to natural life imprisonment. He appeals his conviction and sentence.

The evidence adduced at trial showed that on the afternoon of December 18, 1980, defendant and Leon Moore, the State's principal witness, were on the corner of 61st and Calumet in Chicago selling drugs to the occupants of automobiles stopped at the intersection. At approximately 1 p.m., Maurice Dukes arrived on foot at the corner and began talking to several of defendant's customers. Defendant told Dukes that he could not make any sales until defendant and Moore had exhausted their inventory of drugs for the day. After arguing with Dukes, defendant told Moore that he was going to get a gun. Defendant walked to a nearby building where he and Moore kept their drugs and returned with a .38-caliber revolver that the pair kept in the building. Defendant then shot Dukes as Dukes stood in a doorway. Moore testified that he saw defendant fire five shots and saw Dukes fall to the ground.

After shooting Dukes, defendant walked north on Calumet, then returned via King Drive a few minutes later, wearing different clothes than those he had worn when he shot Dukes. Defendant told Moore that he had burned his old clothes and had hidden the gun. The two then returned to the scene of the shooting to determine whether Dukes was dead, and they saw police removing his body. Moore testified that at the time of the shooting he had been selling drugs for 18 months. Moore did not tell police that he had witnessed the shooting until September 1981, although he had been questioned about it before that time.

Derrick Potts testified that he was with Leon Moore at the time of the shooting. Like Moore, Potts did not speak with police about the murder until September 1981, when he and Moore were questioned.

Royal Johnson testified that he had been the manager of defendant's building at the time of the murder. He stated that he had lent defendant a .38-caliber revolver and told him that if he needed it, he could come and get it. Johnson testified that defendant asked for and received the gun early in December and that he had never returned it. Johnson also testified that Leon Moore told him on December 18, 1980, that defendant had shot Dukes. Three weeks later, defendant also told Johnson that he had killed Dukes because Dukes had been competing with defendant for drug customers. Johnson did not speak with police about the shooting until September 1981, when he became concerned that the murder weapon would be traced to him.

Expert testimony revealed that Maurice Dukes had been shot five times with a .38-caliber weapon. All five bullets were recovered from the scene and were found to have been fired from the same gun. After a lengthy investigation, the police arrested defendant at 59th and Calumet on September 9, 1981. The murder weapon was not recovered.

The jury found defendant guilty of murder. Although he was eligible for the death penalty, defendant was sentenced to natural life imprisonment.

• 1 Defendant first contends that he was not proved guilty beyond a reasonable doubt because the testimony of the State's witnesses was inconsistent and unbelievable. It has long been settled that it is the function of the jury to determine whether the State has met its burden of proving defendant guilty of the crime charged. (People v. Winfield (1983), 113 Ill. App.3d 818, 826, 447 N.E.2d 1029.) "[A] reviewing court may not substitute its judgment for that of the trier of fact on questions involving the weight of the evidence or the credibility of the witnesses [citation] but will reverse only if the evidence is so improbable, impossible, or unsatisfactory as to raise a reasonable doubt of defendant's guilt. [Citations.]" (113 Ill. App.3d 818, 826, 447 N.E.2d 1029.) Slight discrepancies in a witness' testimony do not render the evidence insufficient to sustain a conviction. 113 Ill. App.3d 818, 826, 447 N.E.2d 1029.

In the present case, defendant argues that the testimony of the State's witnesses is unreliable because none of them came forward for nine moths following the murder and because several of them had criminal charges pending against them. Defendant also points to minor discrepancies between the stories of the witnesses. We find that the evidence against defendant was not "so improbable, impossible, or unsatisfactory as to raise a reasonable doubt of defendant's guilt."

Although Leon Moore was not an impeccably credible witness, his testimony was unequivocal. He stated that he saw defendant kill Maurice Dukes. In addition, Royal Johnson testified that he had lent defendant a gun of the type used in the murder and that defendant later told him that Dukes had been competing with defendant for drug sales. The fact that these witnesses did not come forward with their information until the police discovered that they had witnessed the crime does not affect their credibility to a degree which renders the evidence insufficient to support the jury's finding of guilty. (See People v. Baggett (1983), 115 Ill. App.3d 924, 932-33, 450 N.E.2d 913.) Neither do the witnesses' criminal records render their testimony so unbelievable as to require reversal. The jury was informed of the witnesses' records and their past dealings with the police and was able to consider this information in reaching its decision.

• 2 Defendant's second objection is that he was denied his right to a fair jury trial because the State exercised six of its peremptory challenges during voir dire to exclude blacks from the jury. However, the record indicates neither the race of the prospective jurors excused nor which party excused those jurors. In addition, at the time defense counsel objected to the State's allegedly discriminatory use of peremptory challenges, only three jurors had been empaneled, two of whom were black, a fact noted by the court in ruling against defendant's objection. We find that defendant has failed to establish that the State discriminatorily excluded blacks from the jury. See People v. Flowers (1985), 132 Ill. App.3d 939, 478 N.E.2d 524.

• 3 Defendant's third objection is that the prosecutors made prejudicial comments during opening and closing arguments. However, defendant failed to object with specificity in his post-trial motion to all but two of these comments, and these errors have therefore been waived.

The defendant objected at trial and on appeal to the following comments:

(1) The State, in its opening remarks, noted that this case would take the jury to a "very rough part of Chicago." According to the prosecutor, the setting for this crime was an area where drugs are sold on the street in broad daylight. The prosecutor also said that the evidence would show that the defendant and eyewitness Leon Moore were on the street selling drugs when the shooting occurred.

(2) In its closing argument the State repeated some obscene remarks made by defendant. The prosecutor also said that the defendant had "pounded his chest like an animal."

(3) During its rebuttal, the State referred to the defendant as "Mr. Sneer" and said that the defendant was sneering at the jury.

(4) The State said that defense witness, Derrick Potts, had been brought in to confuse the jury.

(5) In its closing argument, the prosecutor referred to a deal between Derrick Potts and a deceased ...


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