Appeal from Circuit Court of Cook County; the Hon. James J.
Heyda, Judge, presiding.
JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 4, 1986.
Following a jury trial, defendant, Ray Taylor, was convicted of attempted murder and sentenced to 10 years' imprisonment. On appeal, defendant contends that: (1) a 22-month pre-indictment delay denied defendant due process of law; (2) the trial court abused its discretion by excluding the testimony of a defense witness as a sanction for violation of the discovery rules; (3) a prior consistent statement of the victim was improperly admitted into evidence; (4) the prosecutor improperly impeached two of defendant's witnesses; (5) defendant was denied effective assistance of counsel; and (6) certain prosecutorial remarks during closing argument deprived defendant of a fair trial.
At trial, Jack Bridges, the victim testified that on the evening of August 6, 1981, he was standing in front of his sister's house talking with his sister and others when he saw a neighborhood youth, Derrick Travis, sitting on his car. He approached Travis and told him to get off the car. Travis swore at Bridges, Bridges slapped Travis in the face, and Travis walked away. The defendant, who had been playing basketball in a playground across the street, approached Bridges and told Bridges that he had no business slapping Travis. An argument ensued between defendant and Bridges, as well as others who had witnessed the incident. The argument broke up after about 20 minutes and Bridges took a drive in his car to cool off. Bridges returned to the scene about an hour later and was informed by his brother, Maurice Bethany, that he should move his car. Bethany told Bridges that the defendant and his companions had driven by and said they were going to damage Bridge's car. Bridges put his car in a parking lot. As he was returning to his sister's house, he saw defendant and his companions talking to his sister. Bridges called out "I'm over here. Come over here." The group of men, who were carrying sticks and pipes, began walking towards Bridges. Bridges testified that he wanted to apologize to Travis for slapping him, but before he could do so, one of the men swung at him. Bethany then swung at one of the men. Bridges then noticed that defendant had a gun and he saw him fire it at Bethany, but the bullet did not strike Bethany. The men began beating Bridges with the sticks. Bridges broke free, began to run down the street, and the group pursued him. Bridges stated that when defendant was about four feet from him, the defendant fired four shots. The last shot struck Bridges in the back. Bridges fell to the ground and tried to crawl under a car. The defendant then pointed the gun at Bridges' head and pulled the trigger, but the gun misfired. He heard the defendant say "he's dead" and then heard a car screech away. The police arrived following the shooting and Bridges told them that "Ray-Ray" had shot him. "Ray-Ray" was defendant's nickname.
Hattie and Regina Algood gave substantially the same testimony on defendant's behalf. They are sisters and had been sitting on the steps of the church across the street from where the altercation occurred. They had lived in the neighborhood for some time and knew most of the people who were on the street that night. They saw a group of men, including defendant, approach Bridges and start hitting him with sticks. They stated that Maurice Bethany, the victim's brother, had a gun and that he fired three shots into the crowd, hitting Jack Bridges with one shot. Hattie and Regina Algood further testified that defendant was a friend and that they were aware the police were looking for defendant the day after the incident. They did not, however, go to the police with the information that Maurice Bethany had shot the victim.
The defendant was indicted on the charge of attempted murder 22 months after the incident. A pretrial motion to dismiss was filed by defendant alleging that the State's delay in charging defendant was a due process violation because it "made it impossible for the defendant to reconstruct his activities on the date in question and prepare his defense." Defense counsel failed to present any evidence in support of the motion, and the motion was denied.
After two of the State's witnesses had testified at trial, defense counsel moved to amend his list of defense witnesses to add two names. Defense counsel explained that the names were not provided prior to trial because two buildings in the neighborhood where the incident took place had burned down and he was having difficulty locating witnesses. The court denied permission for the witnesses to testify, ruling that counsel should have listed the names of the witnesses in his answer to the State's request for discovery indicating that the addresses of the witnesses were unknown. The court permitted one of the witnesses, Alfred Wormley, to testify out of the presence of the jury as an offer of proof.
Defendant first contends that the 22-month delay in time between the shooting incident and his indictment resulted in substantial prejudice and denied him due process of law. Defendant argues that he was prejudiced because he was unable to locate numerous potential eyewitnesses to the crime as a result of the delay. Prior to trial, defendant moved to dismiss the indictment based on the delay. The trial court denied the motion, ruling that defendant failed to present any evidence indicating that he was prejudiced.
• 1 In order to support a claim of denial of due process because of a pre-indictment delay, a defendant must come forth with a clear showing of substantial prejudice. If the court is satisfied that the defendant was prejudiced, the burden shifts to the State to show the reasonableness or necessity for the delay. (People v. Lawson (1977), 67 Ill.2d 449, 367 N.E.2d 1244; People v. Overturf (1984), 122 Ill. App.3d 625, 461 N.E.2d 640.) In People v. Reddick (1980), 80 Ill. App.3d 335, 399 N.E.2d 997, the defendant alleged prejudice because of a delay in charging defendant which caused her to lose track of a material witness. This court held that the defendant did not show substantial prejudice where she did not identify or explain the significance of the unavailable witness at trial or on appeal.
• 2 Despite the requirement of a clear showing of substantial prejudice, the defendant here failed to present any evidence of actual prejudice. Defense counsel stated he was unable to locate witnesses because they had moved from burned-out buildings. Counsel did not identify the witnesses or make any showing that their testimony would be helpful to this case. Counsel did state that from a list of 20 potential witnesses, he had spoken to 10. The defendant has demonstrated only a possibility of prejudice. That is not enough to shift the burden to the State to show the reasonableness or necessity for the delay. People v. DiBenedetto (1981), 93 Ill. App.3d 483, 417 N.E.2d 654.
Defendant relies on People v. Gulley (1980), 83 Ill. App.3d 1066, 404 N.E.2d 1077, where this court held that a pre-indictment delay causes great suspicion and a presumption that the delay was prejudicial. In People v. Overturf (1984), 122 Ill. App.3d 625, 461 N.E.2d 640, the court cautioned that the presumption created in Gulley does not permit a defendant to avoid the standard of actual prejudice. The court noted that "[a] careful reading of Gulley reveals that despite the court's reference to a presumption of prejudice * * *, it was actually relying upon a well-articulated showing of actual and substantial prejudice which was amply supported by the record." People v. Overturf (1984), 122 Ill. App.3d 625, 627, 461 N.E.2d 640, 641.
• 3 Defendant next contends that the trial court abused its discretion by excluding the testimony of a defense witness as a sanction for a violation of the discovery rules. The Illinois Supreme Court rules require a defendant to respond to the State's motion for discovery by providing a list of intended witnesses within a reasonable time after the filing of the motion. (87 Ill.2d R. 413(d)(i).) The defendant sought to add two witnesses to his answer to discovery after the trial had begun and the jury had heard the testimony of two State witnesses. Defense counsel explained he had not located the witnesses prior to trial because of burned-out buildings in the neighborhood of the shooting. The trial court denied the motion, but did hear the testimony of one of the witnesses, ...