Appeal from the Circuit Court of Cook County; the Hon. E.C.
Johnson, Judge, presiding.
PRESIDING JUSTICE QUINLAN DELIVERED THE OPINION OF THE COURT:
The defendant, Sidney Portis, was charged by indictment with the offense of murder, armed robbery, and armed violence in violation of sections 9-1(a), 18-2 and 33A-2 of the Criminal Code of 1961 (Ill. Rev. Stat. 1981, ch. 38, pars. 9-1(a), 18-2, 33A-2). Also charged in the same indictment was Joseph Gardener, whose case was subsequently severed from the defendant's. Following a jury trial, the defendant was found guilty of armed robbery and murder. The defendant waived his right to a jury during the sentencing phase, and while the State had sought the death penalty, the trial court found the defendant ineligible. The trial court then imposed concurrent terms of imprisonment: 75 years' for murder and 15 years' for armed robbery. This appeal followed.
The charges arose out of an armed robbery planned and perpetrated by the defendant, Joseph Gardener and Anthony Baker, during which the victim, Jasper Taylor, was fatally shot. Gardener negotiated a plea agreement with the State, so his case was severed from the defendant's. Baker also negotiated an agreement and was not charged.
In this appeal, the defendant contends that the trial court committed the following errors: (1) refused to grant a new trial on the basis of newly discovered evidence; (2) imposed an excessive 75-year sentence, which was grossly disproportionate to that received by one of his accomplices; (3) prevented defense counsel from cross-examining one accomplice as to his knowledge of the penalties for murder; (4) denied defendant's motion for a mistrial after the State improperly introduced evidence of gang membership; and (5) permitted prospective jurors to be "death qualified" pursuant to Witherspoon v. Illinois (1968), 391 U.S. 510, 20 L.Ed.2d 776, 88 S.Ct. 1770, which resulted in the selection of a conviction-prone jury.
Keith Brunt, an acquaintance of the defendant, testified for the State and said that on October 19, 1982, he accompanied his uncle to a construction site at Tripp and Harrison streets in Chicago where his uncle went to see the victim, Jasper Taylor, who owed him money. Taylor, a full-time minister and part-time builder, was in charge of the construction site at Tripp and Harrison. Brunt said his uncle told him that the victim was paying his workers that day and was carrying approximately $8,000 in cash. Brunt, himself, observed that the victim carried what appeared to be a large amount of cash in white envelopes in his back pocket.
Later that day, Brunt went to the home of Joseph Gardener, where he found Gardener and the defendant, Sidney Portis, sitting on the porch. Brunt told Gardener and Portis that he knew of a construction site where a man had $8,000, and Brunt wanted help to rob the man. Brunt testified that Portis said that $15,000 or $20,000 would be worth killing for, but Gardener told Brunt that he and Portis were unable to help him so Brunt departed.
The State also called Joseph Gardener as a witness, and he corroborated Brunt's version of their conversation with the defendant. Gardener testified that after Brunt left the defendant began insisting that they go "check it out." Gardener said that he finally succumbed to the defendant's pressure, and the two walked over to the construction site. Upon arriving at Harrison and Tripp, the two saw the victim with the envelopes in his pocket and thereafter agreed to get some guns and rob the victim. Gardener testified that the defendant stated that he would kill the victim because the victim knew the defendant knew he had the money on him. Gardener said he obtained a .32 revolver and that the defendant obtained a .25 automatic.
Anthony Baker also testified for the State. Baker said he was playing with his son at the corner of Kilbourn and Congress Parkway on October 29, when the defendant approached and asked if Baker wanted to make some easy money. Baker gave his son to Sharon Gulley and followed the defendant. Gardener joined Baker and Portis, and the three proceeded to cross over the Eisenhower Expressway. Baker testified that the defendant took out a .25 automatic, cocked it, and put it in the front of his pants. Baker said he slowed his pace when he saw the gun. He stated that, until that time, he did not know guns would be involved. When they reached the construction site, a man on a bulldozer asked the three for the time, and Baker told him the time. Ben Agee, who later testified, was working on the bulldozer at the site on October 29, and he said that three men approached him on that day, but he could not identify the men because of his poor eyesight. He did state that he asked them for the time, and that one of the men replied with the time. Shortly thereafter, Agee said he heard shots.
Baker testified that Gardener and the defendant approached the victim. Gardener stood in front of the victim; the defendant stood behind the victim. Both Baker and Gardener testified that the defendant stood 2 feet behind the victim and fired two shots into the victim's back. Baker stated that he then turned and began to run back across the expressway. The victim fell to the ground and, according to Gardener, said, "Don't kill me. Here's the money. Take it." Gardener said that the defendant picked up the envelopes containing the money, but Gardener testified that the defendant, nevertheless, shot the victim about four more times. After seeing the defendant shoot the victim so many times, Gardener said he became frightened that the defendant might shoot him if he did not shoot so he fired his weapon once at the victim.
Baker said he heard several shots as he ran. He testified that he looked back and saw Gardener and Portis crossing the expressway. Baker stated he also saw two white envelopes fall from defendant's hand and that the defendant picked up the envelopes and stuffed them into his pants.
Gardener also testified that the defendant gave him a sealed white envelope which Gardener took to his fiancee, Rosemary Gary. He claimed he did not open it but that he gave it to his fiancee because he was due to report to a work-release center where he was living because of a previous theft conviction and did not want the money on his person. Rosemary Gary corroborated this portion of Gardener's testimony. She also testified that the defendant appeared at her apartment the following day and demanded the envelope. She said she gave it to him.
An autopsy revealed that the victim suffered six gunshot wounds, five of which could have caused his death. Five bullets were removed from the victim, and additionally, the police recovered five .25-caliber shell casings and two bullet fragments from the scene. Neither weapon was recovered. A firearms examiner testified the five bullets removed from the victim and one of the two fragments recovered from the scene came from a .25-caliber gun. He stated that the other fragment recovered from the scene came from a .32-caliber weapon. The examiner also stated that it was possible that the .25-caliber casings and the .25-caliber bullets could have come from the same gun, but a conclusive determination could not be made without the gun.
At the conclusion of the trial, the jury found the defendant guilty of both armed robbery and murder. Later the defendant filed a motion for a new trial contending, inter alia, that the State used perjured testimony, i.e., that both Gardener and Baker lied when each testified that the defendant carried and used a .25 automatic to do the shooting during the armed robbery. To support his contention, the defendant presented the testimony of three witnesses: Eileen Johnson, Albert Holmes, and Laroy Muskin. Eileen Johnson testified that Joseph Gardener appeared at her apartment on the day of the shooting looking for her husband. Johnson said that Gardener pushed his way into her apartment, and that he had an open white envelope containing a lot of money in his hand. She said Gardener told her that he, accompanied by Baker and the defendant, had just robbed a man across the expressway and showed her a gun which he said he had to pull on the victim. Johnson admitted on cross-examination, however, that Gardener did not say that he shot the victim. She testified that Gardener gave her $100 and left his gun. When Johnson was shown both a revolver and an automatic pistol during her testimony, she said that Gardener's gun resembled the automatic. Johnson further stated that she wrapped the gun in a towel and gave it to a man she identified as ...