APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
506 N.E.2d 1353, 154 Ill. App. 3d 308, 107 Ill. Dec. 298 1987.IL.367
Appeal from the Circuit Court of Cook County; the Hon. Richard J. Petrarca, Judge, presiding.
JUSTICE RIZZI delivered the opinion of the court. McNAMARA, P.J., and FREEMAN* , J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE RIZZI
Following a bench trial, defendant, Tommie Harris, was convicted of murder and sentenced to 20 years in the Illinois Department of Corrections. On appeal defendant argues (1) the evidence is insufficient to sustain a finding of guilty of murder; (2) the trial court abused its discretion and committed reversible error by denying defendant's motion for a new trial on the basis of newly discovered evidence; and (3) defendant was denied effective assistance of counsel. We affirm.
On May 7, 1982, around 7 p.m., the victim, Roger Cannon, defendant, and some other men were engaged in a dice game in a school yard parking lot at 8375 South Kerfoot Street, Chicago, Illinois. Defendant and Cannon became involved in an argument over a bet made during the course of the dice game. The argument escalated into a fight which continued until it was broken up by some of the other men present. Defendant and Cannon then left the game. Shortly thereafter shots were fired, and defendant was seen driving away in his car. Cannon was found lying on the ground dead, the victim of two bullet wounds. Defendant was arrested in his car two days later. A 30-30 caliber pump action rifle containing four live rounds was retrieved from the trunk of defendant's car.
At trial, Darrell Handy testified that after the fight between defendant and Cannon ended, he was in his front yard playing with his son when he saw defendant carrying a rifle. Defendant walked toward the parking lot where the dice game and fight had occurred and then turned around and returned to his home. A few minutes later, Handy again saw defendant leave his house with a rifle in his hand. Handy testified that he heard screams and two or three gunshots.
Ira Hill testified that on May 7, 1982, around 7:30 p.m., he was sitting on his front porch talking with two friends, Gregory Thomas and Robert Maxwell. Hill saw defendant walk down the street with what appeared to be a rifle. Defendant approached Hill's station wagon, which was parked in front of the house, and walked alongside it. Hill then heard a gunshot and immediately ran into his house. Hill told the police investigating Cannon's death that he heard two or three gunshots.
Another State witness, George Brown, testified that he saw defendant sitting on his porch with what appeared to be a long pipe in his hands. Brown later saw defendant come out of his house carrying a rifle and walk down the street in the direction of Hill's house. Brown stated that he then heard a couple of gunshots and saw defendant run toward his car, throw the rifle in the backseat, and drive away.
George Bernard Brown (George Bernard) testified next for the State. George Bernard indicated that on the evening in question he was talking with Terry Brown and Roger Cannon in front of Terry Brown's house. George Bernard stated that they all walked across the street to find George Brown, Terry Brown's brother, so he could give Cannon a ride home. At that point, George Bernard saw defendant coming down the street with a rifle in his hands. George Bernard stated that when defendant reached the area by the blue station wagon parked in front of Hill's house, he pointed the gun at Cannon and shot him. George Bernard was 5 or 6 feet away from Cannon at the time. George Bernard then ran to the fence behind the parking lot of the school. Once there, he turned to see Cannon trying to pull himself under Hill's car and then saw defendant shoot Cannon again. George Bernard testified that he heard two gunshots fired prior to when he climbed over the fence and a third shot once he was over the fence and down the hill. On cross-examination George Bernard indicated that he never saw Cannon with a gun in his possession on the day in question.
Barbara Handy also testified for the State. Barbara indicated that at the time of the shooting she lived in a house across the street from defendant's house. She related that she was present when her husband broke up the fight which occurred between defendant and Cannon. Barbara further testified that defendant walked by her on the way home from the dice game and stated that he was going to "[k]ill a son-of-a-bitch." Barbara testified that she heard a total of three gunshots.
Rosemary Cannon, the victim's sister, also testified that she was present when defendant shot Cannon. She indicated that she saw defendant approach Cannon with a rifle in his hand, heard a gunshot, and then saw Cannon fall. Rosemary then yelled at defendant to stop, but then heard two more shots. She saw nothing in Cannon's hands.
Terry Brown was the last eyewitness to the shooting to testify on the State's behalf. Terry's testimony was virtually identical to that of George Bernard. Terry, however, further stated that as he and Cannon neared Ira Hill's car, he saw that defendant had a gun. Terry then yelled to Cannon, 'Roger, he's got a gun." Terry indicated that Cannon then looked at him, a shot was fired, and Cannon fell to the ground. As ...