APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
515 N.E.2d 272, 161 Ill. App. 3d 600, 113 Ill. Dec. 463
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Fitzgerald, Judge, presiding. 1987.IL.1396
JUSTICE BILANDIC delivered the opinion of the court. SCARIANO, P.J., and STAMOS, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BILANDIC
William Atkins, Larry Gross, John Mahogany and Eddie Woods were charged with murder, armed violence and conspiracy in connection with the December 9, 1983, shooting of Jerome Wells, a gang chief. Codefendants Mahogany's and Woods' trials were severed and they are not involved in this appeal. Defendants Atkins and Gross were tried jointly, represented by the same trial counsel.
The evidences show that on December 9, 1983, a group of eight or nine youths met at Woods' apartment located on West Van Buren Street, Chicago, Illinois. A field separates Woods' apartment building and the building where the murder occurred.
Robert Ervin testified that on December 9, 1983, at about 4 p.m., a group, including Gross and Atkins, met at Woods' apartment. The group talked about how a Vice Lord had to be killed because some time earlier, Tom Slick, a member of the Black Soul gang, was killed. Ervin testified that Woods went into a back room and emerged with several guns which he then handed out to the group. Gross took a shotgun and shot it into a hallway to see if it was working. Afterwards, Gross ordered the group to move across the field between the buildings in twos and meet at Gross' mother's apartment. Gross' mother's apartment is located in the building where the murder occurred.
The first time the group left the building, someone saw the police so they all ran back to Woods' apartment. A short time later, the group went across the field to Gross' mother's apartment, where the weapons were redistributed.
Within a short time, a youngster named "Mookie" (Gross' nephew) came to the door and told them that the victim was on his way upstairs. Gross took charge and the group split up, each going into different stairwells. Gross' mother's apartment was on the sixth floor and the victim lived on the seventh floor. Ervin also testified that everyone left the apartment and went into the stairwells except for him. Gross said "to go get him" (the victim). Shortly thereafter, Ervin heard five shots. Then, Ervin, Woods and Clark, another member of the group, returned to Woods' apartment. Ervin testified that Gross stayed in his mother's apartment, heard the shots, went onto the porch but returned to the apartment when his mother called him back in. Atkins was not in the apartment when the shots were fired.
Seventeen-year-old Evon Moore testified that on that date at about 4 p.m., she was standing on the ramp of the building between apartments talking to friends. At first she saw Woods peeking around the corner of the ramp. About 10 minutes later, she saw Woods leaving the building with a group of about eight or nine youths. She identified Gross and Atkins as members of this group. The group crossed the field in twos and then went into the other building. About 15 or 20 minutes later, she saw a young man walk towards an apartment on the seventh floor, reach for the door, then fall. She heard six shots, which came from the west end of the seventh-floor ramp. She saw only the hand and wrist of the person doing the shooting. Later, she saw the group of youths, including Gross and Atkins, leave the building.
Police officers testified that while no weapons were recovered from the scene, a .45 caliber bullet was recovered that matched a bullet later recovered from the victim's body by the medical examiner. These two bullets were fired from the same gun.
Troy Johnican also testified for the State. His testimony at trial placed Gross and Atkins at Woods' apartment. He testified that the group left Woods' apartment to go to Gross' mother's apartment to drink some beer. He did not see any guns. Since Johnican's testimony at trial differed from his grand jury testimony, the State sought to examine him as a hostile witness and impeach him with his prior inconsistent statements. Defendants asserted that Johnican's grand jury testimony was involuntary. After a hearing conducted out of the presence of the jury, the trial court determined that Johnican's grand jury testimony was indeed voluntarily given. Thus, the State was permitted to impeach him with this testimony and the jury was permitted to consider this as substantive evidence pursuant to statute. Ill. Rev. Stat. 1985, ch. 38, par. 115.10.0.
Johnican's grand jury testimony indicated that while at Woods' apartment, the group discussed the past murder of Tom Slick, who was Gross' friend. They started downstairs when police were seen, causing them to retreat to Woods' apartment. Then, they all went to Gross' mother's apartment and discussed shooting Vice Lords. Gross directed two of the group to retrieve the bag containing the guns from Woods' apartment. Afterwards, Gross distributed the guns.
While the group was at Gross' apartment, "Mookie" came to the door and told them the victim was coming. Atkins went to the far stairwell; the others went to the first stairwell. Troy Johnican and Gross were about to leave but Gross' mother called them back into the apartment. Shortly thereafter, they heard five shots. Gross ran downstairs, while Johnican remained in the apartment. Johnican waited about 20 minutes but no one returned. Then the police arrived.
Each of the defendants, who are brothers, presented an alibi defense. Mrs. Maryann Gross, the mother of both defendants and Marcia Harris, the sister of both defendants, each testified as alibi witnesses. Both women testified that Gross and Atkins were with the family at their mother's apartment the entire ...