APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
515 N.E.2d 260, 161 Ill. App. 3d 714, 113 Ill. Dec. 451
Appeal from the Circuit Court of Cook County; the Hon. Joseph Urso, Judge, presiding.
Rehearing denied October 13, 1987 1987.IL.1398
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, Defendant, Levester Hastings, was convicted of murder after a bench trial and sentenced to 30 years' imprisonment in the Illinois Department of Corrections.
The record reveals that on March 17, 1984, a birthday party was held in a thirteenth-floor apartment of the Cabrini Green housing project in Chicago, Illinois. The victim, Willie Thompson, and Mitchell Washington were talking outside the apartment on the hallway ramp when defendant approached them. Defendant inquired what their gang affiliation was and accused the victim of belonging to the Vice Lords. After some conversation, defendant attempted to strike the victim but was prevented from doing so when Washington grabbed his arm. Defendant then ran down the stairwell, claiming that when he returned, he was going to shoot Washington and the victim.
Washington and the victim returned to the party and told their hostess about the incident on the ramp. This caused the party to come to an abrupt end. Ms. Harvey, who attended the party and resided in the building, walked the victim out of the apartment because she had learned of the altercation between defendant and the victim. Washington followed Ms. Harvey and the victim out of the building and onto the ramp. Approximately 18 people had congregated on the ramp. Defendant was standing in front of the group and stated "that motherfucker right there" (referring to the victim). Allen Johnson put a gun to Ms. Harvey's head, pushed her, and she passed out. Defendant then hit the victim in the face, causing the victim to fall to the ground. The group then circled in on the victim, kicking him repeatedly while he was on the ground.
At this point, the victim attempted to flee. However, Johnson fired three shots into the victim on defendant's command of, "Get that motherfucker." After the shooting, defendant and Johnson fled on foot. At the trial, Washington testified: "I know for a fact defendant Hastings was connected with the murder because he ran only after the shots were fired." The victim died of multiple gunshot wounds to the head, mouth and chest.
Peter Fazell, a Cabrini Green resident, testified as a witness for the State after a $10,000 material witness bond was issued. Fazell, who knew defendant and Allen Johnson, was a reluctant witness. He testified at trial that he attended the birthday party and as he was leaving, he heard shots, but did not see anything.
The State then questioned Fazell about his pretrial Discussions with the police, detectives and an assistant State's Attorney. Fazell recalled speaking with two police officers at his home the day after the shooting at Cabrini Green. However, he said that he did not tell them that he was an eyewitness.
Fazell recalled going to the station to speak with two detectives two days after the shooting. He told the detectives that the defendant knocked the victim to the ground and that others began kicking him. He also remembered telling the detectives that he was approximately two feet from Johnson when the shots were fired.
Fazell did not recall speaking to the assistant State's Attorney. He testified that his prior statements were untrue and that his trial testimony that he did not see defendant at the scene was true.
The State then asked that each of the three statements be admitted into evidence. The court agreed to consider the statements acknowledged by Fazell. In doing so, the court stated: "I will consider the statements made to the detectives where the witness has admitted making those statements substantively if you can prove that those statements were in fact made."
The State proceeded to prove witness Fazell's prior inconsistent statements by calling Officer Davis, Detective Manion and Assistant State's Attorney Buglass. Officer Davis testified that witness Fazell told the police he was an eyewitness to the murder. However, the trial court refused to accept Fazell's statement to Officer Davis as substantive evidence because Fazell did not acknowledge making the statement. The court did consider Officer Davis' testimony for impeachment purposes.
Assistant State's Attorney Buglass testified that witness Fazell told her that he observed the defendant strike the victim and urge Johnson to shoot the victim, and that Johnson did in fact shoot the victim. Once again, because Fazell did not acknowledge speaking to the assistant State's Attorney, this statement was not admitted as substantive evidence, but was only considered for impeachment purposes.
Detective Manion testified that Fazell told him that he saw the defendant strike the victim, others kicking the victim, and Johnson shoot the victim. This statement was admitted as substantive evidence pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1).
The only evidence presented by the defense was the statement of codefendant Allen Johnson, which was read into the record. He stated he got his gun, made certain it was loaded, decided to use the gun on the victim, and shot the ...