APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
516 N.E.2d 1371, 163 Ill. App. 3d 959, 115 Ill. Dec. 15 1987.IL.1826
Appeal from the Circuit Court of Livingston County; the Hon. William T. Caisley, Judge, presiding.
JUSTICE McCULLOUGH delivered the opinion of the court. KNECHT and SPITZ, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCCULLOUGH
On March 14, 1986, Phillip Wilken, a correctional officer at Pontiac Correctional Center, was stabbed by inmates, receiving serious injuries. Lawyer Pace and Christopher Robinson were charged with various counts of conspiracy to commit murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-2(a), 9-1(a)(1)), conspiracy to commit aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 8-2(a), 12-4(b)(6)), solicitation to commit murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-1(a), 9-1(a)(1)), and solicitation to commit aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 8-1(a), 12-4(b)(6)).
Selwyn Page and Selma Geder were each indicted for: one count of attempt (murder) (Ill. Rev. Stat. 1985, ch. 38, par. 9-1(a)(1)), two counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 12-4(a), 12-4(b)(6)), three counts of armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2), two counts of conspiracy to commit murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-2(a), 9-1), and two counts of conspiracy to commit aggravated battery (Ill. Rev. Stat. 1985, ch. 38, pars. 8-2(a), 12-4). Following a consolidated jury trial, the court entered judgments of conviction against defendants Page and Geder on one count of attempt (murder). The defendants were each sentenced to a term of 45 years.
Defendants appeal their conviction and in support thereof argue: (1) they were not proved guilty of attempt (murder) beyond a reasonable doubt; (2) the trial court erred in instructing the jury on the legal elements of attempt (murder); (3) the trial court improperly excluded identification testimony; and (4) the prosecutor committed reversible error by commenting on witnesses' fear of gang retaliation. We affirm.
On September 23, 1986, a jury trial commenced in the consolidated cases of Selwyn Page, Selma Geder, Lawyer Pace, and Christopher Robinson. The four defendants were charged following the stabbing of Phillip Wilken, a correctional officer, on March 14, 1986. The defendants were incarcerated at the Pontiac Correctional Center on the date of the incident. All four defendants were represented by David Ahlemeyer, public defender.
At trial, Wilken testified that on March 14, 1986, he was working in the west cellhouse of Pontiac Correctional Center. Wilken started work at 3 p.m. He was "running the feed line," which meant he was allowing inmates from each gallery to go to dinner, locking the gates as the men left and readmitting them upon return.
At approximately 4:30 p.m., Wilken admitted an inmate to gallery 8, and then proceeded up to gallery 9. Wilken let two inmates in and then continued up to gallery 10. He noticed a group of 8 to 10 inmates gathered on the staircase leading to gallery 10. As Wilken moved forward to open the gate, he was grabbed from behind. One man continued to hold Wilken as another attacked him. He was stabbed six times, the wounds being inflicted in his chest, abdomen, back, and forearm. During the attack, Wilken heard someone yell, "You're going to die."
Wilken did not see the faces of his attackers. He described them as black men dressed in outdoor clothing. Wilken was not sure of the exact number of men who were directly involved in the incident. During the attack, several inmates rushed toward him. Wilken stated that he kicked outwards, striking one inmate. He stated that he heard the sound of bones breaking.
Wilken struggled with his attackers and eventually broke free. He fled down five flights of stairs to the cage area in the center of the cellhouse. The shank which was used to stab Wilken was still imbedded in his back. Lieutenant Cox, who was stationed at the cage, immediately took Wilken to the prison health unit. At the health unit, the shank was withdrawn from Wilken's back and he was immediately transported by ambulance to St. James Hospital.
Wilken was taken to the intensive care unit at the hospital. Surgery was required. The next day he was transferred to St. Francis Hospital in Peoria. At trial, Wilken showed the jury the scars remaining from the attack. Wilken further testified that he continues to suffer from mental trauma.
Lieutenant William Cox, who was working in the cage at the time of the incident, stated that at approximately 4:30 p.m., he heard a loud scream and then heard "No. 85 is hit" on his radio. Cox indicated No. 85 was Wilken's radio number. Wilken then came rushing to the cage. Cox stated that Wilken was bleeding very seriously and he had to help carry him to the hospital. The shank was protruding from Wilken's back. Cox asked Wilken if he knew who attacked him and Wilken responded, "[It] was the blacks."
Dr. Gregorio Manabat testified that he saw Wilken in the emergency room on March 14, 1986, at approximately 5:30 p.m. Wilken was conscious, but his blood pressure was low and he was beginning to go into shock due to blood loss. Manabat testified that Wilken had six stab wounds. One of the wounds had severed the abdominal aorta causing internal bleeding and thus necessitated surgery. Wilken's condition was diagnosed as "life threatening." Manabat indicated that after surgery he became concerned about the patient's mental stability and transferred him to St. Francis Hospital in Peoria as a result.
Richard Ores, evidence custodian at Pontiac, testified he processed the crime scene after the incident. Ores stated that he found two stocking caps and a pair of gloves in garbage cans. Ores further indicated that a winter jacket, which was found near the scene of the incident, was given to him by investigator Richard Irvin.
Diane Louise Schneider, forensic scientist with the Illinois Department of State Police, testified she analyzed blood and hair samples in connection with the case. Schneider was provided with evidence from the scene of the incident as well as blood and hair samples from Page, Geder, and Wilken. Schneider indicated that the coat and gloves contained human blood. Schneider could identify only one enzyme type in the bloodstains. She concluded that the blood could have originated from Wilken, Page, or Geder. However, Schneider further stated that the enzyme identified was present in 88.67% of all Caucasians and in 98.41% of all blacks in the United States. Schneider admitted that her findings were inconclusive and that she was unable to make any further identification of the bloodstains.
Schneider then explained the process for comparison of hair samples. She compared hair samples from the two stocking caps with hair samples from Geder, Page, and Wilken. Schneider indicated that one stocking cap contained a head hair of Negroid origin which was consistent with the hair of Page. The cap also contained hairs of Negroid origin which were dissimilar from both Page and Geder. The second stocking cap contained one head hair of a Caucasian which was dissimilar from that of Wilken, and two head hair fragments of Negroid origin that were consistent with the hair of Page. Other hair fragments found on the second stocking cap were dissimilar to the hair of either Page or Geder. Again, Schneider admitted the inconclusive nature of her findings.
The remainder of the State's case consisted, in large part, of testimony of inmates at Pontiac. Dennis Ferguson testified that on March 14, 1986, he saw Wilken running down the stairs with a knife protruding from his back. Ferguson stated that he did not see the attack and could not identify any specific inmates as being near the scene of the incident. Ferguson indicated that he talked to investigators following the incident and was shown a series of photographs. Ferguson identified a number of photographs which portrayed people he witnessed near the scene of the incident. At trial, however, Ferguson stated he did not know whether he had identified any of the defendants.
Courtney Gibson stated he was near the scene of the incident. Gibson claimed that he turned around to see Wilken getting stabbed, but quickly turned back the other way. Gibson did state that one inmate was holding Wilken while another one stabbed him with a shank. The attackers were dressed in outdoor clothing, wearing blue coats and hats. Gibson witnessed the attackers flee down the stairs. Gibson noted there were many other inmates in the area, but he specifically identified Wilbur Cooley and Stanley McMath (Smokey).
Stanley McMath (Smokey) testified he is a member of the "Brothers of the Struggle" gang . McMath indicated that his position in the gang was that of a foot soldier, a low ranking position. McMath stated he was a friend of Wilbur Cooley, chief of security for the BOS. McMath indicated that at approximately 4 p.m. on the date of the incident he was coming off gallery 10 when Cooley approached and asked him to stay on the flag. McMath identified several other inmates who were near the scene, specifically Peter Gunn (Geder), Junior (Page), and an inmate named Frog. McMath stated that he saw Officer Wilken approaching the 9-10 flag. A few minutes later, Page grabbed Wilken from behind, and Geder stabbed Wilken. Wilken kicked one of the attackers, broke away, and fled down the stairs. McMath stated that Page was wearing an outdoor coat similar to People's exhibit No. 6, a stocking cap and white gloves. Geder was also wearing a coat and hat. McMath testified that although Cooley was present at the scene of the incident, he did not participate in the attack.
McMath further testified that he was interviewed subsequent to the incident, during which time he identified the attackers from a series of photographs. The parties stipulated that McMath was no longer at Pontiac, but had been moved to a different institution. When questioned regarding his transfer, McMath indicated he requested the transfer due to fear of reprisal. McMath stated, "They would do the same thing to me."
Wilbur Cooley testified that he was a member of the Black Gangster Disciples, an affiliate of the BOS. Approximately 10 days prior to the attack, Cooley was appointed chief of security, thus making him responsible for the protection of gang members from other inmates. Cooley was appointed to this position by Lawyer Pace. Cooley, however, did not believe he was actually chief of security. He felt he was being set up as a "fall guy."
On Wednesday, March 12, 1986, Lawyer Pace told Cooley to arrange a "hit" on a correctional officer. Cooley was told to specifically ask inmates Darrell Hilliard (Nose) and Delvin Jackson (Foots) to make the hit. The officer was to be hit because the administration was hassling inmates, writing "bogus" tickets, and putting the prison on lockup without justification. Pace also indicated that the officer was only to be stabbed once and was not to be killed. Pace further informed Cooley that the order for the hit was coming down from "Gdon," the "unit coordinator" for the west cellhouse. Cooley was informed that any correctional officer could be hit with the exception of Officer Mesch, who had recently written a disciplinary ticket against Pace and would thus suspect his involvement. Cooley agreed to cooperate with Pace. At trial, Cooley testified he felt he had no other choice.
Cooley was instructed to obtain a shank from "Greedyman" (Coleman), who lived on gallery 5. Coleman informed Cooley that the shank would be in a desk inside a cell. On March 14, 1986, Cooley, along with another inmate, Rodney McNeary, moved the desk from Coleman's cell. At this time, Cooley came into possession of the shank used in the incident. The shank was later given to Geder to be used in the attack.
On Friday morning, both Nose and Foots informed Cooley that they were not going to do the hit. Cooley then informed Christopher Robinson about the hit. Cooley told Robinson that the inmates originally intended to carry it out had backed down. Robinson then offered his services, but Cooley refused his offer. Cooley told Robinson to find someone else to make the hit. According to Cooley, Robinson was his assistant and was required to follow his orders. Meanwhile, Cooley indicated Geder had volunteered ...