APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIFTH DIVISION
523 N.E.2d 1160, 169 Ill. App. 3d 959, 120 Ill. Dec. 249 1988.IL.694
Appeal from the Circuit Court of Cook County; the Hon. James M. Bailey, Judge, presiding.
JUSTICE SULLIVAN delivered the opinion of the court. LORENZ, P.J., and MURRAY, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SULLIVAN
Following a joint jury trial, defendant, Omar Dixon, and William Moore were found guilty of murder and attempted armed robbery. Defendant was sentenced to concurrent terms of 30 years for murder and 10 years for attempted armed robbery. Moore received sentences of 40 years and 10 years, respectively. On appeal, defendant contends (1) that his sixth amendment rights were violated by (a) the admission of the extrajudicial statement of his non-testifying co-defendant implicating him in the offenses and (b) the State's closing argument wherein the prosecutor improperly told the jury to consider that statement against him and (2) that his sentences were excessive.
The charges arose out of the death by shooting of 17-year-old Benjamin Wilson on November 20, 1984. Prior to trial, defendant filed a motion for severance, asserting that his and Moore's defenses were antagonistic and that the admission of Moore's statement at trial would violate his sixth amendment right of confrontation under the rule in Bruton v. United States (1968), 391 U.S. 123, 20 L. Ed. 2d 476, 88 S. Ct. 1620, if Moore exercised his right not to testify at trial. The motion was denied on the ground that even assuming Moore did not take the stand, under the holding in Parker v. Randolph (1979), 442 U.S. 62, 60 L. Ed. 2d 713, 99 S. Ct. 2132, severance was not required because defendant's own statement interlocked with Moore's in most material respects and, if necessary, could be redacted to avoid a Bruton problem.
At trial, 17-year-old Jetun Rush testified that at about 12:30 p.m. she and Wilson, who was her boyfriend and the father of her child, left Simeon Vocational High School (Simeon) where they were students and began walking north on Vincennes Avenue. They noticed a group of boys and girls standing on the grass and the sidewalk in front of a store about one-half block from the school. By the time they reached the group, the girls had walked away, leaving about five or six boys gathered on and next to the sidewalk. Attempting to make their way around the group, Wilson, who was to the side of and behind her, said, "[Excuse] me." One of the boys -- identified by her to be Moore -- who had been standing to their right near the fence turned around and asked Wilson what he had said. Wilson repeated, "[Excuse] me," and continued walking another four or five feet. At that point, a taller boy -- identified as Dixon -- who had been standing on the grass to their left stepped in front of Wilson, grabbed him by his jacket and said, "Say, man, you got any money?" Wilson pushed him away, responding, "Hey man, you think you're tough?" Dixon repeated his demand for money and reached into his pockets. Wilson pushed him away again, asking, "What are you going to do, shoot me?" Defendant responded, "You still think you're tough," and then said to Moore, "[Let's] shoot this punk," whereupon she heard the first shot fired by Moore. As Wilson tried to dodge away she saw Moore shoot him a second time, after which he fell into her arms. Defendant then exhorted Moore, "Let's go man. Here come the police." and they both ran from the scene. After seating Wilson down next to the fence, she ran back to the school from where the police and an ambulance were summoned. Later that evening, she viewed two lineups and identified both Moore and defendant as the offenders.
On cross-examination, Rush repeatedly denied that Wilson had argued with Moore; however, she acknowledged telling the responding officers that Wilson bumped into one of the boys and that there had been a verbal altercation. She further stated that, having seen the gun in Moore's waistband when he first turned around, she warned Wilson of it and admonished him, "[Let's] go," but she did not attempt to physically pull him away; and that each time she was asked to describe what had occurred, she told the police that defendant had said to Moore, "[Let's] shoot this punk."
Detective Bosco testified that when he questioned defendant following his arrest later that evening defendant told him that he was standing in front of the store with his friend Leonard Whitlock when Wilson, who had been walking with his girlfriend, bumped into Moore. An argument ensued and it appeared that Wilson intended to fight. At that point, Moore produced a handgun and shot Wilson twice. As he (defendant) and Whitlock walked away, he observed Moore running from the scene. On cross-examination, Bosco stated that when he interviewed Rush a few hours after the shooting, she told him that there had been an argument but she did not say that she saw a gun prior to the time Moore fired it at Wilson. Neither did she tell him that defendant told Moore to shoot Wilson, but it was his (Bosco's) belief that she related that information to another officer, Detective McGuire, who did not testify at trial.
Sean Baylis, a student at Simeon, testified that he was walking toward the store when he saw defendant and Whitlock, both of whom he knew from the neighborhood, and two other boys standing near the school gate. After exchanging greetings, he proceeded to the store to play some video games. A short time later, defendant and the three other boys came into the store for a few minutes and then left. While his companion took his turn on the video game, he sat down near the front window of the store from where he saw defendant approach Wilson, grab his arm, say something to him and then push Wilson back toward the store window. Moore then pulled out a gun and shot Wilson. Wilson walked behind a tree in front of the store but when he came from around it, Moore shot him a second time.
On cross-examination, Baylis stated that it was when he heard a bump against the store window that his attention was drawn to the scene in front of the store. After the shooting, a tall boy came to Wilson's aid. He immediately returned to school without saying anything to anyone, but later, after another student informed the police that he (Baylis) had witnessed the shooting, he was summoned to the principal's office, where he told the assistant principal and two police officers what he had witnessed. Later that evening, he repeated the same information three different times to plainclothes officers at the police station.
John Everett, the assistant principal of Simeon, testified that when he was informed that Wilson had been shot, he went to the scene, where he saw several students surrounding Wilson, attempting to comfort him. He spoke with Baylis, who was among the students on the scene, but because Baylis appeared to be somewhat stunned, he took him back to his office at the school. There, Baylis told him, in the presence of the school's youth officer and another Chicago police officer, that two boys, one of whom he knew as "Omar," had confronted Wilson outside the store. Baylis did not mention that any pushing had occurred or that Wilson had run behind a tree after the first shot.
John Brady, an assistant State's Attorney assigned to felony review on the night of the shooting, testified that he first questioned Moore at 2 a.m. and, at about 3:15 a.m., presented him with a written summary of the statement he made during the 2 a.m. interview.
According to the summary, which Brady read from the witness stand, Moore stated that on the morning of the shooting, he met Whitlock, his cousin -- Eddie Thompson -- and defendant at Calumet High School, where they were students. They discussed an incident in which $10 had been taken from Thompson's sister, Cynthia, at Simeon the previous day. Moore told Whitlock that he was going to Thompson's house to get a gun and would meet him (Whitlock) back at school afterward. Later, the four of them took a bus to Simeon and walked to a video game room where they met some girls they knew. From there, he, Whitlock and defendant walked to a second game room on Vincennes Avenue. As he was standing on the sidewalk talking to a girl named Kim, he was bumped in the back. He turned around and upon seeing Wilson, whom he had seen play basketball at Simeon the previous year, he asked, "[What's] going on, tall boy?" to which Wilson replied, "--- you." He responded in kind and in the course of the argument that ensued, he drew the .22 caliber pistol he had taken from Thompson's house. At that point, defendant said, "[Let's] see if this punk has some money," and attempted to reach into Wilson's pockets. Wilson asked, "What are you going to do, shoot me?" Defendant then pushed Wilson and when Wilson pushed him back, defendant yelled "pop him," whereupon he (Moore) fired two shots at Wilson. He, Whitlock and defendant then ran from the scene. He gave the gun to defendant, who later told him that Thompson had taken and hidden it. When he later saw Thompson and asked about the gun, Thompson told him that he had "put it up somewhere." The only portion of Brady's summary not read to the jury was that Moore stated that after being pushed by Wilson, "[defendant] yelled, pop him!" that excerpt having been ordered redacted by the trial court.
Brady further testified that he also prepared a handwritten summary of the statement made by defendant during a conversation with him at 11 p.m. which he gave to defendant at about 3:25 a.m., a few minutes after his second meeting with Moore. According to Brady's summary, which he also read during his direct examination, defendant's account of the events of the morning of November 20 was virtually identical to Moore's. Regarding the incident involving the $10 taken from Thompson's sister the day before, defendant added that when they saw Kim and Erica at the video game room, the girls told them that the person who had taken the money from Cynthia was an older boy who was not a student at Simeon. He, Moore and Whitlock then walked to the store on Vincennes Avenue. As they were standing on the sidewalk talking, a tall boy [Wilson] bumped into Moore. Wilson and Moore began to argue and Moore pulled out a gun. Wilson asked, "Are you going to shoot me?" Defendant then said, "[Let's] see if this punk has some money," and walked toward Wilson whereupon Wilson pushed him. When he said to Moore, "[This] punk pushed me," Moore pulled out a gun and shot Wilson twice, following which they ran from the scene. Later, they drove to Moore's house and waited in the car while Thompson hid the gun somewhere in the backyard. Brady testified that each summary was read and signed by Moore and defendant, respectively.
On cross-examination, Brady reiterated that the summaries were not verbatim accounts of defendant's and Moore's statements but stated that they both had refused to give a sworn, court-reported statement. He also acknowledged, on cross-examination by counsel for Moore, that in his summary of his conversation with Moore, he excluded, as being irrelevant, Moore's statement that the person who took the $10 from Thompson's sister had put the money down the front of his pants and told her that she would have to take the money out of his pants if she wanted it back and that it was because of that incident that Moore decided to take the gun from Thompson's house.
Kimberly Smith testified that defendant, Moore, Whitlock, Thompson and Marcellus Hunter, all of whom she knew from her neighborhood, were walking past the store as she and a classmate approached it during their lunch period. They stopped in front of the store, and while she was talking to Hunter, she saw a boy and a girl (Wilson and Rush) walk through the group. As they did, she noticed that Moore "fell back," after which Moore and Wilson began to argue. Rush unsuccessfully tried twice to pull Wilson away. During the argument, Moore and Wilson stepped closer to each other but then Moore took two steps backward. It was at that point that she heard loud noises. She saw Wilson bending over and then ran back to school.
On cross-examination by the State, she acknowledged that after the shooting she did not tell anyone what she had seen. On cross-examination by defendant, she stated that she had asked Whitlock to "cool out the argument" because she was afraid that something was going to happen, and that just after that, she heard the loud noise. At no time did she see defendant or Wilson push the other nor did she hear defendant say anything to Moore or put his hands into Wilson's pockets. Neither did she hear Wilson say "What are you going to do, shoot me?" or see anyone holding a gun.
Defendant testified that on the morning of the shooting, he and Moore met near their lockers at Calumet High School and agreed to skip their classes and go to Thompson's house, where they ate breakfast and spent the morning watching television. While there, Moore and Thompson told him about the incident involving the taking of money from Thompson's sister, Cynthia, but there was no Discussion of seeking revenge or of confronting a person known as "Iceberg." Just before leaving Thompson's house, sometime after 11 a.m., Moore came down the stairs and showed him a small gun. Moore then went back upstairs with the gun and a short time later he came down with his coat and they left. He, Moore and Thompson returned to their school, where they met Whitlock, and then took a bus to Simeon to see some friends. They went to a video game room on 81st Street and Normal Avenue, played a few video games and, after about 10 minutes, he and Moore walked Erica back to school. From there, they walked to a store on Vincennes Avenue where they were rejoined by Whitlock, Erica, Kimberly Smith and Marcellus Hunter. As he was standing in the grass talking to Whitlock, a tall boy and a girl (Wilson and Rush), neither of whom he knew, walked up to the group and he then saw Moore "bounce off the fence" as though he had been bumped into it. He then heard Moore ask Wilson for an apology. Wilson said, "I don't owe you no type of apology. F --- you," to which Moore responded in kind. The girl attempted to pull Wilson away but he pulled away from her and continued arguing with Moore. It appeared to him that Wilson and Moore might begin to fight and he would have helped Moore if a fight had occurred, but because there was no physical contact between them he did not intervene. He did not grab, push or touch Wilson in any way nor did he say anything to Wilson or to Moore prior to the shooting. Rather, he testified, it was Wilson who began walking toward Moore, at which point he heard two gunshots. He did not see the gun nor did he know that Moore had been carrying it. He immediately ran from the scene and boarded a bus on 79th and Vincennes. Moore and Whitlock boarded the same bus at the next stop.
When he arrived home shortly after 9 p.m. that evening, the police grabbed him, handcuffed him and, after stops at Moore's and Whitlock's homes, they took him to the police station. Later that evening, he stood in a lineup and was then placed in a room alone. About one-half hour later, Brady and a police officer came in to question him. He told Brady that Moore "was in an incident with this guy and that he [Moore] had shot him." After appearing in several more lineups, he was taken back to the room where he remained alone for several hours until Brady returned and told him that his previous statement was a lie and that there was "more to it." When he told Brady that what he had related was true, Brady left. A few minutes later, he was taken to another room where he remained most of the night. At about 3:30 a.m. Brady, accompanied by two police officers, came in with a prepared written statement and told him to read and sign it. Although the statement was not true, he signed it because he had not slept, eaten or talked to anyone while at the police station and was very tired and afraid and "just wanted to get it ...