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05/16/88 the People of the State of v. Oung

May 16, 1988





524 N.E.2d 982, 170 Ill. App. 3d 969, 120 Ill. Dec. 800 1988.IL.751

Appeal from the Circuit Court of Cook County; the Hon. Roger Kiley, Jr., Judge, presiding.


PRESIDING JUSTICE CAMPBELL delivered the opinion of the court. BUCKLEY and MANNING, JJ., concur.


Following a severed bench trial, defendant, Xavier Young, and co-defendants, Jimmie Buford and Alfred Dismukes, were found guilty of murder, armed robbery and unlawful restraint. (Ill. Rev. Stat. 1985, ch. 38, pars. 9-1, 18-2, 10-3.) Defendant was sentenced to concurrent prison terms of 20 years, 15 years and 3 years, respectively. This appeal brought by defendant Young is predicated on section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par 115-10.1), which allows the prior inconsistent statement of a witness to be admitted as substantive evidence against defendant when specific criteria are met. In the present case, the trial court allowed the prior inconsistent statement of co-defendant Buford, who testified on defendant's behalf, to be admitted as substantive evidence against defendant. On appeal, defendant contends that: (1) section 115-10.1 violates the Illinois constitutional doctrine of separation of powers by invading the exclusive province of the judiciary and conflicting with Supreme Court Rule 238 (107 Ill. 2d R. 238); and (2) use of Buford's prior inconsistent statement as substantive evidence of defendant's guilt violated defendant's right to due process and to a fair trial. For the following reasons, we affirm the judgment of the trial court.

The record sets forth the following. David Burns, occurrence witness who testified on behalf of the State, stated that on Saturday, October 27, 1984, he was working a 9 a.m. to 7 p.m. shift at Winfield Groceries, located at the corner of Cullerton and Keeler in Chicago. Winfield Johnson, elderly store owner, and William Wright were also working at the store that day. Burns described the store layout as consisting of a deep freezer and checkout counter on the left side of the front door, an ice-cream freezer and two pop coolers on the right side, and a meat counter at the back of the store. In the middle were several aisles of stocked shelves.

Approximately 7 p.m., Johnson was at the checkout counter, Burns was putting pop in one of the coolers and Wright was in the washroom, when defendant entered the store and told Burns that he wanted to purchase some meat. After Burns called Wright out of the washroom to wait on defendant, Wright and defendant then went to the meat counter in the rear of the store and Burns started to stock the ice-cream freezer in the front. Shortly after 7 p.m., Buford and Dismukes entered the store. Buford walked to the middle aisle and Dismukes stood in line behind a customer at the checkout counter. When the customer left, Buford ran to the front door and locked it. Dismukes then pulled out his gun and announced a stickup. Buford, armed with a small black pistol, ran around the checkout counter to where Johnson was standing and ordered him to open the cash register. Johnson refused to do so.

Meanwhile, Dismukes told Burns to lie on the floor. Burns then lay down on his stomach, facing the front of the store, from which position he could see Buford. At that point, Buford pushed Johnson to the middle aisle and down onto his stomach. Burns then heard Johnson say, "Oh, no," and heard a shot. After the shot, Dismukes ordered Burns to open the cash register. As Burns walked toward the checkout counter, he saw Johnson lying on the floor and Buford going through his belongings.

Once Burns opened the cash register, Dismukes took the food stamps and cash. As Buford and Dismukes were getting ready to leave, Buford called out, "Hey, come on," and defendant came running from the rear of the store. After Buford, Dismukes and defendant left the store together, Burns watched them run east on Cullerton and then cross the street. Burns further stated that defendant had remained in the rear of the store throughout the robbery and shooting. Approximately five weeks later, Burns identified defendant in a lineup.

Detective James Antonacci of the Chicago police department testified that he arrested co-defendant Buford on December 3, 1984, after Burns had tentatively identified him from a photo array. At the time of his arrest, Buford stated that he had no knowledge of the incident and denied his participation. However, after the lineup in which Burns identified him, Buford changed his position and gave the following statement: the robbery had been the idea of an employee at Winfield Groceries nicknamed "Kewanee," who had discussed the idea with Buford and defendant, explaining that Johnson was an old man who usually carried about $300 in cash on him, plus had money in the cash register and under the register drawer. Kewanee advised Buford and defendant that the best time to rob the store would be on a Saturday, approximately 7 p.m.

Buford further stated that on Saturday, October 27, 1984, he left his house, armed with a .22 caliber gun and a .38 caliber gun and went to a nearby park where he met defendant and Curtis Williams. Dismukes later joined them and asked to participate in the robbery. Buford gave Dismukes the .22 caliber gun to use. Curtis Williams, Dismukes, Buford and defendant then drove to Winfield Groceries in Williams' car. Dismukes, Buford and defendant got out of the car and entered the store. Dismukes went to the back of the store, while defendant and Buford remained in the front, pretending to shop. When the last customer left, Buford closed the door and ran over to Johnson, grabbed him with one hand, and took him to the middle aisle, where he pushed him to the floor. When Johnson started to struggle, Buford shot him.

Buford claimed that defendant and Dismukes were at the cash register while he was struggling with Johnson. The three then left, got into Williams' car and drove away. Buford signed and initialed his post-arrest statement, and Detective Antonacci witnessed the signature.

Subsequently, on December 4, 1984, defendant was placed under arrest. Initially, he told the police that he did not know anything about a robbery or murder. However, when informed that he had been implicated in Johnson's murder, defendant stated that a couple days before the robbery, he had been talking with a group of people when Kewanee came over to the group and suggested robbing the grocery store on a Saturday, approximately 7 p.m. On the day of the robbery, defendant had been at his house most of the day. Around 5 p.m., Buford and Dismukes came over with several others. Later, defendant, Buford and Dismukes drove to Winfield Groceries, where all three got out of the car. Defendant entered the store first, followed shortly thereafter by Buford and Dismukes. Defendant saw Buford grab Johnson and heard a shot. All three left the store together and got into a waiting vehicle. Defendant signed his statement and Detective Antonacci witnessed his signature.

At trial, defendant altered his version of the incident and stated that when he, Dismukes and Buford stopped at Winfield Groceries, defendant's only intention was to purchase some lunch meat. He had no idea that the others had entered the store or that they were planning a robbery. While at the back of the store, defendant heard someone say, "This is a stick up." Not knowing who it was, defendant remained in the back of the store. He then heard scuffling and a shot. Then, someone called him and he ran to the front of the store and got into the car. Defendant claimed that he was extremely scared at the time and feared for his safety. When asked why he had admitted to planning the robbery when questioned by the police, defendant stated that he had done so because the police had read Buford's and Curtis' statements to him. He then signed the statement because the police told him that it would be best if he did so.

Following defendant's testimony, all defendants rested their cases and closing arguments ensued, following which the court called a recess in order to deliberate on its decision. When trial resumed, the court indicated it had reached its decision regarding defendant, Buford and Dismukes. However, before the court announced the verdicts, counsel for Buford requested a sidebar. Counsel then informed the court and other counsel that during recess, Buford had informed his counsel that he wanted the court to know that defendant had not knowingly or willingly participated in the robbery. After extensive Discussion regarding the request, counsel for defendant moved to reopen defendant's case so as to allow Buford to testify on defendant's behalf. Prior to granting the request, the court entered its guilty verdicts as to Buford and Dismukes.

Buford then testified on defendant's behalf that prior to October 27, 1984, he had never discussed any plans to rob Winfield Groceries in defendant's presence; he had never told defendant that he was going to rob the store; and he had never planned with defendant to rob the store. Buford explained that on October 27, 1984, while he was at defendant's house, he suggested that he, defendant, Dismukes, and Williams go for a ride in Williams' car. When they stopped at Winfield Groceries, defendant and ...

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