APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION
530 N.E.2d 1155, 176 Ill. App. 3d 197, 125 Ill. Dec. 746 1988.IL.1640
Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.
PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and JOHNSON, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI
The defendant, Preston Adams, along with co-defendants Lindsay Cannon and Andre Johnson were jointly indicted on charges of murder and conspiracy to commit murder. Prior to trial, Preston Adams moved for severance. This motion was denied. Following a jury trial, Preston Adams and co-defendant Andre Johnson were found guilty of conspiracy to commit murder and not guilty of murder. Co-defendant Cannon was found guilty of both murder and conspiracy to commit murder.
On appeal, the defendant Preston Adams argues: (1) that the trial court erred in failing to sever the trial; and (2) that the trial court erred in refusing to give a tendered jury instruction on withdrawal.
At trial, the State's evidence essentially consisted of signed court-reported statements made by Adams, Cannon and Johnson, who were all members of a street gang called the Disciples. Adams' statement established the following.
On October 6, 1984, Adams met Cannon and Johnson at the house of a man named Archie Adams. They talked about going to a residential building at 2051 West Lake Street. Preston Adams characterized 2051 West Lake Street as the "Vice Lords building" and stated that they were going there to "get some Vice Lords who had shot at them earlier" that day.
That evening, Adams, Cannon and Johnson went to 2051 West Lake Street. Adams carried a .38 caliber revolver, Cannon carried a .22 caliber rifle, and Johnson carried an umbrella. When they got inside the building, Adams and Johnson separated from Lindsay Cannon. After looking around and not finding "the guys who had shot at us earlier," Adams and Johnson left the building. Once outside the building, they got into an argument because Johnson wanted the gun to go back inside the building. As Johnson raised the umbrella to attack Adams, Lindsay Cannon, who had just come out of the building, came in between them and kept them apart. Seconds later, someone yelled, "Vice Lords" and started shooting at the three of them. Adams and Cannon "both turned around and returned fire." Adams fired five shots with the .38 caliber gun which he carried. After returning fire, all of them ran to another building.
The court-reported statements of Cannon and Johnson gave the same account of the events of October 6, 1984, except for one discrepancy. Adams stated that they went to 2051 West Lake Street to "get some Vice Lords who had shot at them earlier" that day. Later in his statement, Adams stated that they were looking for "the guys who had shot at us" earlier. In his court-reported statement, Cannon stated that they went to 2051 West Lake Street to "get even with some boys that shot at [Adams] during the day." Johnson also stated that a member of the Vice Lords shot at Adams earlier that day.
Undisputed testimony at trial established that one of the shots fired by Cannon's gun fatally wounded Edward Barrow, who was on his way to visit his mother in the 2051 West Lake Street building. Barrow was not a member of any gangs.
Adams was the only defendant to testify at trial. On direct examination, Adams stated that not all of his court-reported statement was true. Adams testified that on October 6, 1984, he was standing outside his girlfriend's apartment when Cannon and Johnson approached him. Johnson told him they were going to 2051 West Lake Street because someone owed him money. Cannon was "hunching on me and everything" and when Adams saw the .22 caliber rifle which Cannon was carrying, Adams got the impression that if he did not go with them something might happen to him.
Adams also denied on direct examination that he possessed or fired a .38 caliber revolver at 2051 West Lake Street. However, on cross-examination, he admitted that he fired five shots with the .38 ...