APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
533 N.E.2d 463, 178 Ill. App. 3d 531, 127 Ill. Dec. 591 1988.IL.1933
Appeal from the Circuit Court of Cook County; the Hon. Michael B. Getty, Judge, presiding.
JUSTICE QUINLAN delivered the opinion of the court. MANNING and O'CONNOR, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE QUINLAN
The defendant, George Moore, was charged with armed violence and with the murder of Jerry Battle. Following a jury trial in the circuit court of Cook County, the defendant was found guilty of murder. The trial Judge denied defendant's post-trial motions and sentenced him to 40 years' imprisonment. Defendant then appealed his conviction and sentence to this court.
Jerry Battle, the victim, was shot on October 18, 1985, in the lobby of a 14-floor Chicago Housing Authority apartment building located at 2417 W. Adams. The victim's friends drove him to Cook County Hospital, where he later died. Three months after the shooting, the defendant was arrested and charged with murder.
At defendant's trial, Officer Bolling, a Chicago police officer, testified that he was on duty on October 18, 1985. He received a radio message at approximately 3:30 p.m. saying that a man had been shot at 2417 W. Adams. He drove to the apartment building and discovered that the victim had been taken to Cook County Hospital. Officer Bolling then proceeded to the hospital, where he questioned the witnesses to the shooting. Based on his interviews, Bolling was able to get a description of the shooter. He was described as a black male, 6 feet to 6 feet 1 inch tall, weighing 160 to 170 pounds, who wore a cowboy hat and went by the nickname "Duke."
David Haywood then testified for the State that he was in the lobby of 2417 W. Adams on October 18, 1985, at 3 p.m. He saw the defendant, George Moore, whom he also knew as "the Duke," arguing with the victim. The defendant was wearing jeans, a vest, and a cowboy hat. Haywood heard the victim say, "Go on man, I don't want to fight you." The defendant then walked a few steps, turned around and said, "I'm the Duke nigger," pulled out a shotgun, shot the victim, and ran. As Haywood, Kevin Chester and Jackie Davis started to lift the victim into a car, the defendant returned and reloaded his shotgun, so they dropped the victim and ran. When the defendant ran away a second time, Haywood and the others put the victim in a car and drove him to Cook County Hospital.
Haywood testified that he talked to Officer Bolling at Cook County Hospital and told Bolling, and later told some other detectives, that the Duke was the one who shot the victim. On cross-examination, Haywood admitted that he did not initially tell Bolling that he was an eyewitness to the shooting, but explained that this was because he was afraid the Duke would come after him.
Jillian McLaughlin was the next witness to testify for the State. She said that she was a violent crimes detective and was on duty on October 18, 1985. At approximately 5 p.m., she was sent to Cook County Hospital to investigate the Battle homicide. She interviewed David Haywood at the hospital, who told her that he witnessed the shooting, but was afraid to say who or what he had seen. On cross-examination, McLaughlin testified that although Haywood told her that he witnessed the shooting, she did not put this statement in her report because Haywood asked her not to record his statement until the killer was arrested. McLaughlin testified that she catalogued Haywood's statement in her mind and never wrote it down.
Following McLaughlin's testimony, defense counsel moved for a dismissal, alleging a discovery violation. The defense stated that he never received any reports indicating that Haywood was an eyewitness. The State argued that defense counsel knew Haywood was present at the shooting, thus he could infer that Haywood was an eyewitness. Moreover, the State did not even learn that McLaughlin knew Haywood was an eyewitness until it was about to put her on the stand.
The trial Judge denied the motion for dismissal. However, the Judge stated that he would grant a motion for mistrial and would immediately begin picking another jury, if the defense wanted to make the motion. Defense counsel then conferred with the defendant and explained what declaring a mistrial might mean to his case. The defense decided to continue the trial.
The next witness for the State was Helen Richardson, the victim's niece. She testified that on October 18, 1985, at approximately 2:30 p.m., she was on the back porch of 2347 W. Adams, a building located across the street from the site of the shooting. She went to the store, and on her way saw the victim arguing with the defendant. She returned to 2347 W. Adams, and at approximately 3 p.m., she heard a gunshot. She looked across the street and saw the defendant run past her wearing blue jeans and a vest, and carrying a cowboy hat. On cross-examination, Richardson stated that she never saw the defendant with a shotgun and she did not see the defendant shoot the victim.
Jackie Davis also testified for the State as an eyewitness. He was in the lobby of 2417 W. Adams on October 18, 1985, when the shooting occurred. He heard the victim and the defendant arguing. The victim said, "Go on, man. I got enough on my mind already. "The defendant replied, "I am the Duke nigger," raised his shotgun, and shot the victim from six feet away, before running off. Davis, Haywood and Kevin Chester then picked the victim up and began walking toward Davis' car. The defendant returned, so they put the victim back down on the sidewalk and ran. When the defendant left the second time, they took the victim to the hospital.
At the hospital, Davis talked with several police officers, but denied seeing anything because he was scared. Approximately one week after the shooting, he talked to detectives and told them what happened. A month later, Davis went to the police station to look at photographs and identified the defendant as the killer. He also ...