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01/31/89 the People of the State of v. Kermit Leaks

January 31, 1989





534 N.E.2d 491, 179 Ill. App. 3d 231, 128 Ill. Dec. 309 1989.IL.97

Appeal from the Circuit Court of Cook County; the Hon. James J. Heyda, Judge, presiding.


JUSTICE SCARIANO delivered the opinion of the court. HARTMAN and BILANDIC, JJ., concur.


After being charged with murder (Ill. Rev. Stat. 1983, ch. 38, pars. 9-1(a)(1), (a)(2)) and armed violence (Ill. Rev. Stat. 1983, ch. 38, par. 33A-2), defendant Kermit Leaks was tried by a jury, found guilty of the included offense of voluntary manslaughter (Ill. Rev. Stat. 1983, ch. 38, par. 9-2) and sentenced to a term of eight years' imprisonment.

Defendant raises the following issues on appeal: (1) whether the trial court erred in admitting evidence of other crimes alleged to have been committed by him, (2) whether the trial court erred in instructing the jury concerning the proof of other-crimes evidence and for failing to admonish the jury of its limited admissibility at the time it was received at trial, (3) whether the prosecutor denied defendant his right to a fair trial by displaying a prior armed robbery file of defendant while questioning him on cross-examination, (4) whether the prosecutor denied defendant his right to a fair trial by attempting to bolster the credibility of a key prosecution witness, and (5) whether defendant was proved guilty of voluntary manslaughter beyond a reasonable doubt. The following are the facts of the case as contained in the record.

On October 20, 1985, in the City of Chicago, defendant shot Ellison Jordan, also known as Flynn, who died a short time later. He was thereafter charged with murder and armed violence.

Starla Whitmore testified at trial that at about 8:30 a.m. on October 20, 1985, she took a .45 caliber semi-automatic pistol that she had stolen from her sister's house to Jordan's residence for the purpose of selling it. When she arrived at his home, she gave the gun to Jordan, who took the clip out and handed it to her. She testified that after she took the six bullets out of the clip and counted them, she put them back into the clip and returned it to Jordan. He placed the clip in his pocket, put the gun in the back of his waistband, and put on a jacket which covered the gun.

Whitmore and Jordan then left Jordan's home and walked across the street to his father's house. While standing on the porch there, Whitmore noticed a small green car driving at a speed slower than that of the other cars. When no one answered at the door, Whitmore and Jordan proceeded down an alley toward Hoyne Avenue where they saw Kermit Leaks. Whitmore stated that Leaks had jumped out from behind a fence and shot twice. Jordan backed away, but Leaks went after him, shooting three or four more times. Jordan fell to the ground after the first two shots and did not pull the gun from his waistband until Leaks had finished shooting. Jordan then began to shoot at Leaks as Leaks was running away. Whitmore helped Jordan get up and walk through a vacant lot toward Washburn Avenue, where he collapsed.

The defendant's version of the events of that day differed from Whitmore's. He testified that he went over to see his girlfriend, Yolanda Stewart, and that as a result of two previous incidents in which he had been shot, he was frightened about entering the neighborhood. He therefore asked a friend for a gun, which he took with him. According to Leaks, as he was walking across the vacant lot to Yolanda's house, he saw Jordan walking toward him. When Jordan saw him, he shot at and wounded Leaks. Leaks turned around, ran, and fell down, causing the gun to come out of his waistband. Leaks then shot at Jordan, who continued to shoot back at him. Leaks stated that he threw the gun away because he was afraid the police would shoot him if they saw a gun in his hands. Leaks was taken to the hospital where he was interviewed by the police.

Leaks further testified about an incident which occurred in 1984 when he was shot by Jordan and required hospitalization. He also stated that he had previously been told of threats against his life by Jordan.

Police officer James Petrauskus testified that when he arrived on the scene, he saw Whitmore take the gun out of Jordan's hand and try to hide it in her waistband. The officer took the gun from her and found it was empty. Petrauskus observed two bullet wounds in each thigh and two in the chest area and called for medical assistance for Jordan.

Officer James Stingily arrived on Washburn Avenue, one block north of where Petrauskus was, heard multiple gunshots, and observed Leaks running around the corner into Roosevelt Road, and pitching a weapon over a fence into some shrubbery. After Leaks was taken into custody, Stingily recovered the weapon and discovered that all six bullets had been fired. Leaks was then taken to Cook County Hospital.

Detective Golab testified that when he went to the hospital to talk to Jordan, Jordan told him, "Kermit shot me." Golab further testified that in December of 1984 he investigated an incident involving the shooting of Leaks by Jordan. Golab related that Leaks at that time stated that he had robbed Jordan the day before Jordan shot him, that he did not wish to prosecute Jordan, and that "[he] was going to take care of it himself." On cross-examination Golab said that he did not include this last statement in his report because, since Leaks did not want to prosecute, it was not relevant.

In addition to the defendant's testimony, the defense called Officer Jim Sanders, who testified that he was the evidence technician who processed the scene of the occurrence, and that he found five .45 caliber shell casings scattered over a four- to five-foot area in the lot. Another defense witness, Officer Richard Chenow, employed in the firearms identification unit of the Chicago police department, testified that a .45 caliber automatic weapon would not be ready to fire upon putting a clip into it unless there was already a round in the chamber. Chenow further stated that it would be difficult to load and fire such a gun if one were lying prone on the ground while propped up on one hand.

Yolanda Stewart, who was seven months pregnant with Leaks' child at the time of the shooting, testified that she lived two doors from the vacant lot where the shooting took place. The night before the shooting Leaks had called her to arrange to stop over the next day. Stewart also stated that Tim Leaks, defendant's brother, owned a green Nova at the time of the shooting.

Following closing arguments, jury instructions, and deliberations, the jury found the defendant guilty of voluntary manslaughter. I

The defendant first argues that he was prejudiced at trial by the admission of evidence of prior crimes. The evidence complained of consisted of the testimony, as previously noted, of Detective Golab that Leaks had robbed Jordan on November 25, 1984, that on the following day Jordan shot Leaks, and that Leaks refused to prosecute Jordan for the shooting and said he would "take care of it himself." Prior to the commencement of the trial, defense counsel made a motion in limine to preclude the admission of any evidence as to prior crimes except as to the robbery, but the motion was denied.

Defendant contends that the court was confused concerning the admissibility of other crimes and points to several statements by the Judge which he claims support his contention. At the hearing held on Leaks' motion in limine the court said in pertinent part:

"Okay. I am going to allow it to come in. Proof of motive, the motive here, I believe, is gang retaliation because of what happened on the prior occasion. It shows an ongoing escalation of a situation. This is further shown when the defendant refused to prosecute when he is the victim. He is going to settle it his way.

The defendant is going to claim self-defense. The jury is the trier of the facts. They should have all the evidence before them as to what defendant's actual intent was.

. . . I think it also goes in relation to plan. . . . I also believe as I indicated before, it goes in to show identity, to show the absence of mistake in identification. . . . I believe that it goes in to show who the aggressor was."

Defendant emphasizes that the Judge mentioned gang retaliation despite the fact that neither side had suggested this was a gang-related incident. We note, however, that the reference to a gang was made only in the colloquy held at the hearing on defendant's motion in limine, which took place, of course, out of the hearing and presence of the jury; accordingly, we fail to perceive that defendant could have been prejudiced thereby. Moreover, although the Judge gave several reasons for allowing the evidence of other crimes to be admitted, it does not appear at all to have been done as a result of his being confused. The defendant wanted to use the shooting incident of November 1984 to show his own state of mind, but at the same time he insisted upon excluding any mention of the alleged robbery of the day before. As the Judge reasoned:

"I don't see how the defendant could commit a crime and state [ sic ] and start a chain of events and use a portion of that chain of events as a sword and prevent the State from using the start of that chain of events as a shield. That would be patently unfair.

Here also the two crimes of November 26th, 1984 and November 25th, 1984 are intermittently related to each other. When the defendant talked about one, he talks about the other. When he refuses to prosecute on the November 26th incident, he gives as a reason the November 25th incident. I believe it goes in."

The decision whether to admit other-crimes evidence is within the sound discretion of the trial court. (People v. Lieberman (1982), 107 Ill. App. 3d 949, 955, 438 N.E.2d 516, appeal denied (1982), 91 Ill. 2d 576.) As our supreme court stated in People v. McKibbins (1983), 96 Ill. 2d 176, 449 N.E.2d 821, cert. denied (1983), 464 U.S. 844, 78 L. Ed. 2d 136, 104 S. Ct. 145:

"Generally, evidence of other crimes is inadmissible if relevant merely to establish the defendant's propensity to commit crime. [Citation.] Evidence of the commission of other crimes is admissible, however, when such evidence is relevant to prove modus operandi, intent, identity, motive, or absence of mistake. [Citations.] In fact, this court has held that evidence of other offenses is admissible if it is ...

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