APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION
536 N.E.2d 1225, 182 Ill. App. 3d 1002, 130 Ill. Dec. 14 1989.IL.208
Appeal from the Circuit Court of Cook County; the Hon. John J. Mannion, Judge, presiding.
JUSTICE WHITE delivered the opinion of the court. FREEMAN, P.J., and McNAMARA, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WHITE
Following a bench trial in the circuit court of Cook County, defendants Willie Earl McBounds and Fred Edwards were convicted of the murder of Ricardo Wright. Defendant McBounds was sentenced to the Illinois Department of Corrections for a term of 38 years, and defendant Edwards was sentenced to a term of 28 years. On appeal, defendant McBounds contends that: (1) the statute under which the only evidence of defendant's guilt was admitted is an unconstitutional legislative encroachment on the rulemaking power of the judiciary; (2) he was denied his constitutional right to confrontation of witnesses against him by the State's use of the prior inconsistent statements of two prosecution witnesses; (3) he was not proved guilty beyond a reasonable doubt where the only evidence against him was untrustworthy; and (4) he was denied a fair trial by the prosecution's improper arguments. Defendant Edwards contends that: (1) the State failed to prove him guilty of murder beyond a reasonable doubt; (2) he was denied his constitutional right to present a defense by the trial Judge's failure to enforce subpoenas for two critical defense witnesses; (3) the State's impeachment of two witnesses with their prior inconsistent statements was improper under Supreme Court Rule 238 (107 Ill. 2d R. 238) and deprived defendant Edward=s of his right to a fair trial; (4) section 115-10.1 of the Code of Criminal Procedure of 1963 (Ill. Rev. Stat. 1985, ch. 38, par. 115-10.1) violates both the Illinois and United States Constitutions; (5) he was denied a fair trial by the prosecutor's improper statements during rebuttal and closing argument; (6) the trial court violated his right to due process by considering his protestation of innocence as a lack of remorse and using it as an aggravating factor in sentencing; (7) his 28-year sentence was excessive in view of his rehabilitative potential; and (8) the trial court acted improperly in allowing the use of prior inconsistent statements of two prosecution witnesses as substantive evidence without a determination of the voluntariness of the statements.
The trial began with the testimony of Frances Poston, the victim's mother, who stated that on July 14, 1985, sometime after 11 p.m. she received a telephone call from defendant McBounds stating that he was not at home, but that he had just heard that her son had been killed and would visit her the next day. Poston stated that defendant McBounds and her son were good friends, and she knew of no problems between them prior to the shooting.
Valerie Barnes, the victim's common law wife, testified that the victim came to her house at around 9:15 p.m. on the night of the shooting and remained there for 20 minutes while his friend Anthony Moore stayed outside in a car. Sometime later Barnes learned that the victim had been shot.
Anthony Moore was the next witness called by the State. Moore was accompanied by his attorney, Steven Stern. Moore claimed that his prior statements to the police and grand jury had been coerced and that he intended to testify contrary to his former statements. Stern stated that Moore would not testify unless he was granted immunity from perjury. The trial Judge advised Moore that a grant of immunity would not cover a charge of perjury and that he would be held in contempt of court if he refused to testify. Moore then testified that on the evening of July 14, 1985, he met the victim and they went to Marilyn Rice's house. While the victim stayed in front of the house, Moore went to the back of the house and fell asleep. Moore stated that the next thing he remembered was Kenny Rice waking him up and telling him that the victim had been shot. Moore went to the front of the house and saw the victim in a pool of blood. After an unsuccessful resuscitation attempt, Moore stated that he went home and informed the victim's brother of the shooting.
Several days later Moore was taken to the police station. He claimed that he was detained for 23 hours, handcuffed to a wall, denied food or the use of a bathroom and was beaten and kicked in the groin, back and legs. Moore claimed that the police also threatened to tell defendants that Moore had given them a statement against them. The police allowed him to leave only after he signed a statement which the police directed him to make. Following this experience, Moore contacted the State's Attorney's office to complain about his treatment at the police station, but his call was never returned.
In his statement to the police, Moore said that on the day of the murder he was talking with the victim in the parking lot by the Rice's house when defendant Edwards called the victim to the area in front of the porch and started arguing with him. Moore overheard Edwards say something about drugs and money and tell the victim that he "blew it." Defendant McBounds then walked up behind defendant Edwards, and as Edwards moved away, the victim also turned to move away but was shot in the back of the head by defendant McBounds.
Moore was later subpoenaed to testify before the grand jury. Prior to his testimony, he was directed to go to the State's Attorney's office. Moore stated that when he arrived, Assistant State's Attorney Beuke left, and Officers Digman and McGuire, who were also present, then hit him in the face and head with a golf club and told him to "put the case on" defendants. Moore stated that his face was red and swollen when he was taken to the grand jury room to testify. He did not tell any member of the State's Attorney's office or grand jurors that he had been beaten, and he testified to facts similar to those in his earlier statement.
Gerald King, the nephew of the victim, was the next witness to testify. He stated that on the day of the shooting, he borrowed the victim's car and drove around Altgeld Gardens, where he saw both defendants shortly before returning the car at 8:30 p.m. King did not report seeing either defendant in Altgeld Gardens to the police or State's Attorney's office until he was questioned shortly before the commencement of trial. He also acknowledged talking to Angela Parker, but denied telling her that he would lie to put defendants in jail.
Anthony King was also the victim's nephew. He testified that about 3:30 p.m. the day after the shooting, he was out with the victim's daughter, Tasha Barnes, when he saw defendant Edwards with a group of men. When Edwards saw them, he pointed and said "[Ain't] that the man's daughter that we killed last night?" King and Barnes left and reported the incident to their parents.
The State's last witness was Rozena Petty. She stated that on the evening of July 13, 1985, she and the victim drove to the forest preserve, drank beer and talked. She was with the victim until 10:30 a.m. the next day, when he brought her home. She went to sleep at 2 p.m. and was awakened by her daughter, who told her that the victim had been shot.
Sometime after the shooting, the police asked Petty to give them a statement. She stated that she was drunk when she was taken to the police station at 9 p.m. and that the police kept her at the station until 11:30 a.m. the next day. Petty testified that she only signed the statement because the police would not allow her to go home to her one-year-old twins, who were unattended, until she signed it. In the statement Petty told the police that she was with the victim at the Rices' house on the evening of July 14, 1985, and that she heard three shots and saw defendant McBounds with a gun. Petty also stated that defendant Edwards was at the scene of the shooting. In her trial testimony, Petty contradicted Gerald King's testimony that he had borrowed the victim's car on the day of the shooting. Petty claimed that the victim would not have allowed anyone else to drive it.
Marva Whitfield testified for the defense that she had known defendant Edwards for more than five years and that he was at her house on the night of the shooting. She stated that defendant received three telephone calls at her house that night; two calls were from his nephew Howard Foreman and one was from Eddie Hudson. All three calls were initially answered by her. She also testified that she and defendant were at her house the entire day, that her car was in front of her house with a flat tire, and that defendant and the victim had been good friends.
Howard Foreman testified that on the night in question he called defendant at Marva Whitfield's house at around 10:10 p.m. to arrange for a ride home. Foreman stated that defendant Edwards answered the phone. According to Foreman, defendant stated that he could not give Foreman a ride because Whitfield had used his car to drive to her mother's house and was not at home. Foreman stated that he called defendant two more times and was told each time that Whitfield had not returned home. Foreman also testified that it was defendant who initially responded to each of his calls.
Dorothy Foreman, defendant Edwards' sister, testified and corroborated Howard Foreman's testimony regarding the telephone calls to defendant. Quintana Cage was the next defense witness to testify. She knew defendant McBounds through her mother, Diane Cage Edinburg, who was defendant McBounds' girlfriend. She also stated that she had known the victim because he was a friend of defendant McBounds. Quintana Cage stated that on the night ...