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04/27/89 the People of the State of v. Gill O. Bailey

April 27, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

GILL O. BAILEY, DEFENDANT-APPELLANT



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

538 N.E.2d 718, 182 Ill. App. 3d 867, 131 Ill. Dec. 343 1989.IL.610

Appeal from the Circuit Court of Cook County; the Hon. Christy Berkos, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. LINN, J., concurs. PRESIDING JUSTICE JIGANTI, Dissenting.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

Following a jury trial, defendant was convicted of murder and attempted armed robbery and was sentenced to 40 years' imprisonment on the murder conviction. On appeal, defendant argues that he should receive a new trial because: (1) the trial court should have granted him a separate trial from his codefendant, Henry Harris, on the grounds that the defendants would present antagonistic defenses and would be prejudiced by admission into evidence of their pretrial inculpatory statements; (2) the trial court accorded defendant only eight peremptory challenges even though defendant was allegedly entitled to 14 peremptory challenges; (3) the trial court improperly denied defendant's pretrial motion to waive a sentencing jury and thereafter improperly permitted the State to death-qualify the jury; and (4) the trial court erroneously admitted into evidence an Olde English beer bottle found near the scene of the crime, and also permitted the arresting officer to testify regarding his prior "street stops" of defendant. Defendant also asserts that his attempted armed robbery conviction should be reversed because the evidence was insufficient to prove him guilty of this crime.

Because we conclude that antagonisms in the two defendants' inculpatory statements and trial strategies deprived defendant of a fair trial, we reverse and remand.

Defendant was convicted of the murder and attempted armed robbery of Nathaniel Jakes on September 23, 1983, at approximately 9 p.m. in Chicago. Evidence produced at trial established that the victim had been shot twice, once in the head and once in the chest, and that he died as a result of his chest wound. At the time of the shooting, the victim had opened his garage door in order to park his automobile in the garage, which opened into an alley. An eyewitness to the shooting, who was in the alley at the time, identified defendant in a photographic array, a police showup, and at trial as the man whom the eyewitness saw shoot the victim twice while standing near the victim's garage.

Chicago police officers arrested defendant a few days after the incident. In subsequent interrogation, defendant admitted that he and Henry Harris, his co-defendant at trial, had planned to rob the victim. In his oral and court-reported confession, defendant placed blame for planning the crime upon Harris and stated that Harris had given him the gun prior to the incident and assured him the weapon was not loaded. Defendant stated that during the incident, the gun went off accidentally, firing one shot that hit the victim in the leg. Defendant said that he then dropped the weapon and fled. As he ran away, defendant heard the firing of a second gunshot.

The eyewitness to the shooting testified that he saw defendant fire two shots at the victim, hitting the victim both times. The eyewitness did not see a second assailant. The witness stated that defendant then fled the scene, falling in the alley as he fled. When arrested, defendant had cuts and bruises consistent with having recently fallen in the alley.

Henry Harris, the codefendant, told police in an oral inculpatory statement following his arrest that defendant had planned and initiated the robbery, that defendant shot the victim twice, and that both of them then fled the scene. Harris' trial strategy was that defendant had wrongfully accused Harris of participation in the attempted armed robbery and that defendant had wrongfully implied that it was Harris, rather than defendant himself, who had shot and killed the victim. Defendant presented the defense of alibi at trial, claiming that he had been at a friend's party during the entire period when the incident occurred.

Harris was acquitted of murder and attempted armed robbery. Defendant was convicted and sentenced as previously noted, and now appeals.

Defendant argues first that he should be granted a new trial because the trial Judge should have severed his trial from that of Harris, his codefendant. Defendant asserts that severance was appropriate because: (1) he was prejudiced by Harris' antagonistic defense and trial strategy; and (2) he was also prejudiced by the erroneous admission into evidence of Harris' inculpatory statement, which defendant could not subject to cross-examination because Harris did not testify at trial. (See, e.g., People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349 (antagonistic defenses); Lee v. Illinois (1987), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423 (prejudicial inculpatory statements of a codefendant).) We agree. It is clear that the two defendants' trial strategies were antagonistic, as were their inculpatory statements.

In his oral and written statements, defendant told authorities that the robbery had been Harris' idea, that Harris had given the weapon to defendant to act as a lookout, and that Harris assured the defendant the gun was not loaded. Defendant stated that during Harris' attempt to rob the victim, the gun defendant was holding went off accidentally, hitting the victim once in the leg. Defendant stated that he then dropped the weapon and ran away; while running, defendant heard a second shot fired. Thus, defendant's statements clearly imply that it was Harris who, after defendant ran away, picked up the gun and fired the second shot that caused the victim's death. ...


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