As to his second issue, defendant argues that the trial court erred in denying his motion for a Franks hearing, in support of which he claims to have made a substantial preliminary showing that Detective Pochardo knowingly made a false statement in his affidavit for both the search warrant and the arrest warrant, which were issued by separate Judges.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
540 N.E.2d 411, 184 Ill. App. 3d 438, 132 Ill. Dec. 671 1989.IL.780
Appeal from the Circuit Court of Cook County; the Hon. Earl Strayhorn, Judge, presiding.
JUSTICE SCARIANO delivered the opinion of the court. EGAN* and HARTMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE SCARIANO
After being indicted for conspiracy and solicitation to commit murder, and murder, defendant James Allen was convicted of the conspiracy and murder charges and was sentenced to natural life imprisonment.
Defendant raises the following issues on appeal: (1) whether the trial court committed reversible error in allowing him only seven peremptory challenges, instead of 14, after he had waived a jury for the death penalty sentencing phase of the trial; (2) whether the trial court erred in denying his motion for a Franks hearing after defendant had made a substantial preliminary showing that the affiant knowingly made a false statement in the affidavit for a warrant; (3) whether he was denied a fair trial because of the court's improper admission of other crimes evidence; (4) whether it was improper to deny defense counsel's motion to withdraw at sentencing and to refuse to appoint other counsel after defendant had filed, pro se, a motion for a new trial alleging ineffective assistance of counsel; and (5) whether defendant's conviction and sentence for conspiracy must be vacated in view of his having been convicted of the principal offense.
Defendant was indicted together with Charles Ashley and Henry Griffin on the above-mentioned charges. Before trial, defendant made a motion to quash arrest and suppress certain statements, alleging the improper issuance of a search warrant, and requested a Franks hearing to determine the veracity of the affiant. The trial court denied defendant a hearing on the motion and ordered that the trials of the three defendants would proceed simultaneously, although separately: two juries were selected to try Griffin and the defendant herein, while Ashley elected to be tried by the Judge. Prior to jury selection, defendant waived a jury for the death sentencing phase of the proceeding, in connection with which the court ruled that the defendant was entitled to only seven peremptory challenges. The jury found him guilty of murder and conspiracy, and the Judge sentenced him to natural life in prison. Defendant now appeals his conviction and sentence.
Three assistant State's Attorneys and six defense counsel participated in the trial, which was conducted before a Judge and two juries in the same courtroom. The testimony of the witnesses established the following.
Neil Cohen, an assistant State's Attorney, took part in Operation Camelot, a coordinated effort to investigate the drug dealings of Charles Ashley, a major drug dealer on Chicago's south side. In furtherance of this investigation, the State's Attorney's office had a number of grand jury subpoenas served on individuals who frequented the area where Ashley's drug operation was extant. The Chicago police department also executed a number of search warrants and two arrest warrants -- one for Ashley and one for Carl Gibson -- on June 14, 1984. After Cohen learned on June 21, 1984, that Gibson had been slain, he met with Sherman Overstreet, who then agreed to testify against Ashley.
John Blackman, a Chicago police officer, discovered Gibson's body on the 73rd Street exit ramp of the Chicago Skyway on June 21, 1984. It was stipulated that Gibson died of multiple gunshot wounds.
Overstreet admitted that he was convicted of murder and of retail theft, that he had multiple charges of delivery of heroin pending against him, and that in exchange for his testimony at trial and for pleading guilty to one of the pending charges, he was sentenced to time served and was relocated. On June 21, 1984, Overstreet was living in an apartment building owned by Ashley, for whom he had worked for the previous nine years as a drug runner, delivering heroin and cocaine. Overstreet knew defendant as being from the area of 65th and Ashland and had seen him with Ashley a few times. On June 10, 1985, Overstreet was living in witness quarters, where he had a conversation with defendant in which defendant told Overstreet that he was first offered a "contract" by Ashley, but when he refused it, Griffin accepted it. Defendant further told Overstreet that he drove the murder car and that he was supposed to have obtained the murder weapons. Defendant and Griffin picked Gibson up at 64th and Maryland, drove to 75th Street, and while defendant waited in the car, Griffin and Gibson went into an apartment. When they returned to the car, Griffin got in the back seat and Gibson got in the front passenger seat. Defendant then began driving southbound on the Skyway, but at the 98th Street toll plaza, he turned the car around and began heading north. At this point, Griffin shot Gibson four times. Defendant left the Skyway at the 73rd Street exit, stopped the car on the exit ramp, jumped out of the car and ran home. Defendant also told Overstreet that he wore tight driving gloves so as not to leave any fingerprints, that he was part of the contract, and that he was angry because he did not receive payment for his participation in the murder.
Darryl Moore worked as an "enforcer" for Ashley for a number of years and knew defendant and Griffin. Moore admitted that he sold drugs, killed people for money, that he had previously been convicted of rape and two robberies, and had an armed robbery charge and a drug case pending against him. In exchange for his testimony, the armed robbery charge was reduced to robbery, for which he received time served; his drug case was dismissed, he was given a grant of immunity on a murder charge, and he was also relocated.
Moore met with Ashley in the latter's grocery store at 65th and Maryland, where Ashley asked him if he would kill Carl Gibson for $200 and three ounces of narcotics. Moore responded that he would do it for $10,000. When Ashley did not react, Moore lowered his price to $5,000, and after Ashley refused, Moore suggested that Griffin might be interested.
On June 20, 1984, Griffin came to Moore's apartment and told Moore that he had a contract from Ashley on Gibson; he asked Moore if he would assist him and Moore refused. On June 21, 1984, Griffin and defendant came to Moore's apartment and there Griffin informed Moore that the contract on Gibson had been easy, that defendant drove the car and that he (Griffin) shot Gibson on the Skyway.
On June 29, 1984, defendant came to Moore's apartment, complaining that he had not been paid for the work he had done for Ashley. Defendant asked Moore if he would help kidnap Ashley and hold him for ransom. After Moore refused, defendant left with two other men who were at Moore's apartment. Moore also admitted that he knew Arthur Stringer, but he denied ever walking down the street with Stringer, seeing the defendant, pointing a finger at defendant and saying, "I'm going to get that nigger if it's the last thing I do."
On August 9, 1984, Moore was taken to the State's Attorney's office, where he made a tape-recorded phone call to Griffin in which the two discussed the disposal of the gun and the car used in the victim's murder. They also discussed how Griffin had been offered the contract and how he and the defendant carried it out. While they were talking, Assistant State's Attorney Cohen was listening on another phone, and police officers from the narcotics division were traveling to Griffin's apartment to arrest him. Griffin was found in the bathroom with the telephone in his hand; Cohen heard him being arrested over the phone.
Defendant and Griffin were both arrested on August 9, 1984, and placed in separate interview rooms. Cohen spoke first with defendant and later with Griffin. After defendant waived his Miranda rights, he informed Cohen that Griffin had approached him and had offered him money if he would help lure someone out of a building to be killed, but that he refused Griffin's offer. Defendant admitted to Cohen that on June 20, he and Griffin drove to 93rd and Stony Island, where Griffin left the car to get the victim, Carl Gibson. When returned, defendant was in the driver's seat; Gibson got in the front seat and Griffin sat in the back.
Defendant related to Cohen that he drove onto the Skyway southbound but turned around at the toll plaza and went north. Before he exited at 73rd Street, defendant heard three or four shots and saw Gibson slump forward. He drove halfway down the exit ramp, stopped the car, and when he jumped out, Griffin got out and pointed a gun at him. Defendant ran away and went home. Defendant told Cohen that fear prevented him from going to the police.
On cross-examination, Cohen testified that the defendant had stated that he did not know that Griffin was going to shoot Carl Gibson, that Ashley and Gibson forced him to put his fingerprints on a murder weapon later used to kill a man named "Doc" who ran a drug store in Ashley's neighborhood, and that Ashley threatened defendant and defendant's family, warning him not to incriminate Ashley in the Gibson murder.
For the defense, Arthur Stringer, after acknowledging that he had been convicted of armed robbery and murder and was currently imprisoned for a parole violation, testified that in mid-1983, he was with Moore when they saw defendant cross the street. Moore pointed at defendant and told Stringer that defendant had embarrassed him once and that he would get even with him if he had the chance. In August of 1984, Moore told Stringer that he had recently gotten out ...