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06/29/89 the People of the State of v. Nunn Et Al.

June 29, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

IGUSTER NUNN ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

541 N.E.2d 182, 184 Ill. App. 3d 253, 133 Ill. Dec. 345 1989.IL.1038

Appeal from the Circuit Court of Cook County; the Hon. Dwight McKay, Judge, presiding.

APPELLATE Judges:

JUSTICE McMORROW delivered the opinion of the court. JIGANTI, P.J., and LINN, J., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MCMORROW

None of the defendants testified at their joint trial, and each requested a separate trial on the grounds that (1) each had made inculpatory post-arrest statements also implicating the other defendants which would be admitted into evidence at trial; and (2) various defendants intended to present antagonistic defenses. We find harmless beyond a reasonable doubt the trial court's denial of defendants' motions for separate trials. We further find no abuse of discretion in the trial court's refusal to pose to prospective jurors a question suggested by defendants which asked, in substance, if a defendant's mere presence at the crime scene would create a presumption of the defendant's guilt in the minds of the jurors. We also find no reversible error in the trial court's exclusion of the testimony of a People's witness that he heard an unidentified person declare during the incident that "he" had struck "him" in the mouth.

We determine that the State did not wilfully fail to disclose a tape recording to the defense, since the tape recording requested by the defendants was inadvertently erased prior to the court's order that the recording be preserved. We further conclude that the defendants were not prejudiced by a tardy disclosure of a disciplinary file regarding a State's witness, since the disciplinary file in question contained no pertinent material relevant to the credibility or impeachment of the State's witness to whom the file pertained. We also find no reversible error in certain remarks made by the State during closing argument.

Although it was proper to instruct the jury with respect to defendant Collier regarding voluntary manslaughter based on a belief in self-defense, we find the trial court properly declined to instruct the jury, with respect to defendant Collier, on voluntary manslaughter caused by sudden provocation. We further determine that the record supports the trial court's Conclusion that the inculpatory statements of defendants William Sewell and Byron Reed were voluntary, and their statements were therefore properly admitted at trial with respect to each of them individually. We also find that the assistant public defender representing William Sewell at trial was not laboring under a conflict of interest.

Accordingly, we affirm the conviction of Byron Reed. Because the seven remaining defendants, who were tried by a jury, maintain that the State exercised its peremptory challenges in a racially discriminatory fashion, we remand the matter to the trial court for a hearing pursuant to Batson v. Kentucky (1986), 476 U.S. 79, 90 L. Ed. 2d 69, 106 S. Ct. 1712, for these defendants. The convictions of these seven remaining defendants are otherwise affirmed.

BACKGROUND

On September 7, 1983, at approximately 8:30 p.m., LeAnne Harvey (Harvey), who lived at 160th and Wood Street in Harvey, Illinois, looked into the weedy lot immediately adjacent to her home. She saw a slender young male pulling on another male subject in an apparent attempt to get him to leave the area. James Perryman (Perryman), who lived nearby, was in his home and heard some commotion on the street. He went out to the sidewalk and saw three young men walking in one direction and another man going in the other direction down the street. This latter individual was carrying something in his hand that was about 2 or 2 1/2 feet long.

Paulette Nesbit (Nesbit) was driving north on Wood Street at approximately the same time. As she approached the area, she noticed about two people running across Wood Street. As she got closer, three more people ran across the street and caught up to the first group. A few of them were carrying sticks or something of that nature. Nesbit circled the block and drove back past the same vicinity. At this time, the group appeared to be fighting or scuffling. She drove beyond the scene, turned around, and drove back again. As she started back, she saw an individual leaving the scene. The person appeared to have a pipe about 2 1/2 feet long and was wearing shorts. Nesbit again turned around and drove back toward the scene. She then saw three other persons walking down the street in the opposite direction from that of the individual she had seen previously with a pipe.

Harvey, Perryman, and Nesbit met on the street in the vicinity of the occurrence. They walked down the street and found John Thomas, unconscious and badly injured, lying in the field next to Harvey's residence. An officer of the Harvey police department was called to the scene. He found the bottom half of a wooden cane lying on Thomas' back; Thomas' pants pockets were turned inside out. A piece of chain about three feet long and the top portion of a wooden cane were found nearby. Thomas died from his wounds shortly thereafter. Forensic evidence indicated that he had sustained severe and multiple internal injuries, particularly to the head and left lung.

Police investigation ultimately led to the arrests of the eight defendants. Each of the defendants was initially questioned by Officer Newton of the Harvey police department, and each gave an oral inculpatory statement to the police officer regarding his involvement in the crime. After Officer Newton concluded his interrogations of the defendants, Assistant State's Attorney Burns of the Cook County State's Attorney office interviewed each defendant. Each defendant made statements regarding his participation in the crime to Assistant State's Attorney Burns. All of the statements made to Officer Newton and Assistant State's Attorney Burns were oral and none of the statements was reduced to writing. Testimony of Officer Newton and Assistant State's Attorney Burns regarding each of the defendant's statements was as follows.

LEONARD COLLIER

Officer Newton testified that when he first interviewed Leonard Collier (Collier), Collier said that he knew nothing of the incident at all. Newton told Collier that he had been informed that Collier was involved. Newton asked Collier if his tooth was hurting on the left-hand side and if he could look at it. Newton noticed some small swelling around the gum area. Collier then told Newton that he had been involved in the incident and that he had been walking north on Wood Street with the seven other defendants. They had been following an older gentleman. This individual thought that Collier was following him too closely, because the man turned around and hit Collier in the jaw. After the man hit him in the jaw, the others ran up and began beating on the man. Collier said he never touched the man.

At a later interview, Collier told Officer Newton that he would recount what had actually happened on the night in question. He stated that as he was walking north he saw an older man walking in the same direction in front of him. Collier ran up, tackled the man, and knocked him down. The man hit Collier in the jaw, hurting Collier's abscessed tooth. At this point the seven other defendants ran up and began beating on the subject. Collier said that he hit the victim twice in the stomach and several times on the legs, and saw the others using their hands and feet to also strike the victim. Collier also stated that he did not have any weapons in his possession. He saw Leonard Thomas use a pipe upon the victim, Paul Thomas use a chain, and Gregory Young use a cane. Collier said he found $2 lying on the ground next to the victim's body, picked it up and used it to buy beer at the liquor store. Collier took the beer back to the Thomas residence and shared it with the others.

Assistant State's Attorney Burns stated that Collier told him the following. As the group was walking towards 159th Street, Collier thought he recognized a man who once jumped him. He ran up to this person, who was not doing anything, and tackled him. All of the others ran up to where Collier was and began striking the person. Collier then said that because it was so dark outside at the time, he could not see the person's face and had no idea who it was. Collier related that he hit the victim in the stomach with his fist and kicked him in the legs. He also said he took $2 from the victim. Collier identified the chain recovered from the scene as the one he wore around his neck that night.

GREGORY YOUNG

Officer Newton testified that Gregory Young said he was at the Thomas residence with the other seven defendants. They decided to buy some beer and started to walk to a liquor store. They walked north on Wood Street. Collier, who was walking ahead of the group, suddenly ran up and jumped on an older man who was walking ahead of them. Gregory Young and the others ran up to see if they could give some assistance and began beating on the individual who was fighting with Collier. Gregory Young said he had a cane and hit the victim on the ground once with the cane. The cane broke and Gregory Young left it there. During the struggle, Gregory Young had to pull Collier off the man after the man became unconscious. Gregory Young then saw Collier go into the man's pocket and take money. They bought some more beer and went back to the Thomas residence.

Assistant State's Attorney Burns testified to the following regarding Gregory Young's statement of the incident. Gregory Young said that it was around 8:15 p.m. and he was at the Thomas residence. Gregory Young and the other seven defendants left the Thomas home and began walking down Wood Street. Collier was walking alone ahead of the group. Gregory Young saw a man walking along who was not part of the group. He saw Collier break away, run toward the individual, and tackle the person. When this happened, the rest of the group ran to where Collier and the person were scuffling and began to strike and beat the individual. Burns asked if he had also hit the man, and Gregory Young said that he had. Gregory Young's father then interjected, saying that he would prefer that his son speak to a lawyer before answering any more questions. Gregory Young agreed, and the interview was terminated.

PARIS LEE NUNN

Officer Newton testified that when first questioned, Paris Nunn indicated he knew nothing about the incident. Later, Paris Nunn admitted that he had been at the Thomas residence on Wood Street, that he left with the other seven individuals, and that they walked north on Wood Street. Paris Nunn saw Collier run up behind an older man who was walking ahead of them. Collier jumped on the man from behind, knocking him down into some bushes. When this happened, the rest of the group, including Paris Nunn, then ran across to where the scuffle was taking place and began beating on the ...


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