Before trial, Hayes' attorney contended that he expected Collins' testimony and defense would be the same as his pretrial statement. This was antagonistic to his defense because he did not shoot at or kill McKeever. He further argued at trial that he would repudiate his out-of-court statement and present evidence that Collins and Pinex had threatened him, that Collins was responsible for planning the murder, and that Pinex had killed McKeever. During the trial, on direct and cross-examination, Hayes' defense remained consistent with the details outlined in the pretrial severance motion.
APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
541 N.E.2d 1308, 186 Ill. App. 3d 35, 133 Ill. Dec. 870
Appeal from the Circuit Court of Cook County; the Hon. Francis J. Mahon, Judge, presiding. 1989.IL.1060
PRESIDING JUSTICE MANNING delivered the opinion of the court. CAMPBELL and BUCKLEY, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE MANNING
The defendants, Jeffrey Collins (Collins) and Samuel Hayes (Hayes), were jointly indicted for the August 4, 1982, murder of Eddie McKeever (McKeever). Prior to trial, both defendants requested severance on the basis of antagonistic defenses and other forms of prejudice. Both motions were denied after a ruling by the trial court that Hayes' statement would be redacted to eliminate any references to Collins. A jury trial followed. After the first few State witnesses testified, Collins moved for a mistrial due to the denial of the motion for severance on the basis of antagonistic defenses, and Hayes joined in the motion. The motion was denied. The jury found both Collins and Hayes guilty of McKeever's murder, and the court sentenced them to 40 years' imprisonment. Both defendants appeal, and their appeals have been consolidated for review.
On appeal, both defendants argue that the trial court abused its discretion in denying their motions for severance based on antagonistic defenses. The defendant Collins also contends that the trial court committed reversible error when it barred his cross-examination of the assistant State's Attorney who took Hayes' statement. The defendant Hayes additionally argues: (1) the trial court violated his sixth amendment right of face-to-face confrontation in allowing the statement of his non-testifying co-defendant to be admitted at trial; (2) he was denied a fair trial because he was not allowed to testify about prior threats and acts of violence against him by Collins and Alfonso Pinex (Pinex); and (3) the case should be remanded for a hearing to determine if the prosecutor purposefully excluded jurors on the basis of race.
Prior to trial both defendants executed jury waivers for any potential death penalty sentencing hearings. Thereafter, a jury was selected. Fifty-six prospective jurors were questioned; four jurors challenged by the State were black; two jurors challenged by the defendants were black, and two jurors excused for cause were black. The final racial composition of the sworn jury included three black jurors and one black alternate.
During opening statements, each defense counsel argued that the codefendant and/or Pinex were the killer(s) of McKeever and not his respective client.
Next, Deborah Knox testified that she was with the victim during the late evening hours of August 3, 1982. McKeever offered to get chicken from Harold's Chicken Shack and then rode his bicycle a few blocks away to Harold's Chicken Shack. She testified that about 30 to 45 minutes later, she heard three gunshots, then a pause, then one more gunshot -- all appearing to come from the same direction McKeever had gone.
The State then established that McKeever was shot at the corner of 90th and Ashland at about 12:30 a.m., on August 4, 1982. Thereafter, various State witnesses testified that the victim died of multiple gunshot wounds, that three bullets recovered from McKeever's body were probably fired from the same .32 caliber firearm, and there was a through-and-through bullet to his chin.
Next, Assistant State's Attorney Tom Roche testified that on June 6, 1985, Collins gave him a written and tape-recorded statement. The court allowed the witness to publish the statement and play the tape to the jury. Collins' statement indicated the following scenario of events. On August 4, 1982, he was driving his sister's car. Pinex, Mark Pollet and Hayes were passengers in the car with him. As he parked the car to go to the liquor store, Collins and his passengers saw McKeever riding his bike with a bag of Harold's chicken. Hayes and Pinex got out of the car, and Pinex kicked McKeever off the bike. Collins saw Pinex and Hayes shoot McKeever about five or six times. They ran back to the car, and he drove to a park and dropped off Pinex and Hayes. Collins and Pollett then drove off.
Assistant State's Attorney James Bigoness testified that he first spoke to Hayes on June 3, 1985. On the following day, he obtained a written statement from Hayes which was substantially similar to his oral remarks. Hayes' redacted court-reported statement was published to the jury.
In the statement, Hayes said that on the afternoon of August 3, 1982, he attended a Disciples gang meeting in the basement of the home of Pinex, where a group of 50 to 55 discussed various matters, including shooting McKeever. He also stated that McKeever was a member of a rival gang -- the Blackstones. At that time, he had a loaded .22 caliber and a loaded .38 caliber gun with him. After the meeting at Pinex's request, Hayes went to the store at which he worked to look for bullets. Later that evening, Hayes entered a car in the vicinity of 90th and Ashland Streets with Pinex, Collins and Mark Pollet. Collins was driving. They drove around for a while, went to a club, and drove around some more. They spotted McKeever on his bike near 91st and Ashland, drove ahead of him, and turned the corner. Pinex got out of the car, hid behind a wall, and fired four or five shots at McKeever as he appeared around the corner. Hayes stated he stepped out of the car and fired his .22 caliber once at McKeever's face. They got back into the car and drove off. The out-of-court statements of Collins and Hayes were very similar except for the following differences. Collins had stated he was driving to the liquor store when Pinex and Hayes spotted McKeever, got out of the car, knocked him off the bike and fired shots at him. Hayes had stated the group was looking for some Stones to beat up when Mark Pollet spotted McKeever. Pinex got out of the car, hid behind a wall and shot four or five times at McKeever with a .32 caliber gun as he appeared around the corner. Hayes then stepped out of the car with one foot and fired again, aiming the .22 caliber gun at the victim's face.
The court allowed Hayes' counsel to cross-examine Assistant State's Attorney Bigoness. However, after a sidebar, the court refused to allow counsel for Collins to cross-examine Bigoness, ruling the questions counsel intended to ...