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07/28/89 the People of the State of v. Enrico Levy

July 28, 1989





542 N.E.2d 930, 186 Ill. App. 3d 842, 134 Ill. Dec. 584 1989.IL.1170

Appeal from the Circuit Court of Cook County; the Hon. Robert J. Steigmann, Judge, presiding.


PRESIDING JUSTICE EGAN delivered the opinion of the court. QUINLAN and LaPORTA, JJ., concur.


The defendant's only assignment of trial error involves proof of another offense. Before trial began, the defendant made a written motion in limine seeking to bar "[a]ny reference to criminal conduct of defendant including references to any drug selling or buying . . . between defendant and witness Anthony Blue." During argument on the motion, the assistant State's Attorney told the court that the evidence would show that the defendant attempted to sell Blue some drugs, that Blue refused and that insulting words were exchanged that led to an altercation between him and the defendant. The court then ruled that it would permit the evidence. We Judge that the State was arguing that it would offer the evidence to show a motive for the crime.

Anthony Blue testified that about 11 p.m. on July 18, 1985, he was standing in a vacant lot near 816 South Cicero Avenue in Chicago with his girlfriend, Tina Preston. The defendant asked if Blue wanted some marijuana, and Blue told him that he did not. The defendant had "a few words" with Tina Preston, and Blue began to argue with him. Blue asked the defendant "why he did approach her like that?" One thing led to another, and they then had a fistfight. Another man named "Cigar Man" broke up the fight. Blue and the defendant went their separate ways.

Blue was walking northbound on Cicero with Tina Preston when he was shot three times, once in the lower back and twice in the buttocks. He saw the defendant on a bicycle about five feet away. He had seen the defendant in the neighborhood occasionally for several years.

On re-cross-examination he was asked if the "altercation" was "over dope" and he said it was over the way the defendant had approached Preston. "It wasn't over no dope." On redirect he said that his refusal to buy marijuana was not what the argument was about; the argument arose because the defendant had approached Tina in a way that he did not like and she did not like. He and the defendant then had an argument and ended up fighting. On further re-cross he said he did not remember telling Officer Stampnick that the defendant's attempt to sell him marijuana led to the fight.

Tina Preston testified that after she heard a gunshot she saw the defendant on a bicycle with a gun in his hand. Blue tried to shield her and there were three more shots. The defendant started to laugh and rode off on the bicycle. She also testified that before the shooting, a fight had occurred after the defendant asked Blue whether he wanted to buy some marijuana and Blue said that he did not. Then the defendant started saying things about her that Blue did not like, and they started fighting.

Officer Stampnick testified on direct examination only that she had arrested the defendant. The defendant's attorney then brought out that Blue and Preston told her that the argument with the defendant was over marijuana and never told her, as far as she could recall, that the argument was over the way the defendant had talked to Preston.

The defendant did not introduce any evidence.

In the written motion for a new trial and in argument on the motion, the defendant contended that the evidence of his attempt to sell Blue marijuana should not have been admitted. While his attorney made passing reference to the fact that there was a claim by the State that narcotics was the cause of the fight and the evidence established that the fight was caused by the defendant's insulting remarks about Preston, the inconsistencies between the State's representation to the Judge and the evidence does not appear to be the basis of the motion or the argument in support of the motion.

The State responded to questions by the Judge about the inconsistency between the reason for the fight as expressed by the State and the testimony of Blue and Preston. The Judge rejected the State's argument that the evidence was part of the res gestae, saying that the doctrine of res gestae has not existed in Illinois for several decades. He concluded, however, that the prosecutor made a good-faith representation as to what the evidence would be, but he added that he would not have permitted the evidence to be introduced; he would have allowed the ...

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