APPELLATE COURT OF ILLINOIS, FOURTH DISTRICT
543 N.E.2d 555, 187 Ill. App. 3d 541, 135 Ill. Dec. 172 1989.IL.1302
Appeal from the Circuit Court of Sangamon County; the Hon. Stuart A. Shiffman, Judge, presiding.
JUSTICE LUND delivered the opinion of the court. SPITZ and GREEN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE LUND
Following a jury trial, defendant was convicted of first degree murder, armed robbery, and robbery, in violation of sections 9-1, 18-2, and 18-1, respectively, of the Criminal Code of 1961 (Ill. Rev. Stat. 1987, ch. 38, pars. 9-1, 18-2, 18-1). The circuit court of Sangamon County sentenced defendant to a term of 30 years' imprisonment for murder and 15 years' imprisonment for armed robbery. The sentences were to be served concurrently. Judgment was not entered on the robbery conviction. Defendant appeals his convictions. We affirm.
On appeal, defendant argues: (1) the trial court erred in allowing the admission of prior inconsistent statements by prosecution witnesses because the witnesses did not have "personal knowledge" of the events discussed in their statements as required by section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1); and (2) the State's Attorney committed reversible error in his opening statement by discussing the expected testimony of a prosecution witness who later failed to appear and testify at the trial. The pertinent facts follow.
The charges against defendant stem from an incident in which a woman was shot outside a residence at 726 North Seventh Street in Springfield. She died of her wounds at the hospital. The trial was held over three days, beginning August 9, 1988.
In opening statement, the State's Attorney detailed some of the evidence the State was going to produce. In particular, the State's Attorney discussed the expected testimony of Cammona Gailes, who the jury was told had purchased the murder weapon for police from a co-defendant. Cammona Gailes did not testify at trial. She was subpoenaed, but she did not appear. Efforts to locate her were unsuccessful.
Detective Tom Murphy testified that he was approached by a woman named Cammona Gailes, who offered her help in regards to the murder investigation. Gailes' nickname is "Mopey." Murphy testified Gailes "flagged down" Murphy's car at approximately 11:30 p.m. on April 13, 1988. After a Discussion with police, Gailes agreed to purchase what was believed to be the murder weapon. Murphy gave her $70 to do so. At approximately 11:50 p.m. the next day, April 14, Gailes returned to the police with a .22 caliber handgun. Murphy testified on the second day of trial. He stated that he had made several attempts to locate Gailes, but he could not find her.
The gun was later examined scientifically, but the results were inconclusive.
On May 3, 1988, Detective Murphy arrested defendant at his place of employment and transported him to the police station. He and Detective Steve Pellegrini questioned defendant. Prior to questioning, defendant was given the Miranda warnings. Defendant initially denied any involvement in the incident. Murphy then showed defendant the .22 caliber handgun. Murphy testified that, at that point, defendant stated he had not been truthful. Defendant broke down crying and offered to tell the truth.
Murphy testified that defendant gave a verbal confession to robbing the victim of her purse. Defendant stated his companion, Deearlise Childrous, shot the victim after defendant had wrestled the purse from her. Following this verbal confession, defendant was asked to sign a written waiver of his Miranda rights. This he did. Defendant was also asked to give a written statement. Defendant agreed to do so, and Detective Murphy wrote the statement as defendant spoke. However, defendant did not sign the statement. Murphy was allowed to read defendant's statement to the jury.
Detective Pellegrini testified and corroborated Murphy's testimony concerning the circumstances surrounding the giving of defendant's statement. Pellegrini stated that defendant read the statement after it was finished, but he declined to sign it.
Two witnesses, Angela Johnson and LaMarques Johnson, were called to testify for the State. Angela, 15 years old, and LaMarques, 16 years old, were both in the tenth grade. Both of the witnesses acknowledged that they had voluntarily approached the police with information concerning the murder. When questioned about the information at trial, the witnesses claimed they could not remember. Both of the witnesses acknowledged that they gave written statements to police. The witnesses were shown statements, which they acknowledged as their statements. However, both witnesses proved difficult and continued to claim lack of memory as to the events. The State's Attorney was allowed to read from the witnesses' statements in an attempt to refresh their memories. In their statements, the witnesses had stated they were present when defendant and Deearlise Childrous made incriminating statements in conversation to each other or to the witnesses. The court overruled defendant's objections to the reading of the statements. The court found the statements to be prior inconsistent statements admissible under section 115-10.1 of the Code (Ill. Rev. Stat. 1987, ch. 38, par. 115-10.1).
Defendant testified on his own behalf. He acknowledged that he was questioned by police on May 3, 1988. However, he stated the subject of the questioning was another murder -- the death of a security guard at a local motel. Defendant denied making the statement which was read by Detective Murphy and denied any knowledge of the incident. He stated he had never seen the .22 caliber handgun before. The court allowed defendant's ...