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09/28/89 the People of the State of v. Dwayne Curtis Et Al.

September 28, 1989

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE

v.

DWAYNE CURTIS ET AL., DEFENDANTS-APPELLANTS



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

546 N.E.2d 624, 190 Ill. App. 3d 207, 137 Ill. Dec. 679 1989.IL.1528

Appeal from the Circuit Court of Cook County; the Hon. Will E. Gierach, Judge, presiding.

APPELLATE Judges:

JUSTICE JOHNSON delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JOHNSON

Following a jury trial, defendants, Dwayne Curtis and Rickey Jennings, were found guilty of attempted murder (Ill. Rev. Stat. 1985, ch. 38, pars. 8-4, 9-1), armed violence (Ill. Rev. Stat. 1985, ch. 38, par. 33A-2), three counts of aggravated battery (Ill. Rev. Stat. 1985, ch. 38, par. 12-4(a)), and conspiracy (Ill. Rev. Stat. 1985, ch. 38, par. 8-2). Defendants were sentenced to 50 years for attempted murder, 50 years for armed violence, 10 years for three counts of aggravated battery, and seven years for conspiracy to commit murder. The sentences were to be served concurrently. The following issues are raised on appeal: (1) whether defendants' joint trial was fair when their confessions, which were introduced at trial, implicated each other; (2) whether defendants were denied a fair trial by the testimony of the assistant State's Attorney of the approved charges against Jennings and the Judge-issued warrant for Jennings' arrest; (3) whether defendants' conduct was exceptionally brutal and heinous to justify extended-term sentences; and (4) whether defendants' convictions for armed violence and aggravated battery should be vacated and remanded for resentencing.

We affirm in part and vacate in part and modify in part.

On October 16, 1984, at approximately 12:13 a.m., in Harvey, Illinois, Officer Denny LaBauex received a telephone call from a person identifying himself as "Mr. Jones." He told LaBauex that he saw a suspicious person lurking around his car and requested that a police unit be sent to his home at 154 West 155t h Place. Officers Lawrence Patterson and Arthur Williams, assigned to separate squad cars, were both dispatched to the location. Patterson arrived first. Using his spotlight to illuminate the area, Patterson saw a red car parked in the driveway, unoccupied. He did not see anyone in the immediate area. He then proceeded to drive down 155th Street. Having seen no one in the vicinity, he returned to 154 West 155th Place. He exited the car, carrying his flashlight. As he walked down the middle of the driveway, he was struck in his right side by a bullet. Patterson fell to the ground and took cover behind a nearby tree. He was unable to see who fired the shot.

Officer Williams arrived at the scene shortly thereafter. He had heard the shot as he was approaching the area. Williams found Patterson on the ground with a bullet wound. They both crawled to Williams' squad car where he, by radio, requested assistance. Additional units arrived, but the police were unable to find Officer Patterson's assailant.

Patterson was treated at Ingalls Hospital. Approximately 50 to 100 pellet wounds were embedded in his right arm and the right side of his chest. Based upon the medical testimony of Dr. Massoud Nourbash, who treated Patterson's injuries, the pellets were not surgically removed since such removal would cause additional injury to his muscles and tissues.

At approximately 1:18 a.m., an evidence technician arrived at the scene to investigate the incident. A shotgun wadding was recovered from the edge of the driveway. The wadding was determined to be from a 20-gauge shotgun. Later that same day, Inspector Joseph Linkus of the Harvey police department made a cassette copy of the police emergency tape recordings, which contained the call received from Jones. Detective Edward Brooks, assigned to investigate the incident, took the tape and portable tape player into the area where the incident occurred and requested numerous individuals to listen to the recording for purposes of voice identification. On October 20, 1984, after six individuals had identified the voice on the recording, Brooks began looking for two suspects; one named Rickey Jennings and one known only as "Blow Head."

On December 15, 1984, Detective Brooks again spoke with several persons in the same area and was informed that the person known as Blow Head was also known as Curtis, his surname. While having a conversation with Officer Steven Porter, Brooks learned that Blow Head and Dwayne Curtis were one and the same person and that he resided across the street from Officer Porter. Brooks requested Porter to ask Curtis, should he see him, to come to the police station for questioning concerning the incident.

On January 10, 1985, Porter and his partner observed Curtis in the vicinity of 160th and Paulina. They approached him and asked him to accompany them to the police station for questioning concerning the shooting of an officer. Curtis agreed. While the facts surrounding the questioning are contested, it is undisputed that Detective Brooks did interview Curtis on January 10. After Curtis was informed of his Miranda rights, he gave a written confession. In his own handwriting, Curtis stated that on the day in question he, Jennings, and Eugene Neal were drinking at the home of Jennings, 152 West 155th Place. They decided to shoot a police officer. They went into the basement of Jennings' house and obtained two shotguns; Curtis took the 20-gauge shotgun and Jennings took the 16-gauge shotgun. Jennings made the prank call to the police department that someone was trying to steal his car at 154 West 155th Place. All three went to the address and hid alongside the house until an officer arrived. Jennings fired the shotgun, and they all ran back to Jennings' house.

On the following day, Detective Brooks interviewed Curtis again. After being given his Miranda rights, Curtis gave a second written statement. In this second statement, Curtis admitted that he was the one who shot ...


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