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February 22, 1994


Appeal from the Circuit Court of Cook County. The Honorable Vincent Bentivenga, Judge Presiding.

Released for Publication April 19, 1994.

DiVito, Scariano, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

A jury found defendant Robert Miller guilty of first degree murder. He was later sentenced to 28 years in prison. On appeal, he contends that (1) the circuit court improperly limited cross-examination of the investigating officer; (2) his proposed jury instructions on provocation from a third party and standing his ground when assaulted should have been given; (3) the prosecutor's comments during rebuttal argument prejudiced his right to a fair trial; and (4) the circuit court improperly admitted evidence of a lineup identification of a person not charged in this case. We affirm.

The following evidence was adduced at trial. Lamar Blount testified that on March 24, 1988, he and his cousin, Calvin Winston, the deceased in this case, were on the playground of a housing project known as the Robert Taylor Homes, located at 4946 South State Street in Chicago. They were drinking beer. Blount saw his friend Stevie Lemons on the porch of his apartment and called to him to come downstairs.

After Blount called to Lemons, a group of about twelve young men, including defendant, whom Blount had known for about a year, came through the playground. Defendant said something to him about gangs, but he told defendant he was not a member of a gang. He had been a member of the Maniacs a year earlier, and he had become a member of the Vice Lords when he went to prison for armed robbery. Defendant was a member of the Gangster Disciples.

Blount and defendant exchanged words, and then got into a fistfight which lasted 3 or 4 minutes. Blount saw a man give defendant a dark metal gun, and also heard defendant tell the other man, "Give me that."

Defendant came running toward Blount firing the gun. He did not have a gun himself that night, although he had carried one on previous occasions. Winston did not have a gun, either, and he and Winston responded to defendant's shots by throwing bottles at him. After Winston threw a bottle, he turned around and ran. When Blount turned around, he saw Winston on the ground, with blood coming out of his mouth.

Lemons testified that he saw the fight, and that he and Winston helped to break it up. Defendant was with about 6 or 7 other men, and Lemons saw a man hand what looked like a gun to defendant. Before the shooting began, he saw his sister Alicia standing next to defendant, and heard her say, "Don't shoot my brother." Lemons then saw defendant push Lemons's sister to the ground, aim the weapon toward the building, and fire a shot into the air. He saw that Blount and Winston were running away, with their backs toward defendant, and defendant began running after them while shooting. Lemons saw defendant aim the gun in the direction Winston was running and fire more shots. He then saw defendant and his group running away.

Lemons later identified defendant as the shooter in a lineup, and he also identified Nelson Connors as a man who was present at the scene on the night of the killing.

Officer Richard Kimball testified that he and his partner arrived on the scene and found a crowd of people standing around Winston. They checked him for weapons and identification, but found none. Kimball did not search Blount for weapons. Blount told him that the shooter was between 16 and 18 years old, approximately 6 feet tall, wearing a blue jacket with dark pants, with a short haircut. Blount also told him the shooter's name was "Rob".

Detective Guy Habiak testified that, after he learned that Winston had died, he examined him and found that the gunshot wound was in the back of his left shoulder. After determining that the shooter's full name was Robert Miller, he showed Blount a photographic array containing defendant's picture, and Blount identified defendant as the shooter. Lemons also identified defendant from the photographic array. As a result of these identifications, Habiak obtained a warrant for defendant's arrest, and continued trying to locate him.

On June 13, 1988, Habiak received a telephone call, and thereafter went to the third-floor apartment of Sandra Nelson at 135 West 68th Street. He spoke with Nelson, she let him into the apartment, and he conducted a search. He found defendant in a hall closet underneath some clothes. In later conversations with Habiak, defendant told him that Nelson Connors and a man called Gonzales were present at the scene of the shooting. Defendant first told Habiak that Gonzales shot and killed Winston, but later admitted that he was the shooter.

Detective David Kutz testified that he arranged a lineup at the police station. He placed Nelson Connors, also known as Pep, in the lineup along with defendant. Lemons identified defendant as the shooter and Connors as another man who was present at the scene.

Assistant State's Attorney Darren O'Brien of the felony review unit testified that he had a conversation with defendant. Defendant was given his Miranda warnings, and then admitted that he shot at Winston. Defendant told him that Winston was running away, but that Winston was shooting at him while running backwards.

Winston's mother, Thelma Winston, testified as a life and death witness. Dr. Shaku Teas, an assistant medical examiner, testified that she performed an autopsy on Winston, and that he had a wound from a distant gun on his back about three or four inches down from the top of the left shoulder. Dr. Teas recovered a small caliber bullet from the body. The gunshot wound was the cause of death.

Called as a defense witness, Ites Chapman, a member of the Black Gangster Disciples, testified that he and defendant were close friends who saw each other four or five times a week. On March 24, 1988, at 10 p.m., he was with defendant, Connors, and several others. They went to 4946 South State Street in order to see two young women. Blount and Winston came up behind them, and Blount argued with one of the young men. Blount and defendant began arguing, and then fighting.

Winston pulled out a .38 caliber handgun. After the fight broke up, Chapman, defendant, and the others with them started to walk away. Defendant was given a gun by someone Chapman did not know. Winston fired the first shot and then defendant fired into the air. Defendant shot a second time and then Winston fired again. Winston then started running and gave Blount the gun. Blount shot at defendant three times, and defendant also fired three more shots.

Chapman said the shots fired by Winston and Blount sounded like they came from a .38 caliber weapon. After defendant finished firing, he and Chapman ran away. While they were running, defendant gave the gun back to the stranger who had given it to him.

Defendant testified that on March 24, 1988, he was a member of the Black Gangster Disciples. At 10 p.m. on that day he went to the Robert Taylor housing project to see two young women. He went with Chapman, Connors, and two others. When he got there he began talking with the two young women, and he spoke briefly with Winston. He heard Blount arguing heatedly, and he thought Blount was going to shoot him. When defendant disagreed with Blount, Blount took a swing at him and missed, and defendant struck back.

Blount yelled to Winston to give him the gun. Connors came up and told Winston to let them fight because defendant did not have a gun. Defendant saw that Winston had a gun and he was afraid he might get shot; however, he did not leave. After the fight broke up, defendant and his friends started to walk away.

A group of people then approached him, and he began arguing with them. Winston then stepped out of the crowd of people and held a gun in defendant's face. A woman stepped in front of Winston and told him not to shoot defendant, and then someone handed defendant a gun. He did not know the person who handed him the gun, but he knew the man by his nickname.

He then heard some gunshots and fired into the air to let them know he had a gun. He did not see who fired the first shot. He fired into the air in order to make the man who was pointing the gun at him stop shooting at him. Defendant heard additional gunfire and fired back. After shooting in the direction of Winston, he ran away. ...

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