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March 31, 1994



Hoffman, Cahill, Johnson

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

Defendants, James Young, Michael Meyers, James Bannister, Michael Johnson, Kevin Young and Thomas Carter, were convicted of two counts of first-degree murder and sentenced to life imprisonment following the gang-related shootings of two men near the Stateway Gardens housing complex ("Stateway"). Defendants appeal from their convictions and sentences, raising the following issues: (1) whether the State violated discovery rules by failing to disclose certain pre-trial statements of a State witness; (2) whether James Young and Bannister were proven guilty beyond a reasonable doubt; (3) whether the court erred in admitting evidence of gang affiliation; (4) whether the doctrine of transferred intent applied where both the intended victim and an unintended victim were killed; (5) whether police obtained Johnson's confession in violation of his constitutional right to counsel; (6) whether the court improperly admitted evidence of a prior crime committed by Johnson; (7) whether the court erred in denying Bannister's severance motion; (8) whether James Young's counsel was ineffective by offering the prior inconsistent statements of State witnesses merely as impeachment rather than substantive evidence; (9) whether the court erred in admitting portions of a State witness's grand jury testimony which were consistent with his trial testimony; (10) whether Bannister was irreparably prejudiced when the court allowed the jury to wait for an absent defense attorney without explanation; and (11) whether the mandatory life imprisonment provision of section 5-8-1(a)(1)(c) of the Uniform Code of Corrections (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-1(a)(1)(c)) violates the eighth amendment prohibition of cruel and unusual punishment.

Defendants were tried jointly by a jury with the exception of Michael Johnson, who was granted a severance and tried separately. The evidence at the consolidated trials of James Young, Meyers, Bannister, Kevin Young, Carter, and Eric Smith, who is not a party to this appeal, is summarized below.

The shootings originated from the ground and first-floor porches of the 3517-3519 South Federal Street building (hereinafter "building") of the Stateway complex on the night of November 9, 1989.

Denise Brady, a Stateway resident, testified that about 10 p.m. she noticed two men in dark clothing and ski masks standing near an elevator in the building's open first-floor lobby. Brady descended to the ground floor lobby where she saw a man she identified as Kevin Young (hereinafter "Young"), wearing dark clothes and a baseball cap. Brady testified that Young yelled "come here" and then "come here, motherfucker," in the direction of one of the victims, Dan Williams, who was approaching the building from the Street. Young then retrieved a gun from his coat and repeatedly fired at Williams, who began "running and weaving" towards an Illinois Institute of Technology ("IIT") research building located across the street. Williams eventually stumbled onto the ground, as Brady fled upstairs towards her apartment. Brady indicated that when she reached the first-floor she saw the two men in ski masks also shooting at Williams. When she looked down, she noticed another two shooters "spaced out" at either side of the building.

Ruth Wilson, who lived in an adjacent building, testified that she was in her bedroom when she heard shots coming from 3517-19. When she looked out of her window she saw at least five men walking away from 3517-19 and towards her building. Each of the men was wearing dark clothing and a hat or hood over his head. Wilson recognized two of them as Young and Carter and saw Young put a gun under his coat. Wilson watched the men until they were out of sight, and then went to look for her son, Deanda Wilson, who was outside.

The State's primary witness, Deanda Wilson ("Wilson"), identified all of the defendants as members of one particular street gang. Wilson testified that at the time of the shooting he was 12 years old and a member of a gang which was an "enemy" of defendants' gang. About 10 p.m. on the night of the incident, Wilson was on the first floor of the 3519 side of the building. Wilson heard people call out "here comes [Young]", and when he ran to the first-floor porch to observe, he saw the seven defendants approaching all dressed in black clothing. Wilson testified that Young wore a baseball cap and the other six defendants wore knit caps pulled down just above their eyes. Wilson indicated that at that point, all of defendants' faces were uncovered, and he could see them in the light.

Wilson testified that Bannister and another defendant, Eric Smith, arrived at the building first and eventually waited near a janitor's closet under the 3519 side. Wilson testified that at one point they were only 10 feet from him. Wilson then ran up to observe from the second-floor porch and saw Meyers, Young, and Carter standing below him in front of the building. Wilson saw James Young and Johnson on the first-floor porch of the 3517 side, from a distance of 35 feet.

Wilson testified that Dan Williams was standing near the play lot in front of the building when someone yelled "come here, motherfucker." Williams responded "I ain't have nothing to do with it," after which Meyers, Carter, and Young stepped out from under the building, retrieved guns from their coats, and fired at him. Bannister and Eric Smith similarly stepped out from their position and began firing, as did James Young and Johnson. As the shooting continued for about 15 seconds, Williams stumbled through the play lot and towards the IIT building. Wilson testified that Williams eventually fell between the revolving doors of the IIT building, and defendants fled with their guns in their hands.

On cross-examination, Wilson admitted that he had told police after the shooting that James Young and the others had pulled their caps completely over their faces. Additionally, Wilson had testified before the grand jury that as he stood on the second floor porch, he knew that Bannister, James Young, and others were standing on the porch "under the building." When asked if he could actually see them, he responded that he could not, but knew they were there "because they wasn't outside the building with the rest."

Testimony from security personnel in the lobby of the IIT research building established that the group of assailants chased Dan Williams towards the IIT building. Multiple shots being directed towards Williams struck and killed Thomas Kaufman, a security guard stationed inside IIT's front doors.

The State's theory at trial was that defendants killed Williams in a case of mistaken identity, to avenge the sexual assault of Young's girlfriend by members of the rival gang, one of whom was also named "Williams". A.W., the victim of the alleged sexual assault, testified that two days prior to the shooting she was approached by the rival gang members who harassed, kicked, and threw objects at her and then brought her to an apartment and sexually assaulted her. Police subsequently arrived and the rival gang members fled the building. A.W. indicated that during the assault, "Williams" repeatedly demanded to know where Young was, at one point threatening A.W. with a gun. A.W. testified that several hours prior to the shooting a meeting was arranged between her and Young at the apartment of Lisa Tolbert, a friend in Stateway. At Young's request, A.W. identified the participants in the sexual assault. Young and Carter subsequently left the apartment, returning later with Johnson, Meyers, and James Young. According to A.W., the five men again left the apartment at approximately 10 p.m., each dressed in black and carrying a gun. A.W. stated that when the men returned approximately 20 minutes later, they were wearing ski masks or stocking caps over their faces. A.W. testified that Young took the guns the men were carrying and placed them in the radiator. The testimony of two police officers established that James Young and Carter were arrested at Lisa Tolbert's apartment the day after the shooting.

Following arguments, all defendants were found guilty of two counts of murder under sections 9-1(a)(1) and (a)(2) of the Criminal Code of 1961 ("Code")(Ill. Rev. Stat. 1989, ch. 38, pars. 9-1(a)(1), (a)(2))), and were sentenced to natural life imprisonment. (Ill. Rev. Stat. 1989, ch. 38, par. 1005-8-1 (a)(1)(c).) The instant appeal followed.

First, defendants Young, Meyers, Carter, James Young, and Bannister argue that they are entitled to a new trial because the State violated rules of discovery by failing to disclose certain pretrial statements made by A.W. During discovery, the State provided defendants with a written statement A.W. gave police following the occurrence, along with a transcript of her grand jury testimony of November 17, 1989. In these prior accounts, A.W. denied any knowledge of the shooting; claimed to have been out with a cousin that night; claimed that she had not seen Young until 5 or 6 a.m. on the morning after the shooting; and denied any knowledge of James Young or other defendants.

At trial, A.W. testified that her prior account had been untruthful and was motivated by her fear at that time of Young and other gang members in Stateway; however, after she was relocated by the State in February of 1990, she had told Officer Edward Winstead and an assistant State's attorney the true account to which she also testified at trial.

Relying on Supreme Court rules 412 and 415(b) (134 Ill. 2d Rules 412, 415(b)) and the due process and fundamental fairness guarantees of the fourteenth amendment (U.S. Const., amend. XIV), defendants contend they were deprived of a fair trial by the State's failure to disclose A.W.'s latter account upon obtaining it.

The State initially responds that we are bound on this issue by our previous ruling in the appeal of co-defendant Eric Smith (People v. Smith (1st Dist. 1992), No. 91-1760 (unpublished order under Supreme Court Rule 23), under the doctrine of law of the case. Under this doctrine, a court is bound by its prior rulings of law in opinions or orders in the same case unless the facts require a different interpretation. (Bradley v. Howard Hembrough Volkswagen, Inc. (1980), 89 Ill. App. 3d 121, 411 N.E.2d 535.) Law of the case applies, however, only when the prior appeal involved the same question and identical parties as are presently before the court. (See e.g., Miscevich v. Commonwealth Edison Co. (1982), 110 Ill. App. 3d 400, 402-03, 442 N.E.2d 338; People v. Smith (1979), 72 Ill. App. 3d 956, 962, 390 N.E.2d 1356.) Although Smith's appeal involved issues very ...

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