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04/25/94 PEOPLE STATE ILLINOIS v. HERNANDEZ BAILEY

April 25, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
HERNANDEZ BAILEY, DEFENDANT-APPELLANT, AND DARRYL MOTEN, DEFENDANT-APPELLANT. DEFENDANT-APPELLEE.



Appeal from the Circuit Court Cook County. The Honorable Shelvin Singer, Judge Presiding.

Rehearing Denied August 23, 1994. Released for Publication August 25, 1994. Petition for Leave to Appeal Denied October 6, 1994.

Manning, Buckley, O'Connor, Jr.

The opinion of the court was delivered by: Manning

JUSTICE MANNING delivered the opinion of the court:

Following a bench trial in the Circuit Court of Cook County, defendants Hernandez Bailey and Darryl Moten were convicted of first degree murder, Ill. Rev. Stat. 1985, ch. 38, par. 9-1(1) and two counts of attempt murder, Ill. Rev. Stat. 1985, ch. 38, par. 8-4(a). The trial Judge sentenced Bailey to life imprisonment on the murder conviction and concurrent ten year prison terms on the two counts of attempt murder; and Moten to 35 years on the murder conviction and concurrent six year prison terms on the two counts of attempt murder. Both defendants filed timely appeals. The appeals have been consolidated.

On appeal both defendants contend that the State failed to prove them guilty beyond a reasonable doubt. Intertwined in Bailey's reasonable doubt argument are contentions that the court erred in (1) concluding that Torrence Adams' testimony was sufficient to hold Bailey accountable for the acts of Moten; (2) refusing to consider impeachment evidence of Adams' testimony; (3) overruling an objection to the State's attempt to argue by way of inference that Thompson's recantation was due to intimidation at the penitentiary, in the absence of any evidence to that effect, and (4) giving substantive weight to a prior inconsistent statement which was received only for impeachment purposes. Moten also challenges his sentence as being excessive. For the reasons set forth below, we affirm the convictions and sentences of both defendants. The relevant facts appearing in the record on appeal are as follows.

On May 8, 1987, Anthony Jackson was fatally shot and Brandon Abrams and Anthony Camphor were shot and injured during a melee occurring near an elevator on the ground level of a Chicago Housing Authority building at 4101 South Federal Street in Chicago. Brandon Abrams, Michael Thompson and Torrence Adams testified on behalf of the State. Prior to testifying they were all placed in a jury room adjacent to the courtroom, in the company of the investigating police officers and the trial Assistant State's Attorney, and collectively prepared for testifying.

Brandon Abrams, one of the gunshot victims, testified that on May 8, 1987, several men were standing in front of a game room at 41st Street and Wentworth Avenue when Lenora Camphor (the aunt of one of the other alleged gunshot victims, Anthony Camphor) became embroiled in an argument with yet another of the gunshot victims, Anthony Jackson, now deceased. During the argument, an unidentified male threw a brick at the group and ran away. Abrams and Camphor chased him to 4101 South Federal. Jackson remained on the bridge arguing with Lenora, but followed Abrams and Camphor shortly thereafter.

Abrams testified that as he and Camphor ran under the breezeway of the 4101 building into the elevator area, he observed about ten people standing around, including the other two State's witnesses, Michael Thompson and Torrence Adams. Abrams asked did they see where "old boy" (the person who threw the brick) went. Someone replied, "there they go". Next Abrams heard someone say "shoot them marks". He then stated "then a lot of peoples (sic) got to shooting and I got shot in the butt". Abrams testified that he was running away when Anthony Jackson, who had entered the breezeway and had stopped to tie his shoe, was shot in the stomach. Abrams observed that after the shooting stopped, Camphor who was running with them, had a scrape wound on his nose which was not there when they entered the breezeway (before the shooting). *fn1

Abrams was unable to identify the shooter or the person who uttered the words "shoot them marks", although he said the gunshots came from the group standing in front of the elevator. Abrams admitted that he and Camphor were both members of the Vice Lords gang. But he denied that he, Camphor or Jackson was armed with any type of weapon on that evening.

Three days later Abrams viewed a line-up and he identified defendant Bailey as looking similar to one whom he saw at the elevator on May 8. He also identified defendant Bailey at trial as being the familiar face that he identified at the lineup. He was unable to say that it was Bailey whom he heard say "shoot them marks," and he stated that the person who said "shoot them marks" did not have a gun.

Torrence Adams, the State's next eyewitness, testified that at the time of the incident he had known Moten for five years and did not personally know Bailey but had heard of and seen him twice on the streets. He was aware that Bailey's nickname was "Peanut". Adams, 18 years of age at the time of trial, testified that he was a "close associate of Moten's sister and was not friends with Moten but liked and respected him". Adams also testified that he is a friend of Abrams and Camphor. Adams denied that he is a gang member, but on cross examination he admitted he was, in May of 1987, a member of the "Mickey Cobras" gang which was at war with the Disciples gang at that time. On the night of this shooting, Adams and Thompson were returning from a liquor store and as they walked through the elevator area, Adams saw a group of people standing there, including four "parties", meaning four Disciple gang members. Of the four men, the only one whose name Adams knew was Moten, but he identified Bailey as one of the three men standing in the area with Moten. As Adams and Thompson left the area, two "parties" were running through the area followed by a third person. The first one was called "Ant". One of the men asked Adams if he knew the man who had run through the breezeway and Adams tried to signal to the men "to look over there", but the others did not understand. At this time, a fourth man who was not wearing a shirt ran to the breezeway and stooped to tie his shoe. Moten turned around and fired a gun and Bailey said "shoot". However, on cross examination, Adams stated he did not know whether it was Bailey who said "shoot". As Adams ran away he saw the man without the shirt fall to the ground. Adams testified that he did not see Abrams or Camphor carrying sticks.

Allegedly, due to a misunderstanding, Adams was placed in a lineup on May 11, 1987, and interviewed by police officers after the lineup. Adams insisted at trial that he had, during this interview, told the officers he saw "Peanut" at the scene of the shooting but on cross examination, he was unable to remember the name of the officer with whom he had spoken. It was subsequently stipulated that he had not in fact told one of the interviewing officers, Detective Kelly, that "Peanut" was on the scene.

The third occurrence witness for the State, Michael Thompson, testified that he is currently serving a six year prison sentence for aggravated battery. Thompson has known Bailey for all of his life and also knows co-defendant Moten as well as Adams. On May 8, 1987, he came out of the building and passed by through the elevator area as some guys came through talking to each other. He heard one man say "is that him, Chief" and the guy with no shirt said, "is that him T", referring to Thompson. Someone responded "that's M.T." and another person said, "yeah, that's him", while a third joined in, "well, let's get him" Thompson testified at trial that after this dialogue, a man standing by the wall turned and shot one of themen, but because it was dark he did not see who fired the shots. Neither did Thompson hear Bailey say "shoot him, shoot him" prior to shots being fired, according to his testimony.

At this point in Thompson's testimony, the State moved to declare Thompson a hostile witness in light of Thompson's earlier statements to a police officer and before a grand jury identifying Moten and Bailey as participants in the shooting. The trial court allowed the State to interrupt Thompson's testimony and call Detective Kelly. This voir dire testimony of Detective Kelly was offered for the purpose of determining whether to declare Thompson a hostile witness.

Detective Kelly testified that on May 11 and 12, 1987, he interviewed Thompson regarding the homicide of Anthony Jackson and the attempt murder of Brandon Abrams and Anthony Camphor. Detective Kelly stated that Thompson had told him that he heard Bailey say "shoot him, shoot him" and Moten then fired several shots at Jackson. Thompson also told him that he saw Moten shoot Jackson. Detective Kelly also testified to a conversation which he overheard on the day of trial between Thompson and the Assistant State's Attorney as she prepared him to testify. He stated that Thompson said he saw Moten shoot Jackson and heard Bailey say "shoot him, shoot him". The court declared Thompson a hostile witness.

After Detective Kelly's voir dire testimony, Thompson resumed the witness stand. He testified that he was not sure who fired the gun because it was dark. He did, however, admit that he had told the police on May 11, 1987, that he saw and heard Bailey say to Moten "shoot him, shoot him", and he then saw Moten pull a gun from his waist band and fire several shots through the breezeway, striking Anthony Jackson. He further acknowledged that he testified in the same manner before the Cook County grand jury. Additionally, he confirmed that on May 12, 1987, he identified Bailey at a lineup as the person who shot at him six times. When asked about a statement made in the jury room prior to trial, that Bailey and Moten were the offenders, he said "yes, yes, I think so" as to Bailey telling Moten to shoot; however, he said he was not sure that he had said Moten was the shooter.

The State sought to elicit from Thompson that while in the jury room he made a statement that he was mad at the State for not getting him a better deal, and he admitted making such a statement. Then he modified it slightly by saying he told the State they had a "lot of nerve after, you know, sending me to the penitentiary, expect me to come down here and testify against somebody, send them to the penitentiary also."

Thompson stated that he told the defense counsel, Mr. William Swano, that he didn't see anything, and the reason he told him that was to get favors from Swano in exchange for favorable testimony for Bailey and Moten. Thompson admitted to "playing" with Swano and wanting him to make phone calls and get cigarettes for him.

During examination by defense counsel, Thompson recanted all prior accusations against both Moten and Bailey, stating that everything he had previously stated were lies. The explanation that he provided for having falsified statements both to the grand jury and to the investigating police officers included the following: (1) he had prior altercations with Bailey; (2) he needed a place to live at that time; and (3) the State's Attorney's office offered to pay his rent, feed him and provide money for him and Torrence Adams as part of the witness protection program if he would testify against Bailey. Thompson said that he would be ". . . . killing two birds with one stone by getting rid of Mr. Bailey, also." He testified that he and Torrence Adams had conspired to pin the murder and shootings on Bailey.

While Thompson persisted in his denial of being able to identify anyone in connection with this offense, according to his sworn statements to the grand jury on May 13, 1987, (1) he saw Moten reach in his waist band, pull a revolver and shoot at Jackson point blank; (2) Bailey told Moten to "hit him"; and (3) Moten shot (Jackson) in the stomach. He told the police the same thing he told the grand jury.

The parties stipulated to the testimony of Detective Grady regarding the lineup and Thompson's identification of Bailey as the person he heard say "shoot him, shoot him". They also stipulated to the testimony of Dr. Rosen, the medical doctor on call at the hospital the night Abrams was treated for a gunshot wound to his right buttock. Dr. Michael Chambliss, a forensic pathologist, testified as to the cause of death of Anthony Jackson. Upon offering certain exhibits including photographs into evidence, the State rested its case in chief. A motion for a directed finding was denied as to both defendants.

The defense presented evidence by way of stipulation. It was stipulated between the parties that if Detective Kelly were called to testify, he would state that on May 11, 1987, he interviewed Torrence Adams after a lineup. At no time during that interview did Adams mention that Hernandez Bailey or "Peanut" was present at the scene of the shooting; at no time did Adams state that he overheard Bailey or "Peanut" tell anyone to "shoot"; and he told Detective ...


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