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May 10, 1994


Appeal from the Circuit Court of Winnebago County. No. 91-CF-1564. Honorable Daniel D. Doyle and David A. England, Judges, Presiding.

Released for Publication June 15, 1994.

Quetsch, Colwell, PECCARELLI

The opinion of the court was delivered by: Quetsch

JUSTICE QUETSCH delivered the opinion of the court:

Defendant, Henry Lee Harris, appeals, contending the trial court erred in limiting his right to show the bias or credibility of the State's complaining witness by cross-examining the witness on his alleged gang membership and by presenting evidence of a pending charge against the witness' cousin which also involved the use of a firearm on the same date as the offense charged against defendant. We affirm.

Defendant was charged by indictment with attempted first-degree murder (count I) (Ill. Rev. Stat. 1991, ch. 38, pars. 8-4(a), 9(1)(a)(1) (now 720 ILCS 5/8-4(a), 9-1(a)(1) (West 1992))) and aggravated battery using a firearm (count II) (Ill. Rev. Stat. 1991, ch. 38, par. 12-4.2(a) (now codified, as amended, at 720 ILCS 5/12-4.2(a) (West 1992))). The charges arose from a confrontation in which defendant shot Mantilla Lamar Simmons with a pistol on August 10, 1991. After a jury trial in December 1991, defendant was found not guilty of the attempt offense, but guilty of the aggravated battery offense. Following the trial court's denial of his post-trial motion, defendant was sentenced to a 10-year term of imprisonment, and he filed this timely appeal.

At trial, 26-year-old Simmons, the State's complaining witness, testified that, on August 10, 1991, he was living with his girlfriend, DeAngela Williams, at 258 Chestnut Court in Rockford, Illinois. Defendant's girlfriend, Janice Walker, and her son had been living with Simmons and Williams during the prior month and was paying some of the rent.

On August 10, Simmons drove with his cousin, Darnell Leavy, to defendant's house on Avon Street because Simmons wanted to talk to Janice Walker. Simmons went into defendant's house by himself, gave Walker her clothing, and asked her for the key to his and Williams' apartment. Defendant made some "smart" remark to Simmons who replied to defendant that he did not have to speak to him in that manner because he was not a child. Walker gave Simmons his key, but said she had some money coming back to her. Simmons replied that she was not getting anything back. He then returned to his apartment on Chestnut Court. After he got home, Simmons saw defendant pull up in a car with Walker. After defendant parked the car on the street, Walker went into the apartment and talked to DeAngela Williams. Simmons was outside the house when Walker came out angry and saying she would be back. Simmons said she would not get in.

Simmons was standing outside in the porch area near the door of his house and was looking down the hill. He turned around and, as he did so, he saw defendant who had left the car, approach the house and pull out a gun from behind himself. As soon as Simmons saw the gun, defendant began shooting, and Simmons ran into the house. Simmons stated defendant had a .22 caliber handgun. There was no one else present at this point. Walker had left and gone toward Concord from the area where defendant's car was parked.

Simmons did not immediately feel himself being hit by a bullet. When Simmons got into the house, he began to feel dizzy when he saw the blood as he stopped near the couch. There were two bullet wounds. The first bullet entered the right part of his shoulder in the back and the second went into the mid-section of the lower right side of his back. After walking through the living room, Simmons fell onto the kitchen floor. Simmons claimed that he did not have a gun and did not ever point a gun at defendant. He denied that it was his gun that defendant used. He did not see anyone with a shotgun.

Simmons did not have a prior relationship with defendant nor did he have any problems with him, but he had spoken to him before. Defendant had come to Simmons' apartment to see Walker while she was living there. He identified defendant in open court as the shooter. Simmons described his injuries and stated he had surgery three times as a result of the shooting. Simmons admitted that he had been convicted of burglary and armed robbery. He also admitted he had been drinking about a half-pint of gin on the day of the shooting.

On cross-examination, Simmons said he and defendant had not fought before, and he had nothing against defendant when he went to bring Walker's clothes. Simmons' cousin Darnell stayed in the car during the visit to defendant's house. Simmons denied he was angry when he spoke to Walker. Simmons initially went into his own apartment when he returned to Chestnut Court, but he was standing outside when defendant arrived a short time later and got out of the car with Walker. Darnell was not present when Simmons got shot; he had left after they returned to the Chestnut Court apartment. DeAngela Williams was in the kitchen of the apartment with Jeannetta. Defendant stayed outside walking around; there was no fight between Simmons and defendant. Walker walked past Simmons and went into the apartment where she stayed for about 10 to 15 minutes. Simmons did not hear any commotion inside the house, and he did not argue with her when she came out. After she walked outside past Simmons, he saw defendant standing about 10 feet away with the gun. At this point, Simmons tried to run into the apartment.

Simmons denied that he had a .22 or a .38 caliber handgun or a sawed-off shotgun on August 10. He knew that it would be a violation of his parole status to have a firearm in his possession. Simmons denied telling Detective Wagner on August 15 that he and defendant had struggled over the handgun and that was why Simmons' fingerprints were on it. He denied asking whether he should talk to a lawyer during that questioning by police. Simmons also testified that Darnell was not present during or after the shooting and did not have a shotgun; Simmons denied loaning a gun to anyone in the two months prior to the shooting. He did not hear any loud blasts after he was shot.

When defense counsel asked if Simmons was a member of the Disciples street gang, the State objected, and further arguments were heard outside the presence of the jury. The State urged that the defense was trying to link Simmons to his cousin Darnell who was alleged to be a gang member; and that the issue of gang membership was irrelevant, highly prejudicial to the State, and would serve to confuse the jury. Defense counsel argued that the issue was relevant because Simmons had advised the police that he was a Disciple member and that Darnell Leavy was a member of the same gang. The defense believed that it was Leavy who had a shotgun that night, and he was currently charged in another case with having the shotgun and firing it. He argued that gang membership showed why Simmons lied about Leavy's being present with the shotgun and firing it. Not only were they cousins, but they were also gang members.

When the court asked why gang membership would necessarily cause Simmons to lie, the defense maintained that Simmons lied to protect his cousin because of their gang association. The State interjected that defense counsel could challenge Simmons' credibility merely on the basis of their relationship as blood-related cousins. The State argued that there was the risk of confusing the jury and that there was no evidence that there was any type of gang retaliation or gang activity related to the shooting of Simmons. Defense counsel replied that there was evidence that, later that evening after the shooting of Simmons, Leavy shot at defendant's son in retaliation.

The State objected that a shooting later in time was irrelevant, but it would not oppose the introduction of evidence of a shotgun blast which occurred immediately after Simmons was shot. The court opined that the issue of gang membership was not relevant because there was no evidence that the shooting of Simmons was the result of gang activity. Furthermore, it did not appear to the court that gang membership materially affected the credibility of the complaining witness regarding the testimony that his cousin was not present at the time of the shooting. In the absence of evidence that Simmons' shooting was the result of gang activity, the court sustained the objection to this line of questioning.

When Simmons' cross-examination continued, he agreed that Darnell Leavy was his good friend as well as his cousin. Over the State's objection, Simmons was allowed to admit that he knew that Darnell was charged with possessing a shotgun on the evening of the shooting, Simmons further admitted he knew that if he testified that Darnell had a shotgun that testimony would be used against him. In response to defense counsel's question that he would not want to testify to anything that would be used against his cousin, Simmons replied, "It has nothing to do with that." Simmons testified that he heard the gunshot when he turned to run into the house. He said ...

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