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May 10, 1994


Appeal from the Circuit Court of Cook County. The Honorable Margaret Stanton McBride, Judge Presiding.

DiVito, Hartman, McCormick

The opinion of the court was delivered by: Divito

Presiding Justice DiVito delivered the opinion of the court:

Following a joint bench trial with two others, defendant Kevin Williams was found guilty of first degree murder, attempted murder, aggravated battery with a firearm, aggravated battery, aggravated discharge of a firearm, and aggravated unlawful restraint. He was sentenced to a term of natural life imprisonment for murder, with concurrent terms of 30 years and 10 years for the lesser offenses. Defendant appeals, raising issues of improper admission of evidence, violation of discovery rules, and ineffective assistance of counsel. For reasons that follow, we affirm.

During defendant's joint trial with codefendants Ira Hines and Reginald Lee, the following evidence was adduced.

Marsha Robertson testified that the victim, Harry Sain, was the father of her two children. The children lived with Sain, his mother Josephine Sain, and his sister Shirley Sain, at 844 South Racine in apartment 838, a first floor apartment in a three story apartment building known as the Jane Adams Projects or Hablo Homes.

On February 18, 1991, at about 1:15 a.m., Robertson and Sain left Camilla Dicken's house on Lytle Street, a block away from Racine, and began walking to Sam's apartment. When they were about half a block from their destination, Robertson saw four "dudes" approaching them. She recognized them as four men from the neighborhood known as Thunder, Fruitie, Reggie Lee, and West; they had nothing on their faces to hide their identities. At the time, Robertson did not know the real names of Thunder, Fruitie, or West, but she knew that Reggie Lee was Reginald Lee. She made an in-court identification of Fruitie as defendant, Thunder as codefendant Ira Hines, and Reggie Lee as codefendant Reginald Lee.

Robertson noticed that defendant, Thunder, and Reggie Lee each had a gun. She told Sain that the men had guns, and that he should go and open the apartment door. Just before Sain and Robertson reached the entrance of Sain's apartment building, as the four men were close to them, Robertson said, "Hi, Thunder," trying to delay him while Sain entered the apartment. Thunder then told defendant to place her "under arrest." Defendant, who had a "Tech-9" gun in his hand, grabbed her collar and pushed her against the wall inside the entryway, across from the mailboxes. Reggie Lee was upstairs with Sain, who was trying to get into his apartment; West was standing on the outside of the doorway. Thunder then went upstairs to where Sain was. Robertson could not see what was happening upstairs, but heard Sain asking what was wrong, and pleading with the men not to hurt them.

Thunder then asked Robertson, "Where's A.K. and Mark?" She told him that she and A.K., her boyfriend, were no longer together. Mark is her cousin. She knew where they were, but she did not tell Thunder. A.K. belonged to the El Rukn street gang, which did not operate in the area of 844 South Racine. Defendant and Thunder belonged to the Black Gangsters of the Disciples street gang, who "hung out" in the area. The two gangs were not friendly. Defendant and his codefendants were looking for A.K. and Mark because A.K. and the codefendants sold drugs.

When Robertson did not tell Thunder where A.K. and Mark were, Thunder walked up and down the stairs, never staying in one place. Defendant repeatedly asked Thunder whether Thunder wanted him to "do it now," but Thunder kept saying "no." Thunder walked down the stairs, and defendant asked again. When Sain started to walk down the stairs, Thunder said "yes." Defendant then began shooting at Sain, firing seven or eight times. After shooting Sain, defendant asked Thunder whether he should shoot Robertson. Thunder said "yeah," and defendant turned toward her and fired at her head twice. Thunder also shot at Sain twice, after he was already down. Defendant and Thunder ran away, and West was gone as well. Robertson was not sure whether she was shot; she merely felt a burning sensation on the left side of her forehead. She blacked out and, when she came to, Reggie Lee, who had been at the top of the stairs during the shooting, was running down the stairs with a gun in his hand. Robertson grabbed him and begged him not to kill her. Reggie Lee said, "Bitch, get down," pushed her away, and ran out. Sain, who was on the stairs, called Robertson's name, and then "went out."

Robertson ran up the stairs and began banging on the door to Sam's apartment. Sain's mother answered the door, and Robertson told her that defendant and Thunder had just shot Sain. Robertson then called the police. When they arrived, she told them what happened and said defendant, Thunder, Gus (Reggie Lee's brother), and West shot Sain. Robertson incorrectly named Gus because she was shaken up and talking fast. She corrected herself and named Reggie Lee later, when she went to the police station. She had burns on her face from being shot at, but she did not go to the hospital; instead, she went to the police station and talked to the detectives.

Robertson told the detectives that defendant, Thunder, Reggie Lee, and West were the offenders. About two hours after the shooting, she viewed photographs and recognized Thunder's picture. On February 21, 1991, she was asked to view more photographs, and she recognized photographs of defendant and Reggie Lee. Robertson was also interviewed by an assistant state's attorney; afterwards, her statement was put in writing and she signed it. In May 1991, she testified before the grand jury concerning the shooting incident. She was afraid of West and of the entire neighborhood when she testified before the grand jury; subsequently, she did not continue to live at her house, but stayed in hotels paid for by the State.

On the morning of June 25, 1991, Robertson was visiting her sister at 1239 South Racine. At about 10 a.m., two men came to her sister's house and knocked on the door. They asked Robertson to come with them in order to sign a statement. The men told her that "it wouldn't cost nothing but 55 cents for a bullet to go into one of [your] heads," referring to her and her family. They then drove Robertson downtown to an office. On the way, the men told her that they wanted her to say that the offenders wore ski masks during the incident, and that she was high on heroin at the time. They also told her to say that she named the codefendants because she was mad that they had previously kidnapped A.K., who in fact had been kidnapped on December 19 by Thunder and a person named Cassadine, who was then dead.

Robertson and the men arrived at an office building, the location of which she did not remember, at 11 a.m. or noon. After parking, they all went upstairs. The men went inside the office while Robertson remained in the waiting room. The men came out about 15 minutes later, and Robertson went inside without them. Thunder's attorney, Mr. Vilkelis, introduced himself to her. He asked her where she lived, how many children she had, and about her sister and other personal things. She told him she lived at 1239 South Racine, although she did not. A court reporter arrived about five to ten minutes later. Robertson then gave a statement, lying and saying what the men wanted her to say because she was afraid for herself and her family. There was nobody else present except for Vilkelis, the court reporter, and another attorney. She did not immediately sign the statement after it was taken. Vilkelis told her that he would be in touch in a few weeks, although he did not ask for her telephone number. Robertson left, and the two men, who were waiting for her, drove her back to her sister's house.

On August 28, 1991, Robertson was on Lytle Street with Camilla and A.K. when two men drove up. One of them was one of the men who had previously driven her to the downtown office, and the other was a stranger. Robertson got into their car and went with them back to the downtown office. She went into the office, looked over the statement she had previously made, and signed it, making no corrections or changes. She signed it because she was afraid for herself and her family, and because she was afraid of people in the neighborhood and of West. Another man then entered the office and took two photographs of her. She walked into the hallway and a woman, who was not present when Robertson signed the statement, also signed it. The two men then drove her back to where they had picked her up. Prior to that day, Robertson had known that someone was looking for her to sign the statement.

On cross-examination, Robertson testified that A.K. had sat in the courtroom "for about a second" during her testimony, but had left before she mentioned his name. She was not employed, and supported herself through General Assistance. She did not support any of her five children. She received between five hundred and six hundred dollars from the State for living expenses, staying in several hotels over a four to six month period. The State paid the money directly to the hotels, not to her; when she needed money for personal things, she called the State. During the time she was housed by the State, she did not receive General Assistance because she failed to keep her appointments and the aid was cancelled.

Robertson had used heroin "every now and then" for the past year or year and a half. She was not an addict, and used heroin only when she was out socializing with friends. When she used heroin, she would use it twice a day. She had used her General Assistance money to purchase heroin. She had not used the money given to her by the State to purchase heroin because she did not know where to buy it in the areas where she stayed in the hotels.

She had last used heroin two days before she testified. She had used heroin on the day before the incident but not on the day or night of the incident; on that day, she stayed inside all day, "watching TV, just laying around." She went to Sam's apartment to check on her baby, who was asthmatic. Generally, after Robertson saw her baby she would get high on heroin, but not in Sam's apartment. When she got home after the shooting incident, she did not use heroin because she was too upset.

On May 8, 1991, Robertson was arrested for bringing drugs, about one-half gram of heroin, into the jail when she went to visit A.K. She had been told to pick up clothes from A.K.'s mother's house, and the drugs were already in the clothes. She remained in jail for twelve days. After eight days, she testified before the grand jury. She did not speak to anyone from the state's attorney's office while she was in jail until the day she testified before the grand jury. She was offered no deal to testify. Her drug case was dismissed when she went to court because the police officers who caught her did not show up. Robertson did not talk to any assistant state's attorneys before the dismissal. When she went to court, she was free on an "I-bond." A.K. remained in jail for a month or two after Robertson testified before the grand jury. She had been dating him for a year and a half and knew that he was on parole for murder. She had never been convicted of any crime.

Robertson had been driven to Vilkelis's office by two men in a gray, four-door car. She sat in the front seat by the driver while the other man, a dark-skinned black man, sat in the back seat. Robertson had seen him before in the neighborhood but did not know his name. She did not remember how tall he was or how much he weighed. The driver was also dark-skinned, about 6'10" tall and "heavy weighted." She did not describe the men to anyone at the state's attorney's office. Nobody gave her Vilkelis's business card.

She guessed that the shooting incident lasted about 30 to 45 minutes from the time she saw the codefendants until it was over. Defendant fired at her twice, first three to four inches from her head, the bullet entering the door above her head. She was unsure whether the second shot was fired at her head. After calling the police, Robertson called her friend Beeca and told her who had shot Sain. Beeca told her that Thunder's real name was Ira Hines.

When Thunder asked Robertson where A.K. and Mark were, he was referring to Mark Dickens, her cousin. Mark and A.K. grew up together, but were not in the same gang. Thunder did not say why he wanted to see A.K. and Mark. While defendant held her against the wall, she repeatedly shouted Thunder's name, and asked him what was going on. Defendant told her to stop yelling Thunder's name and, when she did not, he hit her on the head with his gun.

Robertson talked to the police in the kitchen of Sain's apartment. She did not remember giving the police a description of Thunder or Gus, but did remember giving a description of West. She also believed she may have given a description of defendant. She then spoke to detectives McGreal and Bronsberg at the police station, and gave them the names of the offenders. Robertson said that defendant's name was David, because defendant was seeing Robertson's cousin Camilla at the time, and David was the father of Camilla's children. The police brought her to Camilla's house where she told Camilla that defendant shot Sain. The police asked Camilla if she knew where defendant was, and Camilla responded that she did not. She showed the police a picture of defendant, however.

Chicago police officer John Butler testified that he was assigned to the Mobile Crime Lab Unit. On February 18, 1991, at 1:25 a.m., he was assigned to investigate the crime scene at the apartment building located at 844 South Racine. He recovered three fired bullets and a nine millimeter cartridge casing from the ground level of the foyer, and a fourth fired bullet from the first floor landing, in front of apartment 836. He also observed two indentations in the mailbox area, both of which appeared to have been caused by bullets.

Chicago police officer David Kozek testified that on February 18, 1991, at about 1:20 a.m. he received an assignment of a man shot at 844 South Racine. He arrived on the scene about two minutes after receiving the call, and observed the victim lying face-up on the stairs with his feet on the foyer floor. Kozek spoke to Robertson on the landing and inside the apartment. Robertson told him that defendant, Thunder, Gus, and West were the offenders. She also gave him a description of them.

Detective Thomas McGreal testified that he and his partner, Detective Bronsberg, became involved on the homicide investigation. McGreal spoke to Robertson at Area Four Headquarters between 2:30 a.m. and 3 a.m. on February 18, 1991. She had powder burn injuries on the left side of her forehead. She told him the same story she had testified to, up to the point of the interview. ...

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