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May 13, 1994


Appeal from the Circuit Court of Cook County. The Honorable Fred G. Suria, Judge Presiding.

Egan, McNAMARA, Rakowski

The opinion of the court was delivered by: Egan

PRESIDING JUSTICE EGAN delivered the opinion of the court:

After a jury trial, Sylvester Dukes was convicted of first degree murder and attempted first degree murder. His brother and co-defendant, Terry Dukes, was convicted of first degree murder on a theoryof accountability. Sylvester was sentenced to the Illinois Department of Corrections for concurrent terms of 55 years for murder and 30 years for attempt. Terry was sentenced to the Illinois Department of Corrections for 35 years. We consolidated their appeals. Sylvester argues that the second degree murder statute is unconstitutional. Terry contends that the evidence was insufficient to show his guilt. Sylvester and Terry both argue that they were prejudiced by the prosecutor's closing argument.

On January 19, 1990, Sylvester shot and killed Roselle Edwards and wounded Roselle's niece, Enona Edwards. The State's theory of the case, as presented in its opening statement, was that Terry and Sylvester planned to shoot Roselle as an act of gang retaliation because Roselle forced one of their friends to leave a party.

Roselle owned a small apartment building in Chicago. He rented a first floor apartment to his nephew Stanley Edwards and the second floor apartment above Stanley to his other niece, Angela Lyons. Enona testified that Lyons had approximately 10 people in her apartment on the evening of January 19; the guests were playing cards and drinking beer in the kitchen. Enona, Roselle, Roselle's nephew Rickey Edwards, and Angela were in Stanley's apartment at approximately 11 p.m. when they heard noise coming from Angela's apartment. The four went upstairs to investigate.

Enona and several other witnesses explained that Frank Patrick and a woman named Stephanie were fighting in Angela's kitchen. Enona testified that Roselle "grabbed" Frank "in the collar" and told him to stop fighting. Frank and Roselle then hit each other. At this point in the argument, Donald Patrick entered Angela's kitchen and told Roselle to leave Frank alone. Stephanie was Donald's girl friend; Frank and Donald were brothers. Donald and a man named Eric began fighting. Enona explained that Roselle tried to push Donald and Eric apart, and Donald left the apartment. When Donald left, he was "upset, mad." Enona did not see Donald again that night.

The guests began talking and cleaning up the kitchen. Approximately five minutes after Donald left, Sylvester "bust in the door, kicked in the door" to Angela's apartment. Enona testified that Terry and a light-skinned man entered the apartment with Sylvester. Sylvester said "this is a G thing" and Sylvester and Terry "went straight towards [Roselle]." Several witnesses testified that Sylvester was a member of the Gangster Disciples street gang, and one witness also stated that Terry was a Gangster Disciple. Sylvester hit Roselle once in the face with his fist, then stepped away from Roselle and "the other two took over." Terry had a brick when he entered the kitchen, and he hit Roselle in the head with the brick three times, using "a lot of force." Sylvester "stood back watching" Terry hit Roselle.

Enona "started screaming and hollering" and ran toward Sylvester. Sylvester pushed Enona down, and "by the time [Enona] got up, * * * [Sylvester] was raising up" a gun. Sylvester pointed the gun directly at Enona and shot her. Enona was approximately three feet away from Sylvester when he fired. The bullet entered Enona's shoulder.

After shooting Enona, Sylvester "turned and shot [Roselle]." Enona testified that Roselle did not pull out a gun at any time during this fight. After the first shot was fired at Roselle, a woman named Val grabbed Enona and pulled her out of the kitchen. The two women hid in the bathroom closet. From the bathroom, Enona heard "about four more shots." Val and Enona remained in the bathroom until the police entered the apartment and took Enona to Cook County Hospital.

Rickey and Sylvester's girl friend, Katie Hall, also testified for the State. Hall knew Angela and Roselle and went to the party at Angela's apartment on January 19. On her way into the building, Hall saw her brother, Sylvester, and a "couple more guys" outside the building. Sylvester later entered the building and was talking to Michael Brown in the second-floor hallway. Sylvester did not enter Angela's apartment at that time, but left the second floor.

In Angela's apartment, Rickey and Hall observed Roselle trying to break up the fight between Frank and Stephanie. Hall also later heard Roselle tell Donald and Eric not to argue. Hall did not see anyone leave the apartment after the fighting. Similarly, Rickey was not sure whether Donald left the apartment after the argument. Hall and Rickey both were in the apartment when Sylvester and Terry "kicked in" the door. Hall knew Sylvester and Terry "kicked in" the door to Angela's apartment because "wood flew off the back of the door."

Terry entered the room first, followed by Sylvester and a man Hall and Rickey did not know. Rickey described him as "light-skinned." Rickey explained that the three "went straight to Ro[selle], * * * and started hitting him." Hall heard Sylvester say "Gangster thing" as he entered the room; she understood this to refer to a gang. Rickey also heard "yelling in the door talking G thing or Gangster thing." Hall saw Terry hit Roselle in the head with the brick. Rickey thought the men were using an object when hitting Roselle's head, but could not see the object. Both Hall and Rickey saw Sylvester shoot Enona. Next, Sylvester shot Roselle in the chest and then in the head. Hall testified that Sylvester fired approximately five times. According to Rickey, Roselle did not have a gun. After Sylvester shot Roselle in the head, Rickey ran to the den and hid under bunk beds. He heard three more shots.

Assistant Cook County Medical Examiner Tae An testified that Roselle died as a result of multiple gunshot wounds. According to An, several lacerations on Roselle's head "could be" consistent with his being hit by a brick.

Several police officers testified for the State. Officer Gorman and his partner responded to a radio message that several shots had been fired in the apartment. When he entered the apartment, Gorman noticed that the wood frame on the door was broken. Gorman and his partner eventually arrested Terry and Sylvester. Officer Heldak testified that she and her partner took a brick that was on the floor near Roselle's head and inventoried the brick. She explained that pictures taken of the crime scene show this brick near Roselle's head. Finally, Evidence Technician Ricks testified that he recovered four bullets from the scene but that the gun was ...

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