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06/06/94 PEOPLE STATE ILLINOIS v. GEORGE HARPER

June 6, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
GEORGE HARPER, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE THOMAS P. DURKIN, JUDGE PRESIDING.

As Corrected August 1, 1994. Released for Publication August 2, 1994.

O'Connor, Buckley, Manning

The opinion of the court was delivered by: O'connor

Justice O'Connor delivered the opinion of the court:

Defendant, George Harper, shot and killed Kenny Rogers on Magnolia Street in Chicago in 1990. Defendant believed Rogers to be a member of street gang which rivalled his own. Following his conviction for that murder, defendant was sentenced to a 50 year prison term. We affirm.

On the day of the murder, Rogers was accompanied by Timothy Jefferson and Jefferson's brother, Ike Glover, on a walk to aneighborhood store. Several blocks from the store, they happened upon a rowdy group of youths, who began throwing rocks and bottles at the three men. Some of the youths crossed the street and demanded that Jefferson, who was wearing a baseball hat, acknowledge his loyalty to a street gang. Frightened, Jefferson put his hand in his jacket pocket, feigning possession of a weapon. The youths retreated to the other side of Magnolia Street. Rogers and his friends continued toward the store. A shot rang out. Rogers ran a few steps and fell to the ground. Glover remained with Rogers while Jefferson ran to a nearby fire station for assistance. Rogers died at the hospital from a single gunshot wound. Neither Jefferson, Rogers nor Glover was a gang member, and none carried any weapons.

Within an hour of the shooting, defendant and Jerry Shields, both members of the same street gang, visited Anthony Keel's house which is near the scene of the shooting. Defendant and Shields told Keel, a fellow gang member, of the earlier incident on Magnolia Street. Defendant related that one of the men wore a hat "turned the wrong way," and defendant's group engaged the three in a verbal exchange. Defendant told Keel that he had "hit a nigger" after the altercation became physical.

That evening, Shield's girlfriend came to the apartment and told Keel's girlfriend about a shooting. When Keel asked defendant about it, defendant told Keel that he had "shot the nigger." Defendant thought one of the men was "going for a gun."

Later that night, defendant voluntarily accompanied investigating officers to the police station where he admitted his participation in the shooting. Defendant stated that he and fellow gang members were at the corner of Magnolia and Sunnyside Streets when three men approached the area on the other side of Magnolia Street, one of whom wore a "cocked" baseball cap. One of defendant's friends instructed defendant to get the gun which was stashed in a nearby dumpster. While at the dumpster, defendant's group called for him to return to the scene so he put the gun in his waistband and ran back to his group. As he rejoined the others, he noted that one was throwing bottles at the three men. Another ran up to the man with the turned cap, demanding that he straighten it. The man did so, but also put his hand in his jacket. Someone said "shoot him," and defendant pulled the gun from his waistband and cocked it. As he raised the gun, it "went off."

Sean Wolfe was among the gang members with defendant at the time of the shooting. According to Wolfe, one of the men wore a hat which was "turned," indicating an affiliation with a rival area gang. After hearing someone shout that gang's name, Wolfe grabbed abrick and threw it at the three men. Wolfe and his friend James then confronted the man in the hat, demanding that he straighten it. The man put his hand in his jacket pocket and replied "why don't you make me straighten my hat?" Wolfe and James returned to the other side of the street to the others, and Wolfe shouted "who ever has a gun shoot over his head because he has a gun; scare him off." Although defendant had a gun at that time, Wolfe did not see him fire it.

A jury found defendant guilty of murder, and the circuit court imposed the sentence noted above.

Defendant argues that two racial statements allegedly made by him were improperly introduced into evidence through the testimony of Anthony Keel.

Although defendant included this issue in his post-trial motion, he failed to object to the testimony at trial. Therefore, the issue is waived. (See People v. Enoch (1988), 122 Ill. 2d 176, 186, 522 N.E.2d 1124, 119 Ill. Dec. 265, cert. denied 488 U.S. 917, 102 L. Ed. 2d 263, 109 S. Ct. 274.) We find no reason to excuse this waiver under the plain error rule. See People v. Carlson (1980), 79 Ill. 2d 564, 404 N.E.2d 233, 38 Ill. Dec. 809.

Defendant next claims that in light of the evidence, the State failed to prove him guilty of first degree murder beyond a reasonable doubt. A conviction will be upheld if, after viewing the evidence in the light most favorable to the prosecution, "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." ( People v. Collins (1985), 106 Ill. 2d 237, 261, 478 N.E.2d 267, 87 Ill. Dec. 910, cert. denied 474 U.S. 935, 88 L. Ed. 2d 274, 106 S. Ct. 267 citing Jackson v. Virginia (1979), 443 U.S. 307, 319, 61 L. Ed. 2d 560, 573, 99 S. Ct. 2781, 2789.) This case presents, at most, matters which are wholly within the province of the jury, not ...


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