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06/29/94 PEOPLE STATE ILLINOIS v. WAYNE MILLIGHAN

June 29, 1994

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
WAYNE MILLIGHAN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Christy Berkos, Judge Presiding.

Rehearing Denied September 1, 1994. Released for Publication September 13, 1994.

Tully, Rizzi, Cerda

The opinion of the court was delivered by: Tully

PRESIDING JUSTICE TULLY delivered the opinion of the court:

After a jury trial, defendant, Wayne Millighan, was convicted of murder and armed robbery and sentenced to two consecutive terms of imprisonment: 40 years for the murder and 30 years for the armed robbery. It is from the judgment of conviction that defendant now appeals to this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

On appeal, defendant argues that: (1) he was denied a fair trial by improper remarks made by the prosecution; (2) he was denied a fair trial when the State shifted the burden of proof to him by cross-examining him regarding his failure to produce witnesses to corroborate his alibi; (3) he was denied a fair trial by improper admission of evidence that he had shot another individual before the offenses at issue in this case; (4) he was denied a fair trial after the State built up its witnesses' identification of defendant with irrelevant testimony; (5) he was denied a fair trial when the trial court improperly sustained certain objections made by the State during defense counsel's opening and closing statements, resulting in jury confusion as to the burden of proof; (6) he was denied a fair trial by the cumulative effect of these cited errors; and (7) the trial court abused its discretion in sentencing him.

For the reasons which follow, we affirm.

FACTUAL BACKGROUND

The facts of this case are as follows: At approximately 1 a.m. on April 10, 1986, M & R Food and Liquor Store was robbed by three men. The store's owner, Nazih Yousef, was killed by one of the men in the rear of the store. One robber stayed at the outside door while the second robber remained in the front of the store and emptied thecash register while holding two employees at gunpoint. Prior to the robbery, defendant was involved in a shooting of Donnell Collins at about 1 a.m., who was walking with Loretta Jackson. Apparently, defendant made a comment to Jackson, and Collins countered, with defendant then shooting Collins in his thigh with a silver-plated gun. Jackson testified at the trial to this, and further, that defendant had told her by telephone to tell Cecilia Hale, her sister-in-law, not to identify him in court. While Collins was being transported to the hospital, Hale looked out of her window and saw defendant with two other men go into the liquor store. In addition, there was testimony that Jackson returned and told Hale that defendant had shot Collins.

The two liquor store employees present during the robbery, Mohammed Grayyib and Hussein Awwad, testified through interpreters. They recounted that Yousef had hired defendant as a stock boy two days before the robbery. Yousef had discharged defendant the day before the robbery. Grayyib stated that on the night of the robbery, defendant had entered the store with three other men and stayed for about 30 minutes. Some time later, after 1 a.m., two men kicked in the door to a restricted area of the store. One of the men went to the liquor section, and this man had been seen with defendant earlier that night. Defendant, had a silver gun and announced, "It's a stick-up." Grayyib yelled to Awwad and explained that the robber wanted the cash register opened. Grayyib opened it and the man took the cash drawer. A shot was heard and the other robber came from the back room carrying a sack of money and a black gun, and all three men left the store. Yousef had been shot.

Hussein testified similarly to Grayyib. Another store employee, Achmaad Hassan, indicated that he was in the cooler during the robbery and heard a shot, and when he came out, he saw Yousef on the floor. Hassan confirmed that defendant had been in the store earlier that night. Hussein looked at a group of photos, identified Michael McCoy, as one of the men who was with defendant at that time earlier that evening. On April 11, Grayyib and Hussein viewed various photos. Grayyib identified defendant as the man who took the cash drawer and money; Hassan stated that defendant was the man who had worked for them, and whom he had seen earlier in the store the night of the crime.

Subsequently, about two weeks after the robbery, defendant was arrested in Milwaukee for the crimes at issue in this case. A lineup was arranged wherein Grayyib and Awwad identified defendant as one of the offenders and as having been in the store earlier that evening. Grayyib and Awwad identified Michael McCoy in a lineup as the robber who went to the rear of the store and shot Yousef.

Defendant testified at trial that on the evening of the crime, he had visited a jazz club located at the intersection 49th Street and Cottage Grove, leaving the club at about 11 p.m. and returning to the Stateway Gardens housing project, and after returning, went across the street to liquor store to buy cigarettes. Defendant stated that he went alone and stayed at the store for about five minutes, and then returned to 3618 South State Street, where he talked with people that he knew. At about 1 a.m., Jackson, whom defendant formerly dated, came into the "Breezeway" at Stateway Gardens. According to defendant, Donnell Collins appeared and started an argument with him and then struck him. In the fistfight, Collins supposedly reached under his jacket, and then defendant shot him. Defendant ...


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