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03/31/95 PEOPLE STATE ILLINOIS v. DESMOND WESTON

March 31, 1995

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DESMOND WESTON, JOHN WALKER, AND JERROD SMITH, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Edward M. Fiala, Jr., Judge Presiding.

The Honorable Justice Hartman delivered the opinion of the court: DiVITO and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Hartman

JUSTICE HARTMAN delivered the opinion of the court:

In this consolidated appeal, defendants Demond Weston, Jerrod Smith, and John Walker (collectively "defendants") were charged with a number of crimes resulting from two separate, but gang-related shootings on May 29, 1990. After a jury trial, Weston was found guilty of first degree murder and attempt to commit first degree murder. Subsequently, Smith and Walker were tried simultaneously in a severed bench trial. The circuit court found Smith and Walker guilty of attempt to commit first degree murder. Defendants appeal their convictions and sentences.

In order to comply with recently adopted page limitations set forth in Supreme Court Administrative Rule MR No. 10343, which accompanied amended Supreme Court Rule 23, (134 Ill. 2d R.23 (amended eff. July 1, 1994)), the written disposition in this appeal will be bifurcated into this opinion, to be published, and an unpublished Rule 23 order disposing of the remaining, nonprecedential issues, filed contemporaneously with this opinion.

The following issues are presented in these appeals; their dispositions, whether by this opinion or by Rule 23 order (R.23), are designated in parenthesis. We are asked to review whether the circuit court erred (1) in denying Weston's motion to quash arrest and suppress evidence (opinion); (2) in joining two indictments in the Weston trial (opinion); (3) in allowing hearsay testimony during the Weston trial (R.23); (4) in permitting improper comments by the State during closing argument in the Weston trial (R.23); (5) in denying defendants' challenge to the State's substitution of judge practice (opinion); (6) in weighing the evidence by a clear and convincing standard during the trial of Smith and Walker (opinion); and (7) in imposing upon defendants excessive sentences (R.23).

On August 27, 1991, the circuit court heard Weston's motion to quash arrest and suppress evidence. Weston testified that on June 9, 1990, he was at 5926 S. Union around noon when four plain-clothes police officers approached him, searched him, released him, but later returned and, without an arrest warrant, handcuffed Weston and took him to the police station. Weston gave a written statement, although he testified that he was not first advised of his Miranda rights, and was placed in a line-up on July 17, 1990.

Detective Michael Kill testified that on June 9, 1990, he was working on the investigation of three shootings that occurred on the evening of May 29, 1990, in which one person died and six others were injured. After talking to a witness to another homicide case, in which it was believed the same 9 millimeter semi-automatic pistol was used as in the instant shootings, Kill arrested Duane Macklin at 5928 S. Union. Prior to the arrest, Kill questioned Macklin regarding the 9 millimeter pistol and recovered it from a car parked in a lot nearby.

At the police station, Macklin told Detective Kill that in the evening of May 29, 1990, he and other Gangster Disciples met to discuss a problem they were having with another gang, the Conservative Vice Lords. The 9 millimeter pistol that was recovered by Kill and other firearms were brought to the meeting. Ten Gangster Disciples then left to "go on a mission." Macklin identified six individuals, including "Demond."

The day after the meeting, two of the gang participants took Macklin on a tour of the area of 5700 S. Wolcott and 5500 S. Justine, where the shootings took place. At approximately 3:30 p.m. on June 9th, Detective Kill and two other detectives took Macklin to the area where he was arrested to identify some of the participants in the shootings. Macklin identified "Demond," who was standing in front of 5926 S. Union wearing a black cap and a black jacket. Kill handcuffed Demond Weston, placed him under arrest, and drove him to the police station. Kill placed Weston in an office, removed the handcuffs, and read him his Miranda rights, which took about five minutes.

On cross-examination, Detective Kill testified that during the interrogation, Macklin was under arrest for an unrelated murder, not for the shootings in this case.

The circuit court found that Macklin, who was in custody at the police station, had nothing to gain by fabricating his story to Detective Kill. Considering the totality of the circumstances, the court found that there was probable cause to arrest Weston and denied his motion to quash the arrest.

At trial, the evidence established that on May 29, 1990, defendants Weston, Smith and Walker, along with other Gangster Disciples, organized a "wrecking crew" and shot at people in three separate locations, each only three blocks from one another. The first location was 57th and Wolcott, where Joseph Watson was shot and killed, and Timothy Jones was shot. The second location was 5759 S. Honore, where Pierre Solomon, J.D. Lee and Derrick Mason were shot. This incident was not the subject of an indictment. The third location, 5530 S. Justine, was where Deneen Coats and Ronald Nesbit were shot.

Timothy Jones, age 15, testified that on May 29, 1990, at approximately 10:30 p.m., while riding his bicycle on the 5600 block of Wolcott, he saw Joseph Watson across the street. Three boys came out of the gangway and started shooting. It was dark, and although Timothy could not see the boys' faces, he observed that they were wearing dark clothes. Timothy was shot in the legs three times, but managed to get home by jumping a gate and running through an alley. As he was running, he heard about four more shots. Timothy did not see Joseph Watson get shot.

Antonio Harris testified that on May 29, 1990, he was standing on the front porch of his home at 5643 S. Wolcott, saw Timothy Jones ride by on a bicycle, and then saw someone shoot Timothy. When bullets flew through his porch window, Antonio ran into his house. As he crouched down and looked out the glass door, he saw three men chasing and shooting someone else; another person trailed the three in pursuit. The victim was shot once and hollered "you already shot me," but the shooting continued. Antonio did not see the faces of the shooters, but noticed that they were wearing black. At the time of his testimony, Antonio was on parole for aggravated criminal sexual assault.

Pierre Solomon testified that on the evening in question, he was with his friends J.D. Lee and Derrick Mason. Pierre belonged to the gang Black P. Stone, and J.D. and Derrick were Vice Lords. These two gangs were in the gang alliance "Brothers," and the enemy organization was the "Folks," of which the Gangster Disciples were amember. They were sitting on the porch steps at 5759 S. Honore talking when he saw six to eight men, dressed in black with their hats pulled way down, across the street; he could not see their faces. One of the men fired his gun, and Pierre and his friends ran inside the home. He stated that at least two guns were being fired at them. Pierre was shot in both thighs, J.D. was shot in his right arm, and Derrick was shot in the hip and arm.

Deneen Coats testified that on the night of May 29, 1990, while sitting on the porch of her home at 5530 S. Justine with her friends Ronald Nesbit and Reginald Norwood, she noticed a group of about eight men, wearing dark clothes and caps, standing across the street. They pushed around a friend of hers, and then they walked to the middle of the street, stopped in front of her house, pulled out their guns, and started shooting at her. The street was well-lit, and Deneen was able to see the faces of the shooters. As she and her friends ran inside her home, she was shot once in the upper leg and again in the back, the second shot piercing her lung. Ronald Nesbit was shot in the foot.

Deneen viewed a line-up at the police station and identified defendants Weston, Smith, and Walker as some of the men ...


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