Appeal from the Circuit Court of Cook County. Honorable Thomas Durkin, Judge Presiding.
Rehearing Denied September 27, 1995. Petition for Leave to Appeal Denied January 31, 1996.
The Honorable Justice Cahill delivered the opinion of the court: Hoffman, P.j., and Theis, J., concur.
The opinion of the court was delivered by: Cahill
The Honorable Justice CAHILL delivered the opinion of the court:
We review a claim of ineffective assistance of counsel based upon the failure to tender a jury instruction in a criminal case, and in the alternative, that the supreme court decision in People v. Brocksmith (1994), 162 Ill. 2d 224, 642 N.E.2d 1230, 205 Ill. Dec. 113 mandates reversal. We affirm.
Defendant was convicted after a jury trial of first degree murder and attempted first degree murder. He was sentenced to 45 years inthe penitentiary for murder and a concurrent sentence of 30 years for attempted murder.
Charles Barron testified at trial that he was a Blackstone street gang member. He said that on August 23, 1990, he and his friend Leon Allen drove to the 5100 block of South Paulina in Chicago, Illinois. Barron got out of his car and started to talk to a man named James Dilliard, a member of a rival gang, the Gangster Disciples. As Barron was talking with Dilliard, he saw defendant Russell Williams and two other rival gang members, Nelson Hannon, and Dwayne Elex, approach. The men exchanged gang handshakes with Dilliard.
Barron then saw Williams, Hannon, and Elex pull guns out of plastic bags they were carrying. Barron saw the defendant point a gun in his direction and fire. This shot hit Barron in the face. Barron sought cover under his car as the three men continued to fire. Barron was also hit once in each leg. After firing ten to twelve shots the three men fled.
Barron testified that he then came out from under his car. He saw Allen in the passenger seat bleeding. Allen told Barron that he had been shot. Barron drove to the 5300 block of South Marshfield and called for an ambulance. Barron and Allen were taken to a hospital where Allen died from his injuries. Barron also testified that neither he nor Allen were armed. Barron identified all three assailants in photo arrays and identified the defendant in a lineup.
Jermaine Wilson testified that he is a Gangster Disciple. He said that on August 23, 1990, he was on his porch at 5134 South Paulina when defendant Williams, along with Hannon and Elex, walked by. The group exchanged gang handshakes and one of the three men said: "We gonna get this [expletive]." Wilson said he saw the three men walk down the street toward Barron and Dilliard. He saw defendant pull out a gun and shoot at Barron, who took cover under a car. He said that neither Allen nor Barron had guns and that defendant was the only shooter. After defendant fired five shots, he and the other men ran. Barron got off the ground and drove away.
James Dilliard testified that he is a Gangster Disciple. He said that on August 23, 1990, he was at 5119 South Paulina when Barron drove up in a car. Barron got out of the car and began to talk with Dilliard. Allen stayed in the car. As Dilliard and Barron were talking, defendant Williams, along with Hannon and Elex, approached carrying plastic bags. They all exchanged gang handshakes.
Dilliard said that he continued to talk to Barron after the three other men arrived. Dilliard then told Barron to go home and both Barron and Dilliard started to leave. He then heard gun shots, saw Barron shot, and saw defendant with a gun. Dilliard testified that henever saw Barron nor Allen with a gun and that after the shooting Williams, Hannon, and Elex fled. Dilliard then saw Barron limp to his car and drive away.
Patricia Woods testified for the defense. She said that on August 23, 1990, she was on the steps of her apartment at 5119 South Paulina, where she observed Barron and Dilliard talking on the street. She said that defendant Williams came by with Hannon and Elex. Williams said that they were going to the laundromat. As the group approached Barron and Allen, Barron nodded to Allen in the car and pulled a gun from his waist. Defendant then pulled out a gun and shot Barron. She saw Allen reach for a gun and then saw Allen shot.
Defendant testified that he was on his way to a laundromat on August 23, 1990, when he came across Barron and Allen. When defendant was ten feet from Barron, he saw Barron nod to Allen, reach for his waist band, and remove a gun. Defendant then drew his gun and fired about three or four times. Allen also pulled out a gun. After shooting Barron, defendant fired at Allen. Defendant denied talking to Jermaine Wilson, but admitted talking with James Dilliard and carrying ...