APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE EARL E. STRAYHORN, JUDGE PRESIDING.
Petition for Leave to Appeal Denied April 3, 1996.
Presiding Justice Hoffman delivered the opinion of the court: Cahill and S. O'brien, JJ., concur.
The opinion of the court was delivered by: Hoffman
PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:
The defendant, Anthony Garrett, appeals from his conviction for first degree murder and unlawful use of a weapon by a felon. We consider: (1) whether it was manifestly erroneous for the trial judge to deny the defendant's motion to quash arrest and suppress evidence when the police allegedly did not have probable cause to arrest; (2) whether it was plain error for the trial judge to allow evidence of the defendant's gang membership and other gang-related evidence; (3) whether it was plain error for the State to comment about gangs and gang membership in closing argument; (4) whether the cumulative effect of the trial judge's remarks to defense counsel was reversible error; and (5) whether the trial judge abused his discretion in denying the defendant's motion for a mistrial. For the following reasons, we affirm.
In the morning of October 13, 1992, seven-year-old Dantrell Davis was shot and killed as he walked to school with his mother in the Cabrini-Green housing project. After a police investigation, the defendant was arrested without a warrant and charged with two counts of first degree murder and one count of unlawful use of a weapon by a felon. Prior to trial, the defendant moved to quash his arrest and suppress his statements to the police.
In the hearing on the defendant's motion to quash and suppress, police officers testified that before the defendant was arrested on the day of the shooting they knew a witness had seen a rifle fired from the window of apartment 1001 in the 1157 North Cleveland building. That building was controlled by a certain gang. Three shell casings were found in that apartment. The shots fired from the apartment were directed at the 502 West Oak building where Davis was shot, which was controlled by a different gang. Mario Hamilton told the police that a woman named Hollywood told him that just before the shooting, she saw a man she knew as Qarbiny carrying a rifle in the stairwell of the 1157 building on the eighth floor. Qarbiny was going up the stairs. When she reached the ground floor, she heard a shot and saw someone "go down" at the 502 building. Hollywood also described the clothes Qarbiny was wearing.
The officers knew the defendant's nickname was Qarbiny and he was the only person in the housing project with that nickname. He was the security chief of the gang that controlled the 1157 building where the shots came from and had been arrested for a previous sniping incident at the housing project. When the defendant was located at about 2:30 p.m. in front of the 1150 North Sedgwick building, he was wearing the same clothes as Hollywood had described. The police could not find Hollywood and were not able to verify with Hollywood the information they received from Hamilton. In his testimony, the defendant admitted that his nickname was Qarbiny.
In ruling on the motion to quash and suppress, the trial judge found that the police officers had probable cause, and therefore denied the defendant's motion. The defendant waived a jury trial on the charge of unlawful use of a weapon and demanded a jury on the charges of first degree murder.
At trial, Annette Freeman, Davis's mother, testified that on October 13, 1992, just before 9:00 a.m., she was walking Davis to school. When they were standing in front of the 502 building, she heard a couple of gunshots and saw sparks coming from the ninth or tenth floor of the 1157 building. Afterward, Davis was lying on the ground with a pool of blood around his head. Davis died from a single gunshot wound to the left side of the face. During an autopsy, three bullet fragments were recovered from his body.
The police officers reiterated at trial their testimony from the hearing on the motion to quash and suppress. In addition, a police officer testified at trial that when the defendant was arrested at the 1150 building, a security officer, Alberto Borges, ran up to them yelling that the defendant had been with him all day. Borges said the defendant did not do anything. Another police officer testified that the gangs that controlled the 1157 building and the 502 building were feuding at the time of the shooting and there had been sporadic shootings between the buildings since September 1992.
Borges testified that on the day of the shooting, he was working as a security guard in the 1160 North Sedgwick building in the Cabrini-Green housing project. At about 1:00 p.m. on the day of the shooting, Borges saw the defendant who told him: "I killed the kid, and I didn't mean to kill the kid." The defendant told Borges that if Borges told the police what the defendant had said, he would kill him. Later, Borges saw that the police had apprehended the defendant; because he was afraid, he told the police they had the wrong person and that defendant had been with him all day.
The morning after the defendant was taken in custody, he was read his Miranda rights and made a statement to the police. The defendant stated that at about 9:00 a.m. on the day of the shooting, he went to the tenth floor of the 1157 building where his gang kept a loaded AR-15 rifle. He went there because the rival gang had shot at some senior citizens who lived in a building the defendant's gang controlled. He had a clear view from the apartment of the 502 building which the rival gang controlled. He saw members of the rival gang standing outside the building and fired two to three rounds at them. He hit Davis. He fled from the apartment building, stopping at the eighth floor where he gave the rifle to a young gang member who "got rid of it." When asked whether anyone ordered him to do the shooting, the defendant "referred to" Charlie Smith, the king or president of the defendant's gang.
Andrew LeFevour, a former assistant State's Attorney, testified that he met with the defendant in the police station on October 14, 1992. The defendant told him about the shooting. LeFevour prepared a written statement. The defendant read the statement, made some corrections and initialed them, and then signed each page of the statement.
The defendant's written statement was essentially the same as the oral statement previously given to the police. In his written statement, he specifically stated that he intended to shoot some members of the rival gang for revenge. He also stated that the rifle was loaded with .233 caliber ammunition.
The shell casings found in apartment 1001 of the 1157 building were .223 caliber and the ejector marks on them were consistent with being fired from an AR-15 rifle. The casings also showed that they had contained bullets with a cannelure pattern which was the same type of pattern found on the bullet fragments ...