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02/16/96 PEOPLE STATE ILLINOIS v. MICHAEL SMITH

February 16, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
MICHAEL SMITH, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. The Honorable John K. Madden, Judge Presiding.

Presiding Justice Zwick delivered the opinion of the court: McNAMARA, J., and Egan, J., concur.

The opinion of the court was delivered by: Zwick

PRESIDING JUSTICE ZWICK delivered the opinion of the court:

Following a bench trial, defendant was convicted of attempted first degree murder, conspiracy to commit first degree murder, solicitation of murder, aggravated battery with a firearm, and aggravated kidnaping arising from the shooting of Stephanie Powe on February 19, 1992. Defendant was sentenced as an habitual offender to a mandatory term of life imprisonment. On appeal, defendant claims that (1) the trial court abused its discretion in permitting the prosecution to reopen its case to present additional evidence, (2) the trial court erred in admitting evidence that his co-defendant was murdered prior to trial and in admitting a bloody photograph of the co-defendant's body, and (3) he was not proven guilty beyond a reasonable doubt.

The evidence established that on February 19, 1992, the victim, Stephanie Powe, suffered two gunshot wounds in the head and one in the right arm. After the shooting, Powe was discovered locked in her car, which was running and parked near railroad tracks in the vicinity of 110th Street and Princeton Avenue in Chicago, Illinois. Although Powe was seated in the driver's seat, she had slumped over onto the passenger side of the car and was fading in and out of consciousness. Before being taken to the hospital, Powe described the circumstances of the shooting to Chicago police officer Terrance Gibbons. Gibbons, who had entered the car through the partially open sun roof, observed fresh blood on the seats and shell casings on the back seat.

At trial, Powe described in detail her prior relationship with the defendant and the events which preceded the shooting.

Powe testified that she and defendant met in late 1989 and began living with him, first in Chicago, and subsequently in Will County. Powe learned that defendant was a high-ranking member of the Gangster Disciples street gang who was involved in selling cocaine. She observed him bring large amounts of cocaine to their Chicago and Will County residences.

In May 1990, defendant and Powe were arrested in Will County and charged with possession with intent to deliver a quarter of a kilogram of cocaine. In December 1990, defendant was incarcerated in the Stateville Correctional Center. At the time of trial in the instant case, the Will County drug charges were still pending against both Powe and defendant.

Powe testified that she visited the defendant every week in the penitentiary. While they were not married in the traditional sense, Powe and defendant had exchanged wedding bands. During defendant's incarceration, Powe would contact defendant by paging him on a wristwatch pager that she had delivered to him in the penitentiary. The defendant's inmate identification number had been engraved on the back of this pager. Defendant would call her from the penitentiary collect ten to twenty times per day, and Powe would sometimes "three way" these calls so that defendant could speak with other people. Powe periodically received money from defendant during his incarceration to pay rent and car expenses.

During a visit in December 1991, defendant threatened to hurt her if she did not act the way he believed she should. Although he was in the penitentiary, defendant told Powe that he could do anything he wanted to do to her and her brother could not protect her. Powe testified that she never visited defendant at the penitentiary again, but did receive small amounts of money from defendant during January and February 1992, and defendant continued to call her regularly. The number of the cellular telephone used by Powe was 415-2192, which was registered to defendant's father, Eddie Wilson.

On February 19, 1992, between 5 and 5:30 p.m., Powe received a call from defendant on her cellular phone. Defendant asked Powe whether she could "make a run," which she understood to mean that defendant wanted her to pick up some money, but Powe declined. At approximately 8 p.m., she received a collect call from defendant at her home. He asked her whether she still loved him, whether she was still wearing the rings and whether she would ever take them off. Powe responded in the affirmative to the first two questions and told defendant that she would never remove the rings. Defendant also asked Powe if she needed money, and she told him that she did. Defendant then instructed her to go pick up some money from "Crip," whose real name was Darren Brown.

After this conversation, Powe drove to Brown's house at 11238 South Vernon. After Powe pulled up in front of Brown's building, she received a third call from defendant on her cellular phone. Defendant asked whether Brown had not come out of his house, and Powe stated that he had not. Powe then called Brown at 568-6002 on her cellular phone. When Brown came out of the building, he got into the front passenger seat, and another man, whom Powe had never met before, got into the back seat. Powe then received the fourth and final call on her cellular phone from defendant who told her that he wanted to speak with Brown. Powe complied and heard Brown say, "Yeah, everything is straight. All right." Brown then handed the phone back to Powe, and defendant called her an obscene name, accused her of seeing other people and demanded to know why she had been talking to the police about the drug case which was pending in Will County. At this time, the man in the back seat placed a gun to her head, and defendant told Powe that she would be dead when their conversation ended.

Brown then snatched the phone from Powe and ordered her into the back seat. When she refused, and the man in the back seat hit her with the butt of his gun, grabbed her by the hair and began beating her in the face. The two men then forced her into the back seat. The man in the back seat repeatedly asked her why she had spoken to the police and what she had told them. Brown also told her that she should not have spoken to the police.

The men demanded her rings, and Powe surrendered them, asking to be released. Brown then drove to a dark alley where the men again questioned her. After Powe again denied their accusations, Brown turned and shot her, and the man in the back seat also put a gun to her head and shot her.

Powe then lost consciousness. She testified that she remembered regaining consciousness and finding herself alone in the car. She could not see and was unable to move her arm. Using her foot, she opened the sunroof and struggled into the front seat. Powe was unable to drive and could not unlock the door. She then called Darnell Reed at 614-1844 by pressing the redial button on her car phone and told him she had been shot. Powe told Reed where she was and asked him to call an ambulance.

Sometime thereafter, Powe saw bright lights and heard someone on the roof of the car. After the door was opened, she spoke with a person she believed to be a police officer. Powe told the officer her name and requested that he not move her until she had told him what had happened. Powe was placed in an ambulance after she had described the shooting to the police officer. Powe stated that she chose not to tell the officer that she had called Darnell Reed.

Powe remained in the hospital for more than two months. A bullet had entered her right eye and passed through her jaw. A second bullet had struck her in the jaw and remained lodged near her spine. A third bullet had entered her right arm. She lost her right eye, and her right side had been paralyzed for two and one-half months. Although she ...


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