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04/26/96 PEOPLE STATE ILLINOIS v. STEPHEN MCMURTRY

April 26, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
STEPHEN MCMURTRY, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE JOHN WASILEWSKI, PRESIDING JUDGE.

The Honorable Justice McNAMARA delivered the opinion of the court: Egan and Rakowski, JJ., concur.

The opinion of the court was delivered by: Mcnamara

JUSTICE McNAMARA delivered the opinion of the court:

Following a jury trial, defendant Stephen McMurtry was convicted of first degree murder. He was subsequently sentenced to 30 years in the Illinois Department of Corrections. Defendant appeals.

It is undisputed that on May 17, 1992, at approximately 12:30 a.m., a group of people including defendant and the victim, Ortagus Turner, were standing in front of defendant's home while defendant was engaged in an argument with another individual, Termain Tims. It is also undisputed that a bullet from the gun defendant was holdingstruck Turner in the chest and killed him. On appeal, defendant contends: (1) the trial court erred in allowing the State to impeach its own witness, Cordell Felix; (2) the State committed error when it urged the jury to consider Felix's prior inconsistent statement as substantive evidence of defendant's intent; (3) the trial court erred when it allowed the State to introduce a prior consistent statement of another witness, Walter Murray; (4) the trial court abused its discretion when it would not allow defense counsel to cross-examine Murray about a conversation between defense counsel and Murray the previous day; (5) the State violated an order in limine during closing argument; and (6) the sentence was excessive.

The following relevant facts were adduced at trial. Cordell Felix testified that at approximately 12:30 a.m. on May 17, 1992, he and his girlfriend at the time, Lavelle Charles, walked towards her home at 1927 Ashland Avenue in Chicago Heights. Standing in front of the home already was a group consisting of Termain Tims, Reginald Tims, Vernell Carmichael, and Ortagus Turner. Just as Felix and Lavelle walked up, two of her brothers, defendant and Sean Charles, pulled into the driveway in a car. Defendant and Sean went into the house and when they came back out, they began arguing with the Tims brothers. Felix testified that defendant "was ranting and raving, constantly arguing at that point." Defendant then went into the house again.

Felix testified that when defendant came outside again, he had a chrome-plated silver pistol in his hand. At that time, Felix was sitting on the back of a car with Turner. Defendant was again "talking and arguing," and he was directing his attention to Termain Tims. Felix was not sure what defendant was saying to Termain, but the argument seemed to be about an earlier dispute. Defendant may have been angry about something being taken from him.

Felix testified that defendant was moving around the driveway while "constantly arguing" with Termain, who was also known as "Herk." According to Felix, defendant yelled, "'Herk, shut the "F" up,'" and "at that point, the gun went off." When the gun went off, Felix was facing the house, defendant and Sean were in front of Felix, Turner was directly to Felix's right, and Herk was at a diagonal to Felix's right, about three to four feet away. The following exchange then took place between the prosecutor and Felix:

"Q. Okay; what do you recall the defendant saying prior to the gun going off to Herk?

A. 'Shut the "F" up, Herk,' [and] the gun went off.

Q. The defendant say he was going to shoot anyone while you were there?

A. No, he did not.

Q. The defendant say he was going to hurt anyone prior to the gun going off?

A. Not that I recall."

Felix further testified that since the incident he had married defendant's sister Lavelle. Felix also agreed that he had talked to the police after the incident. Defense counsel then objected on the basis that the State was apparently going to impeach its own witness. Following a sidebar, the court overruled the objection. Felix then testified that he did have a conversation with a police officer approximately one-half hour after the shooting, but he did not tell the officer that defendant stated that someone was going to get shot if he did not get his stuff back. Felix testified that the police did not ask him what defendant was saying when he came out of the house. The prosecutor again asked Felix if he recalled what defendant said prior to the shooting, and Felix responded, "After he was ranting and raving, arguing with Herk, which is Termain Tims, at this point, with the gun in his hand, he said, 'Shut the fuck up, Herk,' and the gun went off."

On cross-examination, Felix testified that no words were exchanged between defendant and Turner during the incident. He testified that defendant waved and "flashed" the gun around for at least five minutes during the argument. During that time, he did not see defendant point the gun at anyone or take aim at anyone. When the gun went off, Felix was not looking at it. The whole argument took from 15 to 20 minutes, and defendant had the gun for approximately five to seven minutes.

The State next called Walter Murray. Murray testified that on May 17, 1992, at approximately 6 a.m., defendant came to his house and asked if he could stay there. Murray told defendant that he could not stay at his house but that he could go with Murray to Murray's girlfriend's home. Murray and defendant then walked together to Murray's girlfriend's house and, along the way, defendant told him that he didn't try to shoot Turner, he tried to shoot Herk.

On cross-examination, Murray testified that he had only one conversation with defendant about the shooting. When asked by defense counsel whether there was anyone else there, Murray stated that he thought there was someone else in the room. The following exchange then took place:

"Q. In the room?

A. Yeah.

Q. You had this conversation with Mr. McMurtry and you think there was someone else in the room ...


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