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06/03/96 PEOPLE STATE ILLINOIS v. DUANE MCCOY A/K/A

June 3, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DUANE MCCOY A/K/A PARRIS MCCOY, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE FRED SURIA, JUDGE PRESIDING.

The Honorable Justice Wolfson delivered the opinion of the court: Campbell, P.j., and Braden, J., concur.

The opinion of the court was delivered by: Wolfson

The Honorable Justice WOLFSON delivered the opinion of the court:

Sixteen-year-old James Earl Fleming was shot at 7:50 a.m. on July 20, 1991, as he lounged on a parked car with his friends, Arthur James and Londell Lancaster, outside Arthur's home at 1306 N. Harding in Chicago. Fleming died from three gunshot wounds to the head and neck.

Duane (Parris) McCoy, age 19, was charged with Fleming's murder. A jury found him guilty. He was sentenced to 80 years in prison. In this appeal he raises issues relating to his claim that he was drinking alcohol and ingesting drugs during the hours before the shooting. He also challenges the length of his sentence. We affirm the conviction and sentence.

BACKGROUND

This was not a crime of passion. There was no fight. No harsh words were exchanged. Fleming died for one reason -- he was a member of the Gangster Disciples. His killer was a member of a rival gang, the Insane Unknowns. Someone had "to pay" for the death of Jesse Maldonado, an Insane Unknowns gang member who had died a similar senseless death some months earlier. Fleming became that someone.

There were witnesses to the shooting. Based on their description of the shooter, Duane McCoy was arrested shortly after the shooting and charged with Fleming's murder. At the police station he was identified in a lineup. He later gave a self-incriminating statement to police.

In 1994, McCoy was tried by a jury on the murder charge. Jacob Camacho (Camacho) testified as a State's witness. He said that in July 1991 he had been a member of the Insane Unknowns. Since that time he married, had children, and joined the U.S. Army.

Camacho testified that at about 7 o'clock in the morning on July 20, 1991, he met with McCoy and several other Insane Unknowns gang members at one of the regular meeting places, an apartment at the corner of Potomac and Karlov streets. They met there that day because it was the birthday of a fellow gang member, Jesse Maldonado (known as Bingo), who had died. They mourned his death and planned to place a wreath on his grave that day.

While at this apartment, Camacho saw McCoy (known as Woo Woo) sniff some cocaine. Shortly after taking the cocaine, McCoy stated he was going to "get one for Bingo."

Later, Camacho saw McCoy leave the apartment and walk eastward toward Pulaski Avenue in the direction of the Black Gangster Disciples territory. Camacho followed and tried to persuade McCoy "not do anything stupid, to come back." But McCoy refused. McCoy repeated that he had to "get one for Bingo." Camacho saw that McCoy had a gun inside the waistband of his shorts. Despite Camacho's repeated efforts to dissuade McCoy, McCoy continued to walk east on Potomac, then North on Harding Street. Camacho stopped following once McCoy turned onto Harding. From the corner of Harding and Potomac, Camacho witnessed McCoy shoot Fleming.

Camacho testified that he ran as soon as he heard the first shot. He ran back to the apartment and told the others what had happened. Camacho wanted to leave, but was forced to stay due to threats made by the others.

McCoy returned to the apartment. A short time later the police came to the apartment and found Camacho and McCoy hiding in the bathroom, inside the bathtub. Everyone was taken to the police station and Camacho told the police what he saw.

Barney Jones, who lived at 1306 N. Harding, and Londell Lancaster, who had been sitting on the car with Fleming, testified at trial. They both witnessed the shooting.

Jones said that he saw a young man in a Bulls shorts outfit approach the car where Fleming and the others were sitting. After a brief exchange of words, the young man pulled out a gun and started shooting. Fleming was hit and fell to the ground. The shooter stepped up and shot Fleming again in the head, at close range, as Fleming lay on the ground. Jones watched as the shooter ran off toward Pulaski Avenue.

Lancaster also testified that the shooter wore a Bulls shorts outfit. He said that the shooter walked up to the group of guys sitting on a car and asked if they had any "Bo" (marijuana). Then, for no reason, the young man pulled out a gun and started firing shots.

Both Jones and Lancaster identified McCoy as the shooter in the lineup conducted at the police station on July 20, 1991.

Officer Gregory Bella explained how the police were able to locate McCoy so quickly. He testified that he and his partner, Officer Saenz, had been on patrol in the area of N. Karlov at about 3 a.m. on July 20, 1991. He knew that July 20th was the birthday of Jesse Maldonado, a gang member who been shot a few months earlier, because a mural had been painted on a building in the area. The mural depicted a big heart, said "Rest in Peace," and indicated Maldonado's birthday. Fearing that someone might seek retribution for the death, Officer Bella stopped and spoke with a number of Insane Unknowns outside 1250 N. Karlov. He saw McCoy there. McCoy was dressed in a shorts and top set that was white with red pinstripes. He had on a Bulls baseball cap.

After talking with six or seven gang members on Karlov Street, Officer Bella and his partner drove to Harding Street and saw nine or ten Gangster Disciples in the area of 1306 N. Harding. The officers stopped and spoke with them. Fleming was among these gang members.

At 7:50 a.m. Officer Bella monitored a police call regarding a man shot at 1306 N. Harding. He immediately drove to that location and obtained a description of the shooter. Based on the description he received, Officer Bella went to 1250 N. Karlov. He knocked on the door to the downstairs apartment and was allowed entry. He found several gang members sleeping on the floor of the front room and bedroom. When he checked the bathroom, the shower curtain was drawn closed. He pulled back the curtain and found Camacho and McCoy hiding in the tub. They were taken from the bathroom and handcuffed.

Based on information received during the investigation, Bella and two other officers went to the upstairs apartment, searched the apartment, and recovered a handgun. All the gang members in the apartment were transported to the police station. Camacho and McCoy were transported separately.

Three State's witnesses from the Chicago Police Crime Lab testified. Officer Fujara testified that, at the police station, he took swab samples of McCoy's hands to test for gun shot residue (GSR). Bernadette Kwak tested the samples. She testified that the tests showed a positive result for the presence of lead, antimony, and barium, suggesting that McCoy had fired or handled a gun recently. Treacy, a firearm evidence technician, testified that he performed a comparison test on the recovered handgun and bullets found at the scene. The results indicated that the recovered bullets had been fired from the handgun, to the exclusion of all others.

Detective Boyle and Assistant State's Attorney McKay testified regarding statements made by McCoy at the police station after he was informed of his Miranda rights. McKay was allowed to publish to the jury the contents of a signed, written statement. In his written statement, McCoy told how the memory of Bingo saddened him. He left 1250 N. Karlov and walked toward Pulaski and Division, stopping to buy a candy bar at the gas station. At 1306 N. Harding he saw several men standing by a car. He asked them if they had any "Bo," which meant marijuana. When the men just stared at him, he pulled out his gun and fired four times. Then he fled. No one told him to do the shooting, no one helped.

Defense counsel presented several witnesses. McCoy's long time friend and fellow gang member, Ramon Rentas (known as Cuckoo), testified that he arrived at the 1250 N. Karlov apartment around 12 a.m. on July 20, 1991. He said he came there with several ...


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