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June 6, 1996



Presiding Justice Hoffman delivered the opinion of the court: Theis and O'brien, JJ., concur.

The opinion of the court was delivered by: Hoffman

PRESIDING JUSTICE HOFFMAN delivered the opinion of the court:

Following a jury trial, the defendant, Antonio Lowery, was found guilty of felony murder, armed robbery, and attempted armed robbery. He received concurrent prison terms of 35 years for murder, 20 years for robbery, and 12 years for attempted armed robbery. The defendant now appeals his convictions and sentences, raising as issues whether (1) his conviction for felony murder must be reversed as unsubstantiated and contrary to law; (2) various trial errors warrant reversal; and (3) his sentence was an abuse of discretion.

The defendant was found guilty of the felony murder of Norma Sargent, predicated upon the armed robbery of Robert Thomas and Marlon Moore, and the attempted armed robbery of Maurice Moore. The evidence at trial established that shortly before midnight on March 19, 1993, the decedent was walking at the intersection of Leland Street, which ran east to west, and Magnolia, when she was fatally struck in the left eye by a single bullet. The shot was fired from near an alley that extended northward from Leland, and was located about 1/2-block east of Magnolia.

Maurice Moore testified that on the night of the occurrence, he, his younger brother Marlon, and Robert Thomas were returning to Maurice's car after leaving a night club. As they walked on Leland, they encountered the defendant and his friend "Capone" standing on the sidewalk near the alley. The defendant and Capone approached Maurice, Marlon, and Robert, and walked to either side of them. Maurice testified that the defendant then held a gun to his chest and forced him about 40 feet into the alley. The evidence indicated that during this time, Capone, who was unarmed, remained at the entrance to the alley with Marlon and Robert, and robbed them of jewelry, a pager, their coats and cash.

Maurice testified that inside the alley, the defendant instructed him to remove his jacket. Instead, Maurice grabbed the barrel of the defendant's gun with two hands and began struggling over it with the defendant. Maurice testified that the gun discharged once during the struggle, but that he "wasn't about to let it go." When the shot was fired, both Capone and Robert fled the scene, and Maurice summoned Marlon to come to his assistance.

Marlon ran towards Maurice and the defendant, both of whom were still holding the gun, and struck the defendant in the face with his fist. The defendant and Marlon exchanged a few more punches while the defendant kept one hand on the weapon. Maurice testified that during the fight, he and Marlon were trying to pull the defendant towards the front of the alley so they could call for help. After a 7 to 10 minute struggle, they succeeded in getting the fight out of the alley and onto a grassy area near the sidewalk adjacent to Leland. As the three continued to fight over the gun, it discharged a second and third time. Maurice indicated that when the shots were fired, the defendant's hand was positioned on the handle and lower part of the weapon.

Maurice testified that he and Marlon subsequently began striking the defendant, and that at this point, the defendant suddenly dropped the gun and fled westbound on Leland. Marlon immediately picked up the weapon and ran after the defendant, firing one shot at him. The defendant escaped around a corner, after which Marlon ceased chasing him and returned to Maurice. Maurice testified that just after Marlon began chasing the defendant, Maurice saw two women on the ground, one lying in a pool of blood and the other leaning over her and crying. Maurice approached the women and inquired whether they were all right. After Marlon returned, he and Maurice walked up Leland and made a left turn onto another street where they encountered the police and were arrested.

Maurice and Marlon were placed in the back of a squad car and taken back to the corner where the decedent and other woman were. Shortly thereafter, another police car arrived with Robert in the back seat, and a third vehicle drove up with the defendant in it. Using a map and photographic exhibits of the scene, Maurice testified to his position in the alley when the first shot was fired, his location at the time of the second and third shots, and the position where the decedent had been standing.

Marlon Moore's testimony substantially corroborated that of Maurice. As the three fought over the gun, Maurice and Marlon were able to move the defendant out of the alley. Marlon testified that when they were on the sidewalk, all three were bending towards the ground with their hands on the gun, when it fired two more times. When the defendant fled down Leland, Marlon grabbed the gun and fired one shot at the defendant's legs in an effort to stop him. According to Marlon, the defendant had gone about 1/2 of a block when he fired the shot. Marlon chased the defendant until he rounded a corner, and then dropped the gun and went to where Maurice was located. Marlon indicated that as he chased the defendant, he did not see the women on the corner; however, he did see them while on his way back to Maurice, and testified that one of them was lying on the ground.

Robert testified that he ran after Capone when Capone fled after the first shot, but Capone got into a car and drove away. Robert then returned to the night club and summoned the police.

Through Assistant State's Attorney Stanislaus Gonsalves, the State offered a court-reported statement given by the defendant following his arrest. The defendant's account was largely consistent with those of Maurice and Marlon, but differed in some respects. The defendant stated that he forced one of the three intended robbery victims 20 or 30 feet into the alley, while Capone remained outside with the other two. Shortly thereafter, Capone and another of the three victims fled the scene, and the second man joined the fight over the gun. While the defendant and the two men struggled, a shot went off, but the fight continued, eventually moving out to Leland. At this point, the defendant lost control over the weapon and fled towards Magnolia. Contrary to Maurice and Marlon's testimony, the defendant indicated that there were no shots fired from the time the gun discharged in the alley until Marlon obtained control of the weapon. The defendant indicated that he heard several shots immediately after he began running. The defendant also stated that when he reached the intersection of Leland and Magnolia, he saw two women walking down the street. He never saw a woman lying on the ground, but as he ran towards the corner, he heard one of the women scream. The defendant then rounded the corner and was apprehended by police and taken back to the scene.

Police and laboratory evidence established that a bullet hole was found in the rear bumper of a truck parked about 100 feet inside the alley, facing north. A bullet and shell casing were retrieved from the bed of the truck, and the bullet was determined to have ...

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