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06/28/96 PEOPLE STATE ILLINOIS v. CLARENCE GARDNER

June 28, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
CLARENCE GARDNER, DEFENDANT-APPELLANT.



APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. HONORABLE DENNIS J. PORTER, JUDGE PRESIDING.

Released for Publication August 13, 1996.

The Honorable Justice Wolfson delivered the opinion of the court: Buckley and Braden, JJ., concur.

The opinion of the court was delivered by: Wolfson

JUSTICE WOLFSON delivered the opinion of the court:

In October of 1993 the gangs at Calumet High School in Chicago were the Vice Lords and the Blackstones. Those gangs were "brothers" and got along.

The area of 79th and Carpenter, a few blocks from the high school, was the territory of the Gangster Disciples and the Black Disciples. The two "Disciples" gangs were "folks" and got along with each other.

However, the Vice Lords and the Blackstones hated the Gangster Disciples and the Black Disciples. The area between 79th Street and Calumet High was neutral territory.

Somehow, on October 28, 1993, these gang affiliations and rivalries led to the shooting death of Joseph Waites, Jr. (Waites), the manager of the high school football team who was not a member of any gang. A jury found Clarence Gardner (Gardner) guilty of the first degree murder of Waites. Gardner, who received a sentence of 35 years, raises several issues on appeal. We affirm the conviction, despite our misgivings about the precipitate way the trial court ended the defendant's case.

FACTS

Because the outcome of this case relies heavily on the weight of the evidence, we set out the testimony in some detail.

Waites died from multiple gun shot wounds. Gardner did not shoot Waites. He was tried on a theory of accountability.

The State used Gardner's recorded statement as evidence. In his statement, Gardner said he was a member of the Gangster Disciples. At about 4:55 p.m. on October 28, 1993, Gardner was at 79th and Carpenter in Chicago, Illinois. He saw two other Gangster Disciples, "Tony" and "Meechie", drive up. The car was a "blue 98 four door with five point star rims." The car was Meechie's. Sometimes Meechie kept a gun in the car under the dashboard. Gardner had seen the gun there three or four weeks before the shooting.

Meechie, who was driving, waved Gardner over. Gardner walked up to the car. Meechie and Tony got out.

The three saw members of the Calumet High School football team walking down 80th and Carpenter. The team members turned towards 80th and Morgan. Meechie asked if they were "hooks," meaning were they members of the Blackstone gang. Gardner said nothing. The three ran to the corner of 80th and Carpenter. They were joined by a fourth person, Andre Bridges (Bridges). Bridges was a Black Disciple.

The four then went to 80th and Morgan. Terrence Little, one of the members of the team, walked up to Gardner. About 11 or 12 other members of the team were present. Gardner recognized Joe Waites. Gardner asked Little what was going on. Little said they were having an egg fight. Gardner replied "oh" and walked back towards 80th and Carpenter. The three other Disciples went with him.

The football team was on the other side of the street. They were walking in the same direction as the Disciples.

When Gardner, Tony, Meechie, and Bridges got back to the corner of 80th and Carpenter, it was crowded. There were about 15 Black Disciples. Meechie and Tony ran back to the car and got in. They drove the car down Carpenter to 80th and Carpenter and parked in the middle of the block. Meechie jumped out. He had his hands in his pockets. He started to walk towards the football team.

Meechie grabbed one of the players, then another one. About six Black Disciples grabbed Waites. They started to punch him. Two of the people punching were Buckeye Lee and Bridges. Some of the players ran.

Gardner joined the others. He punched Waites three times in the chest. Waites fell to the ground. Waites balled up and tried to defend himself, putting his hands around his face. The Disciples beat Waites for about two minutes.

A couple of seconds after the Disciples were done kicking Waites, Tony got out of the car. Tony had a gun, a .25 automatic or a .22. He cocked the gun and told the others to move because he was "fitting to bust him." Gardner understood this to mean that Tony was planning to shoot Waites. Buckeye Lee told Tony to "take care of his business." Gardner said, "bust him." By this, he meant "shoot him."

Tony walked up to Waites. Waites was lying on the ground in front of a yard. Tony pointed the gun to Waites' face.

Gardner and Bridges turned around and took about three jogging steps. They heard four gunshots.

Gardner ran to 79th and Racine and went into a house.

This completed Gardner's statement.

Michael Waites (Michael), Waites' brother, ...


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