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08/13/96 PEOPLE STATE ILLINOIS v. VERNAL EUBANKS

August 13, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
VERNAL EUBANKS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Edward M. Fiala, Judge Presiding.

Released for Publication September 16, 1996.

Presiding Justice Hartman delivered the opinion of the court. Scariano and Burke, JJ., concur.

The opinion of the court was delivered by: Hartman

PRESIDING JUSTICE HARTMAN delivered the opinion of the court:

Defendant, Vernal Eubanks, codefendant Brian Robinson, and two others were charged with numerous offenses resulting from the robbery and shooting of Leonard Macon. Defendant and Robinson were tried before two separate juries, and the other two suspects pled guilty. A jury found defendant guilty of aggravated battery with a firearm and armed robbery, but acquitted him of attempted murder. Defendant appeals, raising as issues whether (1) he was proved guilty of the charges beyond a reasonable doubt; (2) the circuit court erred in failing to conduct a fitness hearing; and (3) the circuit court erred in sentencing him.

Leonard Macon testified that on December 17, 1992, at 3:00 p.m., he was walking along 14th Place when a gray car with four occupants stopped about 15 yards from him. Brian Robinson, who Macon knew from the neighborhood, exited the car and went into a house adjacent to an alley. Robinson returned to the car and pulled up alongside Macon. The four occupants, identified by Macon as Robinson, defendant, Gerald Taylor, and Sammy "Shine" McGruder, approached him. Robinson pulled out a .38-caliber handgun and asked Macon where his roommate George "Butch" Addison was; Macon responded that he did not know. Defendant then punched Macon on the side of the face, knocking off his eyeglasses. Robinson spoke of killing Macon, but instead told him to hand over his money. Macon responded that he had no money. Robinson then demanded his leather jacket. Macon took off his jacket, and McGruder took it. Taylor and defendant stood near McGruder.

The four men then took Macon through a vacant lot to an alley located north of 14th Place. Robinson had his gun pointed at Macon the entire time. In the presence of defendant and the other two, Robinson directed Macon to go into a vacant garage, which Macon entered. Macon started walking briskly when he saw a door in the back of the garage, but halfway through, Macon heard three gunshots and felt two shots hit him in the back. Macon ran out of the garage door towards 14th Place. When Macon saw the four perpetrators running through the vacant lot, he turned around and ran to his home on 14th Street, north of the alley. Once inside his house, Macon saw the perpetrators drive past his home. When they were gone he ran to his neighbor Shirley Brown's home, where he fell to the floor. She called the police and the paramedics. Macon provided information to the police and was taken to the hospital. Macon admitted that he had been convicted for forgery, for which he received 24 months' probation.

On cross-examination, Macon stated, among other things, that defendant was not carrying a gun.

Chicago Police Officer Thomas Newton testified that on December 17, 1992, he responded to a report of a shooting. There he saw Macon lying on the floor of Brown's home. Newton saw blood and noticed that Macon had been shot. Macon said that Robinson shot him. Newton went to the garage where the shooting occurred and found a trail of blood.

Chicago Police Officer Andre Hasan testified that on December 20, 1992, he arrested defendant and took his photographs. These were shown to Macon along with other random photos, and he identified defendant.

At the conclusion of the State's case-in-chief, defendant testified that he has a twin brother, Bernal, and they both have the nickname "Twin." He knew Robinson, McGruder, Taylor, Macon, and Addison from the neighborhood.

On December 17, 1992, at 3:00 p.m., outside of a liquor store with some friends, he was talking to his girlfriend on the telephone when he heard gunshots coming from somewhere between 14th Place and 14th Street. He and his friends went to 14th Place and Ashland, where he saw a car speed away, but did not see any of the passengers.

Defendant stated that on the day of the shooting, he had not been getting along with McGruder because McGruder had shot at him. He denied planing with McGruder or Robinson to shoot someone. Defendant denied punching Macon, or knocking off his glasses, or entering Robinson's car on the day of the shooting, or being present when Macon was held at gunpoint. He denied seeing Macon or Robinson on the day of the shooting.

Defendant spoke to a detective at the police station during the early morning hours of December 21, 1992, but denied telling him he was in an alley with Robinson on December 17, or that he was standing five feet from Robinson while Robinson pointed a gun at Macon.

Chicago Police Officer Deborah Dorken testified that when she talked to Macon at Brown's home and the hospital, the only name he gave was the shooter Robinson.

In rebuttal, Chicago Police Detective Michael Hughes testified that at 2 a.m. on December 21, 1992, he interviewed defendant, in custody, who admitted he was in an alley near 14th Place with Taylor at 3 p.m. on December 17, 1992. He was about five feet from Robinson, who was pointing a gun at Macon. Defendant told Robinson not to shoot Macon.

At the close of the evidence and after closing argument, the jury was instructed upon the theory of accountability and found defendant not guilty of attempted murder, but guilty of aggravated battery with a firearm and armed robbery. The circuit court sentenced him to 12 years' imprisonment for aggravated battery with a firearm and, concurrently, 12 years for armed robbery. Defendant timely filed a notice of appeal.

I

Defendant first contends that he was not proved guilty beyond a reasonable doubt of aggravated battery with a firearm and armed robbery.

The standard of review for challenging the sufficiency of evidence is whether, after viewing all the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); People v. Collins, 106 Ill. 2d 237, 261, 478 N.E.2d 267, 87 Ill. Dec. 910 (1985). The determination of the trier of fact will not be set aside on review unless the proof is so unsatisfactory, improbable or ...


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