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09/05/96 PEOPLE STATE ILLINOIS v. DONNIE ADAMS

September 5, 1996

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DONNIE ADAMS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County. Honorable Mary Maxwell Thomas, Judge Presiding.

Released for Publication October 4, 1996.

The Honorable Justice O'brien delivered the opinion of the court. Cahill, J., and Theis, J., concur.

The opinion of the court was delivered by: O'brien

JUSTICE O'BRIEN delivered the opinion of the court:

Following a jury trial, defendant, Donnie Adams, was found guilty of the first-degree murder of Tony Johnson and sentenced to 40 years in prison. On appeal, defendant argues: (1) the trial court erred by refusing to allow witness Marvin Winters to invoke his fifth amendment right against self-incrimination; (2) the trial court erred by refusing to hold a hearing to determine whether Winters' prior inconsistent statements were voluntarily given; (3) the trial court erred by admitting Winters' prior inconsistent statements as substantive evidence; (4) defendant was denied a fair trial when the State failed to complete impeachment of him; and (5) the "cumulative impact" of the above-stated errors denied him a fair trial. We affirm.

Marvin Winters testified before the grand jury on January 14, 1992, that he saw defendant shoot Tony Johnson. On September 14, 1992, Winters' counsel informed the trial judge that Winters' grand jury testimony was false. Further, Winters wished to invoke his fifth amendment right against self-incrimination during defendant's upcoming trial, because he feared if he testified truthfully that he did not see defendant shoot Johnson, the State would bring perjury charges against him. The State contended Winters could not invoke the fifth amendment right against self-incrimination at defendant's trial, because his testimony would not implicate him in the crime for which defendant was being prosecuted. The trial judge also expressed concern about setting a precedent whereby "anyone who testified before the grand jury who later had second thoughts" could assert the fifth amendment at trial. Accordingly, the trial judge ruled that Winters could not invoke the fifth amendment.

At trial, Felicia Spivey testified that at about 1:40 p.m. on January 10, 1992, she and Tony Johnson were walking in the 1300 block of North Laramie. She saw defendant come out of a gangway and start to quickly walk toward them. Spivey noticed that defendant "had a look on his face like he hated [Johnson]" and she told Johnson to look at the "strange person" coming toward them.

Spivey testified defendant pulled his hat down to his eyebrows, walked close to Johnson, and said "Remember me?" Johnson did not respond, and then defendant pulled a gun out of his pants and fired four or five shots at Johnson.

Spivey testified Johnson fell on top of her, and they rolled off the sidewalk onto the street. Spivey was then taken to Mt. Sinai Hospital. On January 13, Spivey viewed a lineup and identified defendant.

The State called Marvin Winters, who reiterated his request to plead the fifth amendment. Outside the presence of the jury, the trial judge informed Winters that she had already determined he had no fifth amendment privilege in this case, and she directed him to answer the questions posed to him at trial. Defense counsel informed the judge that if the State attempted to impeach Winters with his prior statements, the defense would like a sidebar hearing to determine whether those statements were voluntary. The judge ruled such a hearing would not be proper because the circumstances surrounding Winters' prior statements could come out on cross-examination.

Winters then testified before the jury that he was on the 1300 block of North Laramie at the time Johnson was shot, but he denied seeing defendant there. The State impeached Winters with his statement to Assistant State's Attorney Noonan on July 13, 1992, and his testimony before the grand jury on January 14, 1992, in which Winters admitted to seeing defendant shoot Johnson at about 1:50 p.m. on January 10, 1992.

On cross-examination, Winters stated that on January 12, 1992, a group of armed men beat him and told him to tell the police that defendant was the person who shot Johnson. Defense counsel asked Winters whether he had seen who shot Johnson, and Winters replied he had "seen the person from behind, *** [and] assumed it was [defendant]." Defense counsel then asked Winters, "That wasn't [defendant] out there shooting, was it?" Winters replied that from his "view," he knew defendant was the shooter.

After the State rested, defendant took the stand and testified he was at Laramie and Crystal at about noon on January 10, 1992, and he saw Johnson crossing the street. However, defendant denied shooting Johnson. On cross-examination, defendant testified he went home at 1 p.m. on January 10 and stayed there until 3 p.m. He then went to the home of his uncle, MC Winters' and stayed there until 4:30. Defendant denied calling Marvin Winters on January 10 and stating he was going to say he was with MC at the time of the shooting. Defendant also denied asking MC to be an alibi witness for him.

The jury found defendant guilty of first-degree murder, and the trial court sentenced him to 40 years in prison. Defendant filed this timely appeal.

First, defendant argues the trial court erred when it refused to allow Marvin Winters to invoke his fifth amendment right against self-incrimination based on his belief that, if he testified at trial, the State would bring perjury charges against him. Defendant contends he was prejudiced thereby, because if the trial court had allowed Winters to assert the fifth ...


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