Appeal from the Circuit Court of Cook County. No. 91 CR 8923. Honorable Thomas F. Dwyer, Judge Presiding.
Released for Publication October 22, 1996.
The Honorable Justice Cahill delivered the opinion of the court: S.m. O'brien, J., concurs. Hoffman, P.j., dissents.
The opinion of the court was delivered by: Cahill
JUSTICE CAHILL delivered the opinion of the court:
A jury found the defendant, George Garrett, guilty of first degree murder and attempted first degree murder. The court sentenced him to 60 years' imprisonment for first degree murder and a concurrent sentence of 25 years for attempted murder. Defendant appeals. His main argument is that he was denied his sixth amendment right to counsel when, unrepresented, he was placed in a lineup while in custody. We affirm.
The evidence revealed that at 1:30 a.m. on September 1, 1990, Darrell Gurley and his uncle, Thomas Peters, drove to the Belmonte liquor store in Chicago to purchase beer. Gurley testified that Peters parked his vehicle near the liquor store and they got out. Gurley saw a group of men playing dice nearby. Peters approached the men, and Gurley went to buy beer.
Gurley bought beer, carried it to the vehicle, and then joined Peters who had begun playing dice with the group of men on the street. Peters finished gambling a few minutes later, and they left. As they were walking to their vehicle, Gurley heard a male voice say "Yo." He turned and saw two men he recognized from the neighborhood. He knew defendant, George Garrett, as "Poncho" and co-defendant, Antoine Day, as "Twon." Gurley saw both men display guns--Garrett had a silver .357 magnum, Day a black .357 magnum.
Gurley yelled "watch out!", to warn Peters. Both men ran. Gurley heard gunfire. He looked back and saw everyone running except Garrett and Day. Gurley saw Garrett aim the gun at him and saw Day shoot at Peters. Gurley continued to run until he reached the house of his cousin's girlfriend. Gurley later left the house and went home. There he was told that Peters had been shot. The next morning he learned Peters died. Gurley then called the police.
Chicago police detective Hugh Conwell responded and brought Gurley to the police station. Gurley told Detective Conwell what happened at the liquor store and named the assailants. He described Garrett as a black male, six feet one inch tall, weighing 200 to 225 pounds, and Day as a bowlegged black male, six feet tall, weighing 180 pounds.
Gurley testified that he was called to the station twice. On September 4, 1990, he viewed a lineup and identified Day as one of the shooters. On September 10, 1990, he was shown a photo array and identified Garrett as one of the shooters.
Kenneth Jamison testified that he and a friend were driving northbound on Laramie Avenue at 1:30 a.m. on September 1, 1990. He heard gunshots and saw people running. When he reached the intersection of Laramie and Lake Streets he saw Peters stumble into the street and fall down. Jamison's passenger, Dwayne Jones, left the car to aid Peters.
As Jones approached, Peters got up and asked to be taken to the hospital. Jones helped Peters into the car, and Jamison drove him to Loretto Hospital where he was admitted.
James Coleman testified that at 12:30 a.m. on September 1, 1990, he and a friend went to the Belmonte liquor store. Coleman saw 15 people playing dice near the store. Coleman watched the group for a while and then went into the store to buy beer. He returned to the game, drank a beer, and began to play dice.
Coleman saw Peters playing dice while Gurley watched. He then saw three men, including Garrett, approach the group. Garrett said something to one of the men in the group. That person then left. Coleman continued to play dice. He heard gunshots seconds later and saw Garrett pointing a gun toward the group. Everybody started to run.
Coleman ran to Kinzie Street where he saw Darrell Gurley. Coleman felt blood running down his back and realized he had been shot. He returned home and asked his sister to take him to the hospital. She drove him to Loretto Hospital where he was treated.
Coleman spoke with Chicago police detective Richard Curley at the hospital. On September 10, 1990, he was shown a group of photographs from which he identified Garrett as the shooter. Coleman also viewed a lineup on April 9, 1991, where he ...