APPEAL FROM THE CIRCUIT COURT COOK COUNTY. No. 91 CR 23263. THE HONORABLE WILLIAM J. HIBBLER, JUDGE PRESIDING.
Released for Publication January 15, 1997.
The Honorable Justice Cousins delivered the opinion of the court: Mcnulty, P.j., and Gordon, J., concur.
The opinion of the court was delivered by: Cousins
JUSTICE COUSINS delivered the opinion of the court:
Defendant, Gordon Sims, was convicted of first degree murder after a jury trial and was sentenced to 40 years imprisonment. On appeal, Sims argues that: (1) the State, during closing argument, erroneously implied that a State witness had changed his testimony at trial because he was afraid of the defendant; (2) the jury was improperly allowed to view a mug shot of defendant which showed that he had been previously arrested for another crime; (3) the trial court erroneously admitted inadmissible hearsay evidence that improperly bolstered the credibility of a crucial State witness; (4) the trial court erred by allowing the State to impeach its own witness with a prior inconsistent statement even though the witness' testimony at trial did not damage the State's case, and the trial court then erroneously instructed the jurors to consider this prior inconsistent statement as substantive evidence, although the court had earlier ruled this evidence admissible for impeachment purposes only; and (5) the State improperly introduced prejudicial evidence about the victim's family and made inflammatory remarks about the family during closing argument.
On August 30, 1990, the victim, Marvin Brown and his wife, Faye Brown, went to the first floor of an abandoned building located at 4651 West End to smoke cocaine. Three other individuals named Bee, John, and Stuart were also with them. About an hour later, Marvin and John began to argue. Faye told Marvin to buy John a couple of bags of cocaine. Marvin, John and Bee went to get the cocaine. Faye stayed behind and looked out the window. About 15 to 20 minutes later, Faye heard Marvin outside arguing with defendant. At trial, Faye identified the defendant, Gordon Sims, as the person she knew as "G-Man." She stated that she knew G-Man before, from "when he was standing around selling drugs." Marvin and defendant were arguing about a beeper. Faye ran outside and got between Marvin and defendant, who were standing face to face arguing. She stood there for about five minutes. Marvin threw his hands up and asked defendant why he was messing with him. At that time, Faye grabbed Marvin's arm and started to push him toward the building. Defendant walked away but then turned back around and shot Marvin. Then he got into a car and drove away.
Officer Ramon Saragosa went to West End and Kilpatrick to investigate the incident. When he arrived at the scene, he observed a black male, whom he later identified as Marvin Brown, lying on the ground with a bullet in his midsection and blood on his shirt. Saragosa called for an ambulance and tried to seal off the crime scene. At trial, Saragosa testified that, while at the scene, he spoke with Marvin Davis. Pursuant to this conversation, Saragosa transmitted a "flash message" in which he described the suspect as a black male who went by the name of G-Man, approximately 5 feet 10 inches tall, 170 pounds, with gray and black hair and bulging eyes. The officer also transmitted that the male offender was with two or three black males in a white Pontiac 6000, four-door vehicle travelling westbound from West End.
On August 31, 1990, Detective Patrick Foley became involved in the investigation. He proceeded to the scene of the incident with his partner, Detective Frank Gross. There, Foley spoke to Marvin Davis. He then interviewed Davis at the police station. At trial, Davis testified that on the night of August 30, and in the early morning hours of August 31, he was with his aunt, Luvinia Bonds. Earlier that evening, Faye Brown and Luvinia Bonds had been in Bonds' apartment with him and they had all been smoking cocaine. Davis testified that he was inside Bonds' first-floor apartment and was looking out the window watching Faye Brown, G-Man, and several other people. Davis stated that, he heard Marvin Brown and G-Man arguing over a beeper. According to Davis, G-Man turned and walked away from Marvin. Davis said that, at that point, his attention was diverted to something that happened in the apartment. Davis said that he heard a gunshot, went back to the window, and saw Marvin fall to the ground. He then observed G-Man walk away, get in his car, and leave. Davis also testified that he did not see anything in defendant's hands.
At this point in the trial, a sidebar conference was held. The State indicated that Davis' testimony about what he had observed was inconsistent with his grand jury testimony. The State wanted to introduce Davis' prior grand jury statement as substantive evidence. After a lengthy discussion, the trial judge ruled that he would allow the State to question Davis with regard to his grand jury testimony and introduce the evidence as substantive evidence.
The State then indicated that it wanted to introduce a prior inconsistent statement that Davis had made to the detectives. The judge permitted the State to lay a foundation for the admission and cautioned the State that if Davis denied making a statement to police, the statement would not be admissible as substantive evidence.
During another sidebar conference, the State also told the court that it wanted to question Davis about a conversation between him and defendant on the Friday before trial where defendant allegedly told Davis "Don't make a mistake" as they passed by each other in the "bullpen" at the Department of Corrections where both men were being held. During a voir dire of Davis, Davis indicated that he was not sure what defendant said to him that Friday. Consequently, the court ruled that the evidence was irrelevant and inadmissible because Davis could not recall what defendant said to him, and because Davis indicated that the conversation had no impact on him.
When questioning of Davis resumed, Davis testified that he had been interviewed by Detectives Gross and Foley. He testified that he did not recall telling the detectives that he saw G-Man take a gun from his waistband and shoot Marvin Brown. Davis did not remember telling the detectives that Marvin told G-Man he had a beeper for him and that G-Man said it didn't matter since Marvin did not have the beeper with him. Davis also testified that he did not remember telling police that Marvin said G-Man did not have to speak to him that way.
Davis further testified that he had appeared before the grand jury on September 24, 1991, and was questioned about the shooting of Marvin Brown, but that he did not recall telling the grand jury that he saw defendant shoot Marvin Brown. The State asked Davis whether anyone other than Gordon Sims had a gun during the incident. Davis answered that he did not see a weapon at all. The State then read the grand jury transcript and asked Davis whether he was asked, "Did anyone else out there other than Gordon Sims have a weapon?" and whether he answered "no" to that question. Davis testified that he did not remember being asked that question and that he did not see any weapon during the incident. On re-cross-examination, Davis reiterated that he did not see defendant shoot Marvin Brown.
Detective George Tray testified that on August 31, 1990, he reviewed the available reports in the case, proceeded to the graphic arts and identification section at the station, and secured photographs of Gordon Sims. He then went to the home of Faye Brown and showed her a group of six photographs. Brown identified a photograph of defendant as the person who shot Marvin Brown. She then signed the back of the photograph in the presence of the detectives.
On September 2, 1990, Detective Tracy went to 4651 West End to canvass for witnesses. There he found Luvinia Bonds. He took Bonds to the police station to view a group of photos. Bonds viewed five photos and identified defendant as the person who shot and killed Marvin Brown. After Bonds made the identification, she signed the back of the photo. At trial, Bonds testified that, at the time of the incident, she was living at Kilpatrick and West End in an abandoned building. On August 30, 1990, she was in her bedroom on the first floor. When she looked out the window, she saw G-Man, Marvin Brown, and several other people. Bonds testified that she heard defendant and Marvin Brown arguing, so she stood on a bench and continued to look out the window. According to Bonds, G-man started to walk away, then turned around and shot Marvin Brown. On cross-examination, Bonds admitted that when she first spoke with police officers after the incident, she initially told them that she never saw who shot Marvin Brown. She testified that she made the statement to the police because she had an outstanding warrant and did not want to remain at the station.
On September 5, 1991, defendant was released to the custody of Detective Greg Bronsberg from the Jackson, Michigan, law enforcement authorities.
During the jury instructions conference, defense counsel objected to sending the mug shots that were used in the photo identification by Faye Brown and Luvinia Bonds to the jury during its deliberations. The pictures depicted defendant and four other black males with name plates hanging from their necks. The court ruled that the jurors had a right to see the photographs, but decided the name plates would be blackened out by coloring over the plates with a black marker. Prior to jury deliberations, the court advised the jurors that the court had blackened out certain portions of the photographs contained in the photo array exhibits. The court instructed the jurors that they ...