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February 14, 1997



Released for Publication March 31, 1997.

The Honorable Justice Hoffman delivered the opinion of the court. Hartman, P.j., and Hourihane, J., concur.

The opinion of the court was delivered by: Hoffman

JUSTICE HOFFMAN delivered the opinion of the court:

The defendant, Marcus Rogers, was charged by indictment with two counts of first degree murder. 720 ILCS 5/9-1(a)(1), (2) (West 1994). After a bench trial, the circuit court found the defendant guilty of second degree murder and sentenced him to nine years imprisonment. The defendant filed a timely appeal from his conviction and sentence. For the following reasons, we affirm.

The testimony at trial revealed that Lawrence O'Kray, who owned a two-flat building at 6741 S. Wabash, allowed Peter Greene to throw a party in the basement apartment of his building on April 16, 1993. O'Kray lived in the second-floor apartment.

Greene testified that he arrived at O'Kray's building on the morning of April 16 to set up stereo equipment for his party. Greene's party began around 8 p.m. At around 11 p.m. that evening, Andrae Carson was fatally shot near O'Kray's building.

Greene admitted that he belonged to a street gang but he did not believe the defendant was a member. According to Greene, several members of a rival street gang drove by O'Kray's building before the party began. He said that the victim, Andrae Carson, was a member of this rival gang.

Greene testified that he left the party early in the evening. When he returned at around 11 p.m., an ambulance and several police cars had blocked the street and a body was lying on the sidewalk. Greene said he went to Dennis Stigler's house for the rest of the night and the following day. He stated that Harold Ivy also stayed at Stigler's house that night and remained the next day. Ivy told Greene that he had been at the party when Carson was shot. Greene testified that Ivy was shot and wounded the day after Carson was shot.

According to Greene, he remained at Stigler's house for a couple of days until he learned that a warrant for his arrest had been issued in connection with the shooting of Carson. Greene turned himself in at the police station. He was questioned and placed in four line-ups. The police told him he had been positively identified but then later released him, saying they had found someone else.

O'Kray testified that, at about 10 p.m. on April 16, he heard some voices on his back porch. He recognized one voice to be the defendant's. O'Kray heard someone say "did you hit him" to which the defendant responded "I think so. I don't know." O'Kray said he did not know what the conversation was about. He did not recall ever telling police officers that, after he heard gun shots, he went to his back porch and saw Greene, Ivy, and someone named Tony standing on his back porch. He also did not recall telling officers that he heard Ivy say "did you hit him?" and Tony responding "I don't know." O'Kray admitted he had a serious problem with alcohol and that he had been drinking on the night of the incident. O'Kray also testified that he sustained a head injury about a month after the shooting and, consequently, had suffered some memory loss.

William Payne testified that he arrived at the party around 8 p.m. to help Greene with the music. He said that the defendant was sitting behind him during the party for about an hour and a half. Later that evening, Ivy entered the apartment and shouted something. According to Payne, everyone at the party, including the defendant, started running for the back door.

Dwayne Esper testified that he attended the party with the defendant and Greg Washington. Esper said that Ivy entered the apartment at around 11 p.m. and told everyone to leave. Esper recalled that the defendant was with the "dee-jay" playing music when this occurred.

Darryl Preacely testified that he lived across the street from O'Kray's building. On the evening of April 16, 1993, he heard gunshots and went to his window. Preacely saw a man with a shiny object in his hand run across the street and get into a car. He did not see the man shoot anyone. Preacely also saw a body lying on the ground about fifteen feet from where ...

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