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March 11, 1997


Appeal from the Circuit Court of Cook County. Honorable Daniel Kelley, Judge Presiding.

Released for Publication April 24, 1997.

Presiding Justice McNULTY delivered the opinion of the court. Gordon, J., concurs. Hourihane, J., dissents.

The opinion of the court was delivered by: Mcnulty

PRESIDING JUSTICE McNULTY delivered the opinion of the court:

After a jury trial, defendant George Davis was found guilty of first degree murder and sentenced to 50 years' imprisonment. Defendant contends on appeal that: (1) the State committed a Batson violation; (2) the trial court erred in granting the State's motion in limine preventing the defense from eliciting evidence of occurrence witnesses gang affiliation; (3) he was provided ineffective assistance of counsel when his counsel failed to properly investigate defendant's prior conviction, informed the jury that defendant would testify, and then later attempted to explain to the jury why defendant did not testify; (4) the prosecutor made improper remarks in closing argument; and (5) the trial court erred in relying on defendant's causing or threatening serious harm as an aggravating factor in sentencing. We reverse and remand.

Anthony Fisher, whose nickname was "Buck," testified that on May 29, 1991, at 1:30 a.m., he was outside of his home at 6829 S. Perry, talking to his friend, Lethon Rogers. Fisher and Rogers talked for about 10 or 15 minutes, and then started walking across the street. Fisher then saw a man whom he recognized as George Harrison slowly driving a black and gold Trans Am down the street. Fisher also saw defendant, whom he knew from the neighborhood, seated on the front passenger side of the vehicle. Fisher testified that he had also seen Harrison earlier that day in the Trans Am. Fisher and Rogers thought that it was suspicious that the Trans Am was moving at a pace of about five miles per hour and that the occupants seemed to be looking for someone. Fisher and Rogers therefore shouted a warning to friends Shawn, "Kango," Emma and Sheila.

At around 2 a.m., Fisher and Rogers met up with a friend Leonard Smith, and as the three stood near the front of Fisher's and Rogers homes, Fisher heard Kango say "Heads up," telling them to watch out. Rogers did not hear the warning, but Fisher looked around frantically before he heard a shot and then saw defendant firing a gun. The shooting occurred about five minutes after defendant and Harrison had slowly passed down the street. Defendant was in a standing position in the Trans Am, which had its t-tops open. The first shots Fisher saw defendant shoot were aimed at Shawn, Emma and Sheila, who were standing about 15 to 20 feet away from Fisher. Fisher, Rogers and Smith hit the ground. Defendant began shooting at them. Rogers and Smith began running. Two more shots were fired. Defendant shot towards Rogers and Smith, and defendant and Harrison sped off. Rogers them came running toward Fisher saying that he had been hit. Rogers died as a result of his injuries.

The following day, after hearing that Fisher had witnessed the shooting, Fisher's mother sent him to Washington, D.C. Fisher testified that he feared for his safety because defendant was a known drug dealer. Fisher lived in Washington, D.C., for six weeks prior to beginning college in Mississippi. Fisher returned to Chicago in May 1992 and learned that defendant and Harrison were to be tried for Rogers' murder. Fisher then spoke with prosecutors and subsequently testified at Harrison's trial. Fisher had been arrested on an unrelated charge following Harrison's trial. Although a person named Tim Hampton signed the bail bond receipt to release Fisher from jail on that charge, Fisher testified that he did not know anyone by that name at the address listed on the receipt.

Leonard Smith testified consistently with Fisher's testimony, although Smith testified that he did not see the persons inside the car. Smith admitted that he had a previous conviction for possession of a controlled substance with intent to deliver for which he received probation in 1992.

Detective John Hal loran testified that defendant was arrested and the Trans Am was impounded. The fingerprints in the car were smudged and not suitable for comparison. Palmprints on the car's exterior did not belong to either defendant or Harrison. The owner of the car did not know defendant or Harrison and reported the car stolen three days before the shooting.

Donald Jenkins testified following his arrest for failure to respond to a subpoena. He testified that on April 19, 1993, two years after the shooting, defendant confronted him and told him in a threatening tone that neither he nor his daughter or grandson was to attend the trial. Jenkins refused to comply with this request, and defendant reached into his back pocket, pulled out a piece of paper and hit it against his hand. As defendant was walking away, he said that he should have "got" Buck (Fisher) first.

Jenkins admitted that he had pled guilty in 1988 to burglary, received probation, and was arrested in 1978 for the filing of a false police report, which he explained as a misunderstanding regarding his car and a friend who took the car without permission.

James Hollins testified on defendant's behalf that he was the owner of Good Rockin' Lounge at 6950 S. Wentworth in Chicago, which was located 2 1/2 blocks from the crime scene. Defendant entered the lounge at 1 a.m. on May 29, 1991. Hollins' routine is to empty the bar at 1:45 a.m. so that he can close at 2 a.m. He did not know defendant's whereabouts between 1 a.m. and when he saw him outside the bar at about 2:15 a.m.

Steven Harris testified that he saw defendant at the lounge on the night of the shooting. Frank Holmes testified that he drank and shot pool with defendant at the lounge on the night in question, but they were not together the entire time. Holmes had pled guilty in 1991 to delivery of cocaine and in 1993 to possession of a controlled substance and unlawful use of a weapon by a felon. Phillip Mitchell testified that at around 2 a.m. he was in front of his mother's house at 6943 S. Wentworth, with defendant, who had been there since the lounge closed. A lady came by and said someone had been shot. Mitchell did not recall telling an investigator that he did not know defendant or anyone by that name, or saying that he was not a witness to the shooting.

Cook County State's Attorney Investigator Thomas Shine testified in rebuttal that he had called Phillip Mitchell and Mitchell informed him that he did not know defendant and that he had not witnessed any shooting.

At the conclusion of this evidence, defendant was found guilty of first degree murder and sentenced to 50 years imprisonment.

Defendant's first claim on appeal is that a Batson violation occurred when the State exercised peremptory challenges to dismiss four African-American veniremembers in a racially motivated manner. Defendant claims that the trial court hastily ruled that the defense had not established a prima case of discrimination, ordered the State to provide race-neutral reasons for its challenges, and then erroneously held that the proposed race-neural reasons were proper. When the defense raised its Batson claim, it stated that "this is a pretty congenial group out there as far as their background, except for the people who lied to us." After naming the four African-American and one white venirepersons excused by the State, the trial court stated that "I am not going to find that a prima facie case has been made ...

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