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03/13/97 PEOPLE STATE ILLINOIS v. DAVID T. MORLEY

March 13, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
DAVID T. MORLEY, DEFENDANT-APPELLANT.



On appeal from the Circuit Court of Lake County. No. 91--CF--1001. Honorable John R. Goshgarian, Judge, Presiding.

As Modified on Denial of Rehearing May 16, 1997.

The Honorable Justice Hutchinson delivered the opinion of the court. Geiger, P.j., and Inglis, J., concur.

The opinion of the court was delivered by: Hutchinson

The Honorable Justice HUTCHINSON delivered the opinion of the court:

Following a jury trial in the circuit court of Lake County, defendant, David Morley, was found guilty of two counts of attempted first-degree murder, two counts of aggravated discharge of a firearm, one count of armed violence, and one count of aggravated battery with a firearm. The charges against defendant stemmed from his involvement in a shoot-out on May 7, 1991, with two Round Lake Beach police officers, one of whom, Detective David Ostertag, was struck by a bullet and seriously wounded. Defendant was sentenced to an extended term of 50 years' imprisonment for the attempted murder of Detective Ostertag to run consecutively to a sentence of 30 years' imprisonment for the attempted murder of the other officer, Detective Gary Bitler.

An appeal was taken, and this court reversed defendant's convictions and remanded the cause for a new trial. See People v. Morley, 255 Ill. App. 3d 589, 194 Ill. Dec. 281, 627 N.E.2d 397 (1994). A new jury trial ensued on the same charges in September 1994 and concluded with guilty verdicts on all of the charged offenses. Defendant was sentenced to 50 years' imprisonment on one count of attempted first-degree murder to be served consecutively to a 30-year term on the other attempt count. Defendant was also sentenced to 30 years' imprisonment on one count of aggravated discharge of a firearm to be served concurrently with a 15-year term on the other discharge count, and concurrently with the other two attempt convictions. No sentence was entered on the armed violence count or the count charging aggravated battery with a firearm.

In this appeal, defendant raises the following issues: (1) whether the trial court improperly refused defendant's request to appoint a special prosecutor; (2) whether the trial court improperly refused to allow defendant to impeach two witnesses by omission; (3) whether the impeachment of a defense witness with his convictions of the same offenses as those for which defendant stood trial was improper; (4) whether the trial court erred in its refusal to instruct the jury on the defense of mistake of fact; (5) whether the content of the prosecutor's closing argument deprived defendant of a fair trial; and (6) whether the trial court erred in finding the attempted murder of Detective Ostertag to have been accompanied by exceptionally brutal or heinous behavior indicative of wanton cruelty, thus improperly imposing an extended term of imprisonment upon defendant. We affirm.

The facts of this case are set out in People v. Morley, 255 Ill. App. 3d 589, 194 Ill. Dec. 281, 627 N.E.2d 397 (1994). The following supplemental facts are provided to address the issues relevant to this appeal.

On September 22, 1994, arguments were heard on defendant's motion for the appointment of a special prosecutor. The motion alleged, inter alia, that, after the appellate court reversed defendant's conviction, the prosecutor at defendant's first trial (and the prosecutor assigned to conduct the retrial), Steven McCollum, had a leading role in the decision to employ Ostertag as an investigator in the State's Attorney's office. Ostertag was a Round Lake Beach police officer at the time of the alleged offenses and was shot following a high-speed chase involving defendant and James Files. The motion sought an order to disqualify the State's Attorney's office.

McCollum, the chief deputy State's Attorney for Lake County, testified that he was one of two assistant State's Attorneys who were assigned to prosecute defendant in the first trial. McCollum is on the hiring committee for attorneys and investigators; the committee evaluates and recommends individuals for hiring to Michael Waller, the Lake County State's Attorney, who makes the final hiring decision. McCollum's duties include assigning cases to the investigators and supervising their performance.

McCollum testified that he prepared Ostertag for defendant's trial because Ostertag was the victim. McCollum specifically indicated to Ostertag that he should not be involved in any capacity other than as a victim. McCollum instructed Ostertag not to investigate or serve subpoenas. McCollum testified that Ostertag approached him with information received during a telephone call from a man named Bob Vernon, who wanted to provide information regarding James Files' alleged involvement in the assassination of President Kennedy. McCollum testified that Ostertag conducted no other investigation into the case.

On cross-examination, McCollum testified that the office of the State's Attorney decided to reprosecute defendant after the appellate court reversed defendant's conviction. He further testified that the decision to prosecute defendant was not based upon any personal relationship that McCollum had with Ostertag.

Ostertag testified that he was a special investigator in the State's Attorney's office and had been employed as such for the past 10 weeks. Prior to that he was an officer with the Round Lake Beach police department. Ostertag's immediate supervisor at the State's Attorney's office is George Strickland, but he also works at the direction of McCollum. Ostertag testified that at McCollum's request he contacted witnesses for new addresses. Prior to his employment with the State's Attorney's office, Vernon contacted Ostertag with his claims of Files' involvement with the Kennedy assassination. Ostertag testified that he apprised McCollum of his discussions with Vernon and that McCollum never told him to cease gathering information from Vernon. McCollum told him, however, not to serve subpoenas, and Ostertag did not talk to witnesses about their anticipated testimony. Ostertag, on his own, requested federal "rap" sheets for defendant and Files.

Following argument of counsel, the trial court denied defendant's motion, stating that no conflict existed at the time of the first trial and nothing presented in the motion hearing convinced him that a conflict existed as this second trial approached. Furthermore, the trial court stated that should Ostertag's testimony deviate from his original testimony, the defense could ...


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