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03/27/97 PEOPLE STATE ILLINOIS v. SHARIFF G. BANKS

March 27, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
SHARIFF G. BANKS, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 94--CF--1458. Honorable Christopher C. Starck, Judge, Presiding.

Released for Publication May 2, 1997. As Corrected August 6, 1997. As Corrected August 8, 1997.

The Honorable Justice Thomas delivered the opinion of the court. Inglis and Hutchinson, JJ., concur.

The opinion of the court was delivered by: Thomas

JUSTICE THOMAS delivered the opinion of the court:

The defendant, Shariff G. Banks, was indicted by grand jury with five counts of first degree murder (720 ILCS 5/9--1(a)(1), (a)(2), (a)(3) (West 1994)) in connection with the shooting death of Mary Davis. Following a jury trial in the circuit court of Lake County, the defendant was found guilty on three of those counts and sentenced to 50 years in prison. We affirm.

FACTS

The facts relevant to our decision are as follows. The defendant was arrested and charged with first degree murder on July 22, 1994. On August 17, 1994, he was indicted on five counts of first degree murder. Prior to trial, the defendant moved to suppress oral, written, and videotaped statements he made to the police subsequent to his arrest. Following an evidentiary hearing on the motion, the motion was denied. The case proceeded to a jury trial in October 1994.

At trial, Mark Tkadletz, a Waukegan police officer, testified that he was working on July 20, 1994. During his shift, he received a call concerning shots fired in the 1600 block of Lyons Court, in Waukegan, Illinois. While en route to that location, he was informed of a possible accident in the 1700 block of Lyons Court. Upon arriving at his destination, he observed that a vehicle had crashed into a house at 1713 Lyons Court. When he approached the vehicle, he observed a female with a bleeding head wound slumped over in the backseat of the vehicle.

Lakesha Morgan testified that she was in the eighth grade and attended school with her friend, Mary Davis. On the evening of July 20, 1994, she was riding with Davis in a gray, four-door vehicle being driven by Daryl Johnson. Johnson was a member of the Gangster Disciples gang. At some point, Davis asked to be taken to her home on Lyons Court. Morgan was seated in the front passenger seat, and Davis was seated in the backseat on the driver's side. As they traveled on Lyons Court, another vehicle crashed into the front of Johnson's vehicle. According to Morgan, she heard shots from the front. Johnson put his vehicle into reverse, and it hit another vehicle from behind. She then heard shots from the rear. Johnson turned the wheel sharply and his vehicle hit a house. Johnson and Morgan ran from the vehicle. Morgan testified that she never saw Johnson put his hands out the window of the vehicle and never saw a gun in the vehicle.

The State called a series of witnesses who testified as to what they heard or observed in the vicinity on July 20, 1994. Viola Banks testified that sometime between 10:30 p.m. and 11 p.m. she heard shots and then a vehicle crashed into her house at 1713 Lyons Court. Maria Henderson, who resided at 1720 Lyons Court, testified that around 10:30 p.m. she heard shots and observed a vehicle crash into her neighbor's house. Herman Ray, who resided at 1526 Lyons Court, testified that he heard shots, screeching tires, the roar of car engines, and a crash. Nelson Tate, of 1712 Lyons Court, testified that he heard shots, tires screeching, and a crash. Robert Chambers, who resided at 1618 Lyons Court, testified that he heard a bang and shots and then observed a vehicle back into another. Valerie Cooper, who resided at 1602 Lyons Court, testified that she was beginning to back out of her driveway at 10:45 p.m. when a gray vehicle drove by. She heard shots and observed the same gray vehicle backing up past her driveway. She did not see anybody with their hands out the window of the gray vehicle or anything sticking out the window.

Kanesha Davis, the older sister of the 15-year-old victim, next testified. She had been riding in Johnson's vehicle earlier in the evening on July 20, 1994. When she was dropped off at a friend's house, her sister was still in the vehicle. As she later walked toward her home at 1522 Lyons Court, she heard a screech and shots.

Lonnie Brown, a North Chicago police officer, testified that he was working the midnight shift on July 21, 1994. During his shift, he received a call concerning a drive-by shooting. In responding to the call, he observed a green vehicle matching the description of the vehicle involved in the shooting. He observed the passenger of the vehicle extend an arm out of the vehicle and fire shots at a pedestrian. He followed the vehicle, which eventually lost control and hit a telephone pole. Four subjects ran from the vehicle. In conducting a search of the area, Brown found a semiautomatic pistol loaded with what appeared to be a .380-caliber round of ammunition.

Donald Meadie, a Waukegan police officer, testified that he stopped a vehicle on July 22, 1994. The vehicle had no license plates and was occupied by two black males. One of the occupants of the vehicle was the defendant. Both occupants were taken to the police station.

Dennis Cobb, a Waukegan police officer, testified that he was directed to 1713 Lyons Court on July 20, 1994. As an evidence technician, he examined the gray vehicle that hit the house. He observed a bullet hole in the front fender behind the wheel well of the driver's side area, a bullet hole to the left center of the back door of the driver's side, and a dent just below the driver's side door handle where a bullet had hit and ricocheted. He recovered the bullet that caused the hole in the front fender and a bullet that fell to the ground when he opened the rear driver's side door. Upon examining the passenger side of the vehicle, he observed blood stains in the backseat and a bullet hole in the front-seat headrest. According to Cobb, the bullets which hit the front fender and the back door of the driver's side came from the front and somewhat to the side of the vehicle. The bullet hole that went through the headrest also indicated the bullet came from the front and somewhat to the side of the vehicle.

James McCarthy, a Waukegan police officer, testified that the gun recovered from the green vehicle on July 21, 1994, was a .380-caliber automatic handgun. He retrieved two rounds of live ammunition from the gun. McCarthy also testified that he attended the autopsy of the victim, where a projectile was recovered from her head wound and turned over to him.

Robert Kerkorian, a Waukegan police detective, testified that he interviewed the defendant at the police station on July 22, 1994. The defendant told him that he had been shot in the chest with a shotgun during the previous week. He believed he had been shot by Johnson, a member of the Gangster Disciples gang. The defendant was a member of the Vice Lord gang. On July 20, 1994, the defendant was with some friends when they observed a gray vehicle being driven by Johnson. The defendant and his friends got into two vehicles they had rented from a "dope fiend" and followed. He was in the front passenger seat of a brown vehicle, following behind Johnson's vehicle as it traveled on Lyons Court. Some of the defendant's friends were in a green vehicle, which turned down another street. The gray vehicle eventually came up on the green vehicle. The vehicles stopped briefly, and the gray vehicle went into reverse and struck the brown vehicle. According to the defendant, Johnson pointed something out the window. The defendant then took a .38-caliber revolver in his possession and fired approximately five shots from the brown vehicle at the gray vehicle as it passed by the brown vehicle in reverse. The defendant told Kerkorian that he was not trying to kill or hurt anybody and did not see Davis in the backseat. The defendant later turned the weapon over to a friend and never saw it again.

The parties entered stipulations into evidence. William Wilson, a forensic scientist with the Northern Illinois Police Crime Laboratory, would testify concerning paint samples collected from the green, gray, and brown vehicles. Robert Wilson, a firearms examiner with the Northern Illinois Police Crime Laboratory, would testify that he examined the bullet recovered from Davis and two bullets recovered from the gray vehicle. He would further testify that the bullets were .38 or .357 caliber and that the bullets were fired from the same gun but not from the .380-caliber gun recovered. Dr. John Teggatz, a forensic pathologist, would testify that he performed the autopsy on Davis and that she died of cerebral lacerations and contusions caused by a gunshot wound to the head. The defense presented no additional evidence.

The jury found the defendant guilty of first degree murder as charged in count I and of first degree felony murder as charged in counts IV and V of the indictment. The defendant was later sentenced to 50 years' imprisonment. He filed a timely appeal.

ANALYSIS

On appeal, the defendant raises three issues for our review. He contends that (1) he was denied his constitutional right to a fair trial as a result of trial court errors with respect to jury instructions; (2) he was improperly convicted of first degree felony murder premised on mob action; and (3) the first degree murder convictions must be reversed because the State failed to prove him guilty beyond a reasonable doubt.

I. Jury Instructions

The defendant initially contends that he was denied his constitutional right to a fair trial as a result of trial court errors with respect to jury instructions. These alleged errors include: (1) the issuance of too many definitional and issues instructions relating to first degree murder; (2) improper instruction under the felony murder statute; and (3) the failure to render all verdict forms to the jury.

It is well established that every litigant is entitled to have the jury instructed as to the law governing the case. Malek v. Lederle Laboratories, 125 Ill. App. 3d 870, 872, 81 Ill. Dec. 236, 466 N.E.2d 1038 (1984). The instructions must be sufficiently clear so as not to confuse or mislead the jury. Malek, 125 Ill. App. 3d at 872. According to Supreme Court Rule 451(a) (134 Ill. 2d R. 451(a)), juries in criminal cases must be instructed pursuant to the Illinois Pattern Jury Instructions, Criminal (IPI Criminal), unless the court determines that the particular instruction does not accurately state the law. See People v. Haywood, 82 Ill. 2d 540, 545, 45 Ill. Dec. 932, 413 N.E.2d 410 (1980); People v. Testin, 260 Ill. App. 3d 224, 230, 198 Ill. Dec. 315, 632 N.E.2d 645 (1994). Absent a clear abuse of discretion, a trial court's determination of the form in which an instruction is given will not be disturbed on review. People v. Curtis, 262 Ill. App. 3d 876, 890, 200 Ill. Dec. 521, 635 N.E.2d 860 (1994).

We first examine the alleged issuance of too many definitional and issues instructions relating to first degree murder.

The case at hand proceeded to jury trial in October 1994. At that time, the definitional and issues instructions relating to first degree murder were set forth in IPI, Criminal, as Nos. 7.01A and 7.02A, respectively. Illinois Pattern Jury Instructions, Criminal, Nos. 7.01A, 7.02A (3d ed. 1992) (IPI Criminal 3d). In instructing the jury, the trial judge gave two definitional and two issues instructions, over defense counsel's objections. The defendant contends that the trial judge should have rendered only one definitional and one issues instruction. We agree.

The language of IPI Criminal 3d Nos. 7.01A and 7.02A suggests the giving of one definitional and one issues instruction relating to first degree murder, regardless of how many counts of first degree murder with which a defendant is charged. IPI Criminal 3d Nos. 7.01A, 7.02A. Citing People v. Johnson, 250 Ill. App. 3d 887, 189 Ill. Dec. 538, 620 N.E.2d 506 (1993), the Committee Note to IPI Criminal 3d No. 7.02A expressly states that only one issues instruction should be given to the jury to explain the issues of first degree murder; and that separate issues instructions for each of the different ways first degree murder can be charged under section 9--1(a)(1) through (a)(4) of the Criminal Code of 1961 (Code) (720 ILCS 5/9--1(a)(1) through 9--(a)(4) (West 1994)) are not to be given. IPI Criminal 3d No. 7.02A, Committee Note at (Supp. 1996). While committee comments are not the law, the trial court is allowed to ...


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