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September 30, 1997


Appeal from the Circuit Court of Cook County. Honorable Themis N. Karnezis, Judge Presiding.

Released for Publication November 26, 1997.

Presiding Justice Greiman delivered the opinion of the court. Theis, J., concurs. Zwick, J., dissents.

The opinion of the court was delivered by: Greiman

PRESIDING JUSTICE GREIMAN delivered the opinion of the court:

A jury found defendant Sidney Perry guilty of first degree murder for the shooting death of William Yousef, of armed robbery of William Yousef, and of armed robbery of Hani Hamad. The trial court imposed a sentence of natural life in prison without parole for the murder. Defendant now appeals his convictions and sentence.

On appeal, defendant raises five issues: (1) whether the trial court committed reversible error by refusing to instruct the jury on second degree murder; (2) whether he is entitled to a new trial based on the trial court's answer to a jury question and his trial counsel's failure to object to the trial court's response to the jury; (3) whether his convictions must be reversed because he used psychotropic medication during his trial; (4) whether the sentence of natural life in prison is void; and (5) whether the sentence constituted an abuse of the trial court's discretion. In addition, the State asserts that this court should remand this case for sentencing on the two counts of armed robbery.

For the reasons that follow, we affirm defendant's convictions and sentence. We also remand the cause to the trial court for sentencing on the two counts of armed robbery of which defendant was convicted but for which no sentence was imposed.

On September 12, 1994, William Yousef (William) and his cousin Hani Hamad (Hamad) were robbed while working in a closed food store at Central and Lake Streets. During the robbery, William suffered a gunshot wound to the abdomen and subsequently died from the gunshot wound on September 22, 1994. Both defendant and Moses Cathey were charged for the crimes. Defendant and Cathey were tried simultaneously but before separate juries.

In short, the State's position at trial, supported by the testimony of victim Hamad, was that two men (defendant and Cathey) entered the store, each man had a gun, they wanted money, and defendant shot William. On the other hand, defendant testified that he entered the store alone and unarmed, that William pulled a gun, they scuffled over the gun, and William shot himself.

At trial, the State presented, in its case in chief, the testimony of Hamad (a robbery victim), Ken Witkowski (a police officer), Thomas Reynolds (a forensic investigator), Cynthia Porterfield (a medical examiner), and Robert Smith (a firearms expert). In rebuttal, the State presented the testimony of Nayim Yousef (the owner of the store and William's uncle) and recalled Witkowski for further testimony.

Hamad testified that Nayim Yousef, William's uncle, bought a grocery store at Lake and Central. The store had been closed for business. On September 11, 1994, a Sunday, Hamad, William and Nayim were working in the store to prepare for the store's opening. Defendant entered and asked if any work was available. After working about two hours, defendant asked Hamad for $40. Hamad referred defendant to the owner, Nayim, who gave $20 to defendant. All four men (Hamad, William, Nayim, and defendant) then left the store for the day.

The next day, September 12, 1994, Hamad, William and Nayim returned to work in the store. Defendant came to the store again asking for work but was told that no help was needed. After defendant and Nayim left the store, Hamad and William continued the work in the store.

Hamad testified that defendant returned to the store with a "partner." While the second man stood by William about 15 feet away, defendant stood in front of Hamad and said "give me all the money you have." Hamad replied that he did not have any money. Defendant then pulled a black gun, said "No more money, m//--?" and fired one shot. The shot went behind Hamad and into the glass. Hamad turned to see his cousin William and observed the second man put a small silver gun in William's face. Hamad told defendant: "Hold on, man. My money in my pocket. Take anything you want. We have cigarettes. Take anything you want, just don't shoot."

Hamad testified that defendant then told him to remove his pants. As Hamad complied, his wallet fell to the floor. Defendant took Hamad's wallet, which contained about $100, and told Hamad to "take the floor." As Hamad got on his knees with the palms of his hands on his thighs, defendant said "give me the watch" and Hamad complied. Hamad saw William assume the same position after being told to do so by the second man, who was standing in front of William. William had also removed his pants and the second man took William's wallet.

Hamad next heard a second gunshot but does not know who fired the second shot. When the second shot was fired, Hamad was completely on the floor and he could not see William from that position. After the second shot, Hamad heard shelves fall and somebody run away.

As Hamad tried to stand up, defendant fired more shots and Hamad returned to the floor. At the time of the third shot, both men were standing in the doorway and the shot hit a pop bottle. The two men left the store. After the third shot, Hamad saw William on the floor in a prone position. Hamad then went to the front of the store and closed and locked the security gate.

Hamad returned to William, who was on the floor. William said that "they shot me." Hamad saw a little blood on William's stomach.

Hamad was unable to call the police since no phone had been installed in the new business. Hamad told a lady in front of the store to call the police and she did. The police arrived, cut the gate, and entered the store. William was taken to the hospital by ambulance.

Hamad told the police what had happened and then accompanied the police to the hospital to see William, who was unconscious. Later the same day, Hamad went to the police station and identified defendant in a lineup. Hamad noticed that, at the police station, defendant's hair had changed because he had cut off his ponytail, which fact Hamad told the police.

The next day, Hamad returned to the police station and identified a black gun as one that looked like the same gun defendant had used during the store robbery.

Hamad denied that William and defendant argued or engaged in a fight. Hamad also denied that William pulled a gun, that William and defendant struggled over the gun, and that the gun fired as the two of them were struggling over it. Hamad did not see William face down with his chest on the ground.

Hamad denied telling the police detective that the robbers told him and William to lie face down. Hamad testified that he took two positions during the robbery. The first time, he was on his knees and the second time, he was on his hands and knees with his head down. Hamad told the police officers immediately after the robbery that the robbers told him "to go down."

Nayim Yousef testified that, in September 1994, he purchased a small grocery store near Lake and Central Streets. On September 11, 1994, Yousef, Hamad and William worked in the store to prepare it to open for business. On September 11, Yousef hired defendant to do some work. Defendant worked for two hours and Yousef paid defendant $20. On September 12, 1994, defendant returned to the store and asked for work. Yousef informed defendant that he did not need him that day because the store was almost ready. Defendant then left the store and Yousef left the store about 15 minutes later. When Yousef left, the front door was unlocked and Yousef had the keys. When Yousef left, both Hamad and William were wearing pants. Yousef never talked to the police and never was contacted by the State's Attorney about the subject matter of his trial testimony.

Police officer Kenneth Witkowski testified that on September 12, 1994, at 2:15 p.m., he responded alone to a radio message of a man shot in a store. When he arrived at the store, Witkowski found Hamad locked behind some burglar bars screaming for help. Witkowski forced his way in under the burglar bars, observed William lying on the floor, appearing to be unconscious, radioed for help, made sure an ambulance was on the way, and called for a fire truck to break the burglar bars. Witkowski testified in rebuttal that he found William lying on the floor and wearing only a sleeveless t-shirt and a pair of white briefs. In his police report, Witkowski did not mention that William was not wearing any pants.

Witkowski noticed that some of the store merchandise was damaged and soda was all over the floor. Witkowski observed that Hamad was visibly shaken, agitated and demanding help for William. When Witkowski first arrived on the crime scene, he did not ask Hamad if there was a struggle when the men came into the store. Witkowski drove Hamad to the hospital. At the hospital, Witkowski tried to gather information about the incident, learned that William was in critical condition, and met with Detective Anthony Bongiorno.

Witkowski returned to the store to canvass the area. After some investigation, Witkowski and Bongiorno obtained the name of a possible offender. While Bongiorno was on the phone and Witkowski was inside a shoe shine parlor, defendant entered the store and identified himself by name and as "the guy you are looking for." Witkowski testified that he (Witkowski) was "kind of in shock" and defendant put his hands behind his back. Witkowski handcuffed defendant and read defendant the Miranda rights. The two police officers then transported defendant to the police station. At a lineup, Hamad identified defendant.

After a phone call to Detective Bongiorno, the two police officers returned to the area of the store (333 North Central). A young black male teenager approached the car and threw a bag in Witkowski's lap. The bag contained a .380 Lorson semi-automatic pistol. Upon returning to the police station, Witkowski showed the gun to Hamad and Hamad said that it looked like the gun defendant had used. Witkowski did not take the gun to be dusted for prints.

Thomas Reynolds, a forensics investigator with the Chicago police department, testified that he and his partner went to the crime scene on September 12, 1994. Reynolds located three discharged cartridge cases, one fired bullet, and one copper jacket from a bullet. A copper jacket is a part of a fired bullet. One discharged cartridge case was found on the floor near the coolers, and William had been found lying in front of the cooler. A second discharged cartridge case was located on the floor near some shelving on the floor. A third discharged cartridge case was on the floor in front of one of the coolers. The fired bullet was located inside a case of soda pop. The ...

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