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November 20, 1997


Appeal from the Appellate Court, First District, Cook County. CASE NUMBERS: AC1-93-0479, TR91CR8923. TRIAL JUDGE: Hon. Thomas F. Dwyer.

The Honorable Justice Miller delivered the opinion of the court.

The opinion of the court was delivered by: Miller

The Honorable Justice MILLER delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant, George Garrett, was convicted of first degree murder and attempted first degree murder. Defendant was sentenced to 60 years' imprisonment on the first degree murder conviction and a concurrent sentence of 25 years on the attempted first degree murder count. Defendant appealed and the appellate court affirmed. 283 Ill. App. 3d 511, 670 N.E.2d 830, 219 Ill. Dec. 152. We granted defendant's petition for leave to appeal (166 Ill. 2d R. 315) and now affirm the judgment of the appellate court.

Defendant's convictions arise from events that occurred on September 1, 1990. At approximately 1:30 a.m. on that day, Darrell Gurley and his uncle, Thomas Peters, went to a liquor store in Chicago to purchase beer. Outside the liquor store, a group of men were playing a dice game. Gurley testified that he entered the store while Peters went to the dice game. Gurley purchased beer inside the liquor store, placed the beer inside his vehicle, then approached the dice game. After a few minutes, Gurley and Peters left the game and began walking towards the vehicle.

Gurley testified that he heard a male voice say "Yo." Gurley turned around and saw "Poncho" and "Twon." Gurley stated that he knew these two individuals from seeing them around the neighborhood. In court, Gurley identified "Poncho" as defendant, George Garrett, and "Twon" as the codefendant, Antoine Day. Day is not involved in this appeal. Gurley testified that he saw the two men draw guns from their waistbands.

Gurley yelled a warning to Peters and the two men began running in different directions. Gurley heard several gunshots. As he neared the other side of the street, Gurley looked back and noticed defendant shooting in his direction and Day shooting in the direction of Peters. The next morning, Gurley learned that Peters had died from a gunshot wound; he then called the police.

Chicago police detective Hugh Conwell picked Gurley up at his home and drove him to the police station. Gurley testified that he described the shooting to Conwell and gave Conwell the nicknames and a description of the two gunmen. Gurley stated that on September 10, 1990, Detective Richard Curley came to his house and showed him five photographs. From those photographs, Gurley identified defendant as one of the shooters.

James Coleman was also at the dice game outside the liquor store. Coleman testified that he saw three men, including defendant, approach the group. Shortly thereafter, Coleman heard gunshots and saw defendant pointing a gun in the direction of the dice game. Coleman began to run. He was shot in the back and was later treated at a hospital. Coleman stated that on September 10, 1990, he was shown a group of photographs by Detective Curley and identified a photograph of defendant as the man he believed to be the shooter.

Detective Curley and his partner, Detective Richard Maher, investigated the shooting. Curley testified that they were looking for an individual nicknamed "Poncho." On September 10, 1990, Curley learned that "Poncho's" real name was George Garrett, the defendant. Curley obtained a photograph of defendant from one of his girlfriends. Curley's testimony corroborated the testimony of Coleman and Gurley that, from a series of five photographs, they identified defendant as the shooter.

Based on the identifications by Coleman and Gurley, Detective Curley filed a complaint in the circuit court on September 10, 1990, requesting an arrest warrant charging the defendant with murder. An arrest warrant for the defendant was subsequently issued. Six months later, on March 14, 1991, defendant was arrested. On March 15, 1991, defendant appeared at a bond hearing and an assistant public defender filed an appearance on his behalf.

On March 18, 1991, defendant again appeared in court. Attorney Joan HillMcClain, a private attorney, was present in court and filed an appearance on defendant's behalf. During the March 18 hearing, the State indicated that it was not ready to proceed. Attorney HillMcClain, on behalf of defendant, did not object to a continuance. The judge granted the State a continuance and set the matter for preliminary hearing on April 11. Defendant remained in custody under a "no bail" order entered on the complaint for preliminary examination dated September 10, 1990.

On April 9, 1991, two days before the scheduled preliminary hearing, Detective Curley arranged a lineup in which defendant was a participant. At the lineup, Coleman identified defendant as one of the persons responsible for the shooting on September 1, 1990.

Defendant filed a motion to suppress his identification by Coleman at the April 9 lineup claiming that he was not represented by counsel at the lineup. At the hearing on the motion to suppress, much of the testimony concerned a lineup packet prepared by the public defender's office. A lineup packet consists of seven or eight pages. In the packet, the public defender is supposed to provide the defendant's name and the type of crime with which he is charged. There is a sheet to state whether there is a police officer or State's Attorney present, whether the public defender has the police reports or case reports, and a list of witnesses, if any. There is also a sheet to provide details on the individuals that participate in the lineup. Additionally, there is the lineup rights sheet. The lineup rights sheet explains the accused's rights and includes a question as to whether the accused has an attorney. There is a place at the bottom of the sheet where the ...

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