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December 12, 1997


Appeal from the Circuit Court of Cook County. Honorable Earl Strayhorn, Judge Presiding.

Rehearing Denied January 5, 1998. Released for Publication January 22, 1998.

The Honorable Justice Quinn delivered the opinion of the court. Greiman, P.j., and Zwick, J. concur.

The opinion of the court was delivered by: Quinn

The Honorable Justice QUINN delivered the opinion of the court:

Following a jury trial, defendant was convicted of first degree murder and sentenced to a term of 40 years' imprisonment. On appeal, defendant contends that: (1) the trial court erred in refusing to provide the jury with a second degree murder instruction; (2) defendant was prejudiced by the admission of evidence of another crime; and (3) the trial court considered an improper factor in sentencing defendant. Jurisdiction is vested in this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).

For the following reasons, we affirm.

The relevant facts are as follows. According to defendant's court reported statement, on September 3, 1991, defendant was recruited by fellow gang member Charles Murphy to participate in a shooting. Murphy approached defendant while defendant was standing on the street and asked defendant whether he owned a gun. Defendant responded affirmatively and walked across the street where he retrieved a .38 caliber revolver. Murphy then told defendant to, "go take care of business." Defendant understood that to mean that he was to, "shoot the boys that did something to him [Murphy] earlier in the day."

Murphy drove defendant to a location where defendant retrieved bullets for the gun. Murphy then drove defendant down an alley and pointed out the group of people on a porch that he wanted defendant to shoot. Murphy parked his car a block away and defendant exited the car. As defendant was walking down the alley, defendant saw one of the people on the porch "reaching" which caused defendant to pull out his gun and fire six shots in the direction of the porch. Defendant did not see a gun in the hand of the person who was "reaching." In fact, defendant did not see anyone on the porch holding a gun. One of defendant's shots fatally wounded Rodney Maholmes.

After the shooting, defendant fled the scene and heard gunshots behind him. According to defendant, the shots were not being fired from the porch. Defendant then hid the gun and ran back to the car.

At trial, Carla Carthen testified that she was on the porch the night of the shooting. At approximately 10:00 p.m., she saw defendant, who was wearing a green Starter jacket, walk past the porch with another individual. The two came within 15 feet of the porch and Carthen heard them yell "G.D." Three to five minutes later, defendant and the other offender returned and fired shots at the porch. Carthen ran into the house and heard someone say that the victim had been shot. Carthen then turned on the lights and saw the victim lying on the ground and bleeding. On September 4, 1991, Carthen identified defendant in a police line-up as one of the shooters. According to Carthen, no one on the porch had a gun.

Tony Allen also was present on the porch on the night of the shooting. Allen corroborated Carthen's version of the events, although he was unable to identify defendant when he first walked past the porch. Allen, however, did identify defendant in a police line-up the day after the shooting and testified that the individual who fired the gun was wearing a green Starter jacket.

On September 4, 1991, Detective Tony Maslanka arrested defendant a couple of blocks away from the scene of the shooting. At the time of his arrest, defendant was wearing a green Starter jacket. Defendant initially denied any involvement in the shooting, but later confessed to his involvement and provided the court reported statement summarized above. Detective Maslanka testified on cross-examination that he knew that defendant was 16 years old prior to his arrest. Detective Maslanka then confirmed that in his supplementary police report he wrote that he learned defendant's age after reading defendant his Miranda rights.

The parties stipulated that the cause of death was a single gunshot wound to the back. The parties further stipulated that if firearms examiner Richard Chenow were called to testify that he would identify the bullet retrieved from the victim's body as a .38 caliber bullet.

Defendant's trial testimony was substantially similar to his court reported statement. At trial, however, defendant never testified that he went with Murphy to shoot someone. Rather, defendant testified that he went with Murphy after a fellow gang member by the name of Terry Bell asked him to go to "Dee-Dee's" house with him. Defendant confirmed, however, that he was asked to retrieve his gun and that he brought his .38 caliber gun with him. Defendant did not testify that he stopped to retrieve ammunition for the gun.

Defendant further testified that upon arriving at the scene, both he and Bell walked down the alley. Defendant and Bell walked past the porch once and Bell yelled out their gang affiliation to avoid an "unnecessary confrontation." When Bell and defendant returned to the porch, defendant saw one of the occupants make a movement as though he were going to pull a gun out, and defendant responded by firing his gun about three times in the ...

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