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People v. Duncan

June 16, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ALLEN DUNCAN, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Cousins

APPEAL FROM THE CIRCUIT COURT COOK COUNTY.

No. 93 CR 1352

THE HONORABLE JAMES D. EGAN, JUDGE PRESIDING.

Defendant Allen Duncan and co-defendants Jermail Lake, Lemont Lake and Tineshea Lake were charged by indictment with two counts of first degree murder in the shooting death of Alvin Gilmore. After a bench trial, defendant was found guilty of first degree murder and sentenced to 21 years' imprisonment.

On appeal, defendant Allen Duncan contends that: (1) his conviction should be reversed because there was no written jury waiver and because the trial court failed to ensure that he understood the difference between a bench trial and a jury trial, failed to inform him that he had a constitutional right to be tried by a jury of his peers and failed to ensure that the waiver of his right to a jury was knowing and voluntary; and (2) the State failed to prove him guilty of first degree murder under a theory of accountability.

BACKGROUND

Events that began with a street encounter between two women and a slap ended on December 26, 1992, with a hail of bullets being fired at and into a building. As a result, Alvin Gilmore, who was inside the building, suffered a fatal gunshot wound to the head.

On December 26, 1992, Lashundia Davis, while on her way to a store by her home, ran into Tineshea Lake, who was with two other women, Rashawn Jackson and Kimberly Manning. Tineshea had previously dated Lashundia's boyfriend, Orlando Potts. Rashawn approached Lashundia, said something to her and slapped her across the face. At this point, Tineshea said "let's get her." Lashundia then ran home and spoke to her sister and brother, who then accompanied her to Tineshea's home. At Tineshea's house, Lashundia offered to fight Tineshea but Tineshea refused and Lashundia went home. On her way home, Lashundia ran into her mother and her boyfriend, Orlando Potts. After they conversed, Orlando Potts went to Tineshea's house and broke windows in her house.

Ben Harden testified for the State pursuant to a plea agreement in which first degree murder charges against him were dropped and he received a sentence of 12 years' imprisonment for aggravated discharge of a firearm. According to Harden's testimony, he was in a car with Lemont Lake when Lemont stopped to make a phone call in response to a page he received on his pager. Harden testified that Lemont appeared to be angry when he got back in the car and told Harden that "[t]hey was bogus." Lemont then drove to defendant's apartment on 55th and Union Streets. Once inside, Lemont told defendant to "give me that," at which point defendant retrieved a black, 9 millimeter gun along with a loaded clip and handed it to Lemont. Lemont put the loaded clip into the gun.

Lemont Lake, Ben Harden and defendant left defendant's apartment where, soon thereafter, they saw Jermail Lake and Shon Scott. Lemont told Jermail and Shon, "They was bogus for doing that." Defendant, Lemont Lake and Ben Harden then drove to the Lake house at 39th and Prairie, where they met Jermail Lake and Shon Scott, who had driven separately. Rashawn Jackson was sweeping up the glass from the window that Orlando Potts had broken. Harden further testified that Tineshea told Lemont that Orlando had broken the windows because she had called him "out [sic] his name." Harden also testified that Tineshea told the group, which consisted of himself, defendant, Lemont Lake, Jermail Lake and Shon Scott, that they should go to Orlando's house and "kick his ass," but that they should be careful because someone would be there. Lemont then pulled out the 9 millimeter gun and said, "don't worry about it."

Defendant, Lemont Lake, Ben Harden, Shon Scott and Jermail Lake left the apartment and walked northbound on Prairie to Lashundia's house. Lashundia lived at 3932 S. Prairie, which is a low-rise housing unit. When they reached a tree about 30 feet away from Orlando's apartment, Lemont told the group to stop, pulled the gun out of his jacket and aimed it toward the apartment. As Lemont fired the gun he said, "watch me light this place up." He fired 16 shots at the apartment. On cross-examination, Harden testified that he could see people in Orlando's apartment before Lemont began shooting.

Defendant, Ben Harden, and Lemont Lake ran to Lemont's car and defendant drove them to Lemont's house, where they drank and watched videos. Jermail Lake and Shon Scott arrived 5 to 10 minutes later. Jermail then made a phone call in which Ben heard him say, "Is everybody straight? Is she O.K.?" Approximately 15 minutes later, the police arrived and arrested everyone.

At trial, Lashundia Davis testified that, at about 6:30 p.m., shortly after Orlando had gone to Tineshea's home to break her windows, she was at home with her mother, siblings, Eric Watkins and her nieces and nephews, including Alvin Gilmore. Eric Watkins looked out the window and said something that caused Lashundia to look out the window. When Lashundia looked out the window she saw defendant, Rashawn Jackson, Kimberly Manning, Tineshea, Lemont Lake and Jermail Lake approaching her apartment from the courtyard directly across from her apartment. Lashundia claimed that the group was within 40 feet of her apartment at one time prior to shooting. Prior to the shooting, 14 year-old Alvin Gilmore was sitting at the kitchen table near a window. Testimony established that he died from a gunshot wound to his brain.

At the Conclusion of simultaneous bench and jury trials, all of the defendants were found guilty of first degree murder. Defendant was sentenced to ...


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