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People v. Foster

June 19, 1998

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
BERNARD FOSTER, DEFENDANT-APPELLANT.



The opinion of the court was delivered by: Justice Greiman

Appeal from the Circuit Court of Cook County.

No. 94-CR-19526

The Honorable John Brady judge Presiding.

Defendant Bernard Foster challenges his conviction for first degree murder, arguing that (1) he was denied his right to a speedy trial; (2) the trial court erred in admitting evidence of other crimes; (3) he was denied effective assistance of counsel; (4) the prosecutor improperly argued gang affiliation; (5) the jury was improperly instructed; (6) cumulative errors deprived him of a fair trial; and (7) the sentence imposed was excessive.

For the reasons that follow, we affirm.

On July 8, 1994, Mark Peters went to an apartment building that he owned with his mother on South Calumet to secure it for the evening. Later that evening, Officer Robert Bell responded to a call at the building and found Peters lying in a pool of blood with several gunshot wounds. Bell found bullets and spent shell casings. A 13 1/2-inch steel knife was found near Peters' body. An ambulance was called, but Peters died as a result of the gunshot wounds. Bell described the area, stating that the buildings usually housed gang members, gang activity, prostitution and drug activity.

Detective James Jones also went to the building on July 8, 1994. He spoke to several individuals, and after those conversations the officers were looking for a male named Lazarus, also known as "Zeke Cool," and another male with the nickname "Yogi." On July 12, 1994, Lazarus Smith's sister was arrested. She told police Lazarus' full name and address. Lazarus was arrested and charged with the murder of Mark Peters. Police continued to look for defendant, who goes by the name "Yogi."

On July 20, 1994, Detective Paul Mack arrested defendant while responding to a call for an in-progress aggravated battery. Detective George Holmes spoke with defendant. Defendant gave an oral statement, admitting he was present at the building on the day Peters was killed, but stating that he ran from the building when he heard gunshots and did not know who did the shooting. Holmes contacted Assistant State's Attorney Laura Forrester.

Holmes and Forrester spoke with defendant and he gave the same statement he had already provided. Forrester then confronted defendant with contradictory evidence. Forrester stated that "[defendant] paused, he looked down and he started to cry. *** He then said I didn't mean to shoot him, I'm sorry." He said, "he wanted to tell the whole truth at that time."

Defendant gave an oral statement which was reduced to writing and signed. Forrester read the statement into the record. It states in relevant part:

"Bernard states that on July 8, 1994, at around 10:30 PM, he went to 4208 South Calumet, to by [sic] some marijuana. Bernard states he was on the porch with Anthony McKee also known as Pooh, Jomo Burks and Lazarus Smith also known as Zeke.

Bernard states that a man came out on the porch and asked them to leave. Bernard states he has now come to know the man's name to be Mark Peters. Bernard states that he, Pooh, Jomo and Zeke are all members of the Gangster Disciple street gang. Bernard, Jomo, Zeke and Pooh went into the hallway and were talking with Mr. Peters about Zeke's beeper. While everyone was in the hallway, there was a struggle with Mr. Peters. Bernard had a gun that Zeke had given him that night. Zeke showed Bernard how to take the safety off the gun and Bernard placed the gun in his waistband.

Mr. Peters had lifted his shirt to show the beeper he had was not Zeke's. After Mr. Peters struggled in the hallway with Jomo, Zeke, Pooh and Bernard, Mr. Peters ran towards the basement. Bernard tried to get out of the hallway and tried to open the door. ***

Mr. Peters returned to the hallway carrying something that Bernard could not see. Bernard heard somebody yell something. Mr. Peters was on the stairs and Bernard held out the gun. Bernard shot at Mr. Peters, then Mr. Peters turned away from Bernard. Bernard states he kept firing at Mr. Peters and hit him in the back.

Bernard states he saw Mr. Peters lying on the stairs face down. Bernard states he fired the gun ...


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