The opinion of the court was delivered by: Justice Gallagher
Appeal from the Circuit Court of Cook County
Honorable John Moran, Judge Presiding.
the opinion of the court:
Terrance Strain (defendant) was charged with two counts of first degree murder in the shooting death of Geary Dow, a former Marine and Chicago Transit Authority employee. Following a jury trial, defendant was convicted on both counts and sentenced to 45 years in the Illinois Department of Corrections. Defendant is now appealing this conviction. We reverse and remand for a new trial.
The evidence at trial showed the following. The State's witness, Terry Bosley, testified that he and his friend Geary Dow were doing electrical work on a house near the intersection of 120th and Perry in Chicago beginning at about 5 p.m. on February 12, 1996. After they began working, however, they realized that they needed a different type of wire to finish the job. Before leaving at around 9:45 p.m., they told the homeowner that they would return to finish the job the following day at about 10 or 11 a.m.
The homeowner offered to have her daughter drive them back home in her van, which was parked on the street in front of the house. Bosley and Dow stepped outside by the passenger side of the van to wait for the daughter and heard gunshots. Since the noise came from far away, the men did not take cover or return to the house. While Bosley and Dow were talking to each other, they saw three men coming toward them from the intersection. The three men did not speak as they walked past Bosley and Dow, who had continued their conversation.
Seconds later, Bosley heard more gunshots and looked over to find two of the men near a stop sign at the intersection. One of the men was firing a gun in their direction. Bosley dove in front of the van while Dow moved toward the back. Bosley heard at least three or four more shots before the gunfire stopped. He saw the two men run from the intersection with one of the men limping. Dow had been shot in the head and was bleeding. Bosley began calling out for help until people arrived. At the hospital later that night, Bosley learned that Dow had died of the gunshot wound.
Two other witnesses for the State, James and Darryl Burnett, testified that they were present when the shooting took place. They lived with their mother near the intersection of 120th and Perry. James was a "governor" in the Gangster Disciples street gang. He testified that the Gangster Disciples and the Black Disciples were at war. Perry Avenue, according to James, was a neutral zone, but west of Perry was controlled by the Gangster Disciples and east of Perry was Black Disciple territory. James testified that the war was over drugs and territory, in particular, with the Black Disciples encroaching on Gangster Disciple territory. James also testified that he had known defendant for eight to nine years and that they got along despite defendant's Black Disciple membership.
At the time of the shooting, James said he was standing in front of his house with Darryl and some friends at about 9:45 p.m. He heard gunshots about a block away. The street was well lit and James had no problems seeing down the street. Next he saw a group of about five or six men run down 120th Street. He recognized defendant and another man on a corner at the intersection of 120th and Perry. He also saw two men and a woman who had come out of a nearby house and walked to a van parked on the street.
After hearing the gunfire, James ran to the front porch of his house. From this vantage point, he saw defendant back up into the middle of the street from the corner and shoot 12 to 15 times in the direction of the woman and the two men. One of the men was hit with shots fired from defendant's 9 millimeter handgun. Defendant turned and ran toward the intersection of 119th and Lafayette and went through a vacant lot. James noticed defendant was running with a limp.
Darryl, also a Gangster Disciples member, testified that he was standing with James and a friend in front of their house at about 9:45 p.m. Shortly thereafter, he heard shots coming from the intersection of 120th and Perry and then ran onto the front porch and into the house. From inside the house, Darryl heard more shots. He did not see the shooting outside.
Both James and Darryl testified that defendant had been involved in an earlier shooting near the same intersection on February 6, 1996. On that day at around 12 p.m., Darryl and a friend drove past defendant who was standing in front of a house near the intersection. Darryl, who had known defendant from the neighborhood said "What's up" as he drove past. Defendant opened fire on the car after it had passed through the intersection and then fled through a vacant lot across the street. James was in the front of his house working on his car. He saw defendant fire on the car. James testified that defendant used a 9 millimeter handgun and had a crutch. James and Darryl reported the shooting incident to the police later that afternoon.
James testified that there was a war between the Gangster Disciples and the Black Disciples in February 1996 and that the intersection was on a boundary line between the two gangs' territories. He testified that defendant had been a member of the Black Disciples for several years. James testified that defendant had been shot in the left leg on the street in January 1996.
James further testified that he had seen defendant in the back of a police car on February 9, 1996, when the police raided the house of a Gangster Disciple who lived near the intersection. Around this time, the police raided several other houses owned by Gangster Disciples. Darryl also saw defendant in the back of the police car and suspected him of being an informant for the police.
A Chicago police detective testified that after defendant was apprehended, he gave two separate statements. First, he spoke at 11 p.m. on February 21 and again at about 3 a.m. on February 22. However, defendant refused to make or sign a written statement. The detective said that the content of both statements was the same except for a few small details. An assistant State's Attorney was present for defendant's second statement.
In his statements, defendant revealed that he was a member of the Black Disciples, that there was a war between the Black Disciples and Gangster Disciples, that the Gangster Disciples had shot him earlier, and that he had been acting as an informant for the police.
He stated that on the night of February 12, he was with Allen Higgenbottom at another friend's house near 119th and Lafayette when the backyard lights, which were equipped with motion detectors, went on. Defendant knew that Gangster Disciples had been "creeping" across the border to take random shots at Black Disciples. Defendant and Higgenbottom armed themselves with 9 millimeter handguns and went through a gangway to the intersection of 120th and Perry, where they saw a group of Gangster Disciples and a man standing by a van at the side of the street. Defendant heard a cry of "buck, buck, buck," which meant "kill the niggers," and then a shot. Defendant saw Higgenbottom fire his gun once and then run back to the gangway. Defendant began firing in the direction of the Gangster Disciples and the man by the van. He also retreated to the gangway after firing nine shots. Higgenbottom told defendant he fired only one shot because his gun had jammed. Defendant threw away the gun he used into a nearby garbage can.
At trial, defendant testified in his own defense. Defendant admitted that he had been a member of the Black Disciples since he was 12 years old. He said he had left the gang around the end of 1994 and beginning of 1995. He also testified that he was at his sister's apartment on the night of Dow's shooting and denied being at 120th and Perry or with ...