Appeal from the Circuit Court of Cook County No. 91 CR 12111 The Honorable Fred G. Suria Jr., Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
The defendant, Brian Doyle, was charged with unlawful use of a weapon and four counts of first degree murder for the deaths of Khalid Malcome and Nathan Fowler. He was tried only on the murder counts. On October 26, 1991, the first trial culminated in a hung jury and mistrial because the jury could not come to an unanimous verdict. A second jury, empaneled on January 19, 1993, found him guilty of both murders. He was sentenced to a term of natural life without parole.
Defendant appealed alleging: (1) the trial court failed to find him guilty beyond a reasonable doubt at the first trial and therefore erred by not directing a verdict of acquittal; (2) the trial court erroneously denied his motion to dismiss for Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), violations; (3) prosecutorial misconduct; (4) the trial court erred in allowing certain evidence at trial; (5) ineffective assistance of counsel; and (6) cumulative errors denied him a fair trial.
On April 1, 1991, at approximately 6 p.m., the Chicago police department received two "911" calls reporting shootings at Rick's Arcade located at 5111½ West Division St. in Chicago. These shootings left Khalid Malcome and Nathan Fowler dead. The first "911" call came from Shalanda Allison. She told the "911" operator that people were shooting at the arcade across the street; a man came from the arcade and tried to enter the day care center where she was employed; she did not let him in; and the man had a gun.
The second "911" call came shortly thereafter from Danny Smith. Smith was the man that Ms. Allison had spoken about in her "911" call. He told the police that a "guy named Brian shot both of [his] friends in the head at the arcade" and that he was at 5315 W. Potomac. The police came and picked up Smith . That day, he told the police what happened at the arcade but did not tell them that he had a gun.
The following testimony was adduced at the trial. Before the shooting occurred, a group of approximately 15 young men assembled at Rick's Arcade to gamble or to watch others gamble. The defendant, Brian Doyle, Isaac Upchurch, Eric Lockhart and Ricardo Walls were among those in the group. Sometime between 5 p.m. and 6 p.m. there was a knock at the door of the arcade. Brian Doyle looked out the front window and told others that Danny Smith and Khalid Malcome were there. Others, who were gambling in the back, told Doyle not to let Smith and Malcome in the arcade. Doyle did not open the door.
Smith and Malcome continued to bang loudly on the door until Eric Lockhart, who was friendly with both men, opened the door. Malcome was angry that Doyle did not open the door and began to argue with him. Malcome asked Doyle why he did not open the door. Doyle replied that he was told not to let them in the arcade. Malcome responded "those pussy mother fuckers get you hurt." An argument ensued, and during the course of the 15-minute argument, Doyle asked if this was an "Insane set," meaning, was the arcade controlled by the Insane Vice Lords street gang. Malcome responded that it was and that "I might be one of your chiefs." Doyle replied: "I don't know who you is, you don't mean nothing to me." Doyle mumbled or whispered something under his breath, to which Malcome responded, "[S]peak up because only whores and bitches whisper." Doyle then said "let me get out of here before I snap." Either during the argument or shortly after Brian Doyle left, Nathan Fowler arrived to pick up one of the other men playing dice.
Further trial testimony was adduced. About 10 to 15 minutes after the argument, there was a knock at the door followed by a voice saying, "[W]hat's up now nigger?" The sound of gunshots followed. Then the shooter, later identified by Danny Smith, Isaac Upchurch, Eric Lockhart and Ricardo Walls as the defendant, said "I'm a whore?" "I'm a punk?" The defendant, continued to shoot two to four more times. Then several more shots were fired from what witnesses characterized as a "different sounding" gun.
When the shooting was over, Khalid Malcome and Nathan Fowler had both sustained gunshot wounds to the head. They died of their injuries. Danny Smith testified that he saw the defendant shoot both Malcome and Fowler and then try to shoot him. Smith testified that after the defendant tried to shoot him, he fired at the defendant with a .22- caliber handgun 3 times. Smith ran toward the exit but was unable to get out of the building; a door or large board fell on him and trapped him momentarily. Smith was not shot during the incident.
Smith then ran across the street to the day care center with his gun still in his hand and knocked on the door trying to get inside. Shalanda Allison called "911" during this period. When Smith could not get into the day care center, he told Ms. Allison to call the police and that his friends had just been shot. Smith then drove to his girlfriend's house nearby and called "911." After the shooting had ended, Lockhart had come back into the room where Smith was lying under the door and asked if he had been shot. Lockhart ran to his friend's house a block away.
The police met Smith at his girlfriend's house and took him back to the scene. There, Officer Franklin interviewed witnesses including Smith, Lockhart, Upchurch and Walls. Each identified the shooter as Brian, also known as "Dog," but they did not know his last name.
Smith, Lockhart, and Upchurch testified at the first trial. Ricardo Walls, manager of the game room, did not testify at the first trial. Smith testified at trial that he had a gun in his back pocket which he used to shoot back at the defendant. The information about his gun was not given to the police, and Smith testified about this information before the grand jury. In late April or May, Smith told the assistant State's Attorneys that he too had a gun and fired it in self defense on April 1, 1991. Smith said that he gave the gun to a friend named Wolf. Smith told the assistant State's Attorneys that Wolf could be found at the corner of Maypole and Pulaski streets. An assistant State's Attorney contacted Detective Dorsch shortly thereafter and requested that he search for the gun and Wolf. Detective Dorsch determined that Wolf's real name was Charles Moore and that he was murdered in May. Smith's gun was never recovered.
On April 20, 1991, Officer Baltazar received information regarding the location of Brian Doyle. The record indicates that two arrest warrants for Brian Doyle had issued on April 5, 1991. Officer Baltazar arrested Doyle on April 20, 1991.
The first trial began in October of 1991. It ended in a hung jury and the trial judge declared a mistrial. The second trial began in January 1993. Ricardo Walls was among the witnesses that testified at the second trial. Danny Smith had passed away before the second trial. His testimony was read into the record by the defense. The second jury returned a guilty verdict on both charges of first degree murder.
Defendant alleges that the State failed to prove at the first trial that he was guilty beyond a reasonable doubt for the murders of Malcome and Fowler. In addition, defendant contends that the second trial violated the fifth amendment's double jeopardy clause. Specifically, the defendant claims he was denied due process when the trial court failed to direct a verdict of acquittal at the first trial and subsequently allowed a new trial. We disagree. When a mistrial is properly declared solely on the basis of the inability of the jury to reach a verdict, retrial does not result in double jeopardy, regardless of the sufficiency of the evidence at the first trial. People v. Hobbs, 301 Ill. App. 3d 581, 589, 703 N.E.2d 943 (1998); Richardson v. United States, 468 U.S. 317, 326, 82 L. Ed. 2d 242, 251, 104 S. Ct. 3081, 3086 (1984). Defendant also claims that he was denied due process based on the prosecutor's failure to comply with the requirements of Brady v. Maryland, 373 U.S. 83, 10 L. Ed. 2d 215, 83 S. Ct. 1194 (1963), and Illinois Supreme Court Rule 412(c)(134 Ill. 2d R. 412(c)). Defendant also claims that the trial court abused its discretion when it did not dismiss the case based on the Brady violations.
To prevail on a Brady violation claim the defendant must demonstrate the following: (1) The evidence must be favorable to the defense, either exculpatory or impeaching; (2) the evidence must be suppressed by the State; and (3) prejudice must have ensued. Stickler v. Greene, 527 U.S. 263, 281-82, 144 L. Ed. 2d 286, 302, 119 S. Ct. 1936, 1948 (1999). The defendant in this case argues that the information concerning Smith's gun was favorable to the defense. The fact that more than one person was firing opens the door to the possibility that another may have been the shooter. The record establishes that the State was made aware of Smith's gun in late April or early May of 1991. Defendant contends that this information was not provided to the defense until the start of trial in October of 1991. Finally, defendant argues that prejudice ensued because the defense discovered the information immediately before the first trial and did not have adequate time to investigate this development.
We agree that information regarding Smith's gun should have been provided to the defense more timely. However, we do not agree that a Brady violation occurred. Although the State should have disclosed the information concerning Smith's gun earlier in the investigation, the defendant was aware of the gun before the first trial. Moreover, testimony about the gun came out at the first trial. Smith testified on direct examination about the gun and the defense was able to cross- examine all of the witnesses that had knowledge of the gun. Relative to this issue, the following testimony was adduced by Smith on direct examination:
"MS. BURNETT [Assistant State's Attorney]: Then what happened?
MR. SMITH [Witness]: Then he was walking like back towards out gambling room, and he is seeing the door moved and he started coming back.
A: Then that's when I pulled the gun out my back pocket.
Q: What kind of gun did you have in your back pocket, Danny?
Q: What did you do when you pulled that gun out?
Q: How many times did you fire it?
The following testimony was adduced during ...