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People v. Moore

September 16, 2003

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
LEMAR H. MOORE, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Lake County. No. 01--CF--2150 Honorable Mary S. Schostok, Judge, Presiding.

The opinion of the court was delivered by: Justice Byrne

PUBLISHED

Following a jury trial, defendant, Lemar H. Moore, was convicted of first-degree murder (720 ILCS 5/9--1(a)(1) (West 2000)). The trial court imposed a 50-year sentence after concluding that defendant was eligible for a 25-year sentence enhancement based on his use of a firearm during the offense. Defendant appeals, alleging that several trial errors entitle him to a new trial. Defendant contends that the trial court erroneously (1) refused to instruct the jury on second-degree murder based on provocation and on the defense of self-defense; (2) failed to consider a jury inquiry regarding the testimony of Stacey Pitts, a prominent prosecution witness; and (3) added 25 years to the sentence for defendant's use of a firearm. We affirm.

FACTS

At trial, Pitts testified that she first met the victim, Johnny Legaretta, in February 2001 in the Waukegan neighborhood where they both lived. The two became good friends and saw each other daily. On July 2, 2001, Pitts walked to Legaretta's house, and at 5 p.m. the two walked down McAlister Street toward Belvidere Road. As they walked, Legaretta carried a notebook of his poetry, and Pitts did not see him with a weapon. As they approached Belvidere Road, Pitts heard Legaretta cursing but did not see the recipient of his comments. As Pitts and Legaretta turned onto Belvidere Road, a light blue car approached and slowed. A passenger yelled, "Where's my mother's chain?" Legaretta responded, "Go home and look for it," because Legaretta did not have the chain.

The blue car pulled into the parking lot of a nearby grocery store. The driver went inside the store, and the passenger, identified as defendant, ran toward Pitts and Legaretta. Defendant repeatedly asked, "Where's my mother's chain?" Legaretta continued to state that he did not have it and that defendant should return home to look for it. Legaretta attempted to walk past defendant, and defendant punched him in the face twice. Legaretta handed his notebook to Pitts, who told Legaretta not to fight defendant. Legaretta responded, "No it's fun, it's fun."

As Legaretta walked back toward defendant, defendant punched him a third time. Legaretta struck defendant at least four times, and Pitts saw that a handgun was tucked in the right side of defendant's waistband. Defendant showed the gun to Legaretta, and Legaretta asked whether defendant was threatening him. The two men argued, and Pitts turned her head momentarily just as she heard a loud gunshot. Pitts turned back and saw that Legaretta and defendant were still arguing and fighting. The two men got closer to one another, and Pitts heard a second gunshot. Pitts recalled that defendant held the gun and that Legaretta never attempted to seize it.

Legaretta leaned against the fence behind him, gasped for air, and lay on his back. Defendant ran to the blue car, and the car sped away. Pitts ran to the grocery store and spoke to the police on the telephone. Pitts later identified the driver as Ronald Harris. Pitts could not say whether Legaretta and defendant ever grabbed one another during the fight because Pitts did not see everything that occurred.

Juan Marban, the owner of the grocery store, testified that he was repairing a light in the store's entrance at the time of the altercation. A blue car pulled up and defendant walked toward two people across the street. The driver entered the store, stood behind Marban, and stared outside. Marban stated that "everything happened at once." He heard two gunshots and saw defendant holding a gun and covering his face. The man standing behind Marban said, "Jesus," exited the store, and drove away with defendant. Marban dialed 911 and handed the phone to Pitts, who had entered the store. Marban did not see defendant and Legaretta punching each other. Marban believed that the two men were standing four feet apart when the shots were fired, but Marban acknowledged that he told a police officer that he asked the man in the store what had happened.

George Callison testified that he and his wife were driving along Belvidere Road and saw two men in a fistfight on the sidewalk. Legaretta was swinging his arms out from his sides and was not making contact. Callison saw defendant, who was "literally up against" Legaretta, strike Legaretta with a left-hand uppercut. Legaretta fell against the fence, slid to his knees, and bled from his chest. Callison almost struck defendant as defendant ran across the street. Callison did not hear any gunshots, and he believed that Legaretta had suffered a stab wound.

Callison stated that Legaretta obstructed his view of defendant and that he could see only defendant's left arm. It did not appear that Legaretta tried to grab defendant or anything he was holding. Callison did not see Legaretta strike defendant. Callison also did not see Legaretta hand anything to Pitts, who stood 10 to 20 feet away from the fight.

Regina Coburn testified that she loaned Harris her blue Dodge Aries on the day of the incident. Regina and her husband picked up defendant and Harris, and the four drove to an address in Waukegan where Regina purchased rock cocaine. While driving home, Regina heard Harris yell out the window, "Hey, remember when such and such busted you in the nose?" Regina saw two pedestrians, but they did not respond to Harris's comment. Upon arriving home, Regina and her husband smoked the cocaine, and Harris and defendant left with the car.

At approximately 5 p.m., Harris returned to Regina's home without the car. Defendant arrived 15 to 20 minutes later and changed his clothes and hairstyle. Defendant told Regina that her car was parked safely behind a church but that she could not retrieve it until after dark. Regina accepted $5 for securing defendant a ride out of the area. Regina discovered her car with yellow police tape around it behind a church. The police who were there transferred her to the station for questioning.

Joseph Coburn, Regina's husband, testified that, when Regina was purchasing the drugs, defendant exited the car momentarily and Joseph saw a gun in defendant's waistband. After Regina returned to the car and began driving home, Joseph saw a young man and woman walking down the street. Harris yelled something to the pedestrians, and the young man swore at Harris. Harris told defendant, "I bet you don't remember him." Defendant responded that he remembered the man as the person who had stolen his mother's necklace. Defendant stated, "I ought to kick his ass" and asked Harris, "You want to ride down on him?" Harris responded, "No. We going [sic] to do something else different."

Officer Robert Kerkorian testified that he arrested defendant at the home of Harris's father and stepmother on the night of the incident. Defendant did not complain of any pain, and Kerkorian did not observe any injuries or bruises. Like Kerkorian, Officer Michael Sellers testified that defendant was not injured at the time of the arrest. Lieutenant Jonathon Oliver testified that defendant helped him locate the gun used in the shooting.

Dr. Mark Witek testified that he performed an autopsy on Legaretta. Legaretta suffered three gunshot wounds that formed a triangle near the upper center part of his chest. Any of the three shots could have killed Legaretta. The trajectory of each bullet was downward from right to left, which indicated that Legaretta could have been reaching with his right hand and leaning forward when he was shot.

The parties stipulated that Christopher Luckie, a forensic scientist, would testify that his chemical examination of gunpowder residue on Legaretta's shirt suggested that Legaretta was shot at close range. Luckie opined that Legaretta was shot once from approximately one foot away and twice from slightly farther away. The closest shot could have been fired from six inches away. A trigger pull test disclosed that the gun was relatively difficult to fire: a single-action shot, where the firearm is cocked manually before firing, required 4.5 pounds of force and a double-action shot, where the firearm is not cocked, required at least 16 pounds. Luckie acknowledged that the combined force of pulling the gun barrel in one direction and pulling the trigger in the opposite direction could make it easier to discharge the weapon.

Venus Anderson, defendant's mother, testified that she was Legaretta's legal guardian for two years before he turned 18. During that period, defendant and Legaretta lived with Anderson and called her "mother." Legaretta moved out but returned a couple of years later to live with Anderson temporarily. When Legaretta left again, Anderson discovered that her gold chain was missing. Anderson informed her family that she suspected Legaretta had stolen the chain.

At the close of the evidence, the trial court conducted a jury instruction conference off the record. When the parties went back on the record, the State conceded that the jury should be instructed on second-degree murder based on an unreasonable belief in the need for self-defense. However, the State objected to instructions on (1) second-degree murder based on the provocation of mutual combat and (2) self-defense. The court ruled for the State on the jury instruction issues.

During its deliberations, the jury sent the court three notes, including two requesting transcripts of certain witnesses' testimony. Defense counsel objected to providing the jury with the trial testimony of fewer than all of the witnesses, and the court declined the requests in writing on each note. The record contains a fourth note requesting a transcript of Pitts's testimony, but the note lacks any indication that the trial court ruled on it.

The jury found defendant guilty of first-degree murder. Noting that section 5--8--1(a)(1)(d)(iii) of the Unified Code of Corrections (Code of Corrections) (730 ILCS 5/5--8--1(a)(1)(d)(iii) (West 2000)) mandated a 25-year sentencing enhancement, the trial court imposed a 50-year prison term. Defendant filed posttrial motions raising the jury instruction and sentencing issues, and the court denied the motions. The motions did not ...


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