Circuit Court of Cook County. No. 98 CR 23368 (02) Honorable Joseph G. Kazmierski Judge Presiding.
The opinion of the court was delivered by: Justice Tully
AMENDED DECEMBER 19, 2003
Modified on Denial of Rehearing
Following a bench trial the defendant, James McGee, was convicted of first degree murder, aggravated battery with a firearm, two counts of aggravated discharge of a firearm, and mob action. He was sentenced to concurrent prison terms of 50 years for murder, 20 years for aggravated battery, 15 years for each aggravated discharge count, and four years for mob action. McGee appeals his convictions contending that the trial court erred in (1) finding him guilty of murder when he was acting in self-defense; (2) finding him guilty of felony murder when the predicate felony was aggravated discharge of a firearm; and (3) failing to conduct a preliminary investigation into his claim of ineffective assistance of counsel. For the foregoing reasons, we affirm the convictions.
On September 18, 1997, the defendant went to David Brown's house in the afternoon and picked him up. Five or six days earlier, Brown had been involved in an altercation with rival gang members. Brown was a member of the Mafia Insane street gang and was working security for a drug spot at the corner of Drake Street and Chicago Avenue in Chicago. The defendant was also a member of the Mafia Insane and was Brown's boss. The drug spot at Drake and Chicago was approximately one block away from a drug spot run by the Conservative Vice Lords street gang and Donnyal Thomas. While Brown rode his bike up and down Chicago Avenue, he became involved in an altercation with Thomas and other members of the Conservative Vice Lords. During the fight, Thomas and three other Conservative Vice Lords beat up Brown. The fight ended when someone yelled that the police were coming. After the fight, the defendant drove Brown home.
Brown testified for the State that on September 18, 1997, the defendant picked up Brown at Brown's house in the afternoon. They were going to a liquor store and the defendant was driving and Brown was in the front passenger seat. The defendant stopped at a stop sign at the corner of Lawndale and Chicago Avenues in Chicago. At trial, Brown testified that he and the defendant were not driving around looking for Thomas or any other Conservative Vice Lords. He also testified that he did not have a gun and he did not know the defendant was carrying a gun.
Brown was impeached with a written statement he had given to police in June 1998. In the statement, Brown stated that while he was in the car with the defendant, the defendant asked about Brown's eye, which had been swollen from the fight. Brown stated that the defendant told him not to worry about it because the defendant would take care of it. Brown took that statement to mean that the defendant would shoot any of the Conservative Vice Lords who had beaten Brown the previous week. Brown further stated that he knew the defendant had a gun and that they drove by the Conservative Vice Lords' drug spot. Brown stated that while they were driving around, they saw some fellow Mafia Insane members and that the defendant asked them if they had seen Thomas or any of Thomas' "guys" around. Brown also admitted that he had a gun.
At approximately 6:30 p.m. on September 18, 1997, Ashley Brown, Sarah Young, and Young's 18-month-old son Maurice Hodges went to a store at Central Park and Chicago Avenue. While at the store, Ashley and Sarah met Keith Tiggs and Thomas. After leaving the store, the group walked west on Chicago Avenue toward another convenient store located at Lawndale and Chicago Avenues. Sarah was pushing Maurice in a stroller. Halfway to the store, Ashley noticed Thomas was walking behind the group. Then, Thomas came running up to the group shouting, "move, move, back, back, back." Thomas lifted his shirt and pulled a gun from his waistband and started firing at the defendant's car which was stopped at the corner of Lawndale and Chicago Avenues.
Brown testified that he was "laying back" in the passenger seat when the defendant told him to look out. Brown looked out the window and saw Thomas running toward the car from 25 to 30 feet away. Thomas had a gun pointed at the car. Brown testified that the defendant pulled out his gun. Thomas shot first and the defendant immediately returned fire. Brown testified that the defendant shot three times at Thomas from inside the car and then got out of the car and fired two more shots at Thomas. Brown testified that when the defendant got out of the car, Thomas was running away and the defendant shot two more times. Then, the defendant was out of bullets. The defendant got back in the car and drove to Brown's house.
As the defendant and Brown drove away, Brown saw Sarah sitting on the ground with her hands on the stroller. When the defendant and Brown returned to Brown's house, Brown found out that the baby had been shot and he told the defendant. The defendant placed his gun on Brown's dresser and left.
On September 26, 1997, Brown was arrested while in possession of the defendant's gun. It was determined that the bullet recovered from Sarah's leg was fired from the defendant's gun. This same bullet had killed 18-month-old Maurice Hodges. On June 10, 1998, Brown gave his written statement to the police. One month later the defendant was arrested in Arkansas.
At the close of the State's case, the defendant moved for a directed finding of not guilty based, in part, on a theory of self-defense. The court denied that motion. The defense rested without calling any witnesses. The court found the defendant guilty of felony murder based on aggravated discharge of a weapon, felony murder based on mob action, aggravated battery with a firearm as to Sarah Young, aggravated ...