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Tolbert v. Gaetz

July 19, 2010

VERNON TOLBERT, PETITIONER,
v.
DONALD GAETZ, WARDEN, MENARD CORRECTIONAL CENTER, RESPONDENT.



The opinion of the court was delivered by: Judge Ronald A. Guzmán

MEMORANDUM OPINION AND ORDER

Before the Court is Vernon Tolbert's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 that seeks to vacate his conviction for first-degree murder. For the reasons provided in this Memorandum Opinion and Order, the Court denies the petition.

Facts

In 2002, Tolbert was convicted of first-degree murder committed by personally discharging a firearm. (Gov't Ex. A, People v. Tolbert, No. 1-02-3514, at 1, 7 (Ill. App. Ct. Oct. 29, 2004).) The trial court sentenced him to sixty-five years in prison: forty years for first-degree murder and twenty-five years for Tolbert's personally firing a gun to commit the murder. (Id.)

On August 27, 2000, around 1:00 a.m., Jesse Montgomery went to Brother's Palace, a club, with his family and some friends. Tolbert went to his sister's birthday party at the same club. At around 3:00 a.m., a man spoke to Jesse briefly while he stood near the dance floor. The man then shot Jesse, and Jesse died. Tolbert and many others ran from the club after the shooting.

Police spoke with the people who remained at the scene, mostly Jesse's family and friends. Later that day, police showed an array of photographs to several of them. After two of them positively identified Tolbert's photograph as being one of the men who shot Jesse, and another made a tentative identification of Tolbert, the police obtained a warrant for Tolbert's arrest.

On June 23, 2001, Tolbert walked into a police station and told an officer that he heard that a warrant had been issued for his arrest. The officer arrested Tolbert. Several eyewitnesses identified Tolbert in a lineup as the man who shot Jesse ("June 2001 lineup"). A grand jury indicted defendant on a charge of first-degree murder committed by personally discharging a firearm.

At trial, the Brother's Palace's bouncer testified that he frisked all of the men who entered the club on the night of the murder. He saw Tolbert enter the club three different times that night, and the third time he arrived after changing clothes. According to the bouncer, Tolbert wore bulky jogging outfits each time, but in different colors. The bouncer, who weighed 235 pounds, described defendant as having a build similar to his own. After the bouncer heard the gunshot, the bouncer saw Tolbert run out of the club carrying a gun.

Kimberly Montgomery, Jesse's niece, testified that she went to the club with Jesse on August 27, 2000. After 2:30 a.m., when Jesse was talking to his friend Tracey Foreman, Montgomery saw Tolbert go over and talk to Jesse. Montgomery testified that defendant wore black pants, a black sweater vest with a white design, a white shirt and a baseball cap. She guessed that Tolbert was six feet, two inches tall and weighed 150 pounds. She thought that she had seen him once or twice before in the neighborhood. Montgomery testified that LaDonna Lumpkin, the mother of Jesse's children, went up to talk to Jesse, and she had words with Foreman. Montgomery took Foreman away from Lumpkin, Jesse and Tolbert briefly, but Foreman went right back to Jesse and positioned herself directly between Tolbert and Jesse. Later that day, she positively identified Tolbert in a photo array that police showed her. She also positively identified Tolbert as the shooter in June 2001 lineup. During the trial, the defense counsel highlighted the inconsistencies between Montgomery's identification of Tolbert as the shooter and her prior statement to the police that she knew the shooter as "Otis" and that he "hangs at Harding and Chicago."

Foreman described the same confrontations that Montgomery described. She corroborated Montgomery's description of the man who shot Jesse and the clothes that he wore, except that Foreman did not remember a baseball cap and she guessed that he weighed 170 pounds. She stated that when Foreman came between Tolbert and Jesse, she grabbed Jesse's arm to take him to a place where she could talk to him. She testified that Tolbert's hand hit her as he shot Jesse and she ran out of the club to a nearby police car. Although Foreman did not positively identify any photo in the photo array as being a photo of the shooter, she explained that she told the officers that the photo of Tolbert looked like the shooter, but the person in the photo looked younger than the shooter. She readily picked defendant as the shooter from the June 2001 lineup.

Lumpkin further corroborated Montgomery's testimony. Lumpkin, who had never seen the shooter before that night, testified that he wore black pants and a black-and-white sweater vest, stood six feet and three inches tall and weighed 175 pounds. She stated that she could not ascertain the shooter's complexion because it was dark in the club. Although she did not identify Tolbert as the shooter in the photo array, she positively identified him in the June 2001 lineup.

Marvin Johnson testified that he knew Tolbert from gambling in the neighborhood. Johnson also was at the club on the night of the shooting and saw Tolbert talk to Jesse. A few minutes later, Johnson saw Tolbert knock Foreman down as he shot Jesse. Johnson identified Tolbert as the shooter in the photo array and again identified him in the June 2001 lineup.

Four defense witnesses testified that they sat with Tolbert in the club on the night of the shooting. They swore that Tolbert wore a very distinctive burgundy suit and that Tolbert did not shoot Jesse. According to Tolbert's witnesses, more than 100 people packed the club at the time of the shooting. The witnesses for the prosecution estimated ...


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