Joint Appendix — Taylor v. Illinois

No. 86-5963

IN HI

Supreme Court of the Wuited States

i mri ey | “ame

fn Writ of Certiorari to the Appellate Court of Illinois

First District

hOINT APPENDIX

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IN THE CIRCUIT COURT OF COOK COUNTY

COUNTY DEPARTMENT, CRIMINAL DIVISION

MOTION FOR PRE-TRIAL DISCOVERY

PURSUANT TO LLLINOIS SUPREME COURT RULE 4138

MOTION TO DISMISS

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14

At any rate, I'll worry about it tomorrow

MR VAN J idge one

THE COURT: If you tell me you dont know

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W nere

Wrdely is—maybe Mr. Wrdely will show up, and maybe

Mr. Wrdely will not.

MR VAN Judge, the problem that we have had also

with our witnesses is that

208) that the State had me ntioned were, In fact

he fact that the two buildings

burned

down And I’ve mailed letters with forwarding addresses

MS. TRAFALET: That’s the defendant's sister

defendant give us an address of—a bogus addre

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sister and his brother, and they’re burnt out buildings

THE COURT The record should refiect thi:

defendant is out on bond It’s not

where the defendant is in the House of Corrections

Cook County Jai

MR. VAN

hasn't been out on bond a iong time

THE COURT For a couple of months now

he

‘

’

He just got out on bond recent

MS. TRAFALE' Absolutely

THE COURT

Bring your witnesses heré

I’m going to hear from all of them

VLR V AN Tr} afi ru 1dge

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20

THE COURT: Go ahead. You are under cross exam-

ination. This isn’t going to be introduced to the jury

trial.

You can ask any questions you want that are rele-

vant. Go ahead.

CROSS EXAMINATION

BY MR. DE ROSE

[218] Q Mr. Wormley, have you ever been convicted

of a crime?

A No, sir.

Q Have you ever been arrested?

A Disorderly.

Q How old are you, sir?

A Twenty-one.

Q Have you ever been convicted as a juvenile?

A Yes, sir.

Q How many times?

A Once.

Q For what?

A Breaking and entering.

Q What did you get, probation?

A I didn’t get nothing. They let me free because the

one, the woman in the house, she knew me. They didn’t

press charges.

Q When was that?

A That was 1982.

Q What judge did you go before?

A I didn’t go before no judge.

Q You were a juvenile at the time?

(219) A Yes.

A You are 21 now?

A Yes.

Q That was two years ago?

A Ahum.

Q What court did you go to?

A Didn’t go to no court.

FURTHER EXAMINATION

BY THE COURT

Q Mr. Wormley, when Mr. Van came around your

house—First of all, what day did he come around; do

you know?

A Wednesday.

Q Wednesday of tast week?

[221] A Yes.

Q The day he came around your home was March

21st, right?

If that was Wednesday, Yes.

Did he give you a subpoena?

Yes.

Do you have a copy of that subpoena?

It is in my jacket.

Go out and get it for me.

OPO POY

(Witness leaves the stand.)

THE COURT: Would you take the witness stand

again.

For the record the defendant handed me a Circuit

Court of Cook County subpoena form. It is addressed to

Alfred W-o-m-l-e-y, in case No. 82-4817 and indicates that

Alfred—okay, the vody has got W-o-r-m-l-y, to appear

before the Honorable blank on March 28, 1984 in room

207, Cireuit Court, 26th and California Avenue, Chicago,

Illinois at 10:30 A. M. The name Vester L. Van, attor-

ney for the defendant, 32 West Washington, 580-0171.

Q Did you talk to Mr. Van when you received that

subpoena?

A Yes, sir.

Q What did you talk to him about?

A Well, he was talking about the case.

[222} Q What did he say?

A He was asking me a few questions about what

happened.

23

Q Do you know who he got your! ame?

A No, sir.

Q@ Are you a friend of the defendant in this case?

A Well, I met him recently.

Q You met him recently?

A Yes.

Q Did you ever talk to him about—when you say you

met him recently, how recently?

A I would say about four months ago.

Q Did you ever talk to him about this case:

A No, sir.

Q Did you know about the fact that he was charged

with this case?

A No, sir.

Q Did he ask you to test ify in this case?

A No, sir.

Q Did he ever mention that he knew you were a wit-

ness to this case?

A No, sir.

Q Did you know or have any idea how your name was

given to anyone as a witness in this case?

223 A No, sir.

Q Now, you stated that you were on the scene on

the evening in question hefore the shooting occurred,

correct?

A ight.

Q And you saw the defendant—excuse me—you saw

the victim, Jack Bridges, and his sister and two brothers

and somebody had a blanket, right

A Yes, sir.

Q Who had the blanket?

A Donna Kerr.

Q Donna Kerr?

A Yes, sir.

Q You want to tell me who Donna Kerr is?

A I guess that was his girlfriend at the time. I don’t

know, sir.

‘)

Q Donna Kerr. Is that two namess?

24

A No, sir. I guess it is one. Donna Kerr. Yes, it 1s

one.

Q That was the girlfriend of who?

A Jack Bridges, I believe.

Q She had the blanket?

A Yes, sir.

224} Q What did she do with the blanket?

A Well, she was holding the blanket and I happened

to look and see the pistol, as a matter of fact, two pistols

and then I just waited about five minutes and I left. |

was on my way home.

Q Well, did she have these two pistols wrapped in the

blanket?

A Yes, sir.

Q Did she hand them, the blanket to anyone?

A No, he handed it to her.

Q Well, you stated that you only met the defendant

four months ago.

A Yes, sir.

Q But yet you knew him and you stopped him on the

streets and you told him that Jack Bridges’ girlfriend

Donna, had a blanket and there were two guns in there,

right?

A I stopped him and the other guys that was with

him. I knew the other guys.

Q Well, you testified before you stopped Ray, right?

A Yes.

MR. VAN: Judge, possibly I can ask a question here.

THE COURT: You will be able to as will the State

when I get through. Both of you will be able to cross

[225] examine him on the basis of anything I asked him.

Q But you still maintain that you did net know Ray

until four months ago?

Yes, sir.

Did you know him by seeing him on the street?

Yes.

In August of ’82?

Yes. I seen him before.

PO PO

THE COURT: Okay, anyone want to ask any «

. . ; v4

tions in regard to my questions:

EXAMINATION

BY MR. VAN

Q When vou savy vou went around the corner nd

stopped some people on the street. who, i fact. in that

)

crowd did you know

A I knew Ear! Travis. I knew his brother, Derrick

Travis.

Q Derrick Travis is about your :

A He is about two years younger than me

Q Anyone else?

A The other guy, I knew his name Samuel. I don’t

know his last name and Ivory, his brother

Q And al! those guys were with Mr. Taylor, is that

correct?

226] <A _ Yes, sir.

MR. VAN: Ihave no further questions

MR. DEROSE: Just one question, Judge.

EXAMINATION

BY MR. DE ROSE

Q Did you know Ray Taylor in 1981?

A Iseen him before. I didn’t know him

Q Did you know him in 1981?

A No, sir.

MR. DE ROSE I have nothing further, Judge

THE COURT: Anyone else?

Thank you.

{ Witness excused ’

THE COURT: Argume! ts?

MS. TRAFELET: Talk about blatent violation of the

|

Boas - _ _— , = ‘

discovery ruies. ( ounsel not onivy ft id vou he

>, ‘

.

26

where he was, he told you today, yesterday he told you he

didn’t have an address. Today he stook right in front of

you and told you had had a hard time finding these wit-

nesses because they had been burned out. I mean, he

stood in front of this court and lied, Judge, about his

knowledge, where that witness—

MR. VAN: We would be objecting.

MS. TRAFELET: And then he wants, then gets the

[227] witness up here and has known this witness for a

week, he subpoenaed him a week ago. if you let this

witness testify we may all take these discovery rules and

throw them away, Judge. This is a blatent, just a blatent

violation.

THE COURT: Mr. Van, hang in there. You will get

an opportunity to address me.

MS. TRAFELET: He lied to you about what he

knew. but this witness, Judge, I think you could easily

precluded this witness from testifying based on the faxt

ne couldn’t find him, just recently until today. He has

not shown diligence of what he did to try to find this

guy, but not only that, Judge, he lied to this Court about

the knowledge of this witness. He had this witness since

last Wednesday and yesterday he said he had a name but

didn’t have an address and today he told you he wasn't

able to find him because he had been burned out, Judge.

I mean, honest to God, if you let this witness testify you

might as well throw the rule books away.

THE COURT: I think this shoula go into the record,

too.

For the record, the subpoena that Mr. Alfred Wormley

handed to me, being stamped by the Clerk, and go into

the file, court file

MR. VAN: Judge, first of all, as I indicated to you

[228] earlier today, there were numerous witnesses in

this matter. I had a list of approximately 20 people who

I could have possibly called as witnesses. I went out last

week in a neighborhood and found approximately ten dif-

27

ferent people who said they had seen the incident. I took

their names. Some of them I gave subpoenas and some of

them I didn’t. It was an oversight on my part because |

was almost sure that Mr. Wormley was, in fact, on my

petition as a witness. I had went to the police reports

and tried to find out the witnesses in the police report,

and his name was not in the police report. It was an

oversight on my part because I thought that his name

was, in fact, on the police report but it was not. Then I

later found out that a lot of the witnesses, you know,

called me and said that they, you know, they weren’t

coming in regardless of whatever and I only have two

witnesses concerning this matter.

Although Mr. Wormley did not, in fact, see the in-

cident, I think he is a good part of my defense in this

ease and I would ask that he be allowed to testify in this

matter.

THE COURT: All right, anything further that the

State would like to ask or add?

MS. TRAFELET: Only, Judge, we only came in here

[229] this morning. He knew about Wormley. He knew

his address and yet he sood up here and told you he

didn’t know his address and couldn’t find him because he

had been burned out. That is not true by his own ad-

mission. Now he said it was an oversight. Judge, he did

not tell you that 20 minutes ago when you asked origi-

nally about this.

MR. VAN: In fact the man does have a different

address. He had just recently moved from the north side

back to the south side.

MS. TRAFELET: That is not the point, Judge. You

know what we are talking about. This is blatent and

Counsel is still lying when he tells you it was an over-

sight that he wasn’t in the police reports. Now, if Coun-

sel had done his job he would have known he wasn’t in

the police reports.

THE COURT: Ms. Trafelet.

28

MS. TRAFELET: Iam sorry, Judge. This makes me

very angry.

THE COURT: I also have a jury sitting in the jury

room waiting to hear some evidence in this case.

MS. TRAFELET: Weare ready.

THE COURT: I am trying to rule here and I asked

if you had anything additional or further. Now, if you

[230] don’t, I am ready to rule.

MS. TRAFELET: Thank you, Judge. I don’t have

anything further.

THE COURT: All right, I am going to deny Wormley

an opportunity to testify here. He is not going to testify.

I find this is a blatent violation of the discovery rules,

willful violation of the rules. I also feel that defense

attorneys have been violating discovery in this courtroom

in the last three or four cases blatently and I am going

to put a stop to it and this is one way to do so.

Further, for whatever value it is, because this is a

jury trial, I have a great deal of doubt in my mind as to

the veracity of this young man that testified as to whether

he was an eyewitness on the scene, sees guns that are

wrapped up. He doesn’t know Ray but he stops Ray.

At any rate, Mr. Wormley is not going to testify, be a

witness in this courtroom.

Mr. Van, I have got it in the back of my mind as to

whether I should or should not report this to the dis-

ciplinary commission. This is the type of violation that

should not exist. I heard a lecture the other day. It wi.s

about attorneys’ duty as far as loyalty [231] to the

Court, the institution that we are members of c: to the

client. I don’t think that any attorney should violate any

orders purposely for any defendant to get an edge for

him. Wormley will not testify here.

MR. VAN: Just tomake one comment. Judge, it was

not a matter of fact that anyone was trying to get any

particular position for his client. As I indicated earlier

pA!)

to you, I talked to him and many, many people that were

in the area at that time and I just felt that Mr. Worm-

ley’s testimony would be in fact—However, he did not

witness the incident, itself.

THE COURT: Okay, he is not testifying here. You

heard my reasons.

MR. DE ROSE: Ready to proceed with witnesses.

Again we object to the other witnesses because we don’t

have any B of I.

THE COURT: You are going to have to go ahead and

get those B of I’s real quick from them and I will allow

you to talk to these witnesses that were named since this

trial started. Those that were named before you are not

going to have an opportunity to interview them. Those

that were named since the trial started you will have an

opportunity to interview them before they go on.

MS. TRAFELET: May I say one thing? Counsel,

when he [232] gave us the discovery on the two sisters,

gave us bogus addresses. They are burned out buildings.

I sent my investigatoy out there and they didn’t live at

those addresses.

THE COURT: You will be ai'e to talk to them at the

present time.

MS. TRAFELET: The last thing, Judge, we do expect

Charles Trotter who will testify on behalf of the State

today and I am showing a copy of his B of I’s to counsel.

THE COURT: Mr. Van, let me say one other thing.

[ have a little rule. I cannot make anyone talk to the

State. I can’t make anyone witness talk to the defense

but every once in a while I enforce those orders by pre-

venting the witness from getting on the stand when they

won’t cooperate with the other side. It is my way of

enforcing diwovery. I am not saying I will; I am not

saying I won’t, but just be aware of that.

MR. VAN: Thank you.

(Whereupon the following proceedings were had

within the presence and hearing of the jury, to-wit:)

* - * * *

30

March 29, 1984

(396] THE COURT: Have the record indicate that

the time is five minutes to 4:00 P.M.; that all of the

attorneys are in my chambers, and that approximately

ten minutes ago the jury knocked on the jury room door,

and that the judge was sitting on the bench; that the

jury made an oral request to the lady sherifff, and that

they would like a transcript of Jack Bridges and a trans-

eript of Maurice.

My first question, Miss Court Reporter, were you the

one that took that testimony?

MS. O’BRIEN: ¥es.

THE COURT: Do you have that transcript?

MS. O’BRIEN: No.

MR. VAN: Judge, I have just one question. How

long do you think it would take to get a transcript?

[297] THE COURT: We’re not talking about getting

any transcript here. The only thing I’m talking about. is

the Court is well aware that—it has discretion in this

matter. and the Court is well aware of the fact that the

eases indicated it would be helpful to the jury to get a

specific portion of any testimony, that the Court should

give it tothem. And that’s my intention.

My only question is that certainiy we can’t read the

whek thing back to them. The only question is what area

do they want?

MR. TE ROSE: The only way I think you’re going to

find out 1s asa them do they want the entire transcript of

each and what specifically are they looking for in what

witness.

THE COURT: Okay, we’ll go ask them.

(Whereupon the following proceedings were had in

the presence and hearing of the jury:)

al

31]

Ladies and gentlemen, it has come to a—my attention

that you made an oral request to the sheriff that you

would like to hear the—o» like to have the transcript of

the testimony of Jack Bridges and Maurice.

398] Number one, I’m going to ask you from tr. on

if you have any questions, that you should put them - own

on paper, and if you don’t have any paper back tuere,

the sheriff will make sure they do.

Number two, the transcripts are never typed unless

they are actually needed. I talked to the Court Reporter

who actually took chat testimony, which is the Court

Reporter that is right here in the courtroom right now.

She has indicated to me that from her recollection of

those transcripic—of that, to have those transcripts typed

up would take about eight hours.

Now, if there is some specific area that would be help-

ful to you, the Court Reporter that is here right now,

who is the one that took those notes down, could go up to

her office, which is in the next building, and up the ele-

vator to the fourth floor, and she could come back here

with her notes, and she could look at her notes and read

the testimony to you as she has it down.

It’s not that easy though to go ahead and read off of

those notes. It takes a little while to do so, and it would

be rather difficult for her to go all the way from the be-

ginning to the end of Jack Bridges’ [399] testimony and

all the way from the beginning and end of Maurice’s

testimony.

However, if there is a specific area that you want, I

would probably be able to look at my notes and find it in

my notes and direct the Court Reporter where to begin

and where to end. If you want me to tell the Court

Reporter to go back upstairs, get her notes, and come

back here and read a specific section to you, I will.

What I want you to do is go back into the jury room

and talk between yourselves. If you still want to hear

some specific section, let me know in writing, and I will

send the Court Reporter back, and I will see if I can

locate that area in the testimony, and we'll call you back

9+)

a) aa

‘nto the courtroom, and I'll have the Court Reporter read

it to you.

(Whereupon the case was passed after which the

following proceedings were had out of the presence

and hearing of the jury:)

Here is what they want, Jack’s testimony. A. How

many people were chasing Jack down 64th Street?

B. What were their names. C. Who did Jack see over

[4001 him when the gun misfired? Did he actually see

someone, or did he just see feet?

Maurice’s testimony: Who ran down the street after

Jack after the first shot was fired?

And the third thing is, “Judge, these are the areas we

would like to have reaa back.”

Bring out the jury.

(Whereupon the following proceedings were had in

the presence and hearing of the jury:)

Okay, ladies and gentlemen, I had the Court Reporter

go upstairs and get her notes, and I looked in my notes,

and I found the segment that you were interested in

hearing. And the Court Reporter was also able to find it.

And if you will be patient for a_coupte-of minutes, we'll

get you back into the jury room, and you can get back

with your cold supper.

“How many people were chasing Jack down 64th

Street? What were their names? Who did Jack see over

him when the gun misfired? Did he actually see someone,

or did he just see feet?”

There’s a segment both in the direct and the cross

examination that I believe pertains to that questions.

So the Court Reporter will read it for you, [401] and

then we’ll go to the next question.

(Whereupon said segment of the testimony was read

back by the Court Reporter after which the follow-

ing proceedings were had: )

34

APPELLATE COURT OF ILLINOIS

FIRST DISTRICT

apveal from the Circuit Court of ¢ ¢ County

THE HONORABLI

JAMES J. HEYDA,

JUDGE PRESIDING

} ed hs ) j 10 1OSX6

JUSTICE CAMPBELL delivered the opinion of the

court:

Following a jury trial, defendant, Ray Taylor, was con-

victed of attempt murder and sentenced to ten vears

imprisonment. On appeal, defendant contends that:

1) a 22-month pre-indictment delay denied defendant

ay)

. l. . ° ] o9 ] . + 24 >

lue process of law: (2) the trial court abused its discre

tion by excluding the testimony of a defense witness as

«)

a sanction for violation of the discovery rules; (3) a

prior consistent statement of the victim was improperly

admitted into evidence; (4) the prosecutor improperly

impeached two of defendant’s witnesses; (5) defendant

‘<

35

was denied effective assistance of counsel; and (6) cer-

tain prosecutorial remarks during closing argument de-

prived defendant of a fair trial.

At trial, Jack Bridges, the victim testified that on the

evening vf August 6, 1981, he was standing in front of

his sister’s house talking with his sister and others when

he saw [2] a neighborhood youth, Derrick Travis, sitting

on his car. He approached Travis and told him to get off

the car. Travis swore at Bridges, Bridges slapped Travis

in the face, and Travis walked away. The defendant,

who had been playing basketball in a playground across

the street, approached Bridges and told Bridges that he

had no business slapping Travis. An argument ensued

between defendant and Bridges, as well as others who

had witnessed the incident. The argument broke up after

about 20 minutes and Bridges took a drive in his car to

cool off. Bridges returned to the scene about an hour

later and was informed by his brother, Maurice Bethany,

that he should move his car. Bethany told Bridges that

the defendant and his companions had driven by and said

they were going to damage Bridge’s car. Bridges put his

car in a parking lot. As he was returning to his sister’s

house, he saw defendant and his companion talking to his

sister. Bridges called out “I’m over here. Come over

here.”” The group of men, who were carrying sticks and

pipes, began walking towards Bridges. Bridges testified

that he wanted to apologize to Travis for slapping him,

but before he could do so, one of the men swung at him.

Bethany then swung at one of the men. Bridges then

noticed that defendant had a gun and he saw him fire it

at Bethany, but the bullet did not strike Bethany. The

men began beating Bridges with the sticks. Bridges broke

free, began to run down the street, and the group pursued

him. Bridges stated that when defendant was about four

feet from him, the defendant fired four shots. The last

shot struck Bridges in [3] the back. Bridges fell to the

ground and tried to crawl under a car. The defendant

then pointed the gun at Bridges head and pulled the trig-

36

ger, but the gun misfired. He heard the defendant say

‘he’s dead” and then heard a car screech away. The

police arrived following the shooting and Bridges told

them that “Ray-Ray” had shot him. “Ray-Ray’ was

defendant’s nickname.

Hattie and Regina Algood gave substantially the same

testimony on defendant’s behalf. They are sisters and

had been sitting on the steps of the church across the

street from where the altercation occurred. They had

lived in the neighborhood for some time and knew most

of the people who were on the street that night. They

saw a group of men, including defendant, approach

Bridges and start hitting him with sticks. They stated

that Maurice Bethany, the victim’s brother, had a gun

and that he fired three shots into the crowd, hitting Jack

Bridges with one shot. Hattie and Regina Algood further

testified that defendant was a friend and that they were

aware the police were looking for defendant the day after

the incident. They did not, however, go to the police with

the information that Maurice Bethany had shot the

victim.

The defendant was indicted on the charge of attempt

murder 22 months after the incident. A pre-trial motion

to dismiss was filed by defendant alleging that the State’s

delay in charging defendant was a due process violation

because it [4] “made it impossible for the defendant to

reconstruct his activities on the date in question and pre-

pare his defense.” Defense counsel failed to present any

evidence in support of the motion and the motion was

denied.

After two of the State’s witnesses had testified at trial,

defense counsel moved to amend his list of defense wit-

nesses to add two names. Defense counsel explained that

the names were not provided prior to trial because two

buildings in the neighborhood where the incident took

place had burned down and he was having difficulty lo-

cating witnesses. The court denied permission for the

witnesses to testify, ruling that counsel should have listed

_

3

the names of tne witnesses ! his answer to the S ate’s

request for discovem indicatit that the addresses of the

vitnesses were unknown. The court permitted one of the

itnesses, Alfred Wormley. to testil out OF the presence

of the jury iS al offe OI proof

I.

Defendent first ontends that the 22-month delay in

time betwee! the shoo ne incident and his indictment

esulted in substantial prejudice and denied him due

process of lav Defendant argues that he was preiu-

. } | . " +a.

diced heea ise he was unable to locate numerou pote! |

‘ * j nesses 0

on the dela’ The tria ourt denied the motion ruling

that defendant failed to present anv evidence indicating

that he was nre iddiced

5 In order to support a < in QO] der of due nrocess

because of a pre-indictment del a defendant n ist come

forth with a clear showing of substantial preiudic If

the court is satisfied that the defendant was preiudiced

the burden sl] [ts to the State ti how the reasonableness

{)? hnece | fo) the cle i Pe La / 1977 67

ll. 24 449, 367 N.E.2d 1244: People v. Overturf (1984).

122 Ill. App.3d 625, 461 N.E.2d 640 In People Red-

dich 1980), 8O Ill. App.3d 335, 399 N.E.2d 997. the

cde f l dat t alleged prejudice hecause of a cle la in ch alry-

ing defendant which caused her to lose track of a mate-

ria witne Thi court held (nat the cle fencdant did not

show substantial prejudice where she did not ide: tify or

—— : a : °7 . , —

. ‘ ; ' ae 7. ; ’ . hte ‘ ' i? ' ‘ + yey

explain he signincance ol he unavailable witness at trial

’

Or on appea

, ,

Des ite the requirement of Cad howing ort s ostan-

l prejudice, the defendant hers I ed to present an

| : ,

evidence ot i@Tua rye udice. ay EN Sé cCounss rateq he

v unable to locate witnessés because they had moved

. . -

from burned out buildings. Counsel did not identify the

| | ,

Wwitne ‘ fy) ’ ake i? . OW lT t Lnat thei) ré¢ ’ mon

38

would be helpful to this case. Counsel did state that from

a list of twenty pote! tial witnesses, he had spoken to ten.

The defendant has demonstrated only a possibility of

prejudice. That is not enough to shift the burden to the

State to show the reasonal leness or nece sit for the cle-

lay. People v. DiBenedetto (1981), 93 Il. App.3d 483,

117 N.E.2d 654.

6) Defendant relies on Peopl Gulley (1980), 83

Ill. App.3d 1066, 404 N.FI 29d 1077 where this court held

that a pre-indictment delay causes great suspicion an? :

presumption that the delay was prejudicial. In People v.

Overturf (1984), 122 Ill. App.3d 625, 461 N.E.2d 640,

the court cautioned that the presumptio! created in

Gulley does not permit a defendant to avoid the standard

of actual prejudice. The court noted that “a careful

reading of Gulley reveals that despite the court’s ref-

erence to a presumption of prejudice, * * it was ac-

tually relying upon a well-articulated showing of actual

and substantial prejudice which was amply supported by

the record.” 122 Ill. App.3d 625, 627, 461 N.E.2d 640

641.

II.

Defendant next contends that the trial court abused

its discretion by excluding the testimony of a defense

witness as a sanction for a violation of the discovery

rules. The Illinois Supreme Court rules require a defend-

ant to respond to the State’s motion for discovery by

providing a list of intended witnesses within a reasonable

time after the filing of the motion. (Ill. Rev. Stat. 1985,

ch. 110A, §$ 413(d)(i).) The deferdant sought to add

two witnesses to his answer to discovery after the trial

had begun and the jury had heard the testimony of two

State witnesses. Defense counsel explained he had not

located the witnesses prior to trial because of burned out

buildings in the neighborhood of the shooting. The trial

court denied the motion, but did hear the testimony of

one of the witnesses, Alfred Wormley, as an offer of

1]

th ' shooting eight months before trial began ‘n this case

anc neither witness informed the potice of the alleged

facts which could have exonerated defendant. See Peonpl:

v. Martinez (1979), 76 Ill. App.38d 280, 395 N.E.2d

86; People v. Welte (1979), 77 Ill. App.3d_663, 396

N.E.2d 315.

‘wT

V «

Defendant further contends that he was denied effec-

tive assistance of counsel. Specifically, defendant com-

plains that defense counsel failed to impeach state wit-

nesses with prior convictions, failed to present evidence

of prejudice caused by the pre-indictment delay, violated

discovery rules, and failed to object to certain testimony

prejudicial to defendant.

10} Our Supreme Court hes adopted the standard set

forth by the United States Supreme Court in Strickland

v. Washington (1984), U.S. ——, 80 L.Ed. 2d 674,

104 S.Ct. 2052, for evaluating counsel’s performance

where ineffective assistance of counsel is alleged. (Peopl:

v. Albanese (1984), 104 Ill.2d 504, 473 N.E.2d 1246;

People v. Barnard (1984), 104 I[1.2d 218, 470 N.E.2d

1005.) The Strickland court held that in order to estab-

lish ineffectiveness, a defendant must show that his coun-

se’s performance was deficient and that the deficient per-

formance prejudiced the defense. Defendant must estab-

lish that there is a reasonable probability that but for

counsel’s error, the result of the proceedings would have

been different.

After reviewing defendant’s specific complaints con-

cerning defense counsel’s performance at trial, we can-

not say that “counsel’s conduct so undermined the proper

functioning of the adversarial process that the trial can-

not be relied on as having produced a just result.’

i Vtov land v. Washington (1984), - U.S. ; Sv

L.Ed. 2d 674, 692-93, 104 S.Ct. 2052, 2064.) The record

as a whole reveals that defense counsel represented de-

fendant sufficiently ably to preclude a finding of incom-

petency. Further, defendant’s complaints are directed at

42

questions of trial strategy, exercise of judgment and dis-

cretion. A reviewing court’s examination of competence

does not extend to those areas. People v. Greer (1980),

79 Ill.2d 103, 402 N.E.2d 211.

VI.

[11] Finally, defendant contends that it was prejudi-

cial error for the prosecutor to comment during closing

argument that the motive for the shooting was gang-

related and that witnesses refused to testify out of fear

of retaliation. From the record, we note that there was

a single reference to the word “gangs” ‘in the prosecutor’s

closing argument.

It is well-settled that great latitude is afforded a prose-

cutor during closing argument. (People v. Adams

(1983), 111 Ill. App.3d 658, 444 N.E.2d 534.) Even if

the comments by the prosecutor in the instant case are

deemed improper, the error was harmless. An error in

closing argument is not reversible unless the improper

comments result in substantial prejudice to the defendant.

(People v. Turner (1984), 127 Ill. App.3d 784, 469

N.E.2d 368.) In deciding whether defendant was preju-

diced, it is appropriate to assess the evidence of his

guilt and to determine whether the error was a material

factor in his conviction. (People v. Graham (1985), 132

Ill. App.3d 673, 477 N.E.2d 1342. In this case, the State

produced ample evidence of defendant’s guilt, and the

prosecutor’s singular reference to gang activity cannot

be considered to be a material factor in defendant’s con-

viction.

For the foregoing reasons, the judgment of the circuit

court of Cook County is affirmed.

BUCKLEY. P.J.. and O'CONNOR, Jr., J., concur.

63507

[ILLINOIS SUPREME COURT

JULFANN HORNYAK, Clerk

Supreme Court Building

Springfield, []l. 62706

(217) 782-2035

October 2, 1986

Hon. James J. Doherty

Cook County Public Defender

tichard J. Daley Center Rm 402

Chicago, IL 60602

No, 63507 People State of Illinois, respondent, v Ray

Taylor, petitioner. Leave to appeal, Appellate

Court, First District.

he Supreme Court today DENIED the

leave to appeal in the led cause.

The mandate of this Court will issue to the Appellate

Court on Octoher 24. 1986.

petition for

above entit

44

SUPREME COURT OF THE UNITED STATES

“= No. 86-5963

RAY TAYLOR,

Pe titione a”

ILLINOIS

ON PETITION FOR WRIT OF CERTIORARI TO

i THE APPELLATE COURT OF THE STATE OF

ILLINOIS, FIRST DISTRICT

ON CONSIDERATION of the motion for leave to proceed

herein in forma pauperis and of the petition for writ of

certiorari, it is ordered by this Court that the motion

to proceed in forma pauperis be, and the same is hereby,

granted; and that the petition for writ of certiorari be,

and the same is hereby, granted, limited to Question 1

presented by the petition.

January 27, 1987