Petition for Writ of Certiorari — Thompson v. Illinois (No. 07-256)

(|) “ree

No._______ 7-25 6 AUG 21 2007

OFFICE OF THE CLERK

In The

Supreme Court of the United States

®

MICHAEL THOMPSON,

Petitioner,

STATE OF ILLINOIS,

Respondent.

On Petition For Writ Of Certiorari To The

Appellate Court Of Illinois First Judicial District

PETITION FOR WRIT OF CERTIORARI

JOHN L. STAINTHORP

Counsel of Record

PEOPLE'S LAW OFFICE

1180 N. Milwaukee

Chicago, IL 60622

773 235 0070

Counsel for Petitioner

COX} KLE EAW BRIEF PRINTING, © 0) sont 22-4

MHCALL COLLECT Wee. 342 25.1

QUESTION PRESENTED FOR REVIEW

Whether it violates the Confrontation Clause of the

Sixth Amendment to the United States Constitution for

the State to introduce into evidence the out-of-court

testimonial statement of a witness, when the witness

testifies that he has no recollection of the underlying

incident or the content of the statement?

il

LIST OF PARTIES TO THE PROCEEDINGS BELOW

The parties in the proceeding below were Michael

Thompson and the State of Illinois. There is no corporation

involved in these proceedings.

TABLE OF CONTENTS

Page

FF ee MU cetssiniesnictivictehececndiiutinsalinchinebiaiecndin 1

PAF I IEE vsbcsinssceicctocsebessessinucctatelenainairiibasaes 1

CONSTITUTIONAL PROVISIONS INVOLVED ...... 1

STATEROINE OF LFA CARDS cc ccvccocsscecssesssessrvensnesvensoees 2

FEE testitchimnstecieietnintediivdanilimmenaiadaine 6

1. Reasons for Granting the Writ.......................0 6

2. Petitioner’s Sixth Amendment Right to Con-

front the Witnesses Against Him Was Violated

by the Admission of a Witness’s Out-of-Court

Statement Which Was Not Subject to Cross-

CI icceciniscicecscinirteicclntscsaatiiniieisiiaiebedignd 7

a. The Witness’s Statement Was Testimonial .. g

b. Because the Witness Testified That He

Could Recall Neither the Underlying Inci-

dent Nor the Statement, Petitioner Was

Denied His Sixth Amendment Right to

COR GIES FRIIIE ab iscéccecocssccecccersseosvsecounns 9

CASI ee a ienctoyccedinanbdbinierpereiglinaaniaetadinte é- <sepiiiana 24

TABLE OF AUTHORITIES

Page

CASES

Arizona v. Hicks, 480 U.S. 321 (1987) ....... ee eee ceeeceeececeee 24

Arizona v. Roberson, 486 U.S. 675 (1988)............cceeeeeeeeee 24

Barksdale v. State, 265 Ga. 9 (Ga. 1995)... eeeeeeee couse 17

California v. Green, 399 U.S. 149 (1970)......... 12, 13, 14, 21

Crawford v. Washington, 541 U.S. 36 (2004)....... 8, 9, 19, 23

Davis v. Washington, 126 S. Ct. 2266 (2006)........... 8, 22, 23

Delaware v. Fensterer, 474 U.S. 15 (1985)............. 10, 13, 21

Delaware v. Van Arsdall, 475 U.S. 673 (1986)...............66 10

Dickerson v. United States, 530 U.S. 428 (2000).............. 24

Douglas v. Alabama, 380 U.S. 415 (1965).................. 13, 19

Dutton v. Evans, 400 U.S. 74 (1970)... eee ee 13, 19, 21

Hayes v. Florida, 470 U.S. 811 (1985) ............cccccccsssseseeeee 24

Kentucky v. Stincer, 482 U.S. 730 (1987)..............c00008 10, 21

Kyllo v. United States, 533 U.S. 27 (2001)............ccceecee cere 22

Mancusi v. Stubbs, 408 U.S. 204 (1972).....0...000.. 13, 19, 22

Nelson v. O’Neil, 402 U.S. 622 (1971)..............ccccceeeeereeeers 13

Ohio v. Roberts, 448 U.S. 56 (1980) ........ cee eeeeeecee eee 10, 21

People v. Green, 70 Cal. 2d 654, 451 P.2d 422 (1969)....... 13

People v. Wheatley, 187 Ill. App. 3d 371 (1st Dist.

NE at cevtisiccconinich sate amansadolatinelieaaiasavadedetiaiiabanediammtine sia 18

| RES: A RRR ODI U EE TNS KAPITI ES LEMP SAE RATE LOTT 17,

TABLE OF AUTHORITIES - Continued

Page

United States v. Bigham, 812 F.2d 943 (5th Cir.

DF cilataksniasvastncskiaversenudlbondinkyciiicedaerrasieitemanidanedisa 18

United States v. Di Caro, 772 F.2d 1314 (7th Cir.

MN AatekcdcruaskssincscuunesisqidscudasiaPebeasiabsecheseiedituaias 14, 15, 18

United States v. Dorian, 803 F.2d 1439 (8th Cir.

EE Vicnisidiionuhialcadvakesborseniaxdcmopubessddnteetinibevintatiewinieas 17

United States v. Knox, 124 F.3d 1360 (10th Cir.

ET irei icrulag sry siihsinsdscstetdedivealahes dbumvanaadcebsidbes toiaisbeaaetiasanial 18

United States v. Owens, 484 U.S. 554 (1988) ............ passim

United States v. Spotted War Bonnet, 933 F.2d 1471

SN IE Fires aah zxpcencnesacolbisesdobstoe nics aaaitas oransetagecaass 17

United States v. Thompson, 708 F.2d 1294 (8th Cir.

ITT ai ceciida ns titesnaeasinith sigebolasibighasstiecthibdie ba duadddanaaaowi dee catiieo tides 18

United States v. Torrez-Ortega, 184 F.3d 1128 (10th

PNG IIT sass cstisercdcsicedondaaadesccdetene cpa tcakevestecsdpiadeliniiase 15, 16

United States v. Vargas, 933 F.2d 701 (9th Cir.

NIE Tt) aki ds side eced cuaneddstarbiatbaadcucideuteeaseunmaaansaaed: 16,17

CONSTITUTION AND RULES

Sr ie NINN WO ondivexteriiecssenraidGarieadiamnaes passim

PE Bee Me MRD wei ssicoccnvthernsertisdiseineidteendnnens 18, 19

OTHER AUTHORITIES

Falknor, The Hearsay Rule and Its Exceptions, 2

GPa ee RN es ict Restless deaticciaials 14

D. Louisell & C. Mueller, Federal Evidence § 419 ........... 15

Michael H. Graham, Federal Practice & Procedure

I CO A I sas ok scesseatdee 19

TABLE OF AUTHORITIES -— Continued

3A John H. Wigmore, Evidence § 1043 (James H.

I I WN RO oro 1 sa ceawcoudetineemnneeeenne 19

4 Weinstein’s Evidence para. 801(d)1)(A) [07], at

RR RT Se a nd a Se Oa ae a ANCE: 15

OPINIONS BELOW

The opinion of the Illinois Appellate Court is unre-

ported. The decision of the Illinois Supreme Court denying

leave to appeal is reported at 2007 Ill. LEXIS 929.

¢

JURISDICTION

The order of the Illinois Supreme Court denying leave

to appeal is dated May 31, 2007. There was no petition for

rehearing.

This Court has jurisdiction to consider this Petition

for a Writ of Certiorari pursuant to 28 U.S.C. § 1257, in

that petitioner is seeking review of a final judgment of the

Illinois Supreme Court on the ground that the decisions of

the Illinois courts denied him his rights under the sixth

amendment to the United States Constitution.

+

CONSTITUTIONAL PROVISIONS INVOLVED

The sixth amendment to the United States Constitu-

tion provides:

In all criminal prosecutions, the accused shall

enjoy the right to a speedy and public trial, by an

impartial jury of the State and district wherein

the crime shall have been committed, which dis-

trict shall have been previously ascertained by

law, and to be informed of the nature and cause

of the accusation; to be confronted with the wit-

nesses against him; to have compulsory process

for obtaining witnesses in his favor, and to have

the Assistance of Counsel for his defence.

United States Constitution Amendment VI.

¢

STATEMENT OF THE CASE

Petitioner Michael Thompson was charged in Illinois

state court with the murder of Araceli Zizumbo, a by-

stander who was killed during a gang fight. App. 2-3

The prosecution’s theory of the case was that Mr.

Thompson was a leader in the Black Disciples gang, and

that on June 19, 1995 he directed gang members to retali-

ate against a rival gang, the Krazy Get-Down Boys (KGBs)

for an incident on the previous day in which a Black

Disciple gang member had been attacked by the KGBs.

App. 3 Three Black Disciple gang members (two of them

convicted felons) testified at trial that Mr. Thompson had

arranged for gang members to go to a park and directed

them to shoot at KGB gang members, but all of these

witnesses had given sworn pre-trial statements which

contradicted al] substantive aspects of their trial testi-

mony. App. 3-6, 15-18

Mr. Thompson testified at trial that he had been a

Black Disciples gang member, but had left the gang in

1994, the year before the murder of Ms. Zizumbo, and

moved from Chicago to undergo job training as a truck

driver. App. 8-9 Paschal Bennett, Mr. Thompson’s fiancé,

.. testified that Thompson was forced to return to Chicago

«2 because the gang was threatening her and his children,

~ and that when he returned gang members extensively

beat him to punish him for leaving the gang. App. 10

At the time of the murder, Thompson was employed full

time at a fabric finishing plant, and also volunteered at a

youth foundation which taught drug and gang awareness.

App. 9-10 He testified that he was at the youth foundation

on the night of the murder, and that he had no involve-

ment whatsoever in planning or directing the gang retalia-

tion or in the murder of Ms. Zizumbo. App. 9

The State produced a witness, Eugene Wiseman, who

had previously pled guilty to the murder of Ms. Zizumbo.

App. 6 Mr. Wiseman testified that he could not remember

whether he was in a gang or where he was on June 19,

1995. Id. He testified that he did recall talking to two

assistant state’s attorneys on June 27, 1995, and stated

that he recognized an exhibit, marked as People’s No. 25.

Id. He did not recall, however, whether that exhibit was a

statement that he gave to the state’s attorneys, although

he did recall signing the statement and the state’s attor-

neys advising him of his rights. App. 6-7 He testified,

however, that he did not recall giving any of the substan-

tive content of the statement. /d.

Over the objections of defense counsel, the State was

then permitted to go through the entire 29-page state-

ment, asking for every question whether he had been

asked that question and given that answer. To every such

question, Mr. Wiseman gave an identical answer — “I don’t

recall.” App. 7 In this manner, the State was allowed to

put before the jury the entire content of the statement. /d.

The statement asserted several facts which were ex-

tremely harmful to petitioner, including that:

e Wiseman belonged to the Black Disciples gang in

1995, he was told by fellow gang members that the

KGBs shot Black Disciples gang member Eddie on

June 18, 1995, and the next day he went to the park

with fellow gang members to look for the KGBs; App.

38-43

later that day he went over to Mike’s house, that

Mike was a high-ranking member of the Black Disci-

ples gang who ruled over an area of the City, and that

he was shown a photograph of the person he knew as

Mike which was marked as exhibit 4 to the state-

ment; App. 45-46

Mike asked a fellow gang member, Jamal, whether he

knew where the KGBs were and Jamal told him they

were at the park, Jamal said he wanted to go to the

park and get them and Mike said he would find a

way, which Wiseman understood to mean that Jamal

wanted to shoot at the KGBs; App. 46-47

Mike said he would see how they were going to do it,

and Jamal and Mike then drove around in a car look-

ing for the KGBs and working out how to set up

shooting at them; App. 47

when they came back Mike said it was going to be as

easy as taking candy from a baby, and Mike then

asked where everybody was because somebody was

supposed to go with him to do the shooting; App. 47-

48

gang members Mike, Jamal, Craig, Wiseman, Pretty

Ricky and April got in two cars, both cars went to

Marquette Park, and once at the park Mike told the

gang members to go into the park and “take care of

that” which Wiseman understood meant shoot the

KGBs; App. 49-51

Mike then told one of the gang members, Craig, to get

the bag which contained the guns out of the car and

Mike drove off with Apmil; App. 50-51

‘ In his trial testimony, Wiseman identified petitioner as Mike.

Or

e Wiseman, Jamal and Craig then went into the park

while Pretty Ricky stayed in the car, and once in the

park Craig passed out the loaded guns, giving an Uzi

to Jamal, a .38 revolver to Wiseman, and a .9 millime-

ter gun to himself; App. 51-53

¢ the three of them put on gloves, he observed the

KGBs, Jamal shot many times at the KGBs, Wiseman

shot 2-3 times, and Craig’s gun jammed; App. 53-56

e the three of them went back to the car and drove back

to Mike’s house, where Jamal took the guns into

Mike’s house and Mike asked what happened; App.

36-57

¢ Craig told Mike his gun jammed, Wiseman told Mike

he shot two or three times, and Mike said “I just bet-

ter hear something in the newspaper or I’m going to

see some ambulances,” which meant that he wanted

to know that “business was took care of”; App. 57

e later Wiseman talked to Mike on the phone and Mike

~ told him that the police were looking for them and he

should lay low, and Mike told him not to go “tricking

off on me,” and to tell the police that Mike had noth-

ing to do with the shooting and was on the porch all

the time: App 58-59

¢ Wiseman made a drawing of the park, showing where

Jamal, Wiseman and Craig were at the time of the

shooting and also showing the location of the KGBs.

App. 60

Based on the State’s examination of Wiseman, peti-

tioner moved for a mistrial on the basis, inter alia, that

admission of the statement in this manner, with the

witness saying that he could not recall anything, denied

him his right to confront the witness. The motion was

denied. The State was then allowed to again present the

out-of-court statement of Wiseman, through testimony of

6

an assistant state’s attorney who was present for the

statement, and the statement itself, People’s No. 25, was

admitted into evidence and published to the jury. App. 7

Petitioner was convicted by the jury of first degree

murder and sentenced to 50 years imprisonment. App. 2

On appeal, petitioner argued, inter alia, that his sixth

amendment right of confrontation was violated when the

trial court allowed the State to introduce Wiseman’s out-

of-court statement as substantive evidence. App. 13-14

The Appellate Court rejected the argument, ruling that

admission of the statement did not deny petitioner his

sixth amendment right to cross-examine the witness, even

though Wiseman failed to recollect either the June 19,

1995 incident or the content of the statement he gave

concerning that statement. App. 14-15 Petitioner then

sought leave to appeal from the Illinois Supreme Court,

again arguing that admission of Wiseman’s statement

violated the confrontation clause of the sixth amendment

to the United States Constitution. On May 31, 2007, the

illinois Supreme Court denied leave to appeal. App. 34

*

ARGUMENT

1. Reasons for Granting the Writ

Petitioner was convicted, and essentially sentenced to

life in prison, based upon an out-of-court statement made

by a witness who refused to meaningfully participate in

the trial proceedings: the witness claimed that he remem-

bered neither the statement nor the underlying incident.

This Court has issued several opinions in the last few

years correcting lower courts’ holdings as to the proper

scope of the sixth amendment, and setting forth the

requirement that any testimonial statement introduced

against a criminal defendant must be tested through

cross-examination. This Court has never addressed,

however, the type of situation presented here: the intro-

duction into evidence of a damning out-of-court statement

where the witness professes no current knowledge what-

soever of either the statement or the underlying incident.

Several courts have countenanced the introduction of

such statements, even where the witness disavows any

current knowledge of the incident or the statement, while

other courts have stressed that the right to cross-examine

is more than a procedural right, and has some substantive

content which may lead to the exclusion of the statement.

This Court should grant certiorari in this case to set forth

clearly the standards that should be used to determine

whether out-of-court testimonial statements may be

introduced against a criminal defendant where any sub-

stantive cross-examination of the statement is prevented

by the witness’s claimed lack of recollection.

1

Petitioner's Sixth Amendment Right to Confront

the Witnesses Against Him Was Violated by the

Admission of a Witness’s Out-of-Court Statement

Which Was Not Subject to Cross-examination

Wiseman’s testimony at trial did not inculpate peti-

tioner at all — Wiseman claimed that he was unable to

remember either the events of June 19, 1995 or the state-

ment he gave to state’s attorneys concerning the murder.

What was devastating to petitioner, however, was the out-

of-court statement which Wiseman gave to state’s attor-

nevs’ investigators, a statement which petitioner was

entirely unable to challenge because Wiseman claimed

that he could not recall making it. Given that every other

major witness against petitioner was significantly im-

peached by contrary sworn statements, convictions and

animus against petitioner because he had left the gang,

this meant that petitioner was convicted based upon an

out-of-court ex parte testimonial statement which he never

had a fair opportunity to challenge - a violation of his

sixth amendment right to confront the witnesses against

him.

a. The Witness’s Statement Was Testimonial.

Wiseman’s statement was clearly testimonial. “State-

ments taken by police officers in the course of interroga-

tions are ... testimonial under even a narrow standard.

Police interrogations bear a striking resemblance to

examinations by justices of the peace in England. The

statements are not sworn testimony, but the absence of

oath was not dispositive.” Crawford v. Washington, 541

U.S. 36, 52 (2004). As this Court later reiterated:

Statements are nontestimonial when made in the

course of police interrogation under circum-

stances objectively indicating that the primary

purpose of the interrogation is to enable police

assistance to meet an ongoing emergency. They

are testimonial when the circumstances objec-

tively indicate that there is no such ongoing

emergency, and that the primary purpose of the

interrogation is to establish or prove past events

potentially relevant to later criminal prosecution.

Davis v. Washington, 126 S. Ct. 2266, 2273-2274 (2006).

Here, Wiseman’s statement was taken by state’s

attorney investigators and police several days after the

shooting, and the primary purpose was to establish his

version of events for the purpose of a later criminal prose-

cution. It was therefore testimonial, and its admission at

trial violated petitioner’s sixth amendment rights unless

there was adequate cross-examination. “Where testimonial

statements are at issue, the only indicium of reliability

sufficient to satisfy constitutional demands is the one the

Constitution actually prescribes: confrontation.” Crawford

v. Washington, 541 U.S. 36, 68-69.

b. Because the Witness Testified That He Could

Recall Neither the Underlying Incident Nor

the Statement, Petitioner Was Denied His Sixth

Amendment Right to Cross-examine Him

This Court has never previously decided a case involv-

ing such an extensive and comprehensive lack of recall as

that professed by the witness here. Not only did Wiseman

claim that he had no recollection of the incident itself, he

also claimed that he could recall nothing about the content

of the statement. Thus, petitioner was confronted not with

in-court testimony in any meaningful sense of the concept,

but with an out-of-court statement where there could be

no cross-examinaticn about the contents of the assertions,

the circumstances under which the assertions were made,

the self-perceived mental or physical status cf Wiseman

when he made the statement, the motivations of Wiseman,

his ability to perceive the facts he alleged in the state-

ment, or any of the other myriad issues that a jury must

usually consider when determining the reliability of a

statement.

The closest case to this which this Court has decided

is United States v. Owens, 484 U.S. 554 (1988). There, this

10

Court held that it was not a viclation of the sixth amend-

ment for the State to present evidence from a witness who

had genuinely lost a portion of his memory, when the

witness could recall generally the facts of the attack, could

clearly recall that he had made a statement identifying

the defendant to an investigator, but could not remember,

at the time of tral, the defendant attacking him. This

Court noted that:

“(T]he Confrontation Clause guarantees only ‘an

opportunity for effective cross-examination, not

cross-examination that is effective in whatever

way, and to whatever extent, the defense might

wish.’” Kentucky v. Stincer, 482 U.S. 730, 739

(1987), quoting |Delaware v.| Fensterer, [474 U.S.

15} 20 (1985) (emphasis added); Delaware v. Van

Arsdall, 475 U.S. 673, 679 (1986); Ohio v. Rob-

erts, 448 U.S. 56, 73, n. 12 (1980). As Fensterer

demonstrates, that opportunity is not denied

when a witness testifies as to his current belief

but is unable to recollect the reason for that be-

lief.

United States v. Owens, 484 U.S. 554, 559 (1988). This

Court further defined the circumstances under which a

witness may ordinarily be regarded as subject to cross-

examination as being “when he is placed on the stand,

under oath, and responds willingly to questions,” United

States v. Owens, 484 U.S. at 561, but noted that “limita-

tions on the scope of examination by the trial court or

assertions of privilege by the witness may undermine

the process to such a degree that meaningful cross-

examination within the intent of the Rule no longer

exists.” Jd. at 561-62. While the Court did state that

memory loss such as that experienced by the witness in

Owens did not destroy the right of cross-examination, that

1]

memory loss was significantly less severe than that

asserted by Wiseman in this case.

First of all, the witness in Owens did recall some facts

of the incident, and did recall that he had previously made

a statement in which he had identified the defendant.

Moreover, the only portion of his prior statement which

was introduced at trial was the statement that he did

recall — that it was the defendant who had attacked him.

There was no attempt by the State to introduce any

comprehensive ex parte description of the incident such as

was done in this case with Wiseman. Additionally, there

was no suggestion that the witness was intentionally

avoiding cross-examination by feigned memory loss, such

as appeared to be the case with Wiseman. And there was a

real opportunity to cross-examine the witness as to what

he did recall, pointing out that while he had made certain

statements he could no longer recall the reason why he

had made them, and that he did recall aspects of the

attack but could no longer recall how it was that he was

able to identify the defendant.

The contrast with the situation here could not be

starker. By every indication, Wiseman was not being

forthright when he denied any recollection of the incident

or the statement, and his stock answer “i don’t recall,”

made it impossible to test his ability to perceive, whether

he was relating things he had learned directly or from

others, his possible animus against petitioner and the

general reliability of the ex parte statement to the state’s

attorneys and police. Certainly, he did not fit Owen's

definition of a witness who “responds willingly to ques-

tions.”

12

Moreover, this Court has not ruled that the fact that a

witness is on the stand is, in and of itself, the sole re-

quirement in order to find that a witness is subject to

cross-examination. This court in Owens specifically noted

that the confrontation clause could be violated by either

the trial court limiting the cross-examination, or by the

witness’s assertion of privilege. Owens at 561-62. Yet there

is no principled difference between a limitation on cross-

examination caused by a trial judge or by a witness

asserting a privilege, and that caused by a witness refus-

ing to testify forthrightly or by genuinely lacking all

recollection of the incident or a prior statement. In all of

these cases the criminal defendant is denied the real

opportunity to challenge the witness, and if a prior ex

parte statement of the witness is introduced into evidence,

is denied the real opportunity to challenge that statement.

In all of these cases, the evil which the sixth amendment

sought to eradicate - trial by ex parte and un-cross-

examined affidavit — affects the defendant in an identical

way: the allegations against him cannot be tested in the

crucible of cross-examination.

While the facts in Owens and this case are thus

significantly different, there is no question that some of

the language in Owens would deny petitioner relief in this

case. This language, however, was unnecessary to the

decision in Owens, and should be reconsidered by this

Court in determining this present case. In cases predating

Owens, which this Court has not overruled, this Court

repeatedly stressed that the right of cross-examination

involved much more than the right to put a witness on the

witness stand and have him sit there while he was ques-

tioned. Thus, in California v. Green, 399 U.S. 149 (1970),

this Court held that the sixth amendment does not bar

\

13

introduction of out-of-court statements “where the decla-

rant is testifying as a witness and |is] subject to full and

effective cross-examination,” 399 U.S. at 158 (emphasis

added), and that the amendment guarantees criminal

defendants the right to engage in cross-examination

sufficient to “affor{d] the trier of fact a satisfactory basis

for evaluating the truth of [a] prior statement.” Jd. at 161.

And in Delaware v. Fensterer, 474 U.S. 15, 20 (1985), this

Court held that the right of confrontation ensures “an

opportunity for effective cross-examination.” See also,

Nelson v. O'Neil, 402 U.S. 622, 629 (1971) (Confrontation

Clause does not bar admission of out-of-court statement

where defendant has “the benefit of full and effective cross-

examination of [declarant]”) (emphasis added); Mancusi v.

Stubbs, 408 U.S. 204, 216 (1972) (purpose of Confrontation

Clause is to provide satisfactory basis for evaluation of

truth of prior statement); Dutton v. Evans, 400 U.S. 74, 89

(1970) (plurality) (“mission of Confrontation Clause is to

advance a practical concern for the accuracy of the truth-

determining process”); Douglas v. Alabama, 380 U.S. 415,

419-20 (1965) (cross-examination necessary to “test the

truth” of the out-of-court statement).

California v. Green, 399 U.S. 149 (1970), specifically

reserved the question presented in this case. There, the

Court held that it did not violate the confrontation clause

for the State to admit prior testimony of a witness who

was “‘markedly evasive and uncooperative on the stand,’

People v. Green, 70 Cal. 2d 654, 657, 451 P. 2d 422, 423

(1969),” California v. Green, at 151-52, since there had been

“full and effective cross-examination” at the prior proceed-

ing. But the Court specifically noted that “[w]hether Por-

ter’s apparent lapse of memory so affected Green’s right

to cross-examine as to make a critical difference in the

14

application of the Confrontation Clause in this case is an

issue which is not ripe for decision at this juncture.”

California v. Green, at 168-69. In a footnote appended to

this quotation, the Court noted:

Even among proponents of the view that prior

statements should be admissible as substantive

evidence, disagreement appears to exist as to

whether to apply this rule to the case of a wit-

ness who disclaims all present knowledge of the

ultimate event. Commentators have noted that

in such a case the opportunities for testing the

prior statement through cross-examination at

trial may be significantly diminished. See

Falknor, The Hearsay Rule and Its Exceptions,

2U.C. L.A. L. Rev. 43, 53 (1954); 31 N. Y. U. L.

Rev. 1101, 1105 (1956).

California v. Green, at 170.

Some lower courts have also recognized the significant

confrontation clause issues raised by witnesses who are

unable to remember events at trial, and whose prior, un-

cross-examined statements, are then introduced against

the defendant. Thus, in United States v. Di Caro, 772 F.2d

1314 (7th Cir. 1985), the court stated:

In light of the significance attached to the cross-

examination requirement, we must be careful

to avoid a construction that would render the

requirement effectively meaningless. We thus

recognize, as have those commentators who

have considered the particular question, that in

many or perhaps most cases in which the wit-

ness suffers a total memory lapse concerning

both the prior statement and its contents, the

witness cannot be considered subject to cross-

examination concerning the statement under the

15

Rule. See 4 Weinstein’s Evidence para. 801(d)(1)(A)

107], at 801-132 (1984); 4 D. Louisell & C. Mueller,

Federal Evidence § 419, at 180-81. As one treatise

has persuasively argued, “Rule 801(d)(1)(A)’s

cross-examination requirement should not be

viewed as an empty formalism which can be sat-

isfied by the mere fact that the witness is present

and can be required to sit still long enough for

questions to be put.” 4 D. Louisell & C. Mueller,

Federal Evidence § 419, at 181.

United States v. Di Caro, 772 F.2d at 1323. Although the

court in Di Caro did approve of the admission of the

witness’s prior statement in that case, this was because of

the “unique circumstances,” id. at 1323, in which the

witness did testify about some events and “defense counsel

was able to impeach Brown’s credibility severely with

numerous statements that he had made in prior federal

and state court hearings.” Jd. at 1325.

In United States v. Torrez-Ortega, 184 F.3d 1128 (10th

Cir. 1999), a case remarkably similar to this one, the Tenth

Circuit refused to countenance the type of tactic used by

the State here and reversed the conviction. The witness,

Valdez, who had previously been granted immunity in the

case, improperly asserted a fifth amendment right not to

testify about the substantive facts in the case, although he

did answer some questions. United States v. Torrez-Ortega,

184 F.3d at 1133. The prosecutor then:

ostensibly examining Valdez, would read ex-

cerpts from the grand jury testimony and ask

Valdez if he had made the statements attributed

to him. Valdez would then refuse to answer, as-

serting a claim against self-incrimination. This

pattern continued until large segments of Val-

dez’s grand jury testimony had been read into

16

evidence. With a few minor exceptions, Valdez re-

fused to answer questions posed by the defense

on cross-examination.

United States v. Torrez-Ortega, 184 F.3d at 1131-1132. The

court held that this violated the defendant’s sixth amend-

ment right to confront the witness, because even though

“Valdez took the stand and the oath ... he assuredly did

not respond willingly to questions ~ precisely because of

his obstinate and repeated assertion of the privilege

against self-incrimination.” Jd. at 1132. While the asserted

reason of the witness in Torrez-Ortega not to engage in

cross-examination was different from here — there it was

an improper assertion of a privilege, in this case it was an

apparently improper assertion of memory loss — the

essential principle remains: the mere fact that a witness is

on the stand is insufficient to constitute confrontation

pursuant to the sixth amendment when the witness fails

to engage in any meaningful exchange concerning the

events or his prior statement.

In United States v. Vargas, 933 F.2d 701 (9th Cir.

1991), the court reversed a conviction on confrontation

clause grounds, even though the witness appeared before

the jury and testified, where the court’s procedure limited

the defendants’ opportunity to cross-examine the witness.

In that case, the court, concerned that the witness might

improperly claim before the jury a fifth amendment right

not to testify, had the attorneys examine him outside the

presence of the jury, and then had that script read in front

of the jury, with the witness, by order of the court, repeat-

ing his prior answers. The court held that this was a sixth

amendment violation, since even though the witness wa-

present before the jury, the fact that he could not be

adequately questioned about the prior statements violated

17

the defendant’s rights, since the confrontation clause

requires that “an available declarant be subject to cross-

examination about the prior testimony.” United States v.

Vargas, at 706.

United States v. Spotted War Bonnet, 933 F.2d 1471,

1474 (8th Cir. 1991), also held that the sixth amendment

is not satisfied by the mere presence of the witness on the

witness stand. There, the court recognized that:

simply putting a child on the stand, regardless of

her mental maturity, is not sufficient to elimi-

nate all Confrontation Clause concerns. If, for

example, a child is so young that she cannot be

cross-examined at all, or if she is “simply too

young and too frightened to be subjected to a

thorough direct or cross-examination|[,|” United

States v. Dorian, supra, 803 F.2d at 1446, the fact

that she is physically present in the courtroom

should not, in and of itself, satisfy the demands

of the Clause.

United States v. Spotted War Bonnet, 933 F.2d at 1474.

And in Barksdale v. State, 265 Ga. 9, 13 (Ga. 1995), where

a witness was present in court but refused to testify, even

though he had no legitimate excuse for the refusal, the

Supreme Court of Georgia held that this refusal rendered

him unavailable for cross-examination, and it therefore

violated the defendant’s sixth amendment confrontation

clause right of cross-examination to introduce a prior

videotaped statement by the witness. See also People v.

Yarbrough, 166 Ill. App. 3d 825 (Sth Dist. 1988) (conviction

reversed where the court admitted an out-of-court state-

ment of a witness who could not remember the incident or

statement at trial, on the basis that “a defendant cannot

cross-examine a witness with respect to the truth or falsity

18

of an out-of-court statement of which the witness has no

memory.” 166 II]. App. 3d at 831).

While many courts have recognized that introduction

of an out-of-court statement, not subject to cross-

examination, implicates confrontation clause issues where

the witness disclaims knowledge of the incident and/or

statement at trial, other courts have routinely admitted

such statements. See, ¢.g., United States v. Knox, 124 F.3d

1360, 1364 (10th Cir. 1997) (not discussing confrontation

clause concerns, but holding that where witness’s claimed

loss of memory appeared false, the prior statements were

admissible under Fed. R. Evid. 801(d)(1)(A)); United

States v. Bigham, 812 F.2d 943, 946-47 (5th Cir. 1987)

(not discussing confrontation clause concerns, but holding

that where witness’s “selective memory loss was more

convenient than actual,” the prior statements were

admissible under Fed. R. Evid. 801(d)(1)(A)); United

States v. Di Caro, 772 F.2d at 1321-22 (where witness’s

lack of memory is feigned, prior statements were admis-

sible under 801(d)(1)(A), although the court recognized

that confrontation clause concerns were satisfied only

because of the unique circumstances of the case); United

States v. Thompson, 708 F.2d 1294, 1302 (8th Cir. 1983)

(where witness is “recalcitrant” and gives “evasive an-

swers,” court may admit prior statements as inconsistent

under 801(d)1)A)); People v. Wheatley, 187 Ill. App. 3d

371, 381 (1st Dist. 1989) (admission of testimony from a

prior trial involving a different defendant did not violate

the defendant’s mghts under the confrontation clause, even

though the witness claimed on cross-examination at

defendant's trial he could not remember anything).

Similarly, some commentators have approved of the

admission of un-cross-examined out-of-court statements,

19

even where the witness claims loss of memory, without

considering the confrontation clause rights of the defen-

dant. See, 3A John H. Wigmore, Evidence § 1043, at 1061

(James H. Chadbourn rev. ed. 1970) (“the unwilling

witness often takes refuge in a failure to remember, and

the astute liar is sometimes impregnable unless his flank

can be exposed to an attack of this sort”); Michael H.

Graham, Federal Practice & Procedure § 6582, at 183 n.9

(int. ed. 1992) (courts typically allow for admission under

Rule 801(d)(1)(A) where witness’s current lack of recollec-

tion is deemed contrivance).

These cases and commentators fail to recognize the

fundamental importance of rigorous testing of evidence

introduced against a defendant, and the critical role which

adequate cross-examination plays in this process. This

Court has consistently described cross-examination as a

“bedrock procedural guarantee.” Crawford, 541 U.S. at 42,

citing Pointer v. Texas, 380 U.S. 400, 406 (1965). “The right

to confront one’s accusers is a concept that dates back to

Roman times,” Crawford at 438, which subsequently

became firmly established in the common law. /d. at 46.

One purpose of the confrontation clause is lo provide a

satisfactory basis for the evaluation of the truth of prior

statements, Mancusi v. Stubbs, 408 U.S. 204, 216 (1972);

its mission is to advance the truth-determining process.

Dutton v. Evans, 400 U.S. 74, 89 (1970); Douglas v. Ala-

bama, 380 U.S. 415 (1965). When an ex parte pre-trial

statement is introduced against a defendant at trial, but

the witness refuses to engage in: any meaningful testimony

or explanation of the statement, the purpose and ability of

cross-examination — to separate out the truth from the

lies, the reliable assertions from the unreliable — is lost.

The defendant is essentially in the same situation as

20

existed at the time of the trial of Sir Walter Raleigh — his

guilt is determined based on statements elicited by the

prosecuting authorities, outside his presence, with the jury

being denied the opportunity to heaz possible contradic-

tions in the story.

While the witness who feigns loss of memory is

undoubtedly engaging in misconduct, there is no necessary

indication that this misconduct should be attributed to the

defendant. A devious witness, anxious to avoid a rigorous

examination which would expose the falsity of his prior

accusations, can take refuge in an asserted loss of memory,

knowing that the prior statement would then be admitted.

And while there are no indications that this is the case

here, a sly prosecutor could likewise avoid harsh examina-

tion of a shaky prosecution witness by encouraging the

witness to “disremember” the facts of his prior statement,

or the giving of the statement itself, knowing that this will

ensure the statement’s admission in pristine form.

Moreover, the courts are not powerless to pressure a

forgetful witness to testify when the witness’s loss of

memory appears incredible. Such asserted loss of memory

is not significantly different from an improper assertion of

a privilege not to testify, an assertion which the courts

routinely deal with by the threat of a contempt citation

and the imposition of sanctions. There is no indication that

in this case such a threat would not have been effective to

pry testimony from Wiseman. According to Wiseman, by

the time of his testimony he had relatively little time left

to serve on his murder sentence, and he would surely have

been anxious to avoid an addition to that sentence which

would have resulted if the court had imposed sanctions on

him for his apparently wilful memory loss. While inquiry

into the good faith of a witness’s assertion of memory loss

21

would undoubtedly complicate the trial to some degree,

knowledge that such inquiry would result if the witness

claimed he could recall nothing would surely minimize the

number of such claims, and vastly increase the likelihood

that the reliability of an ostensibly damning pre-trial

statement could be adequately tested.

Petitioner is not suggesting that the only cross-

examination which would satisfy the sixth amendment is

that which “is effective in whatever way and to whatever

extent the defense might wish.” Owens, 484 U.S. 554, 559,

Kentucky v. Stincer, 482 U.S. 730, 739 (1987), quoting

Delaware v. Fensterer, 474 U.S. 15 (1985). Rather, the test

should be that advocated by Justice Brennan in his dissent

in United States v. Owens, 484 U.S. 554: “the Sixth

Amendment guarantees criminal defendants the right to

engage in cross-examination sufficient to ‘affor|d] the trier

of fact a satisfactory basis for evaluating the truth of [a]

prior statement, California v. Green, 399 U.S. 149, 161

(1970).” Id. at 565. As Justice Brennan explained:

|Clonsistent with the Confrontation Clause's

mission of ‘advancling] a practical concern for the

accuracy of the truth-delermining process in

criminal trials, Dutton v. Evans, 400 U.S. 74, 89

(1970), we have suggested that the touchstone of

effectiveness is whether the cross-examination

affords “‘the trier of fact ... a satisfactory basis

for evaluating the truth of the prior statement.’”

Ibid. (quoting California v. Green, supra, at

161). See also Ohio v. Roberts, 448 U.S. 56, 73

(1980) ‘introduction of prior testimony where

the declarant was unavailable at trial did not

violate Confrontation Clause where previous

cross-examination of declarant “afforded the trier

of fact a satisfactory basis for evaluating the

22

truth of the prior statement” (citation omitted;

internal quotation marks omitted)); Mancusi v.

Stubbs, 408 U.S. 204, 216 (1972) (same).

United States v. Owens, 484 U.S. at 568-569 (footnote

omitted) (Justice Brennan, dissenting).

Such a test would allow introduction of arguably

relevant evidence in all but the most rare circumstances,

since it would be highly unusual for a witness to genuinely

assert a memory loss which prevented a jury from ade-

quately evaluating the truth of a prior statement, while a

feigned memory loss could almost always be overcome by

the threat of sanctions. In those few cases where the test

did not permit the introduction of evidence, the exclusion

of the evidence would be in accordance with the constitu-

tional mandates which protect a defendant’s right to a fair

trial and the right to challenge the evidence introduced

against him. This court has recently endorsed such exclu-

sion, of even highly relevant evidence in Davis v. Washing-

ton, 126 S. Ct. 2266 (2006), where the Court noted that

“lwje may not, however, vitiate constitutional guarantees

when they have the effect of allowing the guilty to go free.

Cf. Kyllo v. United States, 533 U.S. 27 (2001) (suppressing

evidence from an illegal search).” Davis, 126 S.Ct. at

2280. Additionally, as the Court held in Davis, if it appears

that the witness’s failure to participate in cross-

examination has been improperly procured by a defen-

dant, that defendant may be held to have forfeited his

right to confront the witness:

|Wihen defendants seek to undermine the judi-

cial process by procuring or coercing silence

from witnesses and victims, the Sixth Amend-

ment does not require courts to acquiesce. While

defendants have no duty to assist the State in

23

proving their guilt, they do have the duty to re-

frain from acting in ways that destroy the integ-

rity of the criminal-trial system. We reiterate

what we said in Crawford: that “the rule of for-

feiture by wrongdoing ... extinguishes confron-

tation claims on essentially equitable grounds.”

541 U.S., at 62 (citing Reynolds, 98 U.S., at 158-

159). That is, one who obtains the absence of a

witness by wrongdoing forfeits the constitutional

right to confrontation.

Davis v. Washington, 126 S. Ct. at 2280.

It is therefore clear that the problem of a witness who

asserts that he cannot remember facts concerning an

incident about which he previously gave a statement may

be resolved in a manner which is consistent with the

commands of the confrontation clause of the sixth amend-

ment, is in accordance with the values of subjecting

inculpatory testimony to testing though cross-

examination, and which satisfies society’s goal of bringing

guilty persons to justice. Where a witness professes either

complete or partial inability to recall, and the State wishes

to introduce a testimonial statement which has not been

subjected to cross-examination, the court must determine

whether that inability prevents the trier of fact from

having a satisfactory basis for evaluating the reliability of

the testimonial statement, as well as whether the asserted

inability to recall is genuine. Only in the event that the

witness persists in his asserted memory loss, and the court

determines that the extent of memory loss deprives the

trier of fact of a satisfactory basis for evaluating the prior

statement, will the pre-trial statement be barred from

evidence. While in highly unusual cases this will result in

arguably relevant evidence being withheld from the trier

of fact, this will be evidence which has not been subjected

24

to adequate testing by cross-examination, and therefore

should properly be excluded from the trial. This is no

greater protection for the defendant, and no greater

imposition on the State in attempting to prove guilt, than

is imposed in myriad other situations. See, e.g., Dickerson

vu. United States, 530 U.S. 428 (2000) (suppression of state-

ment after failure to give Miranda warnings); Arizona v.

Roberson, 486 U.S. 675 (1988) (id.); Arizona v. Hicks, 480

U.S. 321 (1987) (suppression of evidence after unreasonable

search); Hayes vu. Florida, 470 U.S. 811 (1985) (suppression

of evidence after unreasonable seizure).

e

CONCLUSION

This court should grant certiorari in this case in order

to set forth the circumstances under which a testimonial

out-of-court statement may be introduced at trial against a

criminal defendant, where the witness who made the

statement professes complete lack of current knowledge of

both the statement and the incident recounted in the

statement, and should reverse the petitioner’s conviction.

Dated: August 21, 2007 Respectfully submitted,

JOHN L. STAINTHORP

PEOPLE’S LAW OFFICE

1180 N. Milwaukee

Chicago, IL 60622

773 235 0070

Attorney for Petitioner

App. 1

Third Division

January 21, 2004

No. 1-02-1964

IN THE

APPELLATE COURT OF ILLINOIS

FIRST JUDICIAL DISTRICT

THE PEOPLE OF THE

STATE OF ILLINOIS,

Plaintiff-Appellee,

Appeal from the

Circuit Court of

Cook County

No. 95 CR 17061

Honorable

Joseph G. Kazmierski,

Judge Presiding.

Vv.

MICHAEL THOMPSON,

Defendant-Appellant.

ee i i i i i

ORDER

This case comes to us after a second jury trial. Follow-

ing his first jury trial, defendant Michae] Thompson, was

found guilty of first-degree murder under an accountabil-

ity and transferred intenl theory. Defendant’s motion and

amended motion for a new trial were both denied and he

was subsequently sentenced to 75 years’ imprisonment.

Defendant filed a motion to reconsider sentence and was

resentenced to 60 years’ imprisonment. On November 11,

1997, defendant filed a timely notice of appeal.

On appeal, we reversed defendant’s conviction and

sentence and remanded for a new trial after we concluded

that the prosecutor’s closing argument implied that

defendant and defense counsel had conspired to obtain

witness recantations thereby denying defendant a fair

App. 2

trial. People v. Thompson, 313 Ill. App. 3d 510, 514-16, 730

N.E.2d 118 (2000). On remand, a second jury found defen-

dant guilty of first-degree murder and he was subse-

quently sentenced to 50 years’ imprisonment. Defendant

now appeals,

On appeal, defendant contends that: (1) the trial court

erred in allowing State witness Eugene Wiseman’s court-

reported statement to be admitted as substantive evidence

under section 115-10.1 of the Code of Criminal Procedure

(Code) (725 ILCS 5/115-10.1 (West 1998))-; (2) the recanta-

tion statements of State witnesses April Alston, Eddie

Frazier, and Derrick Johnson should have been admitted

as substantive evidence under section 115-10.1 of the

Code, rather than merely for the limited purpose of im-

peachment evidence; (3) the trial court erred by denying

his motion to suppress alleged inculpatory statements he

made to Assistant State’s Attorney Sybil Thomas; (4) the

trial court committed reversible error in admitting his 17-

year-old burglary conviction for impeachment purposes; (5)

the trial court erred in refusing to issue his tendered

instruction on the lesser offense of involuntary man-

slaughter; (6) the prosecutor shifted the burden of proof

during closing argument when he commented on defen-

dant’s failure to call three alibi witnesses; and (7) the

State failed to prove him guilty beyond a reasonable doubt.

For the reasons that follow, we affirm.

FACTUAL BACKGROUND

The facts in this case are adequately set forth in the

opinion on defendant’s original appeal and will therefore

only be repeated here as necessary. On June 19, 1995, A.Z.

died of a gunshot wound she sustained after she was

App. 3

caught in gang gunfire in Marquette Park. The shooting

stemmed from gang rivalry between members of the Black

Disciples (BDs) and the Krazy Get Down Boys (KGBs).

The night prior to the shooting incident, Eddie Frazier and

Derrick Johnson were in Marquette Park with two female

acquaintances when they were approached by a group of

KGBs. At the time, Frazier and Johnson were both mem-

bers of the BDs. Frazier and Johnson were attacked and

chased out of the park by members of the KGBs.

According to evidence presented at trial, when defen-

dant learned of the attack, he organized a retaliatory

attack against the KGBs that was to take place in the

park, that next night. At the time, defendant was a rank-

ing member of the BDs, holding the rank of co-minister.

At trial, State’s witness, April Alston, testified that at

the time of the shooting incident, she held the rank of

First Lady of the BDs. She testified that on June 19, 1995,

on the evening of the shooting, she went over to defen-

dant’s house where she met defendant, Eugene Wiseman,

Craig Newton, Jama] Harmon, and various other BDs.

Everyone was on the front porch of defendant’s house At

some point, the defendant, Wiseman, Newton, and

Harmon left the porch together and went upstairs in

defendant’s house. About ten minutes later, they all came

back downstairs. Harmon was carrying a black gym bag,

which he put in the trunk of Newton’s car. Alston testified

that she was unaware of the bag’s contents.

Defendant then told Alston to get into Newton’s car

with Newton, while he, Wiseman, and an individual called

“Pretty Ricky” all got into Harmon’s car with Harmon.

Both cars then drove to 70th and Fairfield and parked less

than a block from Marquette Park. Alston then got into

App. 4

Harmon’s car with defendant, while Harmon, Wiseman,

Newton and “Pretty Ricky” remained behind with New-

ton’s car. Alston testified that while defendant was driving

her back to his house in Harmon’s car, he told her that the

fellow gang members they had left behind “were going to

take care of some business or something in the park,” and

that she should not “mention it.”

Alston testified that the individuals left behind at the

park returned to defendant’s house less than ten minutes

later, returning in Newton’s car. Harmon took the black

gym bag out the trunk of Newton’s car, took it upstairs in

defendant’s house, and came back downstairs without the

bag. Alston testified that about a week later, she learned

that a woman had been shot and killed in Marquette Park

on June 19, 1995.

State’s witness, Eddie Frazier, testified that at the

time of the shooting incident he was a member of the BDs.

He testified that the night prior to the shooting, he and a

fellow gang member named Derrick Johnson were in

Marquette Park along with two female friends, when they

were assaulted and chased out of the park by members of

the KGBs. Frazier testified that he was pistol whipped

and that numerous bullets were fired at him and his

companions. Frazier stated that everyone eventually

escaped in his car.

The next evening at approximately 8 p.m., on the date

of the shooting, Frazier and Johnson went to defendant’s

house where they met other BD gang members on the

front porch of defendant’s house. Frazier testified that he

heard defendant tell Wiseman that they needed “to go take

care of some business.” Frazier then went upstairs to

defendant’s second floor apartment to use the telephone to

App. 5

return a page he received from his father. After speaking

with his father on the telephone, Frazier left defendant’s

apartment, returning about forty-five minutes later. Upon

his return, Frazier spoke with Wiseman and noticed that

he was carrying a .38 caliber pistol. Frazier testified that

Johnson told him that they had taken care of the “busi-

ness.” Frazier further testified that a few months prior to

the shooting incident, he had seen an Uzi pistol in a black

gym bag in defendant’s bedroom.

State’s witness, Derrick Johnson, testified that at the

time of A.Z.’s shooting, he was a member of the BDs.

Johnson acknowledged that he was with Frazier on the

evening of June 18, 1995, when they were both attacked

and chased out of Marquette Park by a group of KGBs.

Johnson testified that on the evening of the shooting, he

was on the front porch of defendant’s house with some other

BDs including Alston, Fraizer, Harmon, Newton, “Pretty

Ricky,” and Wiseman, when he overheard defendant tell

Harmon and Wiseman how to carry out the ambush on the

KGBs. According to Johnson, defendant told Harmon and

Wiseman to park their cars on 70th and California, walk

through the park, and that they should be able to see the

KGBs “nght there.” Defendant then stated that Harmon

and Wiseman should “spray the motherf-----s.” Johnson

testified that the term “spray” meant to shoot.

Johnson testified that after defendant spoke with

Harmon and Wiseman, defendant, Harmon, and Newton,

went upstairs in defendant’s house staying there for

approximately 10 minutes. When they emerged from the

house, Harmon was carrying an Uzi pistol and defendant

was carrying a black gym bag. Johnson stated that about a

year prior to the shooting incident he had seen the Uzi and

black gym bag in defendant’s bedroom. Johnson testified

App. 6

that after Harmon and defendant emerged from the house

with the Uzi and black gym bag, they got into Harmon’s

car with Wiseman and “Pretty Ricky.” Alston got into

Newton's car with Newton. Both vehicles left the house at

the same time.

Johnson testified that about ten minutes later, defen-

dant and Alston returned to the house in Harmon’s car.

Shortly thereafter, the other gang members returned in

Newton’s car. When Harmon exited the vehicle, he was

carrying a black gym bag which he took inside defendant’s

house. Johnson testified that later that evening, defendant

told him to inform Frazier that they had taken care of

everything.

State’s witness, Eugene Wiseman, who was being held

in custody at the Illinois Department of Corrections,

admitted that he pleaded guilty to killing A.Z. He testified,

however, that he could not recall if he was in a gang at the

time of the shooting and did not recall where he was on

the date A.Z. was shot and killed. Defense counsel then

requested a sidebar, and in chambers argued against the

possible admission of Wiseman’s court-reported confession

statement as substantive evidence under section 115-10.1

of the Code of Criminal Procedure (Code) (725 ILCS 5/115-

10.1 (West 1998)). After hearing brief arguments on the

matter, the trial court disagreed with defense counsel’s

position. When Wiseman’s direct examination resumed,

the State presented him with a copy of the court-reported

confession statement he had given to Assistant State’s

Attorneys Jim Piper and Domenica Stephenson on June

27, 1995, eight days after A.Z. was killed.

Wiseman denied recollection of the statement, but

testified that he recognized the statement, he remembered

App. 7

the ASA reading the statement back to him out-loud, and

he recalled signing each page of the statement. When

Wiseman began denying recollection of some of the re-

sponses he had given in his confession statement, defense

counsel requested a sidebar in chambers which was

granted.

In chambers, defense counsel argued that Wiseman

was exposing himself to self-incrimination on perjury

charges and should therefore be advised of an opportunity

to consult with his own counsel before proceeding. The

State responded that perjury was not a basis for a fifth

amendment claim, that it had informed Wiseman’s attor-

ney that Wiseman would be called as a State witness, and

that defense counsel had no standing to assert Wiseman’s

rights. The trial court agreed with the State, and Wise-

man’s direct examination resumed. The State then contin-

ued reviewing each question in the statemeat with

Wiseman and he continued to deny recollection of each of

the responses he had given in the statement.

State’s witness, ASA Domenica Stephenson testified

that she was at Area one police headquarters on June 27.

1995, when Wiseman gave his court-reported confession

statement in her presence and in the presence of ASA Jim

Piper and a detective. ASA Stephenson testified that after

Wiseman gave his statement, he and ASA Piper reviewed

the statement together and afterwards Wiseman made

several corrections to the statement which were initialed

by all of the individuals in the interview room, except for

the court reporter. ASA Stephenson claimed that Wiseman

subsequently signed each page of his corrected statement.

After hearing ASA Stephenson's testimony, the trial court

allowed her to publish Wiseman’s statement to the jury.

App. 8

State’s witness, ASA Sybil Thomas testified that on

the morning of June 27, 1995, she interviewed defendant

regarding A.Z.’s shooting. ASA Thomas testified that after

she advised defendant of his Miranda rights and he

requested an attorney, she stopped the interview and left

the room. About 1'/ hour later, as defendant was being

escorted from the washroom, he shouted to ASA Thomas

that he wanted to talk with her. ASA Thomas then asked

defendant if he wanted to waive his right to an attorney, to

which defendant replied “yes.” Defendant stated that he

wanted to cut a deal, stating that he would tell where the

guns were if he could cut a deal. After ASA Thomas re-

sponded that she did not have the power to cut a deal with

defendant, defendant continued talking, stating that as he

was driving a couple of the “defendants” to the park, he

had “tried to talk them out of it.” Defendant again asked if

he could cut a deal, to which ASA Thomas again replied

that she did not have the power to cut a deal with defen-

dant. Defendant eventually asked for an attorney, where-

upon ASA Thomas terminated the conversation.

Detective John Bloore testified that after Newton was

arrested and interviewed, he led police to a garage located

at 6924 South Laflin where an Uzi pistol was recovered

from a white canvas bag. Firearms expert Aaron Horn

opined that the bullet which killed A.Z. was fired from the

same Uzi pistol that police recovered from the white

canvas bag.

Defendant testified on his own behalf. He acknowl-

edged that he had been a member of the BDs for five years

and that he had been a co-minister in the gang, but

testified that he left the gang in the summer of 1994

because he was upset that another division of the

gang had murdered an eleven-year-old boy. Defendant's

App. 9

testimony concerning his leaving the BDs in 1994 was

impeached by a transcript from a preliminary hearing

which showed that defendant had previously testified that

he left the gang in 1993. Defendant’s testimony on this

matter was also impeached by the testimony of Detective

John Griffin who testified that he was informed by defen-

dant that defendant had left the BDs after the gang

refused to pay his bond on a previous arrest.

Defendant testified that during his affiliation with the

BDs, he was a part of the gang’s drug-selling operations,

which involved no violence. He further testified that his

rank in the gang as co-minister did not give him the

authority to direct other gang members.

Defendant testified that on the evening A.Z. was shot,

“he was working as a volunteer at the Inner City Youth

Foundation (Foundation) located at 4500 South Michigan

Avenue. Defendant testified that at the approximate time

the shooting occurred, he was chauffeuring three high

school students from the Foundation to their respective

homes on the south side of Chicago. Defendant denied

planning any gang-related attack in Marquette Park,

denied ever speaking with ASA Thomas, and denied

threatening April Alston, Eddie Frazier, or Derrick John-

son into going to his lawyer’s office to give their recanta-

tion statements.

On cross-examination, defendant testified that he was

aware that Frazier and Johnson were both BDs, but

denied knowing them personally. He was unable to explain

why telephone calls had been made from his house to

Frazier and Johnson's respective homes. Defendant

testified that he did not remember the names of the three

App. 10

high school students from the Foundation he chauffeured

home, because it happened “so long ago.”

Defendant called his fiancee, Paschell Bennett, as a

witness. Bennett was a 16 year employee of the Chicago

Public Schools. She testified that in the summer of 1995,

defendant’s nephew, Amad Jackson, lived with her, defen-

dant and their young son at 6355 South Campbell. She

testified that Jackson was a friend of Eddie Frazier and

Derrick Johnson, and that it was Jackson who placed

telephone calls from her home to the respective homes of

Frazier and Johnson. Bennett also testified that defendant

left the BDs in the summer of 1994, after members of the

gang killed a young boy. According to Bennett, defendant

left the gang and went to Michigan to attend truck driving

school, but returned to Chicago after he was informed that

Bennett had received threatening telephone calls from

gang members. Bennett testified that shortly after defen-

dant returned to Chicago he was physically beaten. She

testified that defendant then began working for Western

Piece Dyers and after work would volunteer at the Foun-

dation.

Bennett testified that on the date of the shooting, she

arrived home from work at approximately 5:30 p.m., and

that defendant was not at home. Bennett claimed that

defendant arrived home between 10 p.m. and 10:30 p.m.

At trial, telephone records showed that a telephone call

was made from Bennett’s home to defendant’s cellular

number at 5:49 p.m. Bennett testified that she made this

call. Telephone records also revealed that three telephone

calls were made from defendant and Bennett’s home to

Jamal Harmon’s home phone at 5:49 p.m., 7:24 p.m., and

9:06 p.m. Bennett testified that she made all of these calls

in an effort to return Harmon’s page and finally succeeded

App. 11

in reaching him at 9:06 p.m. Telephone records further

revealed that a telephone call was made from defendant

and Bennett’s home to Eddie Frazier’s home at 9:05 p.m.

Bennett testified that she did not make this phone call,

but claimed that she allowed Frazier to use her phone to

return his father’s page.

Bennett testified that on the night of the shooting, at

approximately 9 p.m., she and her young son were sitting

alone on the front porch of the home she shared with

defendant. She claimed that during the entire evening,

there was never a group of people sitting on her front

porch.

Bennett acknowledged driving April Alston, Eddie

Frazier, and Derrick Johnson to defendant’s lawyer’s office

to give their recantation statements, but denied that she

ever threatened them into going to the office. She also

denied ever overhearing defendant threaten Alston,

Frazier, or Johnson into going to the lJawyer’s office.

Bennett testified that Alston, Frazier, and Johnson all

contacted her about giving their recantations and asked

her for car rides to the lawyer’s office.

Bennett testified that she did not tell police or prose-

cution investigators about her version of the events or

defendant’s whereabouts on the evening of the shooting,

because she did not believe it would make any difference

and she was concerned about how her statement might be

recorded.

Defendant's final witness was Morris Perkins from the

Foundation. Perkins testified that on the date of the

shooting, defendant arrived at the Foundation between

4:30 p.m. and 5 p.m., and left between 9:30 p.m. and 10

p.m. On cross-examination, Perkins conceded that when

App. 12

he was approached by defendant’s father a couple of

months prior to trial, it had been about seven years since

he had been asked to remember anyt> ng related to June

19, 1995, the date of the shooting. Perkins testified that

the only thing that made June 19, 1995 stand-out in his

mind was the fact that this date fell in the two-week

period in which the Foundation organied a large commu-

nity rally. Perkins stated that during this time period,

volunteers such as defendant usually worked late hours at

the Foundation to prepare for the rally. Perkins acknowl-

edged that in the two weeks leading up to the rally he

could not recall the exact time every volunteer left for the

day.

The jury found defendant guilty of first-degree murder

in the killing of A.Z. Thereafter, the trial court sentenced

defendant to 50 years in the Illinois Department of Correc-

tions. Defendant timely appealed.

ANALYSIS

I. Section 115-10.1

Defendant first contends that the tria] court erred in

allowing Wiseman’s confession statement to be admitted

as substantive evidence under section 115-10.1 of the

Code. We disagree with defendant’s contention.

Section 115-10.1 of the Code allows a witness’ written

or signed prior inconsistent statement, not made under

oath, to be admitted as substantive evidence where the

statement narrates, describes, or explains an event or

condition of which the witness had personal knowledge,

and the witness is subject to cross-examination concerning

App. 13

the statement at the current proceeding. 725 ILCS 5/115-

10.1(a), (b), (ch2)(A) (West 1998).' In enacting section 115-

10.1, the legislature determined that a testifying witness’

prior inconsistent signed statement should be admitted as

substantive evidence since: (1) the prior statement is

usually made closer in time to the event in question than

the witness’ trial testimony; (2) parties need protection

from turncoat witnesses; (3) the witness is available for

cross-examination thereby eliminating hearsay concerns of

unavailability; and (4) the admission of such statements

furthers the search for truth in criminal proceedings.

People v. Morales, 281 Ill. App. 3d 695, 702, 666 N.E.2d

839 (1996).

In this case, defendant maintains that his sixth

amendment right of confrontation (U.S. Const., amend. VI)

was violated when the trial court admitted Wiseman’s

statement as substantive evidence pursuant to section

115-10.1, because Wiseman was not subject to cross-

examination regarding the statement where he testified

' Section 115-10.1 of the Code provides in relevant part:

“In ali criminal cases, evidence of a statement made by

a witness is not made inadmissible by the hearsay rule if

(a) the statement is inconsistent with his testimony at

the hearing or tnal, and

(b) the witness is subject to cross-examination con-

cerning the statement, and

(c) the statement —

* * *

(2) narrates, describes, or explains an event or

condition of which the witness had personal knowl-

edge, and ‘A) the statement is proved to have been

written or signed by the witness” 725 ILCS 5/115-

10.1'a), (b), (eX 2" A) (West 1998).

App. 14

that he could not recall making the statement. Defendant

is incorrect.

Under the confrontation clause of the sixth amend-

ment, a criminal defendant has a constitutional right to

cross-examine a witness in order to show motive, bias, or

other factors which might influence the witness’ testimony.

People v. Davis, 337 Ill. App. 3d 977, 984, 787 N.E.2d 212

(2003). However, the confrontation clause guarantees a

criminal defendant only “‘an opportunity for effective

cross-examination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense

might wish.’” People v. Flores, 128 Ill. 2d 66, 89, 538

N.E.2d 481 (1989), citing United States v. Qwens, 484 U.S.

554, 559, 98 L. Ed. 2d 951, 957, 108 S. Ct. 838, 842 (1988).

In Owens, the United States Supreme Court deter-

mined that a witness is generally subject to cross-

examination concerning a prior identification under Rule

801(d)(1)(C) of the Federal Rules of Evidence (Fed. R.

Evid. 801(d)(1)(C)), when the witness “is placed on the

stand, under oath, and responds willingly to questions.”

Owens, 484 U.S. at 561, 98 L. Ed. 2d at 959, 108 S. Ct.

844. In this regard, the Court observed that:

“limitations on the scope of examination by

the trial court or assertions of privilege by the

witness may undermine the process to such a de-

gree that meaningful cross-examination within

the intent of the Rule no longer exists. But that

effect is not produced by the witness’ assertion of

memory loss — which, as discussed earlier, is of-

ten the very result sought to be produced by the

cross-examination, and can be effective in de-

stroying the force of the prior statement.” Owens,

App. 15

484 U.S. at 561-62, 98 L. Ed. 2d at 959, 108

S. Ct. at 844.

Based on the rationale set forth in Owens, our su-

preme court has held that a “gap in the witness’ recollec-

tion concerning the content of a prior statement does not

necessarily preclude an opportunity for effective cross-

examination.” Flores, 128 Ill. 2d at 88. Consequently, our

courts have determined that a defendant’s sixth amend-

ment right to confrontation is not violated by the admis-

sion of a witness’ prior inconsistent statement under

section 115-10.1, where the witness professes a memory

loss regarding the content of the statement. Flores, 128 Ill.

2d at 88-90; People v. Wheatley, 187 Ill. App. 3d 371, 379-

81, 543 N.E.2d 259 (1989).

II. Substantive Evidence and Section 115-10.1 of the

Code

Defendant next contends that the recantation state-

ments of State witnesses April Alston, Eddie Frazier, and

Derrick Johnson all should have been admitted as sub-

stantive evidence under section 115-10.1 of the Code,

rather than merely for the limited purpose of impeach-

ment evidence. We must disagree with defendant.

It is within the sound discretion of the trial court to

determine whether testimony is admissible under section

115-10.1 of the Code. Morales, 281 Ill. App. 3d at 701.

Generally, a party may only use a prior inconsistent

statement for impeachment purposes. People v. Rodriguez,

291 Ill. App. 3d 55, 62, 684 N.E.2d 128 (1997); People uv.

Morgason, 311 Ill. App. 3d 1005, 1010, 726 N.E.2d 749

(2000). However, as previously mentioned, section 115-10.1

of the Code allows, in pertinent part, a witness, written or

App. 16

signed prior inconsistent statement, not made under oath,

to be admitted as substantive evidence where the state-

ment narrates, describes, or explains an event or condition

of which the witness had personal knowledge, and the

witness is subject to cross-examination concerning the

statement at the current proceeding. 725 ILCS 5/115-

10.1(a), (b), (e(2)(A) (West 1998).

The issue here is whether Alston, Frazier, and John-

son’s respective recantation statements satisfy the “per-

sonal knowledge” requirement set forth in subsection (c)(2)

of section 115-10.1 of the Code. “Personal knowledge” as

used in subsection (c)(2), means that the witness whose

prior inconsistent statement is being offered into evidence

must have actually seen the events that are the subject of

the statement. Rodriguez, 291 Ill. App. 3d at 62, citing

People v. Cooper, 188 lll. App. 3d 971, 973, 544 N.E.2d

1273 (1989). The personal knowledge requirement con-

tained in subsection (c)(2) limits the use of out-of-court

statements to those events the witness actually observed.

People v. Fields, 285 Ill. App. 3d 1020, 1028, 675 N.E.2d

180 (1996). In order to satisfy the personal knowledge

requirement of the statute, “the witness must have ob-

served, and not merely heard, the subject matter underly-

ing the statement.” Morgason, 311 Ill. App. 3d at 1011,

quoting People v. Hastings, 161 Ill. App. 3d 714, 720, 515

N.E.2d 260 (1987). The question of personal knowledge is

to be determined from the face of the statement and not

from subsequent testimony of the recanting witness.

People v. Fauber, 266 Ill. App. 3d 381, 390, 640 N.E.2d 689

(1994).

In the instant case, a review of the respective recanta-

tion statements of Alston, Frazier, and Johnson indicate

that these witnesses did not have any personal knowledge

App. 17

of the events occurring on the night of A.Z.’s murder. For

example, in their recantation statements, Alston, Frazier,

and Johnson all state that they never saw defendant on

June 19, 1995, the night of the shooting incident. The

statements do not say where defendant was on the night of

the shooting incident, the statements do not reveal what

happened at defendant’s house before or after the shoot-

ing, and the statements do not indicate how A.Z. was shot.

Thus, the recantation statements clearly indicate that

Alston, Frazier, and Johnson had no personal knowledge of

any events at issue in this case. Even if the statements

were construed as demonstrating personal knowledge that

the declarant was not in defendant’s presence on the night

of the shooting, this would not suffice as personal knowl-

edge of an event at issue in the case. See People v. Redd,

135 Ill. 2d 252, 302, 553 N.E.2d 316 (1990) (stating that in

relation to section 115-10.1 of the Code, “fsu]bstantive

evidence is evidence which is ‘adduced for the purpose of

proving a fact in issue, as opposed to evidence given for the

purpose of discrediting a witness * * * or of corroborating

his testimony”). The recantation statements were not

admissible under subsection (c)(2), and therefore the trial

court did not abuse its discretion in not admitting the

statements as substantive evidence under section 115-10.1

of the Code.

In the alternative, defendant argues that if the trial

court determined that certain portions of the recantation

statements failed to satisfy the “personal knowledge”

requirement of subsection (c)2), then the court should

have redacted those portions and admitted the remainder

of the statements as substantive evidence, rather than

exclude the statements entirely. Defendant’s alternative

argument has no merit.

App. 18

Although the remainder of the statements conforms

superficially with the requirements of the statute, any

inconsistencies between these statements and the respec-

tive trial testimony of Alston, Frazier, and Johnson, are

insignificant and do not relate to the credibility of these

witnesses in such a fashion that had the statements been

considered as substantive evidence by jurors the outcome

would have been different. Again, in their recantation

statements, Alston, Frazier, and Johnson all state that

they never saw defendant on the night of the shooting

incident. The statements do not say where defendant was

on the night of the shooting. Thus, the admissible evidence

contained in the statements shed no light whatsoever on

the issue of whether defendant was criminally responsible

for the shooting death of the victim.

III. Motion to Suppress

Defendant next contends that since he never made a

valid waiver of his Miranda rights, the trial court erred by

denying his motion to suppress alleged inculpatory state-

ments he made to ASA Thomas. Evidence was presented

that on the morning of June 27, 1995, ASA Thomas initi-

ated a preliminary in‘erview with defendant regarding the

shooting incident. After defendant was advised of his

Miranda rights and he requested an attorney, the inter-

view was terminated. About 1'% hour later, as defendant

was being escorted to the washroom, he shouted to ASA

Thomas that he wanted to talk with her. After ASA Tho-

mas responded that she could not speak with defendant,

defendant replied that he wanted to speak with the

assistant state’s attorney.

App. 19

Minutes later, as defendant was being escorted back

from the washroom, he again shouted to ASA Thomas that

he wanted to speak with her. ASA Thomas then asked

defendant if he was sure that he wanted to waive his right

to an attorney, to which defendant replied “yes.” ASA

Thomas testified that when defendant was brought into

the interview room, she again asked defendant if he was

sure that he wanted to waive his right to an attorney. ASA

Thomas testified that defendant indicated that he under-

stood his rights. Defendant then stated that he wanted to

cut a deal, stating that he would tell where the guns were

if he could cut a deal.

When ASA Thomas responded that she did not have

the power to cut a deal with defendant, defendant contin-

ued talking, stating that as he was driving a couple of the

“defendants” to the park, he had “tried to talk them out of

it.” Defendant again asked if he could cut a deal, to which

ASA Thomas again replied that she did not have the power

to cut a deal with defendant. Defendant eventually asked

for an attorney, whereupon ASA Thomas terminated the

conversation.

Defendant: now maintains that once he was brought

into the interview room a second time to speak with ASA

Thomas and she again asked him if he wanted to waive his

right to an attorney, he did not specifically respond to the

question. Defendant asserts that under these circum-

stances the failure of law enforcement authorities to

readvise him of his Miranda rights rendered his inculpa-

tory statement invo! xtary. We must disagree with defen-

dant.

During a custodial interrogation, when an accused

invokes his right to counsel after being advised of his

App. 20

Miranda rights, interrogation by law enforcement authori-

ties must cease until the accused has had an opportunity

to confer with an attorney. People v. Olivera, 164 Ill. 2d

382, 389-90, 647 N.E.2d 926 (1995), citing Miranda v.

Arizona, 384 U.S. 436, 474, 16 L. Ed. 2d 694, 723, 86S. Ct.

1602, 1628 (1966). The accused may not be subject to

further interrogation without the presence of counsel

uniess the accused himself initiates further communica-

tion, exchanges, or other conversations with the police.

People v. Woolley, 178 Ill. 2d 175, 197, 687 N.E.2d 979

(1997), citing Edwards v. Arizona, 451 U.S. 477, 485, 68

L. Ed. 2d 378, 386, 101 S. Ct. 1880 (1981).

The following two-part inquiry is used to determine if

an accused’s statement made in the absence of counsel and

following the accused’s request for counsel, is admissible

as substantive evidence: (1) Whether the accused, after

invoking his right to counsel, initiated further conversa-

tion evincing a willingness and desire for a generalized

discussion about the investigation; and (2) whether the

totality of the circumstances, including the fact that the

accused reopened dialogue with law enforcement officials,

indicates that the accused knowingly and intelligently

waived his right to the presence of counsel during ques-

tioning. Woolley, 178 Ill. 2d at 198-99, citing Oregon v.

Bradshaw, 462 U.S. 1039, 1044-46, 77 L. Ed. 2d 405, 411-

13, 103 S. Ct. 2830, 2834-35 (1983).

The State has the burden to show, by a preponderance

of the evidence and under the totality of the circum-

stances, that the events subsequent to the accused’s

invocation of his right to counsel, indicate a waiver of that

right. People v. Smith, 306 Ill. App. 3d 82, 87, 713 N.E.2d

140 (1999). The trial court’s decision regarding this issue

will not be disturbed unless it is manifestly erroneous.

App. 21

Smith, 306 Ill. App. 3d at 87. Here, we are hampered in

our review because defendant failed to include a complete

transcript of the suppression hearing in the record. There-

fore, we must assume that the trial court, in finding

defendant’s statement voluntary, determined that the

State witnesses were credible. Thus, we will review de

novo the ultimate question of voluntariness based on the

record and the facts presented by the State.

As previously indicated, defendant contends that even

if his initial statements to ASA Thomas can be character-

ized as an initiation of further discussion, his subsequent

statements made in the interview room should have been

suppressed because ASA Thomas did not readvise him of

his Miranda rights. We must reject defendant’s contention.

Generally, a law enforcement officer is required to readvise

the accused of Miranda warnings when the officer says or

does something, other than those actions normally accom-

panying arrest and custody, that the officer should know is

reasonably likely to elicit an incriminating response from

the accused. Olivera, 164 Ill. 2d at 391-92; Smith, 306 Il.

App. 3d at 89.

in the instant case, the evidence reveals that when

defendant was brought into the interview room a second

time, ASA Thomas again asked defendant if he was sure

that he wanted to waive his right to an attorney. In re-

sponse, defendant indicated that he understood his rights.

Defendant then stated that he wanted to cut a deal,

stating that he would tell where the guns were if he could

cut a deal. When ASA Thomas again responded that she

did not have the power to cut a deal with defendant,

defendant continued talking, stating that as he was

driving a couple of the “defendants” to the park, he had

“tried to talk them out of it.” On this record, we cannot say

App. 22

that ASA Thomas’ words or actions could be interpreted as

reasonably likely to elicit an incriminating response from

the defendant. The record indicates that ASA Thomas

asked questions specifically designed to insure that

defendant understood his rights, not to provoke an in-

criminating response.

IV. Prior Conviction Admissible to Impeach

Next, defendant contends and the State concedes that

the trial court erred in admitting defendant’s 17-year-old

burglary conviction for the purposes of impeachment.

However, the State goes on to argue that the error was

harmless, since the brief mention of the prior conviction

had no impact on the fairness of defendant’s trial. In

response, defendant maintains that the State did not meet

its burden of showing that the error was harmless.

A trial court’s decision allowing a defendant’s credibil-

ity to be impeached through the use of a prior criminal

conviction is a matter within the court’s discretion. People

v. Williams, 173 Ill. 2d 48, 81, 670 N.E.2d 638 (1996). In

People v. Montgomery, 47 Ill. 2d 510, 516-19, 268 N.E.2d

695 (1971), our supreme court adopted proposed Rule 609

of the Federal Rules of Evidence (Fed. R. Evid. 609),

regarding the admissibility of a criminal defendant’s prior

conviction for impeachment purposes. See People v. Haw-

kins, 243 Ill. App. 3d 210, 222-23, 611 N.E.2d 1069 (1993).

Under Montgomery, a prior conviction is admissible to

impeach the credibility of a testifying defendant if: (1) the

conviction was for a crime punishable by death or impris-

onment for more than one year; or (2) the conviction was for

a crime involving dishonesty or false statement. In addi-

tion, in either case, the prior conviction is not admissible

App. 23

if: (1) it is more than 10 years old; or (2) the conviction’s

probative value is substantially outweighed by the danger

of unfair prejudice. Montgomery, 47 Ill. 2d at 516.

As previously mentioned, the State acknowledges that

defendant’s January 1986 burglary conviction was too

remote in time to be admissible as impeachment evidence

under the Montgomery 10-year rule, but goes on to argue

that the trial court’s error in this regard was harmless.

Defendant responds that the State has not met its burden

of showing that the error was harmless.

Harmless error is determined by considering the

entire record and the particular facts of each case. People

v. Dunn, 326 Il. App. 3d 281, 287, 760 N.E.2d 511 (2001).

In order for a trial error to be considered harmless, there

must be no reasonable probability that the outcome of the

trial would have been different if the error had not oc-

curred. People v. Flournoy, 336 il. App. 3d 739, 746, 784

N.E.2d 353 (2002). In this case, a review of the evidence

leads us to conclude that there is no reasonable probability

that the verdict would have been different had the evi-

dence of defendant’s prior burglary conviction not heen

admitted.

Disclosure of the impeaching burglary conviction was

minimal. The direct inquiry comprised six lines of tran-

script and mainly consisted of a single question that was

answered in the affirmative:

“[Defense counsel]: So, you were 25 years old back in

1986?

Defendant}: Yes. Well, -

[Defense counsel]: And were you convicted of bur-

glary then?

App. 24

[Defendant]: Yes, I was.

[Defense counsel]: Back then?

[Defendant]: Yes.”

Nothing more was said about the burglary conviction

on direct examination and the prosecutor asked nothing

about the conviction on cross-examination or in closing

argument. The trial lasted four days and the record is

relatively lengthy. Under these circumstances it is not

reasonably probable that a single question regarding

defendant’s burglary conviction could have been a material

factor in the jury’s determination of defendant’s guilt such

that without the evidence of the prior conviction the

outcome of the murder trial would have been different.

Second, regardless of the admission of defendant’s

prior conviction for burglary, defendant’s credibility was

impeached by properly admitted evidence of defendant’s

prior criminal activity. For example, defendant admitted

on direct examination that he was a member of the BDs

for 5 years and attained the rank of co-minister in the

gang’s drug selling operation until sometime in 1993 or

1994. In sum, nothing in the record suggests that defen-

dant was convicted based on anything other than the

properly admitted evidence against him establishing his

participation and planning of the June 19, 1995, fatal

shooting. Accordingly, the trial court’s error in allowing

admission of defendant’s prior burglary conviction for the

purpose of impeaching defendant’s credibility was harm-

less error.

App. 25

V. Jury Instruction

Defendant next maintains that the trial court commit-

ted reversible error in refusing to issue his tendered

instruction on the lesser offense of involuntary man-

slaughter, arguing that there was evidence in the record

that would permit the jury to find him guilty of involun-

tary manslaughter rather than murder. Defendant con-

tends that the evidence supported an instruction on

involuntary manslaughter since the jury could have

reasonably believed that he did not intend to kill rival

gang members but only to scare them. The State responds

that the trial court did not err because the evidence does

not indicate that defendant acted recklessly. We agree

with the State.

We review a trial court's refusal to issue a tendered

jury instruction under an abuse of discretion standard.

People v. Williams, 315 Ill. App. 3d 22, 31, 732 N.E.2d 767

(2000). When there is credible evidence in the record that

would reduce the crime from murder to manslaughter, an

instruction defining the lesser crime should be given, even

where the evidence is very slight. People v. Jefferson, 260

Il]. App. 3d 895, 911, 631 N.E.2d 1374 (1994); People v.

Jones, 175 Ill. 2d 126, 132, 676 N.E.2d 646 (1997). How-

ever, an involuntary manslaughter instruction is not

warranted where the evidence reveals that the defendant

voluntarily and willfully committed an act that had the

natural tendency to cause death or great bodily harm.

People v. Foster, 119 Ill. 2d 69, 87-88, 518 N.E.2d 82 (1987).

The basic difference between involuntary manslaugh-

ter and first-degree murder is the mental] state that

accompanies the conduct resulting in the victim's death.

People v. Eason, 326 Ill. App. 3d 197, 209, 760 N.E.2d 519

App. 26

(2001), citing People v. DiVincenzo, 183 Ill. 2d 239, 249,

700 N.E.2d 981 (1998). Murder requires the intent to kill

or do great bodily harm, or knowledge that one’s acts

create a strong probability of death or great bodily harm

(720 ILCS 5/9-1(a\(1), (2) (West 1998)), while involuntary

manslaughter requires only reckless conduct which causes

death (720 ILCS 5/9-3(a) (West 1998)). In regard to reck-

less conduct the statute provides:

“A person is reckless or acts recklessly, when he

consciously disregards a substantial and unjustifiable

risk that circumstances exist or that a result will fol-

low, described by the statute defining the offense; and

such disregard constitutes a gross deviation from the

standard of care which a reasonable person would ex-

ercise in the situation.”

In the instant case, it is highly doubtful that a jury

could have believed that defendant merely acted recklessly

when he ordered his fellow gang members to “spray” rival

gang members with bullets, or where after he was told

about the shooting, he allegedly responded that he ex-

pected to see “something in the newspaper,” or see “some

ambulances or something.” Granted, there was no evi-

dence presented that the female victim was targeted.

However, the evidence clearly established that rival gang

members were targeted.

Defendant’s contention that he did not intend to kill

rival gang members but only to scare them, was insuffi-

cient to create a jury question on the issue of recklessness.

Our courts have held that when a defendant intends to fire

a gun, points that gun in the general direction of his

intended victim and shoots, such conduct is not reckless,

regardless of the defendant’s claim that he did not intend

to kill anyone. Jefferson, 260 Ill. App. 3d at 912; Eason,

App. 27

326 Il]. App. 3d at 209-10. Therefore, the trial court did not

err in denying defendant’s request for an involuntary

manslaughter instruction.

VI. Shifting the Burden of Proof

Defendant next contends that the prosecutor shifted

the burden of proof during closing argument when he

commented on defendant’s failure to call three alibi

witnesses. Defendant has waived this issue by failing to

object to the prosecutor’s comment at trial. An allegation

that a prosecutor’s comment made during closing argu-

ment was in error, is waived on appeal if the defendant

fails to object to the comment at trial and raise the issue in

a post-trial motion. People v. Durham, 252 Ill. App. 3d 88,

95, 623 N.E.2d 1010 (1993). In addition, since the evidence

was not closely balanced or the alleged error so fundamen-

tal that it denied defendant a fair trial, the plain error rule

is inapplicable. See People v. Thomas, 178 Ill. 2d 215, 235,

687 N.E.2d 892 (1997) (stating that a reviewing court

should examine a waived issue under plain error doctrine

where the evidence is closely balanced or the alleged error

is so fundamental that it denies defendant a fair trial).

Nonetheless, even absent waiver, defendant’s contention

would fail.

Throughout a trial, the burden of proof never shifts to

the accused, but remains the responsibility of the prosecu-

tion. People v. Weinstein, 35 Ill. 2d 467, 470, 220 N.E.2d

432 (1966). Therefore, even though the prosecutor is

allowed a great deal of latitude in making his opening

statement and closing argument, improper argument by

the prosecution attempting to shift the burden of proof to a

App. 28

defendant constitutes reversible error. People v. Yonker,

256 Ill. App. 3d 795, 798, 628 N.E.2d 1124 (1993).

Generally, it is improper for a prosecutor to attempt to

shift the burden of proof to the defendant by commenting

on defendant’s failure to call witnesses when such wit-

nesses are equally accessible to both parties. People v.

Brown, 222 Ill. App. 3d 703, 718, 584 N.E.2d 355 (1991).

However, an exception to this general rule exists where

the defendant is responsible for injecting a potential alibi

witness into the case, and then fails to produce that

witness at trial. See People v. Kubat, 94 Ill. 2d 437, 498,

447 N.E.2d 247 (1983) (stating, “where a defendant injects

into the case the name of an alibi witness and then fails to

cal] the witness, the prosecutor may legitimately comment

on the lack of such evidence although it may not be relied

upon as proof of the charge”).

Here, the existence of potential alibi witnesses was

interjected into the case by the defendant. Defendant’s

alibi defense was that at the time the offense was commit-

ted, he had left the Inter-City Youth Found?tion, located at

4500 South Michigan Avenue, and was driving three

students from the foundation to their respective homes.

See People v. Woods, 292 Ill. App. 3d 172, 176, 684 N.E.2d

1053 (1997) (noting that a defendant may inject alibi

witnesses into a case through his own testimony). On

cross-examination, defendant testified that he could not

remember the names of the three students. During closing

argument, the prosecutor responded to defendant’s lack of

memory regarding the students’ names, stating, “You

know, and this supposed alibi, where are these students?

He can’t even name any of the students. Wouldn't that be

something important or if he knows them from the Youth

Foundation, he’s going to know their names if he actually

App. 29

worked there like he did.” Since the existence of the three

student witnesses who would provide defendant’s alibi was

interjected by the defendant himself, the prosecutor’s

comment regarding defendant's failure to produce these

witnesses at trial was not improper. See People v. Jackson,

299 Ill. App. 3d 104, 111-12, 700 N.E.2d 736 (1998); People

v. Lewis, 243 Ill. App. 3d 618, 627, 611 N.E.2d 1334 (1993);

People v. Brooks, 297 Ill. App. 3d 581, 584, 697 N.E.2d 343

(1998).

VII. Reasonable Doubt

Lastly, defendant contends that the State failed to

prove him guilty beyond a reasonable doubt, arguing that

telephone records and hospital emergency room records

that were admitted into evidence set forth a timeline,

which made the State’s theory of the case physically

impossible. Defendant maintains that telephone calls

placed from his house to the homes of Eddie Frazier and

Jamal Harmon on the date of the shooting, make it impos-

sible for him to have committed the offense in the manner

described by the State witnesses.

Defendant argues that if his home phone was used by

Eddie Frazier at 9:05 p.m. to return his father’s page, and

Frazier left defendant’s house immediately after speaking

with his father, and the shooting occurred at 9 p.m. or very

shortly thereafter, then it would have been physically

impossible for defendant and his fellow gang members to

have had enough time to plan and then execute the 9 p.m.

shooting after Fraizer left defendant’s home in response to

the page. We disagree.

Fraizer testified at tral that on the date of the shoot-

ing, he arrived at defendant’s house at approximately 8

App. 30

p.m. At the time, defendant was discussing plans for the

shooting with fellow gang members. After about 10 to 15

minutes, Fraizer received a page from his father. Fraizer

went upstairs in defendant’s house and used defendant’s

telephone to return his father’s page. After speaking with

his father, Fraizer went home. Fraizer testified that he

was not at defendant’s house when everyone left for the

park to carry out the shooting. Fraizer returned to defen-

dant’s house approximately 45 minutes later.

The record does not indicate that Fraizer’s testimony

renders it physically impossible for defendant to have

participated in the offense. For example, the record shows

that defendant was discussing plans for the shooting with

other gang members before Fraizer arrived at defendant’s

house. Evidence was presented that it took less than five

minutes to drive from defendant’s house to the park.

Evidence was also presented that after defendant drove to

the park and left his fellow gang members there to do the

shooting, he and April Alston arrived back at his house

within approximately 10 minutes. This timeline evidence

makes it entirely possible for someone at defendant’s

house to have placed a telephone call from the house to

Fraizer’s home at 9:05 p.m., in order to inform Fraizer

that the retaliatory shooting had been carried out, either

just before the shooting actually occurred or even while it

was occurring.

Defendant assumes that the call made from his house

to Fraizer’s house at 9:05 p.m., is the call Fraizer made

returning his father’s page. However, this is not the only

possible scenario. It is also quite possible that Fraizer

returned his father’s page at approximately 8:15 p.m., as

he testified, but that he used defendant’s cellular tele-

phone or someone else’s cellular telephone instead of

App. 31

defendant’s landline. Evidence was presented that defen-

dant owned and used a cellular telephone. It is also

possible that after defendant and his fellow gang members

left for the park, someone who stayed behind at defen-

dant’s house called Fraizer’s house. In short, telephone

records showing that a telephone call was placed from

defendant’s house to Fraizer’s house at 9:05 p.m., does not

conclusively prove anything about the timeline of the

actions that led to A.Z.’s death.

Defendant also contends that if a telephone call was

placed from his house to Jamal Harmon’s house at 9:06

p.m., as telephone records show, then it would have been

physically impossible for Harmon to have left his house

after receiving the call at 9:06 p.m., drive to defendant’s

house, participate in a discussion on the front porch of

defendant’s house regarding the planned shooting, retrieve

firearms from defendant’s house, drive to Marquette Park

where the shooting occurred, participate in the shooting,

and still have the victim being examined in the hospital

emergency room at 9:20 p.m.

Again, defendant assumes that Harmon was at home

tu receive the ¥:U6 p.m. telephone call. It is possible that

the call was placed by someone at defendant’s house, after

the shooting, who thought that Harmon headed home once

he left the park. Harmon did not testify, and there was no

evidence presented that he arrived at defendant’s house in

response to a telephone call from defendant.

Where a defendant challenges the sufficiency of the

evidence to support his conviction, the relevant inquiry for

a reviewing court is whether, after viewing the evidence in

the light most favorable to the State, any rational trier of

fact could have found the essential elements of the offense

App. 32

beyond a reasonable doubt. People v. Pryor, 282 Ill. App. 3d

92, 97, 668 N.E.2d 1090 (1996). “Under this standard, a

reviewing court will not substitute its judgement for that

of the trier of fact on issues of weight of evidence or the

credibility of witnesses.” People v. Belk, 326 Ill. App. 3d

290, 296, 760 N.E.2d 118 (2001).

It is the jury’s function to determine the accused’s

guilt or innocence, and a conviction will not be overturned

unless the evidence is so improbable as to justify a reason-

able doubt of defendant’s guilt. People v. Eyler, 133 Ill. 2d

173, 191, 549 N.E.2d 268 (1989). The trier of fact must

evaluate the inferences to be drawn from the evidence,

assess the credibility of the witnesses, determine the

weight to be given their testimony and resolve any eviden-

tiary conflicts. People v. Young, 128 Ill. 2d 1, 51, 538

N.E.2d 461 (1989). Moreover, a jury is not required to

accept defendant’s version of events but rather must

consider the probability or improbabilities of his testi-

mony, the circumstances surrounding the incident, and the

testimony of other witnesses. People v. Ranola, 153 Ill.

App. 3d 92, 98, 505 N.E.2d 1191 (1987).

In the present case, the jury was not required to

accept defendant’s version of events. Defendant argued his

timeline theory extensively to the jury, using a chart as

demonstration. The jury obviously rejected defendant’s

theory when it found him guilty. On this issue, it is not our

province to second-guess the jury’s verdict or retry defen-

dant on appeal. See People v. Lee, 342 Ill. App. 3d 37, 49,

795 N.E.2d 751 (2003) (stating, “(t]he credibility of wit-

nesses and the weight given their testimony are primarily

within the province of the fact finder”); People v. Sykes,

341 Ill. App. 3d 950, 982, 793 N.E.2d 816 (2003) (stating

that it is not the function of a reviewing court to retry a

App. 33

defendant or substitute its judgment for that of the fact

finder on questions involving the weight of the evidence or

the credibility of witnesses). Our review of the presented

evidence indicates that the jury could have found the

essential elements of the crime proven beyond a reason-

able doubt. We, therefore, hold that the evidence in this

case was sufficient to support defendant’s conviction.

Accordingly, for the reasons set forth above, the

judgment of the circuit court of Cook County is affirmed.

Affirmed.

HALL, J., with HOFFMAN, P.J., and KARNEZIS, J.,

concurring.

App. 34

2007 Ill. LEXIS 929,*

1 of 1 DOCUMENT

People State of Illinois, respondent,

v. Michael Thompson, petitioner.

No. 98019

SUPREME COURT OF ILLINOIS

2007 Ill. LEXIS 929

May 31, 2007, Decided

NOTICE: DECISION WITHOUT PUBLISHED OPIN-

ION

PRIOR HISTORY:

Leave to appeal, Appellate Court, First District. (1-02-

1964).

OPINION

Petition for leave to appeal denied.

App. 35

RE: INVESTIGATION (FATAL SHOOTING OF ARACELI

ZIZUMBO)

STATEMENT

of

EUGENE WISEMAN,

taken in an interview room, 2nd floor, Area 1 Headquar-

ters, 5lst and Wentworth, Chicago, Cook County, Illinois,

on June 27, 1995, at 11:59 a.m.

PRESENT: MR. JAMES G. PIPER, JR.

MS. DOMINICA STEPHENSON

Assistant State’s Attorney

Detective T. Coughlin,

Star No. 20983

Area 1 Violent Crimes

Reported By: Janet K. Lupa

Book No. 9506-27

MR. PIPER: Let the record reflect that we are in

a room at Area 1 Violent Crimes. Todav’s date is June 27.

1995. The time is 11:59 a.m.

Present in the room with me, Assistant State’s Attor-

ney James G. Piper, Jr., are Detective Thomas Coughlin,

Star No. 20983 and Assistant State’s Attorney Dominica

Stephenson, the court reporter, and Eugene Wiseman.

We are here to take the statement of Eugene Wiseman

(2) concerning the investigation of the fatal shooting of

Araceli Zizumbo which occurred on June 19, 1995 at

approximately 9:25 p.m. at 6930 South Redfield, Chicago,

Cook County, Illinois.

App. 36

EXAMINATION

BY MR. PIPER:

Q. Eugene Wiseman, | talked to you earlier and

explained that I am an Assistant State’s Attorney, a lawyer

and prosecutor, and not your lawyer; is that correct?

A. Yes.

@. And before we spoke, I advised you of your consti-

tutional rights, is that correct?

A. Yes.

Q. Iam going to read you your nights again.

Do you understand that you have a right to remain

silent?

A. Yes.

Q@. Do you understand that anything you say can be

used against you in a court of law?

A. Yes.

Q. Do you understand you have the right to talk to a

lawyer and have him present with you while you are being

questioned?

A. Yes.

Q. Do you understand if you cannot afford to hire a

lawyer, and you want one, a lawyer will be appointed by

the Court to [3] represent you before any questioning?

A. Yes.

Q. Understanding these mghts, do you wish to talk

to us now?

A.

Q.

App. 37

Yes.

Now, Eugene, your full name is Eugene Wiseman,

is that correct?

>

Q.

> Orr OoPrP OP OPO? OO

Yes.

And do you have a nickname?

Yes.

What is that nickname?

Mann.

Now, Eugene, how old are you?

18.

And what is your date of birth?

February 15, 1977.

Now, how far did you go in school?

Sophomore.

Do vou read English?

A little.

Do you write English?

A little.

Now, earlier today did you read the first sentence

from |4] the article entitled “Aunt Won’t Kill Cat to Save

Girl From Rabies Shots” from the Chicago Sun-Times,

Monday, June 26, 1995 edition?

A.

Yes.

Q.

A.

Q.

first sentence, correct?

A.

Q.

> OP Hr PHP HF Oo PP

App. 38

That article was on the first page, correct?

Yes,

And you didn’t have any difficulty reading that

No|, I had no difficulty. /s/ JP E.W. DAS T.C.]

Now, Eugene, where do you stay?

7216 South Claremont.

And with whom do you stay?

My sisters.

And do you have a girlfriend right now?

Yes.

What is her name?

Kelly Collins.

And do you have a child with her?

Yes.

And is that a boy or a girl?

A girl.

What is your daughter’s name?

Shannon.

Now, Eugene, do you belong to a gang?

(5) A. Yes.

Q.

What gang is that?

App. 39

A. Black Disciples.

Q. How long have you belonged to the Black Disci-

ples?

A. Ayear and a half.

Q. Now, Eugene, I want to focus your attention to

June 19, 1995, now on June 19, 1995 did you hear about

something unusual thlat /s/ JP E.W. DAS T.C.] took place

on June 18, 1995?

A. Yes.

Q. Who told you this?

A. Jamal.

Q. Now, how long have you known Jamal?

A. For a year and a half..

Q. Is Jamal also a Black Disciple?

A. Yes, Black Disciple.

Q. And is the short name for that Black Disciple BD?

A. Yes.

Q. I'm showing you what’s been marked as Exhibit

No. 1, just the front of the exhibit No. 1, is that correct?

A. Yes.

Q. Do you recognize the person in this photograph?

A. Yes.

Q. Who do you recognize it as?

16] A. Jamal.

App. 40

Q. What did Jamal tell you on June 19, 1995 about

what happened on June 18, 1995?

A. Told me that Eddie got shot in the head.

Q. Now, who is Eddie?

A. My First Demetrius.

Q. What does First Demetrius mean?

A. Meaning [It means /s/ JP E.W. DAS T.C.] he call

it for the block.

Q. And by saying he calls it for the block does that

mean he decides what goes on on the block?

A. Yes.

Q@. Is hea BD as well?

A. Yes.

Q. I’m showing you an exhibit marked Exhibit No. 2,

I’m showing you the front of that exhibit, correct?

A. Yes.

@. Do you recognize the person in this picture?

A. Yes.

Q. Whois that?

A. Eddie.

Q. And did Jamal! tell you who shot Eddie?

A. Yes.

Q. Who was that?

App. 41

\7} A. KGB's.

Q. What does KGB stand for?

A. Krazy Get Down Boys.

Q. Is that another gang?

A. Yes.

Q. And is that an opposing gang or enemy gang?

A. Enemy gang.

Q. Now, did Jamal tell you if somebody was with

Eddie when he had this trouble with the KGB’s?

A. Yes.

Q. Whce was that?

A. Derrick.

Q. Whois Derrick?

A. BD.

Q@. He’s a BD as well?

A. Yes.

Q. How long have you known Derrick?

A. For about five, six months.

- OP &

What is his position in the gang?

COS.

What is a COS?

Chief of Security.

App. 42

Q. Now, is Eddie’s position in the gang higher than

(8) Derrick’s?

A. Yes.

Q. I’m showing you an exhibit marked Exhibit No. 3,

just the front of that exhibit, correct?

A. Yes.

Q. Do you recognize the person in this photograph?

A. Yes.

Q. Who do you recognize it as?

A. Derrick.

Q. Now, you have told us that Derrick was a COS, is

that correct?

A. Yes.

Q. And Eddie is a First Demetrius, is that correct?

A. Yes.

Q. What is Jamal’s position?

A. Didn’t have a position.

Q. He’s a soldier, is that correct?

A. Yes.

Q. Is that your position as sj/s/ JP E.W. DAS

T.C.] well?

A. Yes.

Q. Now, when Jamal told you about what happened

to Eddie with the KGB’s the day before, what happened

App. 43

then? Did you go some [inserted space /s/ JP E.W. DAS

T.C.] place?

{9} A. Yes.

Q. Where did you go?

A. To look for the KGB’s.

Q. Where did you go to look for them?

A. Inthe park.

Q. What park is that?

A. Marquette Park.

Q. And did you actually go to Marquette Park?

A. Yes.

Q. Did you go there with Jamal?

A. Yes.

Q. When you got to the park what did you see?

A. The KGB’s on the bridge.

@. And were there a few or a lot of KGB’s on the

bridge?

A. Alot.

Q. When you and Jamal went to look for KGB’s did

you go alone or did some other BD’s go with you?

A. Yes.

Q. Who went with you?

A. Mickey, Putt, that’s it.

App. 44

Q. Now, when you saw that there were a lot of KGB’s

at Marquette Park what did Jamal do?

A. He told us to throw up the fork?.

[10] Q. And did you throw up the fork?

A. Yes.

What does that mean? What does that signify?

GD’s.

When you say GD’s what do you mean?

Another gang.

What gang is that?

Gangster Disciples.

or OP Oo PF &

And when you threw up the fork what happened

‘~~

then?

They didn’t touch us.

And why did you throw up the fork?

So they wouldn’t shoot at us.

And when you say they do you mean the KGB's?

> Oo P&P OD -

Yes.

Now, after you and the other BD’s threw up the

fork ad the KGB’s did not touch you, what happened

then?

A. One of them recognized us and told them.

Q. What did you do?

-P OP OP

App. 45

We drove off.

Where did you go from that point?

To my girlfriend’s house.

And at your girlfriend’s house what happened?

I got out the car and we started talking to the

dude that [11] was sitting on the porch.

Q.

And after you talked to the dude on the porch

what happened then?

A.

Q.

A.

Q.

A.

Kedzie.

Q.

A.

Q.

A.

Q.

We went over to Mike’s house.

Who is Mike?

Co-Min, Co-Minister.

What does Co-Minister mean?

It means he got the whole area from Halsted to

So Mike is also a BD?

Yes.

Is his rank higher than Eddie and Derrick?

Yes.

I’m showing you an exhibit marked Exhibit 4 just

the front of that picture, correct?

A.

Q.

A.

Yes.

Do you recognize the person in that picture?

Yes.

App. 46

Q. Who do you recognize that as?

A. Mike.

Q. Do you have a nickname you cal] Mike?

A. Yes, Mike D.

Q. Now, when you say that Mike D has the whole

area what do you mean?

(12] A. It means he call it for everybody from the 50’s

to the 70’s, 79th — to 79th.

Q. When you say he calls it, does that means he

decide, what happens?

A. Yes.

Q. Now, when you went to see Mike D with Jamal,

what happened then?

A. We sitting on the porch and Mike D said, yeah, he

asked Jamal did he know where they be at, and he said,

yeah, in the park.

Q. When you say he asked where ony be at who do

you mean?

A. KGB's.

Q. What did Jamal say?

A. At the park.

Q. What happened then?

A. Jamal say we want to go in the park and get them

and Mike D said let him see where the place they was at

and he'd find a way.

App. 47

Q. When Jamal said he wanted to go get them what

did you understand that to mean?

A. To shoot at them.

@. And then after Jamal said that what did Mike D

say?

A. Mike D, he was like, come over, we going to get in

the car ang we be fitting’ to see how we going to do it, how

we going to play it.

[13] Q. Now, what Mike and Jamal were talking

about going to get the KGB’s who was there other than

yourself?

A. Awhole bunch of us.

Q. Awhole bunch of BD's?

A. Yes.

Q. And then what did Mike D and Jamal do if

anything at that time?

A. They got in the car and they rode around looking

for them, how to get them, how to set it up.

Q. How to set up the shooting at the KGB’s?

A.

Q.

A.

Q.

A. Mike said it’s going to be easy as taking candy

from a baby.

Yes.

Were you there when they came back?

Yes.

What happened then when they came back?

App. 48

What happened then?

He asked where everybody was at.

Why did he ask that?

PO PP ©

. Because somebody was supposed to go with him

to do the shooting.

Q. What happened after he asked that?

A. He told me I was going with him.

[14] Q@. And then what did you do?

A. We stagged for a little while. He told April to get

the fuck off the porch.

Q. Who is April?

A. A first lady of all the BD’s.

Q. And I’m showing you an exhibit which has been

marked Exhibit No. 5, just the front of that exhibit,

correct?

A. Yes.

Q. Do you recognize the person in this photograph?

A. Yes.

Q. Who do you recognize it as?

A. April D.

Q. And now when Mike D told her to get off the

porch what did she do?

A. She got off the porch and got in the car with

Craig.

App. 49

Q. And what happened then?

A.

Me and Pretty Ricky jumped in the car with Craig

and then Mike was like, you all stupid, so I got out their

car and went to the car Mike and them was in.

Q.

A.

Q.

A.

How many cars were there?

Two.

Who was in the car with April?

Craig.

[15] Q. Was that Craig’s car?

Yes.

What car were you in?

The blue one.

And who was in control of that car?

Mike.

And who else was in the car other than Mike and

Jamal and Pretty Ricky.

And then where did the two cars go at that time?

To 70th across from California.

Whose car was Mike driving?

Jamal’s.

That was the blue car. correct?

Yes.

App. 50

Q. Which car was Craig driving?

A. Ared four-door.

Q. That’s his car?

A. Yes.

Q. Now, both cars went to Marquette Park, is that

correct?

A. Yes.

Q. What happened when you got to the park?

A. We got out the car and Mike told April to get in

the car with him. April got in the car with him and Mike

drove off. We [16] stood out the car and Mike pulled -.

Q. Who got out? Did anyone get out of Mike’s car?

A. Yeah.

Q. Who got out of Mike’s car?

A. Me, Jamal, and Pretty Ricky.

Q. And you, Jamal and Pretty Ricky, where did you

go after you got out of the car?

A. To Craig’s car.

Q. What happened when you got to Craig’s car?

A. We stood there.

Q. And after you stood there what happened?

A. Mike pulled back and told us to get [tr our /s/ JP

E.W. DAS T.C.) ass in the park and take care of that.

Q. What did you understand that to mean?

App. 51

A. Go shoot the KGB’s.

Q. So after Mike D said that to you guys what did

you do?

A. We got out the car. The bag was in the trunk.

Craig grabbed the bag —

Q. Did everyone get out of the car?

A. Yes.

Q. Did Pretty Ricky get out of the car?

A. Yes.

Q. What happened then?

[17] A. Craig grabbed the bag. Mike pulled back up

and told Craig pull the bag out and Pretty Ricky get in the

car and turn the car.

Q. Did Pretty Ricky turn the car?

Yes.

Did Craig still have the bag?

Yes.

What was in the bag?

> OF & >

The guns.

Q. What happened when Craig took the bag with the

guns out of the trunk?

A. We walked to the park.

Q. What happened? Where did you go in the park?

A. We sat at the bench.

App. 52

Q. Who sat at the bench?

A. Me, Jamal, Craig.

Q. And how were you dressed at that time?

A. In black and white.

Q. Did you have black pants?

A. Yes.

Q. And what color was your shirt?

A. White.

Q. And do you remember what Craig was wearing?

[18] A. No.

Q. What was Jamal wearing?

A. All black.

Q. And after the three of you sat at the bench with

the bag [what that /s/ JP E.W. DAS T.C.] had the guns

what happened then?

A. Craig start passing out the guns. Craig passed

[Jamal /s/ JP E.W. DAS T.C.) a gun and then he passed

me the gun.

Q. What kind of gun did Craig pass to Jamal?

A. Uzi

Q. And what kind of gun did he give yeu? [you

/s/ JP E.W. DAS T.C.]

A. .38.

«. What type of .38, a revolver or semiautomatic?

A.

or f+ O&O PO PY

App. 53

Revolver.

And were those guns loaded?

Yes.

And what kind of gun did Craig have?

A nine.

.9 millimeter gun?

Yes.

And after he passed out the guns what happened?

We walked over on the side. We walked on one

side — We walked on one side of the path and Jamal came

up the other side of the path.

[19] Q. Before you walked to the path and split up

did you do anything with your hands at that time?

A.

GO Pr Br DFP OY

Before we got the guns we put on gloves.

What kind of gloves did you put on?

Plastic.

Where did you get the glove from?

Jamal — I mean Craig.

Did Jamal receive a glove?

Yes.

What kind of glove did he have?

Plastic.

What kind of glove did Craig have?

©

> O& > O& Pp

App. 54

Leather, black gloves.

Did he have two gloves?

Yes.

You and Jamal only had one glove?

Yes.

And you received the gloves and the guns were

iemned to [yeu you /s/ JP E.W. DAS T.C.] and you began to

walk in the park, correct?

Q.

> © >

Yes.

Now, where were you standing?

By a hill.

In the park?

[20] A. Yeah, a hill of dust.

Q.

Were you standing alone or was there someone

there with you?

Craig was with me.

Where was Jamal standing in relation to you and

On the grass on the other side of the path.

Did you see any KGB’s at that time?

Yes.

Were they closer to you or closer to Jamal]?

Closer to Jamal.

App. 55

Q. And what happened when Jamal was on the other

side of the path closer to the KGB’s?

A. He let off a shot.

Q. After he let off a shot what did you do?

A. I heard other shots coming from this side but I

don’t know if it was his shot or what, so we started shoot-

ing back over here.

Q. Did you shoot your gun?

Yes.

In what direction did you shoot your gun?

Towards KGB’s.

or, ©

How many times did you shoot your gun?

A. ‘Twice or three times.

[21] Q. What did Craig do?

A. He tried to shoot but his gun was jammed.

Q. What did vou notice about Jama! after he shut the

first time?

A. He started letting it off.

Q. What do you mean by that?

A. He started busting a lot of times, like pow-pow-

pow-pow-pow-pow.

Q. So Jamal shot many times quickly with his gun?

A. Yes.

Q. Couid you see in what direction he was shooting?

/

Q.

> © > © >

App. 56

Yes.

In which direction was that?

Towards the KGB's.

Jamal shot first before the KGB’s, is that correct?

Yes.

Now, after you and Jamal were shooting in the

direction of the KGB people what happened then?

A.

Jamal start coming towards us and he broke and

we broke on the side.

Q.

A.

Q.

Where did you go after that?

Back to the car.

Who was in the car?

{22} A. Pretty Ricky.

Q.

A.

Q.

A.

And whose car was that?

Craig's.

When you go to the car what happened then?

We got to the car. We put the guns in the trunk.

Then we got in the car.

Q. When you got back in the car what did you do?

A. We pulled off.

Q. After you pulled off - who was driving when you

pulled off?

A. Craig.

App. 57

Q. And who else was in the car other than yourself

and Craig at that time?

A. Jamal and Pretty Ricky.

Where did Craig drive to?

Back to Mike’s house.

Was Mike there when you got back?

Yes.

Or © & &

What happened when you got to Mike D’s house?

A. Jamal took the guns out the trunk, took them

straight upstairs and Mike came down and he asked us

what happened.

Q. What did you say?

A. We was like we busted them. And then Jamal was

like, [23] man, I had to hit a couple because all I seen was

people falling when we was walking away from them.

Then Mike came to us and Craig said, I’m not going to lie

to you, | didn’t bust nothing because my gun jammed. And

i said ] busted about three times.

Q. You told Mike D you shot two or three times?

A. Yes.

Q. What was his response?

A. His response was, man, I just better hear some-

thing in the newspaper or [yew I'm /s/ JP E.W. DAS T.C.]

going to see some ambulances or something.

Q. What did you understand him to mean by that?

A. He wanted to know business was took care of.

App. 58

Q. You mean shooting at the KGB’s when you say

business?

A. Yes.

Q. When Jamal took the guns into Mike D’s house

were they inside something then?

A. Yes.

Q. What were they in?

A. Abag.

Q. That was the same bag they had taken out of the

trunk?

A. Yes.

Q. Did you talk to Mike D again later?

A. Yes.

Q. Did you talk to him about the shooting?

\24) A. Yes.

Q. And did you talk to him on the phone or in per-

son?

A. On the phone.

Q. What did he say to you?

A. He asked me — he told me that the police was

looking for us and to lay low and don’t show my face

outside. And [ was like all right. Then I was like, no, man,

like, man, I'm just fittin’ to go home .

Q. What did he say?

App. 59

A. He said {sent don’t /s/ JP E.W. DAS T.C.] let me

hear you tricking off on me.

Q. When he said that what did you understand that

to mean?

A. Well, something is going to happen to me.

Q. Did he tell you anything to say to the police?

A. Yes.

Q. What was that?

A. That he had nothing to do with it. He was on the

porch all the time.

Q. And is that the last time you talked to Mike about

this incident, the shooting?

A. Yes.

Q. Now, Eugene, at the time of the shooting were you

under the effects of alcohol?

A. No.

125] Q. Were you under the effects of drugs at the

time of the shooting?

A. No.

Q. What did you do with your glove that you had

used at the time of the shooting?

A. I burnt it.

Q. Where did you burn it in?

A. Inthe garbage.

App. 60

Q. Eugene, I’m showing you a piece of paper that’s

been marked Exhibit No. 6, [se do /s/ JP E.W. DAS T.C.]

you recognize that piece of paper?

A. Yes.

Q. What do you recognize it as?

A. My drawing.

Q. That’s a drawing of what?

A. The park.

Q. There are numerous drawings on the piece of

paper, one of them is a stick man with a J underneath it,

what does that mean?

A. Jamal

Q. And that’s where he was located in the park?

A. Yes.

Q. That’s where he was located at the time of the

shooting?

A. Yes.

-Q. And there is also a stick man with the letter M

|26] underneath it, what does that symbolize?

A. Me.

Q. And there is a stick man with the letter C under-

neath it, what does that symbolize?

A. Craig.

Q. There is a drawing with the word bench next to it,

what does that symbolize?

App. 61

That’s where we was at. That’s where we sat at.

Is that where Craig handed out the guns?

Yes.

There is a drawing with the word car next to it?

That’s where the car was at

Whose car was that?

Craig’s.

Was that the car you used to get away?

re? 82 * © Pa ?

Yes.

Q@. There are two drawings that have the letters

KGZ6 KGB /s/ JP E.W. DAS T.C.) above the, what does

that symbolize?

A. Another gang.

Q. Does it describe their location in the park?

A. Yes.

Q. Now, the position of the stick man with the M

below, the stick man with the C below it, the stick man

with the J below, and |27] the position of the spot with the

KGB’s, that’s the way the positions were at the time Jamal

fired the first shot, is that correct?

A. Yes.

Q. And there is an arrow leading from it away from

the one KGB, what does that signify?

A. When they ran out and started busting towards

Jamal.

Q.

App. 62

When you say started busting towards Jamal,

what do you mean by that?

A.

Q.

Shooting towards him.

Now, Eugene, how have you been treated by the

Assistant State’s Attorneys, myself, Miss Thomas and

[M]miss /s/ JP E.W. DAS T.C.] Stephenson?

A.

>

Oo Pp O&O F&F B&F Do Po

Very good.

How have you been treated by the police officers?

Very good.

Have you been given anything to eat?

Yes.

What have you been given to eat?

Some pancakes and sausage from McDonald’s.

Have you been given anything to drink?

Yes.

What's that?

Orange juice.

{28) Q@. Have you been allowed to go to the bathroom

when you needed to?

A.

Q.

A.

Q.

Yes.

How many times have you gone to the bathroom?

Four.

[Where /s/ JP E.W. DAS T.C.] Were you allowed

to smoke any cigarettes?

App. 63

Yes.

And who gave you the cigarettes?

Officers and you and another attor*ey.

Another State’s Attorney?

Pe er PF

Yes.

Q. Now, the whole time that we were talking now

and when I talked to you earlier you weren't handcuffed, is

that correct?

A. Yes.

Q. Now, no threats or promises have been made to

you in return for your statement, correct?

A. No.

Q. It’s correct that no threats or promises have been

made to you?

A. Yes.

Q. Have you given this statement freely and volun-

tarily? |/s/ JP E.W. DAS T.C.]

A. Yes.

Q. Are you now free from the effects of drugs and

alcohol?

[29} A. Yes.

Q. Eugene, the court reporter will now type up your

statement and /veu we /s/ JP E.W. DAS T.C.] will then

read over the entire statement together and you will be

allowed to make any additions or corrections that |y-eu

you /s/ JP E.W. DAS T.C.]| wish, do you understand that?

App. 64

A. Yes.

MR. PIPER: This will conclude the statement of

Eugene Wiseman. The time is now 12:26 p.m.

/s/ X Eugene Wiseman

WITNESSES TO SIGNATURE:

/s/ ASA James G. Piper Jr.

/s/ ASA Dominica Stephenson

/s/ Thomas M. Coughlin