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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 2007

## Text

(|) “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- 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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386009_1375%3A1. Public record. Not legal advice.