People v. King

SIXTH DIVISION

12/12/97

No. 1-94-3798

THE PEOPLE OF THE STATE OF ILLINOIS,

Plaintiff-Appellee,

v.

ROBERT KING,

Defendant-Appellant.)
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)Appeal from the
Circuit Court of
Cook County

Honorable
Earl Strayhorn,
Judge Presiding.


JUSTICE QUINN delivered the opinion of the court:
Following a jury trial, defendant was convicted of first
degree murder and sentenced to a term of 40 years' imprisonment.
On appeal, defendant contends that: (1) the trial court erred in
refusing to provide the jury with a second degree murder
instruction; (2) defendant was prejudiced by the admission of
evidence of another crime; and (3) the trial court considered an
improper factor in sentencing defendant. Jurisdiction is vested in
this court pursuant to Supreme Court Rule 603 (134 Ill. 2d R. 603).
For the following reasons, we affirm.
The relevant facts are as follows. According to defendant's
court reported statement, on September 3, 1991, defendant was
recruited by fellow gang member Charles Murphy to participate in a
shooting. Murphy approached defendant while defendant was standing
on the street and asked defendant whether he owned a gun.
Defendant responded affirmatively and walked across the street
where he retrieved a .38 caliber revolver. Murphy then told
defendant to, "[g]o take care of business." Defendant understood
that to mean that he was to, "shoot the boys that did something to
him [Murphy] earlier in the day."
Murphy drove defendant to a location where defendant retrieved
bullets for the gun. Murphy then drove defendant down an alley and
pointed out the group of people on a porch that he wanted defendant
to shoot. Murphy parked his car a block away and defendant exited
the car. As defendant was walking down the alley, defendant saw
one of the people on the porch "reaching" which caused defendant to
pull out his gun and fire six shots in the direction of the porch.
Defendant did not see a gun in the hand of the person who was
"reaching." In fact, defendant did not see anyone on the porch
holding a gun. One of defendant's shots fatally wounded Rodney
Maholmes.
After the shooting, defendant fled the scene and heard
gunshots behind him. According to defendant, the shots were not
being fired from the porch. Defendant then hid the gun and ran
back to the car.
At trial, Carla Carthen testified that she was on the porch
the night of the shooting. At approximately 10:00 p.m., she saw
defendant, who was wearing a green Starter jacket, walk past the
porch with another individual. The two came within 15 feet of the
porch and Carthen heard them yell "G.D." Three to five minutes
later, defendant and the other offender returned and fired shots at
the porch. Carthen ran into the house and heard someone say that
the victim had been shot. Carthen then turned on the lights and
saw the victim lying on the ground and bleeding. On September 4,
1991, Carthen identified defendant in a police line-up as one of
the shooters. According to Carthen, no one on the porch had a gun.
Tony Allen also was present on the porch on the night of the
shooting. Allen corroborated Carthen's version of the events,
although he was unable to identify defendant when he first walked
past the porch. Allen, however, did identify defendant in a police
line-up the day after the shooting and testified that the
individual who fired the gun was wearing a green Starter jacket.
On September 4, 1991, Detective Tony Maslanka arrested
defendant a couple of blocks away from the scene of the shooting.
At the time of his arrest, defendant was wearing a green Starter
jacket. Defendant initially denied any involvement in the
shooting, but later confessed to his involvement and provided the
court reported statement summarized above. Detective Maslanka
testified on cross-examination that he knew that defendant was 16
years old prior to his arrest. Detective Maslanka then confirmed
that in his supplementary police report he wrote that he learned
defendant's age after reading defendant his Miranda rights.
The parties stipulated that the cause of death was a single
gunshot wound to the back. The parties further stipulated that if
firearms examiner Richard Chenow were called to testify that he
would identify the bullet retrieved from the victim's body as a .38
caliber bullet.
Defendant's trial testimony was substantially similar to his
court reported statement. At trial, however, defendant never
testified that he went with Murphy to shoot someone. Rather,
defendant testified that he went with Murphy after a fellow gang
member by the name of Terry Bell asked him to go to "Dee-Dee's"
house with him. Defendant confirmed, however, that he was asked to
retrieve his gun and that he brought his .38 caliber gun with him.
Defendant did not testify that he stopped to retrieve ammunition
for the gun.
Defendant further testified that upon arriving at the scene,
both he and Bell walked down the alley. Defendant and Bell walked
past the porch once and Bell yelled out their gang affiliation to
avoid an "unnecessary confrontation." When Bell and defendant
returned to the porch, defendant saw one of the occupants make a
movement as though he were going to pull a gun out, and defendant
responded by firing his gun about three times in the direction of
the porch. Defendant testified that he pulled his gun out of his
pocket because he felt threatened.
After deliberations, the jury found defendant guilty of first
degree murder. Following a sentencing hearing, the trial court
sentenced defendant to 40 years' imprisonment.
Defendant initially maintains that the trial court erred when
it refused to provide a jury instruction on second degree murder
based on an unreasonable belief in self-defense.
The relevant portion of the second degree murder statute
provides that:
"(a) A person commits the offense of second degree murder when
he commits the offense of first degree murder *** and ***
(1) At the time of the killing he believes the circumstances
to be such that, if they existed, would justify or exonerate
the killing under the principles stated in Article 7 of this
Code [justifiable use of force], but his belief is
unreasonable." 720 ILCS 5/9-2 (West 1994).

A defendant is entitled to jury instructions on the defenses which
the evidence supports, even where the evidence is "slight." People
v. Everette, 141 Ill. 2d 147, 156, 565 N.E.2d 1295 (1990).
However, there is a minimum standard which must be met before an
instruction is justified. People v. Bell, 191 Ill. App. 3d 877,
885, 548 N.E.2d 397 (1989). A second degree murder instruction
should not be provided where, "the evidence clearly demonstrates
that the crime was murder and there is no evidence upon which a
jury might find the defendant guilty of manslaughter[fn1]."
People v. Lockett, 82 Ill. 2d 546, 551, 413 N.E.2d 378 (1980).
In the present case, we find that the trial court properly
declined to instruct the jury on second degree murder. Defendant
maintains that such an instruction was warranted by his testimony
that he felt threatened when he saw an individual on the porch make
a movement as though he were reaching for a gun. However, even if
defendant did possess an unreasonable belief in self-defense, we
note that defendant testified that he responded by firing shots at
the porch where several people were standing, not at the individual
who made the alleged threatening movement. Such action does not
denote self-defense.
Defendant also maintains that the trial court erred in not
providing the second degree murder instruction because the trial
court based its refusal to instruct on the court's assessment of
defendant's credibility. At the instruction conference, the trial
court rendered the following ruling on defendant's motion for a
second degree murder instruction:
All right. Prepare your second degree degree [sic]
instruction, I will mark it refused.
There is no evidence aside from the defendant's own self-
serving statement for the first time given to anyone that this
Court knows of here under oath at his trial that he saw anyone
attempt to, as he states, up with a weapon.
I don't think that that is sufficient evidence to support
the giving of the second degree instruction. This offense,
from the facts is murder or it is not guilty. One or the
other.
* * *

While the court's remarks do call into question defendant's
credibility, they also address the insufficiency of evidence to
support the giving of a second degree murder instruction. A
trial court cannot refuse an instruction based on its view of a
witness' credibility. People v. Roberts, 265 Ill. App. 3d 400,
403, 638 N.E.2d 359 (1994). Still, there is a minimum standard
which must be met before an instruction is justified. Bell, 191
Ill. App. 3d at 885. Here, defendant's own testimony at trial
did not support the existence of even an unreasonable belief in
self-defense. The trial court determined that the threshold for
issuing the instruction had not been met, and we find no error.
Defendant next alleges that he was prejudiced by the
admission of evidence of another crime. As noted above, during
the State's case-in-chief Detective Maslanka testified on cross-
examination that he knew defendant's age prior to defendant's
arrest. Detective Maslanka then admitted that he wrote in a
supplementary report that he learned defendant's age after he
provided defendant with his Miranda rights. The prosecutor did
not attempt to rehabilitate Detective Maslanka on this issue on
re-direct examination. However, after Detective Maslanka was
cross-examined as to this same issue during the State's case-in-
rebuttal, the following exchange took place:
A.S.A: Detective Maslanka, you testified that prior to
the defendant's arrest you knew he was 16,
correct?

Maslanka: That is correct.

A.S.A.: Tell the ladies and gentlemen of the jury how you
knew that?

Maslanka: It was learned through investigation that Robert
King had been a suspect in another --

Defense Counsel: Objection.

***

Court: Overruled

A.S.A.: You may finish your answer, Detective.

Maslanka: Through investigation it was learned that
approximately 2 days prior to his arrest Robert
King had been in area 3 as a suspect in a separate
homicide investigation.

Defendant maintains that introduction of the other crime evidence
constitutes reversible error. The State responds that evidence
of the separate murder investigation was properly introduced to
dispel the inference that Detective Maslanka lied about when he
learned defendant's age.
Evidence of other crimes is not admissible to show a
defendant's propensity to engage in criminal activity. People v.
Baptist, 76 Ill. 2d 19, 27, 389 N.E.2d 1200 (1979). However,
other crimes evidence may be admitted to show knowledge, intent
motive, design, plan or identification. People v. Lindgren, 79 Ill. 2d 129, 137, 402 N.E.2d 238 (1980); People v. Johnson, 255
Ill. App. 3d 547, 562, 626 N.E.2d 1073 (1993). The decision of
whether to admit evidence of other crimes is within the sound
discretion of the trial court. People v. Young, 118 Ill. App. 3d
803, 808, 455 N.E.2d 845 (1983). Improper introduction of other
crimes evidence may be deemed harmless provided that every
element of the charged crime has been established by properly
admitted evidence, and the weight of the admissible evidence is
so overwhelming that there exists no reasonable probability that
a jury would have acquitted the defendant had the inadmissible
evidence been excluded. People v. Wallace, 114 Ill. App. 3d 242,
250, 448 N.E.2d 910 (1983); People v. Thingvold, 66 Ill. App. 3d
1002, 1007, 384 N.E.2d 489 (1978).
In the present case, we find that it was error for the trial
court to allow the testimony that defendant was a suspect in a
separate homicide investigation, but that such error was
harmless. Detective Maslanka's testimony that he learned
defendant's age when defendant was being investigated as a
suspect in an unrelated homicide constituted evidence of another
crime which cannot be placed into any category allowing
admissibility. As to the State's assertion that this evidence of
a separate murder investigation was properly introduced to dispel
the inference that Detective Maslanka lied about when he learned
defendant's age, we reject this assertion as being patently
untrue.
During the State's case-in-chief, the defense cross-examined
Detective Maslanka about the discrepancy between his report and
his trial testimony as to when he learned the age of defendant.
On re-direct examination, the State asked no questions regarding
this issue. It was only during Detective Maslanka's testimony in
rebuttal that the State brought out that the reason Detective
Maslanka knew defendant's age was due to his knowledge of
defendant being a suspect in a separate murder investigation.
The only conceivable purpose for the State to elicit such
information at that time was to prejudice the jury by implying
that defendant murdered other persons as well as the victim in
this case. Accordingly, we find that it was error for the trial
court to allow and the State to elicit evidence of the other
crime. However, we also find that such error was harmless given
the overwhelming evidence against defendant.
Here, defendant provided a court reported statement and
testified at trial as to his involvement in the murder. Further,
the police arrested defendant a few blocks from the scene of the
murder, and defendant was wearing the same green jacket as the
night before. In addition, two eyewitnesses saw defendant fire a
gun from a distance of 15 feet and identified defendant in a
police line-up. In sum, the evidence against defendant is so
overwhelming that no jury could have acquitted defendant even if
the evidence of the other crime was properly excluded. See
Wallace, 114 Ill. App. 3d at 250 (even if introduction of
evidence of other crimes was erroneous, error was harmless where
two eyewitnesses identified defendant and defendant provided
inculpatory statement).
In reaching our decision, we find a case cited by neither
side to be instructive, People v. Watkins, 232 Ill. App. 3d 719,
597 N.E.2d 897 (1992). In Watkins, the trial court granted a
motion in limine barring any State witness from mentioning that
the defendant had been arrested on a murder charge in Texas.
On direct examination of a police officer, the prosecutor
elicited testimony that the defendant had been in custody in
Texas on a murder charge - an act by the State even more
egregious than in the case before us. In affirming the trial
court's decision to not declare a mistrial, this court found that
while it was error for the State to elicit testimony of the other
crime, the error was harmless given the weight of the evidence
against defendant. Watkins, 232 Ill. App. 3d at 730. Similarly,
here, we find that it was error for the State to elicit evidence
of the other crime, but that such error was harmless given the
overwhelming evidence against defendant. However, the fact that
we find the prosecutor's actions to constitute harmless error
does not relieve us of our duty to condemn these actions in the
strongest possible terms.
Defendant further alleges that the trial court considered an
improper factor in sentencing defendant. We are compelled by
statutory mandate to find that defendant has waived this issue by
failing to file a post-trial motion alleging such error within 30
days as required by section 5-8-1(c) of the Unified Code of
Correction. 730 ILCS 5/5-8-1(c) (West 1994); see People v. Reed,
Nos. 81422, 81683 (Ill. Sup. Ct. Sept. 25, 1997) (holding that
the waiver language of section 5-8-1(c) is mandatory).
For the above-stated reasons, we affirm the judgment and
sentence of the circuit court.
Affirmed.
GREIMAN, P.J., and ZWICK, J. concur.
[fn1]The offense of voluntary manslaughter has been
incorporated into the second degree murder statute (Pub. Act 84-
1450, 2, eff. July 1, 1987).