People v. Burns

• Decision Date: 25 March 1999
• Docket Number: No. 1-96-3988,1-96-3988
• Citation: 304 Ill.App.3d 1,237 Ill.Dec. 417,709 N.E.2d 672
• Parties: , 237 Ill.Dec. 417 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrence BURNS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 672

709 N.E.2d 672

304 Ill.App.3d 1, 237 Ill.Dec. 417

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Terrence BURNS, Defendant-Appellant.

No. 1-96-3988.

Appellate Court of Illinois,

First District, Fourth Division.

March 25, 1999.

Michael J. Pelletier, Deputy Defender, Office of State Appellate Defender, Chicago (Pamela Z. O'Shea, of counsel), for Defendant-Appellant.

Richard A. Devine, State's Attorney of Cook County, Chicago (Renee Goldfarb and Noreen M. Daly, of counsel), for Plaintiff-Appellee.

Presiding Justice SOUTH delivered the opinion of the court:

Defendant, Terrence Burns, was charged by indictment with four counts of first degree murder, one count of armed violence, one count of attempted armed robbery, and one count of attempted robbery arising out of the 1995 shooting death of Ethan Kane. Prior to trial, the State nol-prossed the armed violence and attempted robbery charges. Following a jury trial, defendant was found guilty of first degree murder and attempted armed robbery and was sentenced to a term of 40 years on the murder conviction and a consecutive 10-year term on the attempted armed robbery conviction.

On December 3, 1995, Ethan Kane was murdered in the alley behind his home at 2038 North Mohawk in Chicago, Illinois. At trial, Seth Nichols, a friend of the victim's, testified that he and the victim were parked in a van when they were approached by two black men with guns. One man came to the driver's side of the van and pointed a gun at him through the glass. Nichols stated that he exited the van after one of the offenders opened the car door and hit him. Nichols heard a scuffle taking place on the other side of the van and then he heard the victim say, "Please don't shoot me." Nichols moved toward the front of the van, where he saw the victim struggling with the other offender and then saw the offender shoot the victim. Both offenders ran down the alley as the victim fell to the ground.

Kevin O'Shea testified that he lived near the scene of the shooting when he looked out of his bedroom window after hearing five gunshots. He observed a red, two-door Pontiac Grand Am parked and idling in an alley. Then two people ran up to the car and got into the car. When the car door opened, O'Shea could see that the occupants were three black males in their teens to late twenties. The car then sped southbound toward Armitage.

Detective Terrence O'Connor testified that, after an extensive investigation, he went to defendant's house to speak with him. When he arrived at defendant's home, he told defendant that he was investigating a murder and that his name had come up. Defendant agreed to go to the police station because he did not want to talk in front of his mother.

At the police station, defendant told Detective O'Connor that, on the night of the murder, he had been on his back porch and heard gunshots and assumed that they were related to the incident. Defendant lived six blocks from where the murder took place. Defendant also told him that he knew the men who attempted the robbery and shot the victim. O'Connor testified that eventually defendant told him that he was with "O'Tree" and "Top Dog" on the night of the incident and acted as the lookout.

Defendant told Detective O'Connor that at approximately 3:45 the morning of the murder, O'Tree, Top Dog, and James Lawrence, also known as "Jinx," picked him up in a two-door red car. They were all members of the Blackstone gang. O'Tree showed them a loaded .380-caliber handgun and said that he wanted to do some robberies and get some money. They drove to the Lincoln Park area to find someone to rob. When they spotted a van pulling into the alley of Armitage between Larrabee and Mohawk, they agreed that defendant would act as the lookout while the other two did the robbery. O'Tree and Top Dog approached the van and threatened two people in the van. O'Tree got into a struggle with one of the people and shot the victim. O'Tree and Top Dog ran back to the car and the three of them drove away from the alley. O'Connor testified that defendant felt he was entitled to some of the robbery proceeds.

After interviewing defendant, O'Connor and his partner interviewed James Lawrence about the events of that night. After speaking with him, the police contacted the felony review unit of the office of the Cook County State's Attorney.

Assistant State's Attorney (ASA) Ann Lorenz testified she interviewed defendant and James Lawrence. After she advised defendant of his Miranda rights, he waived them and agreed to speak to her. ASA Lorenz then reduced defendant's statement to writing, which he signed and initialed with some corrections that reflected his version of the events that night. Defendant made several corrections to the statement and placed his signature on the statement nine times. ASA Lorenz testified she never saw handcuffs on defendant and he never asked to go home. She also stated that defendant indicated the police were treating him properly.

ASA Lorenz also spoke with James Lawrence about the incident; although he was not a suspect, he agreed to speak with her. His statement was similar to defendant's up to the point when Lawrence said he got out of the car before the other three went to Lincoln Park. Lorenz reduced his statement to writing and allowed him to initial any corrections.

At trial, ASA Lorenz published both statements to the jury. When James Lawrence testified, he admitted he was a member of the Blackstones gang and that he knew O'Tree and Top Dog and that they were members of the Blackstones but that defendant was not a member. Lawrence identified the written statement he gave to ASA Lorenz, his signatures and initials, but denied making or reading the statement. He stated he only signed the statement because the police beat him outside the presence of ASA Lorenz.

Waltarasha Jackson testified she knew O'Tree, Top Dog, Jinx, and defendant from the neighborhood and knew them all to be Blackstones. She stated that around 7 p.m. on December 1, 1995, she saw O'Tree and Top Dog in a red car owned by O'Tree's sister.

Dana Redmond testified that on December 2, 1995, O'Tree was arrested at about 9 p.m. for hitting her in the face. On cross-examination, defense counsel established that as a result of Redmond's criminal complaint, O'Tree was at the police station; however, Redmond did not know what time O'Tree was released.

Defendant testified that he knew Top Dog and O'Tree and would sometimes go to Blackstone meetings on Friday nights behind the Manierre school. However, he denied being in the gang.

Defendant further testified that he did not recall where he was in the early morning hours of December 3, 1995. On December 26, 1995, Detective O'Connor came to his home at about 10:30 a.m. and, without explanation, demanded that defendant come with him. Defendant stated that the police did not handcuff him until after he told them he knew nothing about the murder. At that point, defendant said the police kept tightening the handcuffs until he signed the statement.

Defendant denied ever telling the police that he was involved in Ethan Kane's murder. He also denied telling ASA Lorenz anything about the murder. He maintained that he was at the police station two days before being charged. Further, he denied ever reading the statement that bears his signature and denied that anyone else read it to him. He said that he only signed the statement because Detective O'Connor and ASA Lorenz told him that he could go home if he did.

In rebuttal, ASA Lorenz testified that all of the information came from defendant. She further testified that her conversation with defendant occurred on December 27, 1995, and that defendant had told her that he arrived at the police station at 11 a.m. that day. She also stated that defendant was never told that he could go home if he signed the statement.

Defendant argues that, before the trial commenced, relatives of the decedent sat near a juror and possibly held a conversation with the juror.

After the State presented two witnesses, during a court recess, defense counsel informed the court that a juror was seen having a conversation with the victim's family. The court allowed defense counsel to call witnesses to testify about what they observed before calling out the juror.

Elmore Burns, one of defendant's relatives, was sworn and testified that the decedent's family was seated near the rear of the courtroom, and a woman who was eventually selected for the jury was sitting near them. Burns further related that the juror was talking with some of them for about 15 to 20 minutes, but he could not identify whom the juror was talking to or if the individuals were in fact the decedent's family members. Burns also stated that there were other jurors all around. However, Burns also stated that he did not see anybody in the family with whom the juror was specifically speaking. When questioned further, Burns could not state or recall if the prospective juror spoke to any family member of the decedent. He only remembered that the person did not have on a "juror sticker."

Defense counsel requested that the court question the juror but the court denied the request. The trial court ruled that, based upon the evidence presented, the allegations were so vague they did not warrant any further inquiry. On appeal, defendant argues that the allegations of extraneous communication between one of the jurors and some members of decedent's family was prejudicial and that the trial court's failure to make specific inquiry of her entitles him to a new trial.

It is well settled in Illinois that any communication with a juror during trial about a matter pending before the jury is deemed presumptively prejudicial to a defendant's right to a fair trial. Although this presumption of prejudice is not conclusive, the burden rests upon the State to establish that such contact with the jurors was harmless to the...