People v. Carter

• Decision Date: 16 March 1988
• Docket Number: Nos. 86-1111,86-1127 and 86-1305,s. 86-1111
• Citation: 118 Ill.Dec. 983,168 Ill.App.3d 237,522 N.E.2d 653
• Parties: , 118 Ill.Dec. 983 PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Samuel E. CARTER and Ray Charles Fergerson, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 653

522 N.E.2d 653

168 Ill.App.3d 237, 118 Ill.Dec. 983

PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Samuel E. CARTER and Ray Charles Fergerson, Defendants-Appellants.

Nos. 86-1111, 86-1127 and 86-1305.

Appellate Court of Illinois,

First District, Third Division.

March 16, 1988.

Paul P. Biebel, Public Defender, Chicago, for defendants-appellants.

Richard M. Daley, State's Atty., Chicago, for plaintiff-appellee.

Justice McNAMARA delivered the opinion of the court:

After a jury trial, defendants Samuel Carter and Ray C. Fergerson were convicted of the murder of Maurice Coleman and sentenced to 20 and 25 years in prison respectively. On appeal, defendants contend the State failed to prove them guilty beyond a reasonable doubt; that the State failed to prove that the beating administered to Coleman caused his death; that the trial court should have dismissed the murder indictment because Coleman did not die until 21 months after the alleged beating; that the trial court erred in denying defendants' motion for discharge based on preindictment delay; that the trial court erred in refusing to instruct the jury on the offense of involuntary manslaughter; that defendant Fergerson was denied effective assistance of counsel; that defendants' rights were violated by the admission into evidence of allegedly incriminating statements by codefendants; and that statements made by the prosecutor during his closing argument denied defendants a fair trial.

Patricia McKinley testified for the State that on July 25, 1983, she was talking with Coleman outside her apartment building. The building was owned by the El Rukn street gang who provided 24 hour security for the building. Coleman entered the building before McKinley. When McKinley entered the building, she screamed because her apartment door was open and Coleman was carrying her record player out of her apartment. Although McKinley told Coleman to leave to avoid problems with El Rukn management, building security had already arrived. They directed McKinley to go into her bedroom. From that point on McKinley could not see what was happening in the living room.

Lewis Sims lived in an apartment two floors directly above McKinley's apartment. On the evening of July 25, 1983, Sims heard a scream and came out of his apartment to see what was happening. Sims saw five men enter McKinley's apartment. Sims descended the stairs so he could see into the apartment through a partially opened door.

Sims identified defendants as two of the men in the apartment. Sims had seen Fergerson working as a security guard at the front of the building on previous occasions. Sims saw Coleman in the apartment, on his knees and handcuffed. Sims also saw defendants hitting Coleman with black sticks. Coleman was also kicked by this group of men. Sims viewed this activity for two and a half minutes before one of the men came to the door and told Sims to go back to his apartment.

Sims returned to his apartment and watched through his window. Sims saw four men, including defendants, carry Coleman out of the building into a building across the street. Approximately 20 to 25 minutes later, a van pulled up in front of the building and three men threw Coleman inside.

Mary Brown, who lived with Sims on July 25, 1983, testified that she stood with Sims looking out their apartment window, and saw the men dragging a person to the building across the street. Brown identified two of the men as defendants. Brown did not give the police this information during their initial investigation because she was afraid since she still lived in the same apartment building.

Sims did not go to the police until November 1983 when he heard through Coleman's sister that Coleman was still in a coma. At this time, Sims identified photos of Carter and another man as two of the men involved in the beating. Sims was contacted by the police in May 1985 and asked to view some additional pictures. Carter's picture was in the group of pictures. Sims also identified Fergerson at this time while looking through books of pictures. Sims later identified both defendants in separate lineups.

The State also presented the testimony of Anthony Sumner, a former El Rukn member who knew both defendants. Sumner worked as a security guard at another El Rukn building and knew that defendants worked security at the building where this incident occurred. Sumner testified that he learned of the beating a few days after it took place in a conversation at the building with both defendants present. In this conversation, Fergerson stated they put Coleman "under arrest" and Carter said Fergerson "hit Coleman with an uppercut and then wore him out," meaning they beat him. Sumner stated that he testified at this trial in exchange for being allowed to plead guilty to conspiracy to deal drugs instead of being charged with murder.

Coleman was admitted to Jackson Park Hospital on the day of the beating and lapsed into a coma on the following day. Coleman remained in a coma until he died on April 27, 1985. Dr. Edmond Donoghue, a forensic pathologist, testified as to the postmortem examination he conducted on Coleman. The medical records revealed that Coleman suffered from blunt trauma as the result of being hit with a blunt object. Dr. Donoghue's opinion was that Coleman died of bronchopneumonia due to a subdural hematoma due to the beating.

On appeal defendants first contend that the State failed to prove them guilty beyond a reasonable doubt. Sims was admittedly the only person to witness defendants beating the victim. Defendants claim that Sims' testimony was not worthy of belief because Sims was previously convicted of a felony, admittedly violated parole, and conceded instances of drug abuse. These facts were brought out during cross examination of Sims, and it is the duty of the trier of fact to determine the credibility of the witnesses and the weight to be given their testimony. (People v. Manion (1977), 67 Ill.2d 564, 10 Ill.Dec. 547, 367 N.E.2d 1313, cert. denied (1978), 435 U.S. 937, 98 S.Ct. 1513, 55 L.Ed.2d 533.) Because the jury was aware of the factors which would allow it to adequately judge the credibility of Sims, we will not substitute our judgment for that of the jury.

Defendants further claim that Sims' testimony was unworthy of belief because of his delay in reporting the incident to the police. Sims testified that he did not learn until November that Coleman remained in the hospital and had been in a coma since the beating. This information prompted Sims to report his knowledge of the incident to the police. The jury heard Sims' explanation of the delay and took this into consideration when deciding the weight to be given to this testimony.

Sims testified that he identified Carter's picture at the police station in November 1983. Defendants contend that Fergerson's picture was in the gang crime books on the day Sims viewed the books in November and therefore Sims failed to identify Fergerson four months after the crime. Sims testified that he did not see a picture of Fergerson in November 1983, but he was able to identify him from similar books shown to him in May 1985. At trial, a police officer testified that he could not be certain that the gang crime books produced as evidence at trial were in the same condition in November 1983 as they were at the time of trial. Therefore there is no certainty that Sims failed to identify defendant in November 1983. Defendants point out certain inconsistencies between the testimony of Sims and the police. The jury heard these inconsistencies and determined the weight and credibility to be given to all witnesses' testimony.

Defendants also attack the credibility of the testimony of Mary Brown. Brown was questioned earlier by the police and denied having any knowledge of the incident. It was not until several days before trial that Brown told police she saw defendants carry Coleman from the building. Brown explained the delay however, by testifying that while she was still living in the El Rukn building, she was afraid to talk to the police about the incident. At the time of trial, Brown no longer lived in the building. The jury was informed of the delay and of her explanation of the delay and with this information, it was able to assign the appropriate weight and credibility to the testimony.

Defendants maintain that Sumner's testimony is not worthy of belief because he testified in exchange for a less serious charge, had a previous conviction, and signed a written statement recanting testimony previously given to a grand jury. This statement was taken by the attorney for Jeff Fort, leader of the El Rukn gang. Sumner testified that when this statement was taken, another El Rukn member was present and told him what to say. The jury heard all the testimony regarding this statement, the statement itself was read to the jury, and the jury was responsible for believing or discrediting the statement and all testimony regarding the statement.

In the present case, the jury was instructed on the State's burden. The jury determined the credibility of and the weight to be given each witness, and the jury was aware of all inconsistencies and possible motivations for testifying. We find the evidence was not so improbable as to justify a reasonable doubt of defendants' guilt. People v. Manion: People v. Thomas (1979), 72 Ill.App.3d 28, 27 Ill.Dec. 908, 389 N.E.2d 1316.

Defendants next contend that the State failed to prove beyond a reasonable doubt that the beating on July 25, 1983, caused Coleman's death from bronchopneumonia on April 27, 1985. Defendants argue that the doctor who performed the autopsy gave no basis for his asserted connection of the alleged beating with the ultimate cause of death, which was bronchopneumonia. The State's burden is not to prove that the defendant's act is the sole and immediate cause of death, but that the defendant's act was, beyond a...