People v. Davis

• Decision Date: 28 September 1993
• Docket Number: No. 1-91-2694,1-91-2694
• Citation: 193 Ill.Dec. 636,254 Ill.App.3d 651,626 N.E.2d 1187
• Parties: , 193 Ill.Dec. 636 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1187

626 N.E.2d 1187

254 Ill.App.3d 651, 193 Ill.Dec. 636

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Curtis DAVIS, Defendant-Appellant.

No. 1-91-2694.

Appellate Court of Illinois,

First District, Second Division.

Sept. 28, 1993.

Rehearing Denied Dec. 16, 1993.

Rita A. Fry, Public Defender of Cook County, Chicago (Pamela Pfrang, Asst. Public Defender, of counsel), for defendant-appellant.

Jack O'Malley, State's Atty. of Cook County, Chicago (Renee G. Goldfarb, Rebecca Davidson, Asst. State's Attys., of counsel), for plaintiff-appellee.

Justice SCARIANO delivered the opinion of the court:

After defendant Curtis Davis, Kevin "Boss" Appelby and Eric Shambley were indicted for the first-degree murder of Harvey Austin on February 21, 1989, the trial court granted each defendant's motion for severance. Accordingly, simultaneous but severed jury trials were conducted for defendant and Appelby, after which defendant's jury returned a verdict of guilty. ¹ This appeal followed.

The following facts were adduced at defendant's trial. Derrick Holliday testified that on the morning of February 21, 1989, Austin and he went to visit their friend James "Sonny" Keeler at a Chicago Housing Authority project located at 4445 South Evans Street. At about 10 a.m., Austin and Holliday encountered Shambley near the left stairwell of the building. The three began discussing the violence which had been taking place in the project when Shambley pulled a gun from his coat pocket, and told Holliday and Austin that "I'm not worried about nobody doing nothing to me."

About 12:30 p.m. that same day, Holliday met defendant and Appelby near the same spot, and they also were discussing the recent violence in the area when Appelby told Holliday that he should leave the building because something was about to happen. Soon thereafter, Holliday heard Donnell Keeler and Chris Keeler chatting as they were walking down the stairwell. Holliday observed defendant and Appelby, who were both armed, and another person whom he did not recognize, move closer to the stairwell. Holliday then heard several shots ring out, although he could not tell who fired them.

After hearing the shots, Holliday saw defendant, Appelby and Shambley standing in a row near the right stairwell of the building. He then observed Austin exit the adjacent CHA project building, located at 4414 South Cottage Grove Avenue, and head toward the building located on Evans Street. Holliday warned Austin not to go to the Evans project because there had just been a shooting there, but Austin waved him off and proceeded toward his original destination. Holliday stayed in the playground between the two buildings, and about 15 minutes later, he heard six or seven shots which sounded as if they came from different guns. About 15 seconds later, he observed Austin stumbling into the playground, and he also saw defendant, Appelby and Shambley fleeing from the scene. He then ran toward Austin, who was bleeding profusely, and heard him say that "Eric shot me, Eric shot me." Austin also kept repeating "Boss, Boss, Boss," and that "he was fixing to die." Holliday placed Austin on the ground in the breezeway between the projects, and soon thereafter Hope Keeler arrived and began tending to Austin. Holliday testified that at no time during the day was Austin carrying a weapon, and he further stated that he did not recognize the .357 caliber firearm which was found at the scene.

Donnell Keeler testified that at about 1 p.m. on the date of the homicide, he and his sister Chris left their brother Sonny Keeler's apartment, and as they were descending down the left stairwell with Chris walking in front, the two encountered defendant. After Chris said hello to him and proceeded on her way, defendant displayed a gun and asked Donnell repeatedly "why did you do it." Donnell explained that this inquiry had reference to a dispute he had had with defendant and Appelby over the ownership of a gun. After Donnell told defendant that he had not done anything, Shambley approached him and told defendant that he should not be talking to Donnell. When Donnell saw Shambley, who was armed, raise his hand, he immediately fled back up the stairwell, and he heard three or four shots fired at him.

When he returned to Sonny's room, Donnell informed him that he had just been shot at by defendant and Shambley. Sonny then asked Austin, who had arrived at Sonny's apartment some time after Donnell had left, to try to find a peacemaker named "Buckeye" to calm the situation. On cross-examination, Donnell admitted that he had been a member of the War Lords street gang until 1988, but that he no longer belonged to that group. He also stated that his brother Sonny was once a member of that gang as well, but that Sonny had never been its chief.

Hope Keeler testified that at approximately 1:30 p.m. on February 21, 1989, she was in her mother's apartment in the Cottage Grove housing project when she heard several gunshots emanating from outside. When she looked out her window, Hope saw Austin stagger out of the adjacent building into the playground. She then rushed downstairs and tended to Austin who was bleeding from his mouth and neck. As she was holding him, Austin mumbled to her that "Boss and Eric shot me," gasped for air, and then told her that "they gone get us one by one."

Sonny Keeler testified that on the date of the homicide, his girl friend, Austin, Donnell and Chris were in his apartment. At about 1:30, Donnell and Chris left, but Donnell returned a few minutes later and told him that defendant and Appelby had shot at him. Sonny then told Austin to try to find a man named "Buckeye" who could perhaps settle the dispute between his brother, defendant, and Appelby over the gun. Austin left the apartment and returned about 15 minutes later, but it is unclear from the record whether he actually contacted Buckeye.

In any event, Sonny and Austin, both of whom were unarmed, then left the apartment and went down the left stairwell to the main floor. Austin reached the ground floor first and immediately proceeded into the area between the two buildings. When Sonny reached the bottom of the stairs, however, he peered around the side of the building before entering the corridor, and he observed defendant, Appelby and Shambley lined up farther to the south in front of an elevator. Defendant was holding what appeared to be a long .38 caliber weapon, Appelby was carrying what looked like a .32 caliber gun, and Shambley was armed with what Sonny thought was a revolver. As he was moving back into the stairwell for cover, Sonny observed that Austin had approached to within six or eight feet of the armed individuals, and about 45 seconds later, he heard four or five shots which appeared to be coming from different guns. Sonny then ran up the stairwell back to his apartment, and when he looked down to the playground area from his porch, he observed Holliday helping Austin, who was staggering and appeared to have been shot. After the police arrived a short time later, he went down to the scene and informed an officer as to what he had seen and where the assailants might be found.

On cross-examination, Sonny testified that while he was once a member of the War Lords, he had dissociated himself from that street gang in the late 1970's. He admitted, however, that he had stated otherwise on a CBS news special which depicted him as the leader of the War Lords and on which program he stated that gangs were good for the projects, that they generated a substantial amount of income by selling illicit drugs, and that no other gang members could enter the area without his permission. Sonny explained that he fabricated this story on the news special so that attention would be focused on the gang problem in the projects which, he hoped, would result in a cleanup effort by the City.

Officer Leo Cummings testified that he was the first officer to arrive on the scene, and upon arrival, he observed about 10 or 20 people huddled around a man lying on the ground who had been shot in the neck. After he radioed for help, an unidentified man told him where the murder weapon could be found and led Officer Cummings past a trail of blood to a .357 caliber weapon lying on the sidewalk. Officer Cummings picked up the gun and removed six live rounds from its chamber, which led him to surmise that it had not been recently fired. No fingerprint analysis was performed on that weapon.

Officer Kyle Erbacher testified that he arrived on the scene shortly after Officer Cummings and immediately began to question the individuals milling around the victim in order to determine if anyone had information about the shooting. He eventually spoke to Holliday who informed him that defendant, Appelby and another man were involved in the shooting and that they might be found in apartment number 507; but when Officer Erbacher went to that apartment, none of the suspects was there. As he proceeded back to the playground, Officer Erbacher encountered Sonny Keeler, who told him that defendant, Appelby and Shambley were the perpetrators and that they were probably in room 510. Officer Erbacher escorted Sonny to room 510, and when Appelby answered the door, Sonny immediately identified him, and Officer Erbacher placed him under arrest.

Officer Erbacher further testified that on February 25, 1989, a few days after the homicide, he received information from a confidential informant that Shambley was staying in an apartment located at 3973 South Vincennes Avenue. He thereafter went to that location with three other officers. No one answered when he knocked on the door bearing the 3973 address, but a man named Johnson opened the door to the room across the hall, which part of the building bore a 3975 address. Officer Erbacher asked Johnson if anyone else was staying with him, and he responded that he lived with his nephew. Johnson's nephew identified...