People v. DuPree, 2-07-1276.

• Citation: 922 N.E.2d 503,397 Ill. App. 3d 719,337 Ill. Dec. 380
• Decision Date: 06 January 2010
• Docket Number: No. 2-07-1276.,2-07-1276.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Maurice DuPREE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

922 N.E.2d 503 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Maurice DuPREE, Defendant-Appellant. No. 2-07-1276. Appellate Court of Illinois, Second District. January 6, 2010.

[922 N.E.2d 505]

Thomas A. Lilien, Deputy Defender and Jack Hildebrand (Court Appointed), Office of the State Appellate Defender, Elgin, for Maurice DuPree.

Michael J. Waller, Lake county State's Attorney, Waukegan, Lawrence M. Bauer, Deputy Director, State's Attorneys Appellate Prosecutor, Elgin, Rita Kennedy Mertel, State's Attorneys Appellate Prosecutor, Ottawa, for the People.

Justice HUDSON delivered the opinion of the court:

Defendant, Maurice DuPree, appeals the summary dismissal of his petition for relief under the Post-Conviction Hearing Act (Act) (725 ILCS 5/122-1 et seq. (West 2006)) from his conviction by a jury of first-degree murder (720 ILCS 5/9-1(a) (West 1998)). Defendant contends that his petition sets out the gist of meritorious claims that (1) he was denied his constitutional right to be present at the jury instructions conference at which his attorneys decided not to tender an instruction on second-degree murder (720 ILCS 5/9-2(a) (West 1998)); and (2) he was denied his right to decide personally whether to tender an instruction on second-degree murder. We agree with defendant's second argument, and we reverse and remand.

Defendant was charged with the murder of Ramon Friar. At his trial, held in November 1998, he alleged that he had acted in self-defense. The jury found him guilty, and he was sentenced to 40 years' imprisonment. We summarize the pertinent evidence and proceedings from defendant's trial.

Velma Barnes testified that, at about 11 a.m. on February 9, 1998, she was at home at 516 May Street in Waukegan when she saw two men talking in front of 515 May, then heard two shots in quick succession. One man fell backward onto the ground, and the other man, who was wearing a hood, ran away toward McAlister Street. Another man ran to the victim. As Barnes called the police, she heard more shots, perhaps three or four in all. From a fence near McAlister, the hooded man was shooting; Barnes saw his gun. She also saw a white car on May drive off toward McAlister. Barnes went outside and recognized

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the fallen man as Friar. At no time had she seen him with a gun.

Maria Montejano testified that, at about 11 a.m. on February 9, 1998, she went outside and saw "a lot of people arguing" in the area of 515 and 519 May. Montejano went indoors for five minutes, then entered her backyard. She heard a shot and, after about five seconds, a second shot. She ran out front and heard three or four more shots. Montejano turned and saw a man lying on the sidewalk, another man standing nearby, and 10 or 15 other people "scattering out." She never saw anybody with a gun.

DeShaude Jones testified as follows. He belonged to the Four Corner Hustlers, a rival of the Gangster Disciples. Friar and Jeff Henley were Four Corner Hustlers. Jones was a friend of Keany Parks even though Parks was a Gangster Disciple. On February 9, 1998, at about 11 a.m., Friar and Jones were dropped off at Henley's home at 522 May. Jones entered the home and went into Henley's room, but Friar stayed outside. Parks and Courtney Boyd were also in Henley's room. After a few minutes, Jones looked out and saw Friar arguing with a tall man standing across the street in front of 519 May. Jones stepped outside. Shortly afterward, defendant exited 519 May, carrying a baseball bat. He stood next to the tall man. Jones and Friar crossed the street and stood about five feet from defendant. Friar asked defendant whom he was going to hit with the bat. Parks then exited Henley's house and asked what was going on. He told the tall man and defendant to go back inside 519 May, where Parks lived; they did. Jones and Friar returned to the sidewalk outside 522 May. Soon afterward, Henley came outside. The tall man, defendant, and a woman exited 519 May, descended the back stairs, and walked toward a white car parked in front of 515 May. Parks stood by the stairs. Defendant did not then have the bat. His hands were in his pockets. As the three people exited 519 May, Jones and Friar crossed the street toward 515 May. The tall man and the woman entered the car and drove off. Defendant stood outside, his hands in the pockets of his hooded jacket.

Jones suggested to Friar that they stop walking toward defendant. Neither Jones, Henley, nor Friar had a gun. Friar took another step. Jones tried to pull him back. Defendant raised his right hand, pulled out a handgun, and shot Friar once in the chest. The white car sped off toward McAlister. Defendant turned and ran toward McAlister. Jones saw Friar lying in the middle of the street and ran over to him. He then heard about three more shots. The police arrived, and Jones left.

Jeff Henley testified as follows. On February 9, 1998, he lived at 522 May and was a Four Corner Hustler. Parks lived at 519 May and was a Gangster Disciple, but he and Henley were friends. That day, Parks and Boyd were visiting Henley. A few minutes after Parks left, Henley heard loud talking outside. He looked out the window and saw Friar and Jones near the curb at 522 May. Two strange men were standing in the driveway of 519 May. One was tall and one, defendant, wore a hooded jacket. A third man was nearby. Friar stepped into the middle of the street, and the tall man picked up a stick. Friar took off his coat, and all four men kept arguing. Parks, who had been standing by the stairs, stepped forward and said a few words to the tall man and defendant. The three of them entered 519 May. Henley entered 522 May, and Jones and Friar returned to the sidewalk in front.

Henley testified that, as Jones and Friar stood talking, six people exited 519 May and entered Parks's van. The group included Parks, his girlfriend Yolanda Virto,

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and Judon Hall, a Gangster Disciple. Next, the tall man, defendant, and a woman exited 519 May and stood outside 515 May. The tall man and the woman entered a Ford LTD, but defendant stayed outside, his hood up, one hand in his pocket, and the other at his side. Friar was in the middle of the street, and Jones was across the street outside 522 May. Friar moved onto the grass near the sidewalk and asked defendant, "What you gonna do?" and "You want to scrap?" Friar was holding his hands at his sides with his palms facing forward. Friar stepped closer; he still had his hands open and was telling defendant, "Let's box. Let's scrap." Parks was backing his van out of the driveway. Defendant took two steps back and stopped. He may have said that he "didn't want no trouble," but Henley could not recall for sure.

Henley testified that defendant pulled a gun from his jacket and shot Friar once. Friar fell to the ground; defendant took off running. Jones and Henley ran to Friar. Parks had returned and exited his van, and the white car had sped away. Parks pulled out a gun but did not fire it. Henley heard more gunshots. Henley never saw Friar or Jones with a gun. He was not carrying one either.

Yolanda Virto testified as follows. She was Parks's girlfriend. At about 11 a.m. on February 9, 1998, Virto, Parks, defendant, and defendant's girlfriend were at Parks's house at 519 May. Parks went to 522 May. Friar was standing on the sidewalk outside 522 May. A man named Jason was standing outside 519 May. Eventually, Parks exited 522 May and entered 519 May, where he spoke with Jason, Judon Hall, and defendant. Those men and Virto then exited the house; defendant was carrying a baseball bat. Henley was standing in front of the driveway at 519 May and had a gun, which he pointed at Virto and her friends as they sat on the stairs. Virto's group went next door to her friend Bonnie's house. Virto heard a shot; after about a minute, she heard two more shots. She exited Bonnie's house. Parks entered a car and left, and Virto reentered Bonnie's house. About five minutes later, she looked out and saw Friar lying in front of 515 May. Jones was near him, and the police had arrived. Virto never saw Friar or Jones with a gun.

Courtney Boyd testified as follows. On February 9, 1998, he was in the group at Henley's house. Parks, Henley, and Boyd left the house when someone said that Friar was outside arguing with two men. Friar was standing in front of 516 May, by himself. Two men, one of whom Boyd later identified as defendant, were standing in Parks's driveway at 519 May and exchanging words with Friar. Boyd, Jones, Henley, and Friar crossed the street and stood in between 519 May and 515 May. The two other men spoke a little more, then entered 519 May. Boyd, Jones, Henley, and Friar returned to the sidewalk in front of 522 May. Boyd entered a car and rode off to get a gun. To his knowledge, Henley did not have a gun, and neither did Friar or Boyd's other friends. About eight minutes later, after picking up the gun, he returned and saw police cars and an ambulance in the area.

Keenan Young testified as follows. On February 9, 1998, at about 11 a.m., as he was walking on McAlister toward May, he saw several men standing in front of Parks's driveway. Two of them, Jones and Friar, were standing in the street, and the others, including defendant, were standing on the sidewalk. Young heard arguing. The next thing he heard was a gunshot. He then saw defendant running through an alley, holding his hood against his head and his clenched right hand in his jacket pocket. A white Ford LTD sped off

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two or three seconds after the shot was fired. Young ran into a store on McAlister. When he came out, defendant was running on McAlister toward May. His right hand was still in his pocket. Young reentered the store and heard five or six more gunshots, apparently from the corner near 515 May. He had not seen any guns the whole time.

Diana Moore testified as follows. On February 9, 1998, she was at home at...