People v. Gardner

• Decision Date: 28 June 1996
• Docket Number: No. 1-95-1540,1-95-1540
• Citation: People v. Gardner, 282 Ill.App.3d 209, 668 N.E.2d 125, 217 Ill.Dec. 940 (Ill. App. 1996)
• Parties: , 217 Ill.Dec. 940 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence GARDNER, Defendant-Appellant.
• Court: Appellate Court of Illinois

Page 125

668 N.E.2d 125

282 Ill.App.3d 209, 217 Ill.Dec. 940

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Clarence GARDNER, Defendant-Appellant.

No. 1-95-1540.

Appellate Court of Illinois First District, First Division.

June 28, 1996.

Sidney I. Schenkier, Jeff S. Pitzer, Jenner & Block, Chicago, for appellant.

Jack O'Malley, State's Attorney, County of Cook; Renee Goldfarb, Kevin Sweeney, Asst. State's Attorneys, of counsel, for appellee.

Justice WOLFSON delivered the opinion of the court:

In October of 1993 the gangs at Calumet High School in Chicago were the Vice Lords and the Blackstones. Those gangs were "brothers" and got along.

The area of 79th and Carpenter, a few blocks from the high school, was the territory of the Gangster Disciples and the Black Disciples. The two "Disciples" gangs were "folks" and got along with each other.

However, the Vice Lords and the Blackstones hated the Gangster Disciples and the Black Disciples. The area between 79th Street and Calumet High was neutral territory.

Somehow, on October 28, 1993, these gang affiliations and rivalries led to the shooting death of Joseph Waites, Jr. (Waites), the manager of the high school football team who was not a member of any gang. A jury found Clarence Gardner (Gardner) guilty of the first degree murder of Waites. Gardner, who received a sentence of 35 years, raises several issues on appeal. We affirm the conviction, despite our misgivings about the precipitate way the trial court ended the defendant's case.

FACTS

Because the outcome of this case relies heavily on the weight of the evidence, we set out the testimony in some detail.

Waites died from multiple gun shot wounds. Gardner did not shoot Waites. He was tried on a theory of accountability.

The State used Gardner's recorded statement as evidence. In his statement, Gardner said he was a member of the Gangster Disciples. At about 4:55 p.m. on October 28, 1993, Gardner was at 79th and Carpenter in Chicago, Illinois. He saw two other Gangster Disciples, "Tony" and "Meechie", drive up. The car was a "blue 98 four door with five point star rims." The car was Meechie's. Sometimes Meechie kept a gun in the car under the dashboard. Gardner had seen the gun there three or four weeks before the shooting.

Meechie, who was driving, waved Gardner over. Gardner walked up to the car. Meechie and Tony got out.

The three saw members of the Calumet High School football team walking down 80th and Carpenter. The team members turned towards 80th and Morgan. Meechie asked if they were "hooks," meaning were they members of the Blackstone gang. Gardner said nothing. The three ran to the corner of 80th and Carpenter. They were joined by a fourth person, Andre Bridges (Bridges). Bridges was a Black Disciple.

The four then went to 80th and Morgan. Terrence Little, one of the members of the team, walked up to Gardner. About 11 or 12 other members of the team were present. Gardner recognized Joe Waites. Gardner asked Little what was going on. Little said they were having an egg fight. Gardner replied "oh" and walked back towards 80th and Carpenter. The three other Disciples went with him.

The football team was on the other side of the street. They were walking in the same direction as the Disciples.

When Gardner, Tony, Meechie, and Bridges got back to the corner of 80th and Carpenter, it was crowded. There were about 15 Black Disciples. Meechie and Tony ran back to the car and got in. They drove the car down Carpenter to 80th and Carpenter and parked in the middle of the block. Meechie jumped out. He had his hands in his pockets. He started to walk towards the football team.

Meechie grabbed one of the players, then another one. About six Black Disciples grabbed Waites. They started to punch him. Two of the people punching were Buckeye Lee and Bridges. Some of the players ran.

Gardner joined the others. He punched Waites three times in the chest. Waites fell to the ground. Waites balled up and tried to defend himself, putting his hands around his face. The Disciples beat Waites for about two minutes.

A couple of seconds after the Disciples were done kicking Waites, Tony got out of the car. Tony had a gun, a .25 automatic or a .22. He cocked the gun and told the others to move because he was "fitting to bust him." Gardner understood this to mean that Tony was planning to shoot Waites. Buckeye Lee told Tony to "take care of his business." Gardner said, "bust him." By this, he meant "shoot him."

Tony walked up to Waites. Waites was lying on the ground in front of a yard. Tony pointed the gun to Waites' face.

Gardner and Bridges turned around and took about three jogging steps. They heard four gunshots.

Gardner ran to 79th and Racine and went into a house.

This completed Gardner's statement.

Michael Waites (Michael), Waites' brother, testified at trial.

Michael was not a gang member at the time of the incident or the trial. Michael was on the Calumet High School football team. Waites was the team manager.

Michael knew Gardner was in the Gangster Disciples and used the name "Ceno."

Gardner and about 10 to 15 other gang members came up to the team. Gardner asked whether the team "was fitting to jump on some of his folks." Gardner told Michael and Ronel, another football player, to take off their hats. They complied.

A blue Oldsmobile pulled up. The car stopped across the street. Two men got out of the car. When they did, Gardner said "bust them folks."

Gardner asked if the team members were "hooks" or Vice Lords. The team said they were not and showed him their football jerseys. Gardner said, "fuck that shit, bust them."

The driver of the car then swung at one of the team members. The driver missed and the other boy swung back. Gardner said "bust them" again. The team started to run. About five seconds later, Michael heard gunshots.

According to Michael, Gardner said "bust at them folks" four times.

Michael told the police Gardner was the one who told the others to shoot. Upon having his memory refreshed, Michael admitted he told the police the person who said "bust at them folks" was a Black Disciple. Michael knew Gardner was a Gangster Disciple. Michael, however, said he later told the police Gardner said "bust at them folks."

The State called Anthony Foster (Foster) to testify.

Foster was not a member of a street gang. He was a member of the football team.

Foster testified that after the conversation where the team members said they were not "hooks," Gardner told the driver of the blue Oldsmobile the team members were "hooks." He said this after the driver and passenger left the car. Gardner then said "bust at their ass." By this, Gardner meant shoot them.

When Foster spoke to the police on November 15, 1993, he told them Gardner was the one who said "bust their ass." Foster did not say that to the police when he was interviewed on the day of the shooting.

Cantrell Davis (Davis) testified for the State.

Davis was on the Calumet High School football team. He was not a gang member.

Davis said once the two people who were in the blue car got out, Gardner told them the football players were "hooks." Gardner said "fuck that folks shoot them, pop at them, bust at them, bust at them."

Davis did not tell the police on October 28 Gardner said "bust at them." He did tell them later. He was unable to talk to the police on October 28 because they would not listen to him.

Gardner presented one witness at trial. The witness was a police officer brought in to impeach earlier testimony. Gardner did not testify.

OPINION

While we find the issues raised by the defendant do not, singly or collectively, entitle him to a new trial, we believe some of them merit discussion.

1. The trial court's refusal to continue the case.

Before the jury was selected, the trial court, realizing a Monday holiday was approaching, told prospective jurors it was possible that the trial would run until the following Tuesday. All jurors who claimed outside pressures or time problems were excused by the judge or challenged by one of the parties.

On Friday, at about 3:30 p.m., the defense ran out of witnesses. Gardner's lawyer told the court he had one more witness, Luther Donald, a friend of the victim. Donald had promised to be in court that day, but instead had gone to school. He had been under subpoena for previous trial dates, but not on this day. Defense counsel said he had talked to Donald the night before. Donald said he would come to court, that he understood he was under subpoena. There is no subpoena in the record.

When asked what Donald would testify to, defense counsel said:

"We expect him to say that he was present with other football players and that he saw this car come up with two people in it. And that he heard the words at that point bust him or shoot him. That it came from one of the people in the car neither of whom were seen. When he first talked to the police he did give them the name Ceno. He did not assign to that person those statements." ["Ceno" was a name used by Gardner.]

The trial judge denied the motion for a continuance to the following Tuesday, saying:

"Let the record reflect that it is now 3:35. It appears to me on Friday--Monday is a court holiday. Tuesday we are 4 judges short. We have five jury trials, 2 judges to do it, myself and Judge Erickson. * * * It seems to me that this witness's testimony is cumulative * * * including that somebody in the car said bust him. * * * [A]ll the witnesses have said this person got out to the car, said he wanted to bust him or something to that effect. It's already been said. And it's also opinion. * * * [I]f it was just one day tomorrow, that wouldn't be so bad. I don't want the jury out on this case for three days and coming in on the 4th especially in view of the Court's schedule and in view of the fact that this is cumulative."

Once trial has started, the trial court may grant a reasonably brief...