People v. Hayes, 1–10–0127.

• Decision Date: 12 December 2011
• Docket Number: No. 1–10–0127.,1–10–0127.
• Citation: 356 Ill.Dec. 215,961 N.E.2d 311,2011 IL App (1st) 100127
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Curmiller HAYES, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2011 IL App (1st) 100127

356 Ill.Dec. 215

961 N.E.2d 311

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Curmiller HAYES, Defendant–Appellant.

No. 1–10–0127.

Appellate Court of Illinois, First District, Second Division.

Nov. 15, 2011.Rehearing Denied Dec. 12, 2011.

Michael J. Pelletier, State Appellate Defender, Office of the State Appellate Defender, Chicago (Alan D. Goldberg, Melinda Grace Palacio, of counsel), for Appellant.

Anita M. Alvarez, State's Attorney, County of Cook (Alan J. Spellberg, Peter D. Fischer, of counsel), for Appellee.

OPINION

Justice HARRIS delivered the judgment of the court, with opinion.

¶ 1 Defendant, Curmiller Hayes, appeals his conviction after a jury trial of aggravated battery with a firearm and his sentence of 10 years' imprisonment. On appeal, Hayes contends (1) the State did not prove him guilty beyond a reasonable doubt where State witnesses admitted lying to the police and Hayes' testimony that he acted in self-defense was unimpeached and corroborated by the physical evidence; (2) he was denied effective assistance of counsel where trial counsel failed to introduce admissible evidence of the victim's violent character to support Hayes' theory of self-defense; and (3) the prosecutor improperly remarked during closing argument that the jury would receive a copy of prior inconsistent statements of defense witness Erica Teasley, which placed undue focus on that evidence and distracted the jury from the relevant facts of the case. We affirm.

¶ 2 JURISDICTION

¶ 3 The trial court sentenced Hayes on December 17, 2009, and he filed a timely notice of appeal on December 17, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const.1970, art. VI, § 6; Ill. S.Ct. R. 603 (eff.Oct.1, 2010); R. 606 (eff.Mar.20, 2009).

¶ 4 BACKGROUND

¶ 5 In the early morning hours of November 24, 2007, shots were fired between Hayes and John Morrissette at the Hole–N–Da–Wall, a private social club located at 813 S. Pulaski in Chicago. Hayes was charged with attempted murder and aggravated battery with a firearm of Morrissette and John Wilson.

¶ 6 At Hayes' jury trial, Bertha Morrissette testified for the State. Bertha stated that she was part owner of the club, and on November 24, 2007, a woman known as Thumb was there with six or seven others to celebrate her birthday. Hayes was part of the group celebrating Thumb's birthday. Bertha observed Hayes and a patron named Cowboy pushing each other around, and some of the men at the club broke up the fight. The women at the party with Hayes started pushing him out the door, but he did not leave quietly. Hayes was “fussing and fighting and cursing,” trying to get back into the club. After finishing their drinks, the other members of Thumb's party also left the club.

¶ 7 The club had a main exterior door, and after proceeding down a small vestibule, there was an interior glass and aluminum door. After the Thumb party left, Bertha locked the interior door. About 30 minutes later, Hayes returned to the club and started banging on the glass window of the interior door. Bertha informed him that the club was closed and they were getting ready to leave. Hayes left through the main door, but soon after returned and kicked open the interior door. He had a pistol in his hand. Hayes then said, “now what” and fired the gun down the middle of the aisle. Bertha fell to the floor and heard two or three more shots. Hayes then ran out of the club. Bertha did not see anyone else with a gun that night.

¶ 8 After Hayes left, Bertha saw that her boyfriend, John Wilson, had been shot in the foot. She grabbed some towels to wrap up his foot. When police came in, they pulled her aside to ask her questions. She had heard that a person she knew as Lil Hole followed the shooter after he left the club. At the police station, Bertha identified Hayes in a lineup.

¶ 9 Bertha stated that she could no longer close the interior door after the incident although the door showed no signs of physical damage; only the lock on the door was affected. She also denied that her son, John Morrissette, kept a shotgun at the bar of the club and denied he shot a gun that night. She acknowledged that her son is a convicted felon and is not supposed to have a gun.

¶ 10 John Wilson testified that on November 24, 2007, he was in a relationship with Bertha, although at the time of trial they were no longer dating. On that date, he went to the club and played some poker on the machine, drank a beer then went to the back room to sleep. Later, Wilson returned to the bar and got another beer. A man he subsequently identified as Hayes kept trying to get into the club but Bertha told him it was closed. Hayes went out, then came back to the interior door, which he kicked open. He walked toward the bar, reached down to his side and pulled out a pistol. Wilson testified that he did not see anyone else with a gun at that point. When Hayes was about three or four feet away, he shot Wilson in the top of his right foot. Wilson grabbed his leg and rolled under the nearby pool table. Although he could not see what was happening while he was under the pool table, Wilson did hear a few more shots and another person crawled on top of him under the table. When the shooting stopped and he heard people say, “he's gone,” Wilson took off his boot, which was full of blood. He then saw John Morrissette at the bar holding a pump shotgun. Bertha asked her son, “[D]id you get him?”

¶ 11 The police and paramedics arrived, and Wilson was transported to Mt. Sinai Hospital, where a doctor informed him that he had 22 or 23 holes in his foot. Wilson admitted that he did not tell police that night that he had seen Morrissette with a shotgun because he was in a relationship with Bertha at the time. Before the shooting, he had never seen Morrissette handling the shotgun although he knew he kept a shotgun in the disc jockey (DJ) booth. He had also informed Bertha about the gun before the shooting.

¶ 12 John Morrissette testified that he has a 2006 conviction for burglary and a 2008 conviction for aggravated unlawful use of a weapon. In the early morning hours of November 24, 2007, he was DJ for a party at the club. Although he was not aware of any altercation involving Hayes, he did observe some ladies trying to get him out of the club. Hayes, however, was wrestling and scuffling because he did not want to leave. Hayes was very angry. Morrissette stated that he did not help to escort Hayes out of the club, nor did he ever punch him. The other members of his party stayed for another 20 minutes before leaving.

¶ 13 Approximately 30 minutes later, Hayes returned, “bamming” on the interior door. Morrissette told him that the club was closed and made a motion across his neck indicating that fact. Morrissette testified that it was his first face-to-face encounter with Hayes. Morrissette returned to the DJ stand to play a couple more songs when Hayes kicked the door, which flew open. Hayes had a revolver and fire was coming from the barrel of the gun. People were running and ducking. After seeing that Hayes had a gun, Morrissette grabbed his shotgun, which he kept in the DJ booth for protection. Hayes had fired the first shot and Morrissette tried to aim at Hayes, but then Wilson's niece ran past and he accidentally shot toward the floor. Hayes shot once more before running away. Morrissette stated that he was shot in the foot, and he later discovered that his shot hit Wilson in the foot.

¶ 14 When police arrived, Morrissette did not tell them he had a shotgun because he was on felony probation at the time and he was not supposed to be around weapons. Doctors at Rush Hospital later removed the bullet from his foot. Morrissette identified Hayes in a lineup at the police station on November 24, 2007. He did not tell the investigator that he had a shotgun that night, nor did he tell the assistant State's Attorneys. Morrissette only admitted having the gun when he discovered that Wilson would testify at trial that he had a gun.

¶ 15 Ozay McNeely testified that on November 24, 2007, between 1:30 and 2 a.m., he was at the club talking to someone he later discovered was Hayes' sister-in-law. About four or five other women were also present. Hayes kept asking him why he was “messing” with his sister-in-law and McNeely told him that he had known her for a long time. The women tried pushing Hayes out of the way, and McNeely kept talking to them. After bringing the women some drinks, McNeely had no other contact with Hayes. McNeely left the club about an hour or two later and he sat alone in his car, smoking and listening to music. While in his car, McNeely observed Hayes and the other women come outside. The women were trying to keep Hayes from going back inside the club. Hayes then went to his car, opened the trunk, and took out a jack iron. The women stopped him from going back into the club. Hayes then threw the jack in the back of his car, got into the car, and drove away.

¶ 16 McNeely returned to the club for about an hour before going out to his car to smoke a cigarette. After a while, someone named Sharon came out and pointed to a car driving away. She said that “he” had just fired some shots in the club. McNeely noted that the car was the same one he had seen Hayes drive off in earlier. McNeely, however, never saw Hayes come back to the club nor did he see who was driving the car now. He followed the car and dialed 911. He told the operator that he was following a person who had fired shots in a tavern. McNeely remained on the phone. He followed the car until he saw Hayes get out of the car and walk to a large building. Hayes shouted at a woman on the third floor and then went into the building. When he came out of the building,...