People v. Jackson

• Decision Date: 27 July 1993
• Docket Number: No. 1-92-1645,1-92-1645
• Citation: 250 Ill.App.3d 192,189 Ill.Dec. 922,620 N.E.2d 1239
• Parties: , 189 Ill.Dec. 922 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony JACKSON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1239

620 N.E.2d 1239

250 Ill.App.3d 192, 189 Ill.Dec. 922

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Tony JACKSON, Defendant-Appellant.

No. 1-92-1645.

Appellate Court of Illinois,

First District, Second Division.

July 27, 1993.

Jack O'Malley, State's Atty., County of Cook, Chicago (Renee Goldfarb, James E. Fitzgerald, Holly L. Rappin and Susan Miller, of counsel), for plaintiff-appellee.

Robert W. Smith, Hillside (Stuart K. Jones, of counsel), for defendant-appellant.

Justice DiVITO delivered the opinion of the court:

Defendant Tony Jackson was indicted for, among other offenses, first degree murder (Ill.Rev.Stat.1991, ch. 38, pars. 9-1(a)(1), 9-1(a)(2)) and unlawful use of a firearm by a felon (Ill.Rev.Stat.1991, ch. 38, par. 24-1.1(a)). At his bench trial, the circuit court rejected defendant's defense of self-defense and defense of another, finding him guilty of second degree murder and unlawful use of a weapon by a felon. Defendant appeals, asserting that (1) the judge misapplied the law of self-defense when she refused to admit his testimony that his friend was scared; (2) the judge assumed the role of advocate for the State; and (3) the State failed to disprove his defense beyond a reasonable doubt. We affirm.

At trial, ¹ Calvin Johnson was the State's first witness. He described himself as a professional gambler, explaining why he carries large sums of money and thus "do[es]n't go anywhere without anyone" even though he was also a professional boxer. A few days prior to the shooting, defendant's friend, Dennis Warren, had indicated that he wanted a gun, and Johnson later noticed that his handgun was missing. Johnson's brother told him that Warren had it, so Johnson made it known that he wanted to talk with Warren.

Johnson testified that on the evening of April 28, 1991, he, Bruce Jones, Johnnie Lee, Curtis Brown, and Christopher Wilson were at his apartment when Michael Ramsey arrived and told them Warren and defendant, whom Johnson had known all his life, wanted to see Johnson. Johnson and his companions followed Ramsey to the street, where they saw Warren and defendant, who were sitting on adjacent cars in front of a vacant lot on the north side of Lexington Street. Johnson had no weapon with him, and he never saw any of his companions with a weapon the entire evening.

Johnson asked Warren for his gun, but Warren, who was standing beside defendant, denied having it. Johnson then noticed a gun in defendant's pocket, and he asked to examine it. When defendant proffered the weapon, Johnson realized it was not his. Johnson then said to Warren, "Let me talk to you," and the two men walked into a vacant lot on the north side of the street. Johnson's companions and defendant stayed behind. Johnson again asked for his gun, and Warren again denied having it. Noticing that Warren's coat was wrapped tightly around his waist, Johnson grabbed at the coat, revealing a gun. It was not the missing weapon, but Johnson nevertheless seized it, unloaded it, and threw it five feet behind Warren. Meanwhile, defendant had remained by the car, but when Johnson grabbed Warren's arm and headed back toward Johnson's apartment, defendant approached carrying two guns, one of which was Johnson's missing weapon. He told Johnson to let Warren go. Johnson told defendant, "[T]hat's my gun right there. Just give me the gun and we are gone." He denied threatening to cut off Warren's wrists.

While defendant was trying to intervene, Jones too had come over to Johnson and Warren. He was not wearing black gloves and had no weapon. Jones, over 6' 4"' and approximately 350 pounds, echoed Johnson, saying, "Punk, give me that gun." Defendant replied, "[D]on't walk up on me." Then, when Jones was within a foot or two of defendant, with his arms outstretched reaching for the gun, defendant fired, aiming first at Jones's chest. Defendant was firing both guns, at Johnson and at another person in Johnson's group. Other gunfire erupted. As defendant began shooting, Warren had picked up his gun and bullets.

Johnson fled northwest through the vacant lot and then went toward his house; he saw no one until he went around the block. Soon, an ambulance and police arrived at the scene of the shooting, but Johnson did not talk to them because he was unsure if the area was safe. He and the others got back to his apartment at about the same time, but the police arrived within seconds and arrested the lot, so there was little time to discuss the shooting among themselves. He gave the police a statement.

Ramsey and Brown testified much as Johnson did. Warren had asked Ramsey to tell Johnson to come alone to talk, and Brown testified that Ramsey told Johnson that Warren wanted to talk with him alone. After delivering his message, Ramsey and the others headed for a friend's house but saw Warren on Lexington Street; defendant was 20 feet away from Warren. The testimony of Wilson, a boxer, was substantially similar, though he testified that defendant ordered Johnson to get away from Warren.

Three police officers who had been to the scene also testified. Detective Kristen Kato arrived within 10 seconds of receiving a radio call that a man had been shot. The 10 or 15 bystanders pointed to Jones, whom Kato had known for several years. He was lying in the vacant lot, rocking and moaning. When Kato asked who had shot him, Jones replied "Little Tony," defendant's nickname. Kato saw no gloves or gun and touched nothing. The bystanders gave him no information. Officer Consuelo Morgan and her partner were the first police officers to arrive at the scene. Jones told her too that "Little Tony" shot him. She saw no gloves, no guns, and no other weapons near Jones. Unlike Kato, however, she noticed several live rounds of ammunition near Jones and several spent casings near the car and the sidewalk as well as by and near the vacant lot and under a car in the street. Albert Pribek, an evidence technician for the Chicago police department, took photographs of and evidence from the scene. He described the various casings and the point from which each was recovered, using photographs, including those taken from near a car in the street. He took swabs from Jones's palms and the backs of his hands to test for gunshot residue.

Robert Berk, a trace evidence analyst with the Chicago police department, testified as an expert in gunshot residue analysis. One of his tests was to brush a swab against the palm and back of each hand; in Jones's case, the left palm had more residue than the other three. Berk explained that one would have residue after shooting a gun or handling a recently discharged gun, so the results of his tests indicated that Jones had fired a weapon or handled a recently discharged weapon, or had been in close proximity to a weapon when it was fired. If the latter, Berk estimated that Jones had been within a four-foot radius of a shooter, or within six feet straight ahead of the gun, depending on wind and other weather variables as well as type of bullet and type of firearm. If someone were standing with arms outstretched toward a shooter within a few feet, Berk stated, he would have residue unless he wore a leather glove. Berk agreed that if residue exists and a person puts on and takes off a glove, he will lose residue on that hand. Berk also agreed that a greater amount of residue on the left palm could result from that palm being closer to a shooter.

By stipulation, Dr. Ethel DiJanco, a medical examiner, testified that she performed the post-mortem examination of Jones, who had sustained one gunshot wound to the chest and a superficial one to the left thigh. He died of the chest wound, which resulted from a gun fired at close range. Jones's body had come with a black glove.

After the court found defendant not guilty on certain charges not relevant here, Larry Williams, an eyewitness and two-or three-year acquaintance of Johnson, Jones, and defendant, testified for defendant. He stated that defendant was backing up toward the street when Jones began to put on his right glove while talking to defendant and then drew a gun with his right hand before defendant drew his guns. Williams testified that he ducked away between two cars after he saw Jones fire, though he later said he did not know if Jones shot his gun. Williams neither saw defendant fire his guns nor observed Warren pick up a gun. After the shooting stopped, Williams stood up and saw a man, whom he could not identify, pick a gun up from the vacant lot and run away. He believed it was Jones's gun, which had fallen next to Jones's hand. He was familiar with Johnson's reputation in the community, which, like Jones's was for violence. He did not know defendant's reputation. Williams also said that after taking the gun from Warren, Johnson had put it in his pants.

Defendant, who is 5'9"' and weighs approximately 135 pounds, testified in his own defense. In talking with neighbors since 1985, defendant learned that Jones and Johnson had like reputations: "very violent." On the day in question, defendant and Warren were sitting in a car parked on the north side of Lexington Street in front of the vacant lot when he saw Johnson and his bodyguards approaching from the south. When Johnson asked Warren for his gun, Warren replied that he did not have it. Johnson then grabbed Warren's arm and shoved him north from the sidewalk to the vacant lot. Defendant moved to about 10 feet north of Johnson and Warren, with Jones to his left and Johnson and Warren to his right. The others were fanned out around him except Wilson, who held a gun and was in the street behind the car. In his waistband, Johnson too had a gun, which defendant did not see until Johnson disarmed Warren. After throwing Warren's weapon to the ground, Johnson ordered his bodyguards to "[t]ake [Warren] and cut his arms off." Johnson then grabbed Warren and began trying to force him to move south toward his...