People v. Montague

• Decision Date: 31 October 1986
• Docket Number: No. 4-86-0048,4-86-0048
• Citation: 149 Ill.App.3d 332,500 N.E.2d 592
• Parties: , 102 Ill.Dec. 699 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Walter MONTAGUE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 592

500 N.E.2d 592

149 Ill.App.3d 332, 102 Ill.Dec. 699

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v.Walter MONTAGUE, Defendant-Appellant.

No. 4-86-0048.

Appellate Court of Illinois Fourth District.

Oct. 31, 1986.

Daniel D. Yuhas, Deputy Defender, Office of State Appellate Defender, Springfield, for defendant-appellant.

J. William Roberts, State's Atty., Kenneth R. Boyle, Director, State's Attys.Appellate Prosecutor, Robert J. Biderman, Deputy Director, Linda Welge, Staff Atty., Springfield, for plaintiff-appellee.

Presiding Justice McCULLOUGHdelivered the opinion of the court:

On December 12, 1985, the defendant, Walter Montague, was convicted by a jury of murder.(Ill.Rev.Stat.1985, ch. 38, par. 9-1.)He was subsequently sentenced to the Illinois Department of Corrections for a period of 25 years.Defendant appeals the order of the circuit court.We affirm.

The defendant raises six issues for consideration on appeal: (1) Whether the State properly complied with discovery procedures prior to trial; (2) whether he received effective assistance of counsel; (3) whether the trial court erred in allowing photographs to be taken to the jury room during deliberations; (4) whether the prosecutor made unfair prejudicial statements during closing argument; (5) whether the trial court properly admitted a statement of the victim as a dying declaration; and (6) whether the trial court improperly considered the fact that the defendant's conduct threatened serious harm as a statutory aggravating factor during sentencing.

On April 26, 1985, the defendant was charged by information in Sangamon County with four counts of murder in the shooting death of Robert E. Green.The incident occurred at Mac's Lounge in Springfield, Illinois.At trial, the defendant maintained that he acted in self-defense.The victim, Green, was at Mac's Lounge with the defendant's former girlfriend, Barbara Chavis.Chavis had met the defendant while in high school and later began living with him.During the course of their relationship, the couple had two children.Subsequently, the couple separated but the defendant continued to see the children and provide financial support.

On Sunday, March 31, 1985, Chavis and Green, a man she had been dating, met in Decatur and drove to Springfield together.They arrived in Springfield at approximately 7 p.m. and proceeded directly to Mac's Lounge at 13th and Cook Streets in Springfield.Chavis and Green sat at a table near the dance floor which was slightly elevated from the rest of the lounge.The defendant arrived at Mac's at about 7:30 p.m.Upon arrival, he briefly stopped by the table to ask Chavis about their children.

The defendant returned to the table several times that evening.Chavis testified that the last time the defendant approached the table she and Green each had a drink in front of them and Green was smoking a cigarette with his left hand.The defendant allegedly walked to the table and said "mother fucker, you still not going to let me talk to her."Green then asked the defendant what he wanted to talk about.The defendant mentioned something regarding Easter and Chavis stated that the next thing she knew, she saw the defendant fire a gun three times at Green.Chavis stated that the defendant was standing when he fired the weapon at Green, who was seated at the table beside her.

According to Chavis, before he was shot, Green had not made any type of movement whatsoever.After the shots were fired, Green fell out of his chair to the floor.Chavis grabbed the defendant by his hand and told him to stop.The defendant looked at Chavis and walked out of the lounge.

Chavis stated that while at Mac's Lounge, she and Green each had three mixed alcoholic drinks and that they were not under the influence of alcohol.She further indicated that the defendant was aware of her relationship with Green and there was no indication that he harbored any ill will toward either Chavis or Green.

McArthur Frazier, the owner of Mac's Lounge, testified on behalf of the State.He stated that he was working on Sunday, March 31, 1985, and was present when the shooting occurred.Frazier stated that at one point during the course of the evening, the defendant left the tavern for approximately 15 minutes.Upon returning, Frazier noted the defendant walk up the steps to the area where Green and Chavis were seated.About 30 seconds later, Frazier heard a gunshot.He looked in the direction of the noise and saw the defendant fire a second and third shot toward Green.Frazier stated that after the first shot was fired, he looked in the area where Green was seated and noticed that Green's hands were on the table.Frazier did admit that immediately prior to the first shot being fired, he did not know where Green's hands were located.

After Green fell to the floor, Frazier ran out of the building.The defendant walked out the door and Frazier returned inside.Frazier then looked out and saw the defendant on the sidewalk, and the defendant stopped and said, "I told you what I would do."

Herbert Edwards, the bartender at Mac's Lounge, also testified on behalf of the State.He estimated that he served three drinks each to Chavis and Green and served one drink to the defendant.After the first shot was fired, Edwards looked in the direction of the noise and saw the defendant firing at Green with a .44 Magnum revolver.As the defendant ran down the steps, Chavis grabbed him and said, "You shot him."The defendant then allegedly said, "Yeah, I shot him, and I'll go to jail."On cross-examination, however, Edwards admitted that the defendant's exhibit No. 1, a photocopy of his signed statement which was given to the police, did not include any reference to the defendant saying that he would go to jail for his actions.

Officer Donald Loftus arrived upon the scene at approximately 11 p.m.He found Green with two gunshots to his body.One gunshot wound was in the left wrist and one was in the chest-stomach area.Over defense objection, Officer Loftus testified that Green was alive when he arrived.He informed Green that he had been shot in the wrist and chest area and that the injuries appeared very serious.Officer Loftus asked Green who shot him and he said, "Slate."Chavis testified that the defendant was also known as "Slate."Loftus asked Green why the defendant had shot him and Green said that "he did not know."

Officers Jeff Backer and Sandra Smith arrested the defendant.They both testified that when they arrived at the defendant's home, he was on the front porch with his hands in the air.The defendant was asked where the gun was located and he showed the officers the gun in the second drawer of a kitchen cabinet.Officer Backer identified the gun as a .44 Magnum Smith and Wesson model 29.The weapon was loaded when Officer Backer retrieved it.There was an empty shell casing underneath the hammer and there were two other empty shell casings to the left of that one.There were three live rounds of ammunition in the cylinder.

While the officers were at defendant's home, he received a telephone call and the officers testified that they heard the defendant say he could not talk right then because he had "shot somebody and was in trouble."Officer Smith further testified that she heard the defendant tell the telephone caller, "I'm going to jail."A short time later, a friend of the defendant arrived at his home and Officer Smith heard the defendant tell him, "I'm going down the river, I just shot somebody."

The State's final witness was pathologist, Dr. William Nickey, who testified that the cause of Robert Green's death was bleeding to death from the gunshot wound to his chest.Dr. Nickey stated that Green had two gunshot wounds.One entered about the middle, upper abdomen and the other wound was at the back of the left wrist and to the medial side of the left wrist.Dr. Nickey identified People's exhibit No. 3 as a photograph of Robert Green.People's exhibit No. 4 was identified as a photograph of the wrist wound and People's exhibit No. 13 was a photograph of the front anterior surface of Green's body.

Dr. Nickey further testified that he performed blood-alcohol tests on Green's blood sample and determined that it contained .033% of ethyl alcohol.Dr. Nickey did state that there was a great deal of blood loss which could have altered the actual alcohol level but opined that Green may have been intoxicated.

The defense tendered the testimony of three police officers to rebut the testimony of the State and to substantiate the defendant's claim of self-defense.Detective Tommy Todd stated that he investigated the shooting scene and went to the hospital to receive some items of physical evidence.He took photographs at the scene and collected physical evidence there.He recovered some spent projectiles at the scene and some clothing belonging to Green which had been removed from Green at the scene by emergency personnel.

At the emergency room of St. John's Hospital, Detective Todd received a pocketknife and some items of clothing.The knife was placed in the property locker at the Springfield Police Department along with the clothing.Officer Todd admitted that he did not know to whom the clothing belonged.Although defense counsel made a request for the knife prior to trial, it was no longer with the rest of the property and could not be found.Todd stated that the knife had been found in the pocket of the pants collected from St. John's Hospital on the night of the shooting.He further stated that the defendant was not treated at St. John's Hospital.

The defendant testified that he went to Mac's Lounge on Sunday, March 31, 1985.Upon arrival, the defendant noticed Chavis sitting with a man he did not recognize immediately.The defendant approached the table where the two were sitting, he asked about the children, and then proceeded back downstairs to the bar.While at the bar,...