People v. Moore, 1-07-0410.

• Court: United States Appellate Court of Illinois
• Citation: 922 N.E.2d 435,337 Ill. Dec. 442
• Docket Number: No. 1-07-0410.,1-07-0410.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Christopher MOORE, Defendant-Appellant.
• Decision Date: 23 December 2009

922 N.E.2d 435 The PEOPLE of the State of Illinois, Plaintiff-Appellee,
v.
Christopher MOORE, Defendant-Appellant. No. 1-07-0410. Appellate Court of Illinois, First District, Third Division. December 23, 2009.

[922 N.E.2d 437]

Michael J. Pelletier, State Appellate Defender and Patricia Unsinn, Deputy Defender (Erin E. McFeron and Byron M. Reina, Assistant Appellate Defenders, of counsel), for Appellant.

Richard A. Devine, State's Attorney (James E. Fitzgerald, Peter D. Fischer, and Marie Quinlivan Czech, Assistant State's Attorneys, of counsel), for Appellee.

Justice COLEMAN delivered the opinion of the court:

Christopher Moore was convicted by a jury of first degree murder and armed robbery and sentenced to consecutive 30-year and 6-year terms of imprisonment as a result. In the instant appeal, he contends that: (1) the trial court's denial of his request for a one day continuance violated his due process right to present evidence in his defense; (2) the prosecution's improper comments and misstatements of the evidence in opening and closing argument denied him a fair trial; (3) the trial court improperly imposed a consecutive sentence on the armed robbery count on the basis of a presumption that the jury's general verdict represented a finding that he was guilty of a more culpable homicide than felony murder; and (4) his trial counsel was ineffective in failing to tender jury verdict forms specifying the basis for the murder verdict, thereby allowing an improper conviction of armed robbery in addition to a felony murder conviction based upon the same offense. We affirm.

BACKGROUND

Tayaab Larry was attacked in a Chicago park on July 25, 2004, and died of his injuries on August 2. Khalia Wright testified that as of the night of the attack, she was involved with Moore, and that she had previously dated Larry. On the night of the attack, Wright and a friend, Jillian Griffith, agreed to go out with Larry and one of his friends, Jermaine Williams. Larry and Williams picked up Wright and Griffith in Williams' red Chevrolet, and the four eventually drove to a park. Wright testified that a group of men entered the park, that the men approached the two couples, and that the couples walked away from the men and toward the car. Wright heard a thump, turned toward the sound, and saw Larry on the ground and a man

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standing over him with a baseball bat. At trial, Wright identified Moore as the man with the bat. She had not mentioned Moore when first questioned by police about the incident and testified that she had not originally identified him because she had been afraid, although she also testified that Moore had not threatened her or asked her to conceal his involvement. Wright testified that she had seen Moore the day after the attack, and that Moore told her that he and his friends had followed her the night before and had seen her kiss Larry in the park.

Jillian Griffith's trial testimony was similar to Wright's. She was in the park, walking away from the group of men who had approached them, when her attention was drawn to the group behind her by a loud sound. She saw Larry on the ground and a man holding a bat. Like Wright, she did not implicate Moore in the attack when first questioned by police, but identified him as the man with the bat in later questioning and at trial. Griffith also saw Moore going through Larry's pockets while Larry was on the ground.

Jermaine Williams testified that he was with Tayaab Larry, Khalia Wright and Jillian Griffith in the park when they were approached by a group of seven or eight men. Jermaine saw one of the men take a full swing with a baseball bat and strike Larry in the back of the head. Larry fell immediately, and Williams saw the attacker strike him with the bat four more times as he was on the ground. Williams testified that the bat-wielder and others in the group then attacked him, and that he was knocked down and kicked, but was able to run away from them without suffering serious injury.

Williams said that he owned the car that the couples rode in, but that Larry had driven to the park and kept the keys in his pocket. When Williams returned to the park after the attack, the car was gone, and he reported it as stolen. Police saw Williams' car on July 30, 2004, and stopped it. Antonio Nettles was driving the car and Dante Myles was a passenger. The police returned the car to Williams, and he found two items inside that did not belong to him: a cell phone later proved to belong to Myles and an Illinois Department of Corrections form that appeared to have been issued for Nettles.

Dante Myles testified that on the night of the incident, he saw Moore hit Larry with a baseball bat. He said that no one else present at the time had a bat. A few days later, Myles saw Moore driving a red Chevrolet that he had not seen him drive before. Myles asked if he could drive the car, Moore gave him the keys, and Myles drove the car and returned it. He later saw Antonio Nettles driving the car. Myles admitted that when he was first questioned by police, he had untruthfully denied being present at the time of the attack.

Antonio Nettles testified that he was shooting dice in the park on the night of the incident when he was approached by Moore and a group of men. Moore said that he was planning to rob "his girlfriend's new boyfriend." Nettles continued his dice game while the group left the park and then returned. He was still playing dice when he heard a loud sound from about 30 feet away. When he looked toward the source of the sound, he saw a man on the ground and Moore standing over him with a baseball bat.

Lovell Polk testified that he saw Moore in the park on the night of the incident, that Moore asked him to "sucker punch" someone, and that Moore pointed out the intended target. Polk said that he punched the man and knocked him down and that Moore struck the man while he was on the ground. Polk further testified

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that Antonio Nettles gave Moore a baseball bat, and that Moore hit the man with the bat three times. Polk also saw Moore search Larry's pockets.

Polk had originally been charged with first degree murder in Larry's homicide and had denied involvement in the crime. He testified against Moore as part of an agreement that included a plea of guilty of conspiracy to commit murder and a seven-year prison sentence for that offense. Polk had claimed that he was beaten by police officers while in custody, but explained at trial that the abuse had prompted him to tell the truth about the incident and that he had withheld the facts because he had been threatened by Moore.

An additional witness, Frederick Louis, testified that he was in the park at the time of the incident. Louis saw Polk punch a man in the face, and then saw Moore take a bat and hit the man in the head. Another witness, Milton Presley, testified that Moore, Nettles, Louis and some other men visited him at an apartment across the street from the park on the night of the attack. Presley testified that after the men left, he could see from the apartment's window that a group of people were fighting in the park. Presley said that he did not see Moore with a bat and that he did not see Moore strike anyone. The parties stipulated that Presley had given a different account of the night's events when questioned by the police. According to the stipulation, Presley had told police that Moore had come to his apartment with a bat, that Moore had said that the man who was involved with his girlfriend was in the park across the street, and that he had seen Moore hit a man three times with a bat while the man was on the ground. The stipulation further provided that Presley told police that Moore later bragged about beating Larry. Desmond Mitchell testified that Moore had come to his apartment on the night of the attack and asked him for help in fighting someone who was "messing with his girl." Mitchell did not accompany Moore, but Moore told him later that he had punched a man in a fight and knocked him out.

Moore, who was arrested in Detroit on October 4, 2004, presented three witnesses in his defense. Patricia Felder testified that she was a friend of Moore's family and that she had known him since he was five or six years old. She said that she and Moore worked together on the renovation of an apartment in Detroit in June, July and August 2004 and that she had seen him almost daily during that period. She said that Moore was playing cards with her and her family in Detroit on the night of July 25, 2004, that they played into the next morning, and that she also saw Moore in Detroit at about 2 p.m. on July 26. Moore's mother, Crystal Thomas, testified that he had left Chicago for Detroit on June 6, 2004, and that to her knowledge, he did not come to Chicago from June to August.

Dominique Brown testified that she was Khalia Wright's friend and Moore's ex-girlfriend. She said that she was visiting Wright on July 23 or 24, and that Wright's cousin, Walt, was also present. Brown heard Wright tell her cousin that Larry was a stalker, that he would not leave her alone, and that she wanted him gone. Wright's cousin had a bat at the time, and Brown believed that he had beaten Larry at Wright's request.

Moore sought to have the trial continued for one day to allow the testimony of Brandy Alexander. Moore's counsel advised the court that the defense had purchased an airline ticket to bring Alexander from Detroit at the end of the day on November 30, 2006, that she was scheduled to stay in Chicago overnight, and that the defense was prepared to call her to the stand on

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the morning of December 1. The court denied Moore's motion, and the case was submitted to the jury on November 30. The jury was instructed that it could find Moore guilty of first degree murder if it found that if he intended to kill Larry or do him great bodily harm; if he knew that his actions created a...