People v. Moore

• Decision Date: 17 December 1981
• Docket Number: No. 80-1232,80-1232
• Citation: 57 Ill.Dec. 949,102 Ill.App.3d 651,429 N.E.2d 1312
• Parties: , 57 Ill.Dec. 949 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. DeWayne MOORE, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 1312

429 N.E.2d 1312

102 Ill.App.3d 651, 57 Ill.Dec. 949

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. DeWayne MOORE, Defendant-Appellant.

No. 80-1232.

Appellate Court of Illinois, First District, Fourth Division.

Dec. 17, 1981.

Ralph Ruebner, Deputy State Appellate Defender, Chicago (Shelly B. Kulwin, and William K. McVisk of Silets & Martin, Chicago, of counsel), for defendant-appellant.

Richard M. Daley, State's Atty. of Cook County, Chicago (Michael E. Shabat, Kevin Sweeney, Jannice K. Kandell, Asst. State's Attys., Chicago, of counsel), for plaintiff-appellee.

JOHNSON, Justice:

After a jury trial, defendant, DeWayne Moore, was convicted of murder, armed robbery and armed violence. (Ill.Rev.Stat.1979, ch. 38, pars. 9-1, 18-2, 33A-2.) He was sentenced to serve concurrent terms of 40 years for murder and 15 years for each of the other convictions. On appeal, defendant contends that he was denied his sixth amendment rights to the effective assistance of counsel; that he was denied a fair trial by the introduction of evidence of other crimes; and, in a supplemental brief, that the trial court erred in failing to tender a voluntary manslaughter instruction submitted by defense counsel.

We reverse.

At the preliminary hearing, Mrs. Bok Kim, the wife of the proprietor of the Song Wig Shop at 3515 South Halsted Street in Chicago, testified with the aid of a Korean interpreter. She stated that defendant came into the store about 3:30 p.m. on November 24, 1978, and looked at some merchandise. He then pushed her brother-in-law, Hun Chong Kim, into the corner, pulled a gun from his pocket and took necklaces and other jewelry from the showcases. Mrs. Kim grabbed defendant and called for help. Her husband, Chong Kim, came in from the back of the store and grabbed defendant before defendant shot him twice. Two men then came into the store and defendant was arrested. She stated that her husband did not have a gun when he came into the store, that she did not know whether he touched defendant's gun, and that he was shot at close range.

Prior to trial, defense counsel filed a motion to suppress oral incriminating statements made by the defendant while he was in custody, as well as certain physical evidence which was seized by the police when defendant was apprehended. He later withdrew the motion and filed a demand for trial. The State filed a motion in limine to bar the defense from using an exculpatory statement made by defendant that the shooting was accidental, and this motion was granted by the court.

At trial, Mrs. Kim, through a Korean interpreter, testified to the events which transpired at the shop on November 24, 1978. She stated that defendant entered the store about 4 p.m. where she was working alone. Her husband, their three minor children and her brother-in-law were in the rear of the store. Mrs. Kim stated that while she was waiting on defendant, three women came into the shop. She then requested her brother-in-law to come to the front and assist. Thereafter, two more people came into the store. All of the customers left except defendant who continued to inquire about the prices of necklaces and sunglasses. Mrs. Kim and defendant also had a conversation concerning placing initials on the sunglasses, and Mrs. Kim told him that she would put them on at no extra charge. Defendant placed the necklaces around his neck and tried on the sunglasses. He then told her brother-in-law to move to one side, pulled a gun from his coat pocket and took gold necklaces and bracelets from the showcases.

Defendant then turned around and Mrs. Kim grabbed him from behind on the upper part of the arm. They struggled for several seconds and she called her husband for help. Defendant then bit her arm. When her husband entered, defendant turned around and shot him from a distance of 5 or 6 feet. As the victim fell forward, he grabbed defendant's arm and defendant shot again. Mrs. Kim then released one of defendant's arms and called for help. Two unidentified men responded and she told them that defendant shot her husband. The three of them detained defendant until police arrived moments later.

Mrs. Kim further testified that her husband did not have a chance to touch the gun and that no one but defendant handled the weapon before the shooting. She also identified the necklaces taken from defendant as those she had shown to him in the store.

Hun Chong Kim, who also testified through a Korean interpreter, corroborated this sequence of events. He stated that he was in the store with Mrs. Kim when defendant tried on the sunglasses, then pulled out a gun and threatened the two of them. Defendant pushed him aside, held the gun in one hand and opened the showcase and took jewelry with the other. Mrs. Kim called for help, and as soon as Mr. Kim came into the store defendant fired a shot. Defendant and Mr. Kim stood about 5 or 6 feet apart at the time of the shooting. The witness stated that he heard two shots and did not see anyone but defendant touch the gun.

Police youth officers Ronald Mainellis and Mary Dahl testified that they were on patrol in their squad car about 4 p.m. on November 24, 1978, when they were flagged down by a citizen at 35th and Halsted Streets who told them there was a man in the store with a gun. They pulled their vehicle up to the store where they observed a male with blood on his shirt coming out of the store saying that he had been shot. Officer Mainellis proceeded inside and observed Mrs. Kim, defendant and two other males struggling just inside the door. The officer apprehended defendant and noticed that he was wearing a glove on his left hand. Mrs. Kim told the officer that defendant was the man who shot her husband. Defendant was then handcuffed and placed in the squad car where Dahl also observed that he was wearing a glove on his left hand. Officer Dahl attempted to steady the victim and asked him whether the man in the car was the person who shot him. The victim answered in the affirmative. A small child approached Mainellis and handed him a gun recovered from the doorway area; Mrs. Kim handed him two small gold bracelets and a set of keys which she found on the floor. Defendant was then taken to the station where police removed four necklaces from his neck, and a pocket watch, two rings, a cigarette lighter, two other watches and $3.35 in currency from his person.

Officer Bunk stated that he received a set of keys from Officer Mainellis at the station, and he and his partner returned to the scene of the crime. They located a car illegally parked in an alley behind 3529 South Halsted Street and the keys received from Mainellis fit this car. A subsequent vehicle check revealed that the car was registered to defendant.

The chief medical examiner of Cook County testified that he performed an autopsy on the body of Chong Kim, and in his opinion the cause of death was a bullet wound to the abdomen which also involved the lung, liver and spleen. He also conducted a visual examination of the clothing worn by the victim and found a hole which corresponded to the bullet wound in the body, but he did not see any powder burns or stripplings.

Donald Gunnell of the Chicago Police Department Criminalistics Division testified that he examined the weapon which was recovered from the scene. In his opinion, the bullet retrieved from the body of the victim was fired from this weapon. He stated that the two expended cartridges found in the store were also fired from the same weapon.

The defendant testified that he was 19 years of age. He entered the Song Wig Shop about midafternoon on November 24, 1978, after parking his car at 31st and Halsted. He looked at some jewelry and sunglasses and had a conversation with Mrs. Kim about having his initials put on the sunglasses and on a cigarette lighter. She agreed to put his initials on both items at no extra charge if he purchased the sunglasses. Defendant then looked at the necklaces and started to go out of the store to get his cigarette lighter from his car when Mrs. Kim grabbed him and began screaming in Korean. Mr. Kim then came out of the back with a gun in his hand and walked quickly up to defendant. Defendant grabbed the gun because he was afraid Mr. Kim would shoot him. A struggle ensued and the gun discharged twice. Two males then entered the store and held him, but defendant stated that he was not attempting to leave. He also stated that he had driving gloves in his coat pocket when he entered the store and had the right-hand glove in his possession when he arrived at the police station.

On cross-examination, defendant stated that he was wearing his own personal jewelry when he entered the store and that he had $35 in his possession which was taken by the police at the station. He admitted that he was wearing two digital watches, two bracelets and two rings, and had a pocket watch and keys in his possession. He stated that he purchased two of the watches and two of the chains on Maxwell Street and received the other two chains from his former girlfriend. With regard to the shooting, defendant stated that Mr. Kim was holding the gun in his hand as he came up to defendant. They wrestled with the gun; when the actual shot was fired, Kim was holding the gun and shot himself in the chest. Over defense counsel's objection, defendant, with the aid of a deputy sheriff, demonstrated how the shooting occurred. Defendant stated that when Kim was about 3 feet away from him, he grabbed the gun and tried to hit it against the wall so it would fall out of his hand. When the shot was fired, Kim's arm was pointed toward his own body. They continued to struggle with the gun after Kim was shot. Defendant denied having a gun, taking any necklaces out of the showcase, putting any on his neck, or wearing a glove. He also stated that all of the prosecution's witnesses were lying.

Officer Mainellis testified in rebuttal that when he apprehended ...