People v. Smallwood

• Citation: 586 N.E.2d 636,224 Ill.App.3d 393
• Decision Date: 30 December 1991
• Docket Number: 1-89-2432,Nos. 1-89-2235,s. 1-89-2235
• Parties: , 166 Ill.Dec. 678 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth SMALLWOOD and Gregory Smallwood, Defendants-Appellants.
• Court: United States Appellate Court of Illinois

Page 636

586 N.E.2d 636

224 Ill.App.3d 393, 166 Ill.Dec. 678

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Kenneth SMALLWOOD and Gregory Smallwood, Defendants-Appellants.

Nos. 1-89-2235, 1-89-2432.

Appellate Court of Illinois First District, First Division.

Dec. 30, 1991.

Kenneth Smallwood, Michael J. Pelletier and Martin Carlson, Office of State Appellate Defender (Timothy P. O'Connor of Winston & Strawn, Chicago, of counsel), Gregory Smallwood, Randolph N. Stone, Public Defender of Cook County (Z. Peter Tokatlian, Asst. Public Defender, of counsel), for defendants-appellants.

Jack O'Malley, State's Atty. of Cook County (Renee Goldfarb, James E. Fitzgerald and Robyn Berman, of counsel), for plaintiff-appellee.

Justice CAMPBELL delivered the opinion of the court:

This is a consolidated appeal. Defendants Kenneth and Gregory Smallwood, (brothers), were charged by indictment with the murder of Larry Echols. Following a jury trial, the jury entered a verdict of first degree murder (Ill.Rev.Stat.1989, Ch. 38, par. 9-1) as to each of the defendants. Kenneth and Gregory were each sentenced to prison terms of 35 years.

On appeal, Kenneth and Gregory each contend that: (1) he was not proved guilty beyond a reasonable doubt; (2) during closing argument, the prosecutor made prejudicial remarks which denied each of them a fair trial; and (3) he was prejudiced by the trial court's limitation of defense counsel's cross-examination of a State's eyewitness. Kenneth, individually, contends that: (4) he was prejudiced by the rebuttal testimony of Assistant State's Attorney Sherie Weisberg regarding his post-arrest statement; (5) the trial court erred in admitting the rebuttal testimony of Chicago Police Detective George Tracy because the prosecutor failed to lay a proper foundation for admission of a prior-inconsistent statement; and (6) the cumulative effect of alleged trial errors deprived him of a fair trial. Gregory, individually, contends that: (7) the Illinois Homicide Act violates the due process, equal protection, and separation of powers clauses of the United States Constitution; and (8) the trial court erred in sentencing him to an extended prison term of 35 years.

The record sets forth the following facts relevant to this appeal. At trial, Chicago Police Officer Henry Harris testified on behalf of the State that on August 13, 1987, at approximately 3:30 p.m., he and his partner William Parker were flagged down by people who stated there was gunfire in the alley behind 57th and Wabash Streets. Harris found Larry Echols (hereinafter "Larry" or "Echols") lying in a pool of blood, and nearby saw three spent nine millimeter shells and one live round of ammunition. Harris called for an ambulance and backup officers.

On cross-examination, Harris testified that his work involves gang-activity investigations and that some blocks close to 57th and Wabash are areas of high gang concentration. He acknowledged that some gang members tattoo their bodies, but did not notice any gang tattoos on Echols' body; he was concerned at the time with getting Echols into an ambulance. Harris did not know if the shooting was gang related. He was unable to recall whether Echols was wearing a jacket, but saw a leather jacket on a car parked next to Echols' body. He acknowledged that a six-pointed star tattoo can indicate membership in five or six different gangs in Chicago. He tried to talk to the large group of people in the area, but most of the people he talked to were reluctant to cooperate with the police and did not want to give him their names.

Dr. Edmond Donoghue, deputy Chief Medical Examiner for Cook County testified that he performed an autopsy on Echols on August 14, and that Echols suffered four gunshot wounds. Three of the wounds were to Echols' head; two wounds exhibited evidence of close range firing. He noted the six-pointed star tattoo on Echols' body in his report because it provided "sociological" information. Donoghue also stated that he received trousers, socks, shoes and a white t-shirt along with Echols' body. He determined that Echols died of multiple gunshot wounds.

Next, Lonell Echols, brother of the deceased, testified that the defendants' father, Willie Smallwood, had been married to his sister, Della. Lonell stated that in July 1986, he was prosecuted on charges of first degree murder in the shooting death of Willie Smallwood, but found not guilty on grounds of self-defense.

Lonell testified that on August 13 at approximately 2:00 p.m. he and Larry were standing near 57th Street and Michigan Avenue talking to Larry's friend "Nate." At 2:30, Nate left, and he and Larry noticed Kenneth walking toward them. Immediately thereafter, Lonell saw Gregory driving a green and white Oldsmobile 98 toward them from 56th and Michigan. Lonell and Larry ran through the alley connecting 57th and 56th Streets, and Lonell called their sister Willie Mae from a pay phone. While Lonell was on the phone, defendants pulled up on the West side of the street. Kenneth got out of the car and shot twice over the car at Lonell and Larry, who ran in different directions. Lonell ran to 57th and Wabash, and Larry ran to Nate's house at 57th and Michigan.

Willie Mae picked up Lonell at 57th and Wabash and Larry at 57th and Michigan. Larry got out of the car at 57th and Wabash to speak to Joe Hunley, and Lonell last saw Larry speaking to Hunley at the mouth of an alley located there.

Lonell acknowledged that Larry was a gang member in jail in 1986, but stated that Larry was not in a gang at the time of his death in 1987. Lonell stated that Larry had two tattoos, one on his chest of his initials, and another on his left arm which said "I Love Mom." When Lonell was shown an autopsy photo of Larry, he acknowledged the presence of a six pointed star tattoo, but maintained that he had never seen the tattoo on Larry.

On cross-examination, Lonell testified that a six-pointed star signifies membership in the "Disciples" street gang. He stated that there were no bad feelings between his family and the Smallwood family, but that he had no social contact with the Smallwoods since Willie Smallwood's death. He stated that he never called the police on the day of Larry's death, because his sister did not have a telephone, and that he returned with a cousin to the area in the early evening of the next day.

Willie Mae Echols testified to the same facts as Lonell regarding his phone call to her for a ride. She testified that later that day, she received a second call from Lonell, after which she called the police. The police later came to her house and told her that she had to identify the body of her brother Larry, which she did on the next day. On cross-examination, she testified that she had always had a telephone in her apartment and that Lonell knew that she had a phone. She stated that no one called the police when she arrived at her home with Lonell and Larry.

Next, Joe Hunley testified on behalf of the State. Hunley testified that at 2:30 p.m. on August 13, he was standing in the alley of 57th Street between State and Wabash with a guy named "Ray" and Larry Echols. Larry went to a nearby garage to light a cigarette, and while he walked back toward Hunley, two men pulled up in a blue Gremlin automobile with white stripes. At the time, Hunley was six feet from Larry. Both men got out of the car and started shooting at Larry, who ran from them. Both men, who Hunley identified in court as defendants, ran past him and after Larry. Hunley ran to a nearby store, and remained there until the car pulled away. When he returned, Larry lay dead in the alley. Later that evening, Hunley identified defendants in a photo lineup at the police station.

On cross-examination, Hunley testified that he did not know defendants and had never seen them before August 13, 1987. He was aware that Larry had a six-pointed star on his arm, and that the tattoo was a symbol of the "Disciples" street gang. Hunley acknowledged the presence of a Disciples tattoo on his own arm similar to the tattoo on Larry's arm, but stated that his membership in the gang ended over ten years prior to the trial.

Next, LaShune Williams testified that on August 13, at approximately 3:30 p.m. she was in the alley on 57th Street between Wabash and State, having a beer with some friends when she was approached by Larry Echols who asked for a light. She did not know Larry at that time. She did not have a light and Larry walked on toward the other end of the alley at 58th Street. Shortly thereafter, she saw Larry running from defendants who were armed with guns. Defendants stopped near her for a minute and fired their guns at Larry as he ran from them. After a few shots were fired, the defendants walked up to Larry, and she did not see Larry standing. She noticed that one of the defendants was taller than the other and had fuller hair. The taller defendant told the other to "give him three to the head," but the other defendant's gun jammed. The taller defendant then shot his gun three times at Larry, and they both ran away. On the evening of the next day, Williams identified defendants in a police photographic line-up. She also identified defendants in open court. Initially, Williams could not see defendants in court to identify them, but when she stood up, she could see clearly and identified defendants immediately. Williams stated that she is 5'3"' tall. On cross-examination, Williams testified that her view of the incident was clear from where she was sitting.

Chicago Police Detective George Tracy then testified that on August 13, he investigated the crime scene and interviewed six or seven witnesses, including Hunley and Williams. Tracy saw three spent bullets and one live round at the scene. Tracy testified that based on his experience as a police officer, and as a former owner of a nine millimeter automatic pistol, when the weapon jams, the "slide" must be...