People v. Spears, 1-89-3396

• Decision Date: 16 November 1993
• Docket Number: No. 1-89-3396,1-89-3396
• Citation: 256 Ill.App.3d 374,628 N.E.2d 376
• Parties: , 194 Ill.Dec. 879 The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sherman SPEARS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

Page 376

628 N.E.2d 376

256 Ill.App.3d 374, 194 Ill.Dec. 879

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Sherman SPEARS, Defendant-Appellant.

No. 1-89-3396.

Appellate Court of Illinois First District, Second Division.

Nov. 16, 1993.

Public Defender of Cook County, Chicago (Rita A. Fry and Julie M. Campbell, of counsel), for defendant-appellant.

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

Presiding Justice McCORMICK delivered the opinion of the court:

Defendant Sherman Spears was charged with murder, attempted murder, armed violence, home invasion, aggravated unlawful restraint, aggravated battery and unlawful use of a weapon by a felon. The unlawful use of a weapon by a felon charge was severed and the armed violence, aggravated unlawful restraint and aggravated battery charges were dropped. After a severed jury trial with his codefendant Larry Felder, defendant was found guilty of murder, attempted murder and home invasion. The trial court sentenced defendant to natural life in prison for the offense of murder and a consecutive sentence of 60 years' imprisonment for the attempted murder. Defendant appeals from his conviction and sentence.

On appeal, defendant raises several points of error. Defendant contends that (1) the trial court erred in allowing the State to introduce evidence of the "Pay Masters" gang; (2) the evidence regarding Robert Felder's statements was hearsay; (3) the trial court abused its discretion in refusing to publish the newspaper article about the incident to the jury; (4) the prosecutor made improper remarks during opening, closing and rebuttal arguments; (5) he was afforded ineffective assistance of counsel; and (6) he was improperly sentenced under the statute. For the reasons set forth below, we affirm defendant's conviction and sentence.

On March 14, 1987, Karen Spaulding and Sharon Eskridge shared an attic apartment in Chicago. Sharon's boyfriend, Guy Brackston, also lived in the apartment. At approximately 10 p.m., Karen and Sharon left the apartment to attend a party hosted by Robert Felder. Robert Felder was the head of a street gang known as "Pay Masters," an organization which dealt in narcotics. Defendant and Larry Felder, Robert Felder's brother, also attended the party. Karen testified that defendant was known to her as "Spiro" and Larry Felder as "Bo Bo". She had known defendant for about six months and Larry Felder for one year.

Sometime in the early morning hours of the party, Robert Felder suffered an asthma attack. While Robert was incapacitated, Karen took Robert's gold necklace. At approximately 5:30 a.m., Karen and Sharon left the party with Guy Brackston and returned to their apartment.

At approximately noon on March 15, 1987, Robert Felder called the apartment twice asking for Brackston. After speaking with Robert, Brackston confronted Karen about the necklace. Karen then returned the necklace to Brackston.

A short time later, Willie Streeter and Larry Byrd came to the apartment. Karen let them in. Streeter had been sent to the apartment by Robert Felder to collect the necklace and some money that Robert claimed the women had stolen from him. Both Streeter and Byrd sold drugs for Robert Felder.

While Streeter was collecting the money and jewelry, Robert Felder called the apartment and asked to speak to Streeter. He informed Streeter that defendant and Larry Felder were on their way over to the apartment and ordered Streeter to keep the women at the apartment until they arrived. Streeter then explained that Robert's necklace and money had been returned to him. Nevertheless, Robert Felder told Streeter that defendant and Larry Felder were coming over to "gun the bitches." Shortly after this conversation, Streeter and Byrd left the apartment with Guy Brackston.

Streeter returned about 10 minutes later with defendant and Larry Felder. The three entered the apartment while the women were in the living room. Upon entering the apartment, defendant grabbed Karen and yelled that she had gotten him into trouble by taking the necklace. Streeter stepped between defendant and Karen, telling defendant, "Man, you should freeze that, you know. Don't do that."

Larry Felder called Karen into the bedroom and accused her of taking money from his brother. Karen denied taking the money. Larry Felder then began to hit and kick her. After hitting her five or six times, defendant came into the room, noticed Felder leaning his hand against a wall and threw him a towel to remove his prints.

Sharon was then called into the bedroom. As she entered, defendant pushed her onto the bed, then picked up one pillow for himself and another for Felder. With their guns inside the pillows, they opened fire. Sharon died of multiple gunshot wounds. Karen was shot five times.

Defendant, Streeter and Spears fled the scene in a van waiting outside the apartment. In the van, defendant smiled as he said, "Man, we gunned them bitches. We gave the bitches two to the head."

Shortly after the shooting, the police arrived. At trial, Karen testified that while the police were in the apartment Robert Felder called and spoke to her. She stated that Felder threatened to harm her mother and child if she told the police anything about the shooting. Once the police assured her that she would be placed in protective custody, she told them that "Spiro" and "Bo Bo" had shot her and killed Sharon.

On March 17, 1987, defendant was picked up by the police as he left Larry Felder's motel room. A newspaper clipping about the shooting was found in his pocket.

Defendant initially contends that the trial court erred in allowing the State to introduce evidence of the "Pay Masters" gang, arguing that such evidence was highly prejudicial and that it improperly implied that defendant was involved in other crimes not charged in this case.

We note that defendant failed to raise this issue in the written motion for a new trial. The law is well-settled that where a defendant fails to raise alleged points of error in a written motion for a new trial, the issue is waived on subsequent appellate review. (People v. Enoch (1988), 122 Ill.2d 176, 185, 119 Ill.Dec. 265, 522 N.E.2d 1124.) This failure notwithstanding, defendant urges this court to review the issue as one of plain error. The plain error doctrine is an exception to the rule of waiver (People v. Young (1989), 128 Ill.2d 1, 46, 131 Ill.Dec. 86, 538 N.E.2d 461), and is applicable "where the record clearly shows that an alleged error affecting substantial rights was committed" (Young, 128 Ill.2d at 46, 131 Ill.Dec. 86, 538 N.E.2d 461), or "where the error occurs in cases in which the evidence is closely balanced" (People v. Odle (1988), 128 Ill.2d 111, 134, 131 Ill.Dec. 53, 538 N.E.2d 428).

A review of this case indicates that the plain error rule does not apply here. There is no evidence that defendant was denied a fair trial by the admission of the gang evidence. A defendant's gang membership is admissible if it is relevant to the crime charged. (People v. Gonzalez (1991), 142 Ill.2d 481, 488-89, 154 Ill.Dec. 643, 568 N.E.2d 864.) Relevant evidence is evidence that has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence. (People v. Monroe (1977), 66 Ill.2d 317, 322, 5 Ill.Dec. 824, 362 N.E.2d 295.) Moreover, the trial court, in determining the admissibility of evidence, weighs the probative value of that evidence against the prejudicial effect. The trial court's determination will not be reversed absent an abuse of discretion. Gonzalez, 142 Ill.2d at 489-90, 154 Ill.Dec. 643, 568 N.E.2d 864.

In the instant case, the State's theory was that the leader of the "Pay Masters" gang, Robert Felder, angered by the women's theft of his money and jewelry, sent defendant and Larry Felder to their apartment to kill them. Willie Streeter testified that defendant was Robert Felder's right hand man, bodyguard and enforcer. According to the State's theory, defendant's gang membership explained why defendant carried out Robert Felder's orders. The trial court did not abuse its discretion in allowing the State to present this evidence to show a motive for the shootings.

Moreover, the record does not demonstrate that the evidence against defendant was closely balanced. Defendant relies on (People v. Smith (1990), 141 Ill.2d 40, 54, 152 Ill.Dec. 218, 565 N.E.2d 900), in support of his assertion that the evidence of his gang affiliation was unfairly prejudicial. However, in Smith, while our supreme court acknowledged that gang membership was admissible to show motive, the court noted that there was no evidence in that case which linked defendant to a gang or which indicated that defendant had any knowledge of the gang leader's dispute with the victim. Smith, 141 Ill.2d at 59, 152 Ill.Dec. 218, 565 N.E.2d 900.

The instant case is clearly distinguishable from Smith. In this case defendant, unlike the defendant in Smith, was linked to the "Pay Masters" gang and to the crimes committed by the direct evidence of one of his victims, Karen Spaulding, and by a fellow gang member, Willie Streeter. Thus, it was not plain error for the trial court to allow the evidence of defendant's gang membership.

Defendant additionally argues that he received ineffective assistance of counsel during the presentation of the gang evidence.

The United States Supreme Court established a two-pronged test for determining ineffective assistance of counsel in Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, and followed by Illinois in People v. Albanese (1984), 104 Ill.2d 504, 85 Ill.Dec. 441, 473 N.E.2d 1246. In order to prevail on a claim of ineffective assistance of counsel, defendant must prove that trial counsel's...