People v. Turner, 1-13-3649

• Decision Date: 17 August 2015
• Docket Number: No. 1-13-3649,1-13-3649
• Citation: 2015 IL App (1st) 133649 -U
• Parties: THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. WYSINGO TURNER, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

2015 IL App (1st) 133649-U

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
WYSINGO TURNER, Defendant-Appellant.

No. 1-13-3649

APPELLATE COURT OF ILLINOIS FIRST JUDICIAL DISTRICT FIRST DIVISION

August 17, 2015

NOTICE: This order was filed under Supreme Court Rule 23 and may not be cited as precedent by any party except in the limited circumstances allowed under Rule 23(e)(1).

Appeal from the Circuit Court of Cook County.

10 CR 15960

Honorable Kevin M. Sheehan, Judge Presiding.

JUSTICE CONNORS delivered the judgment of the court.
Presiding Justice Delort and Justice Cunningham concurred in the judgment.

ORDER

Held: Defense counsel was not ineffective for failing to tender certain jury instructions and failing to elicit certain evidence from a witness; the trial court did not err when it excluded evidence that the victim threatened to kill defendant, allowed defendant to be cross-examined about the legality of carrying a gun in his car, refused defense counsel's tendered jury instructions regarding intent and knowledge, sustained an objection from the State during defense counsel's cross-examination of a witness, and refused to ask certain questions during voir dire.

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¶ 1 Defendant, Wysingo Turner, was convicted of first degree murder following a jury trial, and was sentenced to 60 years in the Illinois Department of Corrections. On appeal, defendant contends that he was deprived of effective assistance of counsel by counsel's failure to: (1) tender a jury instruction on involuntary manslaughter; (2) tender a jury instruction with respect to prior inconsistent statements; (3) tender a jury instruction with respect to no duty to retreat; (4) tender a jury instruction with respect to proof of other crimes; (5) elicit from a witness an alleged threat by the victim to defendant. Defendant also contends that the trial court erred when it: (1) excluded evidence that the victim threatened to kill defendant; (2) allowed defendant to be cross-examined about whether he knew that it was illegal to carry a gun in his car; (3) refused defense counsel's tendered jury instructions defining intent and knowledge; (4) sustained an objection to a question of a certain witness; and (5) refused to ask defense counsel's tendered voir dire questions to the venire. For the following reasons, we affirm the judgment of the circuit court.

¶ 2 BACKGROUND

¶ 3 At trial, the following evidence was presented. The victim's son, Demar'J Bankston, testified that he was 12 years old in August of 2010 and that he lived with the victim in the basement of Queen Spencer's house at 7019 South Justine in Chicago. The victim's half-sister, Silvia Gandy, lived upstairs. Demar'J testified that on the morning of August 12, 2010, defendant arrived at 7019 South Justine in his silver BMW and had a conversation with the victim outside that Demar'J did not hear. He testified that defendant returned later and defendant approached him outside with a beer bottle in his hand and asked for Silvia. Demar'J told defendant she was not home, so defendant asked for the victim. Demar'J told defendant that the victim was in the basement. Defendant then went to his car, put his beer bottle in the trunk, and knocked on the basement window. The victim came out and she and defendant argued.

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¶ 4 Demar'J testified that defendant then pulled a silver gun from the back of his pants and pointed it at the victim. Demar'J heard the victim say, "I'm sorry," and then defendant shot the victim in the neck and she fell to the ground. Demar'J testified that defendant then walked to where Demar'J's cousin was standing and handed him some money. He then went to his car and drove away.

¶ 5 Raymond Washington lived at 7021 South Justine at the time of the incident. Washington testified that he was in his living room on the afternoon in question, and saw defendant's silver BMW pull up and saw defendant get out. A few minutes later, Washington heard a gunshot and went toward his front door. He saw defendant walk back to his car with what appeared to be a weapon in his hand. Washington looked into the gangway and saw the victim on the ground with a bullet hole in her neck.

¶ 6 Queen Spencer lived at 7019 South Justine with her son, Walter Gandy, her granddaughter Silvia, and Silvia's three-year-old son Ya'Shon. Spencer testified that she knew the victim as Silvia's half-sister, and that she had seen defendant at her house a few times a week visiting Ya'Shon and taking him places. Spencer was home on the afternoon of the incident and saw defendant standing in the gangway between her house and the house next door. She testified that she heard defendant say, "What you want to do now?" and the victim answer, "Nothing. I was just playing." Queen then heard a gunshot and went to the front porch. She saw defendant walking from the gangway to his car with a gun in his hand. Spencer testified that defendant got in his car, put his head on the steering wheel, and said, "Oh, my god," and then drove away. She called the police.

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¶ 7 Chicago police officer Wade Clark testified that he responded to the scene at 7019 South Justine and went to the gangway, where he saw paramedics working on the victim. He spoke to witnesses at the scene, and then began looking for the shooter and a silver BMW.

¶ 8 Chicago police officer Richard Barber was patrolling the area when he heard the dispatch of the shooting which included a description of the shooter and the car he was driving. As Officer Barber was driving, he observed a silver BMW pull into an automotive store, about two miles from 7019 South Justine. Officer Barber saw defendant open his door to exit and a full bottle of Corona rolled out of the car. Officer Barber asked defendant his name, which defendant provided. The officer handcuffed him and placed him in the back of the squad car. Officer Barber testified that defendant asked him to loosen his handcuffs, stating that he was going to prison for a long time. Officer Barber further testified that he looked into defendant's car through the open driver's door and observed a chrome handgun on the driver's side floor.

¶ 9 Chicago police officer Zbigniew Niewdach, a forensic investigator, testified that he processed the scene of defendant's arrest. He saw a full Corona beer bottle on the ground next to the driver's side door, a liquor bottle in the passenger seat of the silver BMW, a blue towel on the driver's seat, and the barrel of a handgun on the driver's side floor. He recovered a .44 caliber revolver from inside the car.

¶ 10 The defense called Walter Gandy, who testified that he lived with his mother, Queen Spencer, at 7019 South Justine. He knew the victim and was familiar with her voice. Gandy testified that at approximately 10 or 11 a.m. on the day in question, he heard the victim's voice speaking loudly and "violent like in an up rage." He was not present at the time of the shooting.

¶ 11 Defendant testified on his own behalf. He testified that he was 63 years old, and was a retired fireman after 25 years of employment at the Chicago Fire Department. Defendant

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testified that he had hernia surgery in early August 2010, and a tooth extracted on August 8, 2010. On August 10, 2010, Silvia called and asked him to take Ya'Shon to get his shots for school. Defendant testified that he agreed even though he felt weak. He stated that he weighed approximately 150 pounds at the time.

¶ 12 Defendant testified that when he arrived to pick up Ya'Shon, Silvia, Ya'Shon, and the victim entered his car. As he drove, Silvia told defendant to drop the victim at another location, but defendant did not feel like it. He testified that the language between them became "quite heated," so he drove to a police station and told the desk sergeant his dilemma. The desk sergeant and other officers made Silvia, Ya'Shon, and the victim get out of the car.

¶ 13 Defendant testified that on August 12, 2010, he went to 7019 South Justine between 10:30 and 11 a.m. He saw Ya'Shon riding his bicycle and stopped to explain why he had made him get out of the car two days before. Defendant testified that as he was crouched down talking to Ya'Shon, the victim came out and kicked his shoulder, causing him to fall back. Defendant then got in his car and drove to Ogden Park, where he stayed for several hours. Defendant testified that he kept a loaded gun in his car for protection.

¶ 14 He then went back to 7019 South Justine at approximately 3 p.m. Defendant testified that when he arrived back at the residence, he got out of his car and took his gun with him because sometimes there were "thugs" in the basement. He walked down the gangway, but the victim approached him as he reached the end of the gangway. She did not say anything to him, and she appeared calm. Defendant testified that the victim then "snatched the gun" from him and held it facing him. He thought his life was in danger and thought the victim was going to kill him so he struggled with her but the gun discharged during the struggle. Defendant denied pulling the trigger or shooting the victim.

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¶ 15 On cross-examination, defendant admitted that although he had emergency medical training, he did not help the victim after she was shot. Defendant denied that a bottle of Corona fell from his car when he got out at the automotive store, and testified that the bottle was a "prop."

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