The People Of The State Of Ill. v. Malvin Wash.

• Decision Date: 24 March 2010
• Docket Number: No. 1-08-1966.,1-08-1966.
• Citation: 926 N.E.2d 899,399 Ill.App.3d 664,339 Ill.Dec. 424
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Malvin WASHINGTON, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

399 Ill.App.3d 664

926 N.E.2d 899

339 Ill.Dec. 424

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Malvin WASHINGTON, Defendant-Appellant.

No. 1-08-1966.

Appellate Court of Illinois First District, Third Division.

March 24, 2010.

Tod M. Urban, Chicago, IL, for Appellant.

Anita Alvarez, State's Attorney (James E. Fitzgerald, Mary P. Needham, Mika Soliunas, Asst. State's Attorneys, of counsel), Chicago, IL, for Appellee.

Presiding Justice MURPHYdelivered the opinion of the court:

On March 21, 2004, following a minor car accident between Antoine Lee and Antonio Washington, a steadily growing crowd gathered at the scene of the accident.Several members of the extended families of Antoine and Antonio were part of the crowd, including Antonio's cousin, defendantMalvin Washington.Eventually, a verbal altercation ensued and defendant shot Antoine's uncle and cousin, Ronald Lee and Marquis Reed, respectively.Ronald was hospitalized and treated for his wounds while Marquis died as a result of injuries suffered from his gunshot wound.Following a police investigation, defendant was charged in a multicount indictment with first degree murder, attempted murder, aggravated battery with a firearm, aggravated discharge of a firearm, aggravated battery, and aggravated unlawful use of a weapon.

The State proceeded to trial on two counts of first degree murder and one count of aggravated battery with a firearm.On April 14, 2008, following a jury trial, defendant was convicted of charges of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2)(West 2006)) and aggravated battery with a firearm (720 ILCS 5/12-4.2(West 2006)).On May 12, 2008, defendant's motion for a new trial was denied and he was sentenced to 55 years' imprisonment for the merged first degree murder convictions and a consecutive 10 years' imprisonment for the aggravated battery with a firearm conviction.

On appeal, defendant first asserts that his defense was prejudiced by the trial court's denial of his motion for a continuance to provide additional time to investigate alleged newly discovered information concerning an incident between Antoine Lee and Charlene Parker, the mother of defendant's child.Next, defendant contends that his right to a fair trial was denied by repeated evidentiary errors by the trial court.Third, defendant contends that the trial court erred in rejecting defendant's proposed jury instructions for second-degree murder and involuntary manslaughter.Finally, he asserts that he was denied his right to a fair and impartial trial based on the trial court's exhibited bias and prejudice against him.For the following reasons, we reverse the judgment of the trial court and remand for further proceedings.

I.BACKGROUND

A.Defendant's First Trial

On February 25, 2008, a trial commenced on charges against defendant of two counts of first-degree murder and one count of aggravated battery with a firearm.Following the close of the State's case-in-chief, the trial court granted defendant's motion for mistrial.After the State rested and court was in recess, defendant's father approached a member of the jury outside the court building to discuss the trial.The next day, the juror informed the court and was excused.After the trial court interviewed the remaining jurors, it found the jury had been tainted and granted the mistrial.

B.Pretrial Proceedings For Defendant's Second Trial

On April 4, 2008, immediately prior to the commencement of defendant's second trial, defense counsel moved for a continuance Counsel sought a continuance for the weekend so that he could investigate reports that he had received indicating Antoine Lee had recently been investigated by the police for firing a gun at Charlene Parker, defendant's ex-girlfriend and mother of his child.Counsel argued that the alleged shooting occurred on March 19, 2008, and he learned of it “a few days” thereafter, but he could not investigate at that time because he had a demand jury on a separate death penalty trial.Counsel received the police reports regarding the shooting at the hearing on his motion.

The trial court passed the case and instructed counsel to interview defendant's mother, who was at the courthouse, to determine where Parker and another witness might be found to be interviewed.When the case was recalled, defense counsel reported that the witnesses would be interviewed quickly but that he still wished to continue the case over the weekend.Based on the fact that no crime was charged for the alleged shooting and the lapse of time from the alleged act and the date of the motion and trial, defendant's motion was denied.

The trial court also considered the State's motion to affirm its rulings made prior to the first trial.The State noted that the court granted its motion in limine to bar defendant from eliciting evidence that Ronald Lee was on parole at the time of the shooting.The trial court granted the motion, holding that his arrest for aggravated vehicular hijacking was old and not probative, but granted defendant the right to move to admit his arrest if his testimony differed from that at the first trial.The trial court also affirmed two prior rulings from the first trial-that the State was not precluded from bringing out evidence that defendant's cousin went to the police station with an attorney and the State was not precluded from explaining that Mario Lee died of an asthma attack at the scene.

C.Trial Testimony

The State began its case with the testimony of Antoine Lee and Antonio Washington.Both witnesses were 25 years old at the time of trial and both testified to the automobile accident and subsequent events.On March 21, 2004, Antoine was driving his uncle's car northbound on South Lamon Avenue toward West 43rd Street.At that time, Antonio, who had borrowed Parker's car, was backing out of a parking space into South Lamon Avenue, where his vehicle and Antoine's vehicle collided.

Antoine testified that he exited the vehicle and talked calmly with Antonio about the accident.Antoine called his mother, Angela Lee, on his cell phone, but did not call the police because he did not have a driver's license.Initially, a small crowd of seven or eight people was at the scene, but that number grew steadily to “about like a hundred”people.Defendant and his sister, Topeka Washington, were among the first people to arrive.Defendant began to argue with Antoine about who was going to pay for the damage to the car.Antoine testified that Topeka attempted to calm them down.Eventually, Antoine saw his uncle, Ronald Lee, approach and tell defendant“get the f---away from my nephew,” or something to that effect.

Antoine testified that Ronald told him that they should leave and they started to walk off.Antoine testified that he then heard two or three gunshots and saw fire from the gunshots coming from defendant's pocket.He then ran and drove home.He testified that the police came around and handcuffed whomever they knew was at the scene and brought them in for questioning.Antoine admitted that he gave a statement to the police that he saw defendant pull a gun from his pocket and fire the shots.On cross-examination of Antoine, the State's objection to defendant's inquiry into Antoine's two prior convictions for unlawful use of a weapon was sustained.

Antonio testified that he was dazed at that time and did not recall having any conversations.He did recall hearing shouting and hearing someone saying “get the f--- away from my nephew.”Antonio did not have any recollection of any other specifics surrounding the shooting.He also did not recall details from the statement that he gave the police, specifically that the situation escalated when defendant and Topeka arrived on the scene.

Angela Lee testified that after she talked to Antoine, she asked her sister, Yvette Reed, to drive her to the scene of the accident.Angela, Yvette and Donald Lee left the house, picking up Yvette's son, Marquis, on the way.When they arrived at the scene, there were approximately 10 people there and Angela exited the car alone to approach Antoine.Angela testified that Antoine was having a conversation with defendant that appeared to be normal and she did not see anyone get physical with defendant.She said that she looked up and her brother, Ronald Lee, walked up to the group.Angela testified that Ronald asked what was going on and defendant asked who he was.Ronald responded that he was talking to Antoine and said they should leave and call the police.

Angela testified that she, Ronald and Antoine then turned to leave without Ronald grabbing or pushing defendant.Defendant then started shooting in their direction.Angela testified that it did not appear he was shooting with any particular aim and that he ran away to the third of the nearby row houses when he stopped shooting.Angela testified that she ducked and fell to the ground, staying for a few minutes until police arrived.She did not know whether Antoine or Ronald was armed but did not see them with a gun that day.She said that she did not see anyone get hit by the gunfire.Angela spoke with the police officers at the scene and was taken to headquarters before talking to anyone else from the scene.She was interviewed by officers and an assistant State's Attorney.Angela signed a written statement identifying the shooter as a black male wearing a black jacket with green stripes, black jeans and black shoes.

Donald Lee testified that he accompanied his sisters to see if he could help.He acknowledged that he was convicted of delivery of a controlled substance in 2003 and that he had a couple of beers before leaving, but denied that he was under the influence at the time.Donald testified that when they arrived at the scene, he and Marquis exited the vehicle and approached the crowd.

Donald testified that he saw Antoine arguing with “some guy” who was pushing Antoine with his body while a woman was attempting to...