{ "id": 2619507, "name": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILL O. BAILEY, Defendant-Appellant", "name_abbreviation": "People v. Bailey", "decision_date": "1989-04-27", "docket_number": "No. 1\u201486\u20140866", "first_page": "867", "last_page": "874", "citations": [ { "type": "official", "cite": "182 Ill. App. 3d 867" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "495 N.E.2d 513", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "113 Ill. 2d 75", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3173969 ], "opinion_index": 0, "case_paths": [ "/ill-2d/113/0075-01" ] }, { "cite": "513 N.E.2d 367", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "117 Ill. 2d 271", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5545542 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-2d/117/0271-01" ] }, { "cite": "502 N.E.2d 399", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "151 Ill. App. 3d 510", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3541228 ], "pin_cites": [ { "page": "531-32" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/151/0510-01" ] }, { "cite": "434 N.E.2d 856", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1986, "opinion_index": 0 }, { "cite": "105 Ill. App. 3d 785", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5469945 ], "year": 1986, "opinion_index": 0, "case_paths": [ "/ill-app-3d/105/0785-01" ] }, { "cite": "273 N.E.2d 667", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "1 Ill. App. 3d 120", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5312894 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/1/0120-01" ] }, { "cite": "447 N.E.2d 218", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "94 Ill. 2d 378", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3105961 ], "opinion_index": 0, "case_paths": [ "/ill-2d/94/0378-01" ] }, { "cite": "395 U.S. 250", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 1771609 ], "weight": 3, "opinion_index": 0, "case_paths": [ "/us/395/0250-01" ] }, { "cite": "523 N.E.2d 130", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "168 Ill. App. 3d 978", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3511619 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/168/0978-01" ] }, { "cite": "526 N.E.2d 849", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1988, "opinion_index": 0 }, { "cite": "172 Ill. App. 3d 94", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 5082212 ], "year": 1988, "opinion_index": 0, "case_paths": [ "/ill-app-3d/172/0094-01" ] }, { "cite": "523 N.E.2d 1160", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "169 Ill. App. 3d 959", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3550262 ], "weight": 2, "pin_cites": [ { "page": "975" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/169/0959-01" ] }, { "cite": "530 N.E.2d 423", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "124 Ill. 2d 400", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3218090 ], "opinion_index": 0, "case_paths": [ "/ill-2d/124/0400-01" ] }, { "cite": "476 U.S. 530", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12807 ], "weight": 3, "year": 1988, "opinion_index": 0, "case_paths": [ "/us/476/0530-01" ] }, { "cite": "485 N.E.2d 349", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "109 Ill. 2d 80", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3126872 ], "opinion_index": 0, "case_paths": [ "/ill-2d/109/0080-01" ] }, { "cite": "506 N.E.2d 1247", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1985, "opinion_index": 0 }, { "cite": "116 Ill. 2d 81", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5542977 ], "weight": 2, "year": 1985, "pin_cites": [ { "page": "93" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/116/0081-01" ] } ], "analysis": { "cardinality": 742, "char_count": 16250, "ocr_confidence": 0.77, "pagerank": { "raw": 4.066538828232102e-08, "percentile": 0.26662114277704996 }, "sha256": "f92021088fbd5d9b8b9c3716572a0d2a3ece62d1e1b94489f4885c98c32d44dc", "simhash": "1:2be768dee628dfb4", "word_count": 2607 }, "last_updated": "2023-07-14T18:08:14.831486+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILL O. BAILEY, Defendant-Appellant." ], "opinions": [ { "text": "JUSTICE McMORROW\ndelivered the opinion of the court:\nFollowing a jury trial, defendant was convicted of murder and attempted armed robbery and was sentenced to 40 years\u2019 imprisonment on the murder conviction. On appeal, defendant argues that he should receive a new trial because: (1) the trial court should have granted him a separate trial from his codefendant, Henry Harris, on the grounds that the defendants would present antagonistic defenses and would be prejudiced by admission into evidence of their pretrial inculpatory statements; (2) the trial court accorded defendant only eight peremptory challenges even though defendant was allegedly entitled to 14 peremptory challenges; (3) the trial court improperly denied defendant\u2019s pretrial motion to waive a sentencing jury and thereafter improperly permitted the State to death-qualify the jury; and (4) the trial court erroneously admitted into evidence an Olde English beer bottle found near the scene of the crime, and also permitted the arresting officer to testify regarding his prior \u201cstreet stops\u201d of defendant. Defendant also asserts that his attempted armed robbery conviction should be reversed because the evidence was insufficient to prove him guilty of this crime.\nBecause we conclude that antagonisms in the two defendants\u2019 inculpatory statements and trial strategies deprived defendant of a fair trial, we reverse and remand.\nDefendant was convicted of the murder and attempted armed robbery of Nathaniel Jakes on September 23, 1983, at approximately 9 p.m. in Chicago. Evidence produced at trial established that the victim had been shot twice, once in the head and once in the chest, and that he died as a result of his chest wound. At the time of the shooting, the victim had opened his garage door in order to park his automobile in the garage, which opened into an alley. An eyewitness to the shooting, who was in the alley at the time, identified defendant in a photographic array, a police showup, and at trial as the man whom the eyewitness saw shoot the victim twice while standing near the victim\u2019s garage.\nChicago police officers arrested defendant a few days after the incident. In subsequent interrogation, defendant admitted that he and Henry Harris, his codefendant at trial, had planned to rob the victim. In his oral and court-reported confession, defendant placed blame for planning the crime upon Harris and stated that Harris had given him the gun prior to the incident and assured him the weapon was not loaded. Defendant stated that during the incident, the gun went off accidentally, firing one shot that hit the victim in the leg. Defendant said that he then dropped the weapon and fled. As he ran away, defendant heard the firing of a second gunshot.\nThe eyewitness to the shooting testified that he saw defendant fire two shots at the victim, hitting the victim both times. The eyewitness did not see a second assailant. The witness stated that defendant then fled the scene, falling in the alley as he fled. When arrested, defendant had cuts and bruises consistent with having recently fallen in the alley.\nHenry Harris, the codefendant, told police in an oral inculpatory statement following his arrest that defendant had planned and initiated the robbery, that defendant shot the victim twice, and that both of them then fled the scene. Harris\u2019 trial strategy was that defendant had wrongfully accused Harris of participation in the attempted armed robbery and that defendant had wrongfully implied that it was Harris, rather than defendant himself, who had shot and killed the victim. Defendant presented the defense of alibi at trial, claiming that he had been at a friend\u2019s party during the entire period when the incident occurred.\nHarris was acquitted of murder and attempted armed robbery. Defendant was convicted and sentenced as previously noted, and now appeals.\nDefendant argues first that he should be granted a new trial because the trial judge should have severed his trial from that of Harris, his codefendant. Defendant asserts that severance was appropriate because: (1) he was prejudiced by Harris\u2019 antagonistic defense and trial strategy; and (2) he was also prejudiced by the erroneous admission into evidence of Harris\u2019 inculpatory statement, which defendant could not subject to cross-examination because Harris did not testify at trial. (See, e.g., People v. Byron (1987), 116 Ill. 2d 81, 506 N.E.2d 1247; People v. Bean (1985), 109 Ill. 2d 80, 485 N.E.2d 349 (antagonistic defenses); Lee v. Illinois (1987), 476 U.S. 530, 90 L. Ed. 2d 514, 106 S. Ct. 2056; People v. Duncan (1988), 124 Ill. 2d 400, 530 N.E.2d 423 (prejudicial inculpatory statements of a codefendant).) We agree. It is clear that the two defendants\u2019 trial strategies were antagonistic, as were their inculpatory statements.\nIn his oral and written statements, defendant told authorities that the robbery had been Harris\u2019 idea, that Harris had given the weapon to defendant to act as a lookout, and that Harris assured the defendant the gun was not loaded. Defendant stated that during Harris\u2019 attempt to rob the victim, the gun defendant was holding went off accidentally, hitting the victim once in the leg. Defendant stated that he then dropped the weapon and ran away; while running, defendant heard a second shot fired. Thus, defendant\u2019s statements clearly imply that it was Harris who, after defendant ran away, picked up the gun and fired the second shot that caused the victim\u2019s death. Harris\u2019 account was substantially different. Harris told police that it was defendant who planned the robbery idea and that it had been defendant who shot the victim twice.\nIn People v. Dixon (1988), 169 Ill. App. 3d 959, 523 N.E.2d 1160, as in the case at bar, the extrajudicial statement of defendant Moore, who did not testify at trial, shifted to his codefendant Dixon primary blame for the crime with which they were charged and jointly tried. The court held Moore\u2019s statement inadmissible against Dixon under the confrontation clause, observing, \u201cJust as in Lee [v. Illinois], it is possible that Moore implicated defendant to mitigate the appearance of his own culpability by spreading the blame and/or in retaliation for what he was told or might have believed defendant related to [authorities] regarding his (Moore\u2019s) role in the shooting. In any case, we cannot say that Moore\u2019s statement was sufficiently substantiated by defendant\u2019s own statement to overcome the weighty presumption that a codefendant\u2019s statement implicating a defendant is even less reliable than ordinary hearsay and that absent-the opportunity for cross-examination, its admission against the defendant violates the confrontation clause.\u201d (People v. Dixon, 169 Ill. App. 3d at 975.) These observations are equally valid with respect to Harris\u2019 statements in the case at bar and dictate the conclusion that Harris\u2019 statement was not admissible against defendant at trial.\nIt is equally evident that defendant was prejudiced by the joint trial that permitted the proceeding to be infected by the antagonisms between the defendants\u2019 trial strategies and their inculpatory statements. During opening statements, examination of witnesses, and closing argument, Harris\u2019 attorney attempted to show that his client was not a participant in the murder by emphasizing that Harris was not identified by the eyewitness (who testified that he saw only the defendant), and that all evidence pointed to Bailey as the person who committed the crimes. The record here amply demonstrates that the \u201ctrial became more of a contest between the two defendants than between the People and each defendant; the record is replete with instances in which defense counsel attacked each other\u2019s clients, as well as each other, and only a severance could have provided defendant a fair trial. [Citations.]\u201d (People v. Byron, 116 Ill. 2d at 93.) Consequently, defendant is entitled to a new trial.\nThe State maintains that any error in the trial court\u2019s failure to sever because of the two defendants\u2019 mutually inculpatory statements was harmless beyond a reasonable doubt, citing People v. Smith (1988), 172 Ill. App. 3d 94, 526 N.E.2d 849, and People v. Parks (1988), 168 Ill. App. 3d 978, 523 N.E.2d 130. These cases are distinguishable, however, as neither involved the cumulative prejudice of both the erroneous admission of a codefendant\u2019s statement implicating the defendant, and the antagonistic trial strategies of the defendant\u2019s codefendant, as occurred in the case at bar. The jury at defendant\u2019s trial was asked to weigh the conflicting accounts given in defendant\u2019s post-arrest statements, Harris\u2019 post-arrest statement, the eyewitness\u2019 testimony, and defendant\u2019s alibi defense. We cannot say beyond a reasonable doubt that the jury\u2019s verdict, rejecting defendant\u2019s alibi defense, was not influenced by the cumulative prejudice of the defendants\u2019 conflicting inculpatory statements and their antagonistic strategies at trial. (See Harrington v. California (1969), 395 U.S. 250, 23 L. Ed. 2d 284, 89 S. Ct. 1726.) Accordingly, we cannot find that the failure to sever in the instant cause was harmless beyond a reasonable doubt.\nIn light of this disposition, we address only those arguments that pertain to matters likely to arise on retrial. Defendant maintains that the trial court erroneously admitted into evidence an Olde English beer bottle found near the scene a few days after the shooting. Defendant\u2019s oral and written inculpatory statements indicated that he had been drinking beer with Harris in the alley before the shooting occurred; the testimony of a State witness indicated that defendant had purchased Olde English beer shortly before the victim was shot and that defendant had purchased the beer at a liquor store located a few blocks away from the shooting. (See People v. Free (1983), 94 Ill. 2d 378, 447 N.E.2d 218.) The State offered the beer bottle into evidence to corroborate defendant\u2019s confession and to rebut defendant\u2019s alibi defense. The evidence had probative value and was admissible for the stated purposes.\nDefendant argues that the arresting officer should not have been permitted to testify to his prior \u201cstreet stops\u201d of the defendant and to explain in that testimony that a street stop occurs when police \u201cstop [a person] and ask for identification of subjects who [police] believe might have criminal intentions.\u201d We agree with defendant\u2019s contention, since this testimony tended to show the defendant's propensity to commit crimes. See, e.g., People v. Pitts (1971), 1 Ill. App. 3d 120, 273 N.E.2d 667.\nDefendant contends that his attempted armed robbery conviction should be reversed because his confession, standing alone, is insufficient to convict him of this crime and because the State produced no other evidence to corroborate his confession. Contrary to defendant\u2019s assertion, however, the State did present evidence to corroborate defendant\u2019s confession. Defendant stated in his oral and court-reported confession that he planned to rob the victim on the particular night in question because he knew that the victim would have collected rent monies during that day and that the victim would therefore have substantial money in his possession. Defendant also said in both statements that he planned to rob the victim while the victim was in the alley parking his automobile in the garage. The eyewitness saw defendant shoot the victim as the victim was placing his car in his garage, and the victim\u2019s wife testified at trial that the decedent had collected rent monies from tenants earlier that day prior to the shooting. The testimony of the eyewitness and the decedent\u2019s wife corroborated significant elements of the defendant\u2019s confessions that he planned to rob the victim on the night and place in question. Given these consistencies in the sequence and location of the events concerning the attempted armed robbery, we find sufficient evidence corroborating defendant\u2019s confessions to sustain the conviction for armed robbery. See, e.g., People v. Barkenlau (1982), 105 Ill. App. 3d 785, 434 N.E.2d 856; cf. People v. Lee (1986), 151 Ill. App. 3d 510, 531-32, 502 N.E.2d 399 (defendant likely to confabulate).\nDefendant also contends that the trial court erroneously declined to accept his pretrial waiver of a sentencing jury and thereafter improperly permitted the State to question prospective jurors regarding their views with respect to the death penalty. Upon remand, these issues are governed by the Illinois Supreme Court\u2019s decisions in People v. Erickson (1987), 117 Ill. 2d 271, 513 N.E.2d 367, and Daley v. Hett (1986), 113 Ill. 2d 75, 495 N.E.2d 513, in which the court held that the trial court must accept a defendant\u2019s knowing and voluntary pretrial waiver of a sentencing jury and that the trial court may not thereafter permit the State to death-qualify the jury.\nDefendant also asserts that he should be granted a new trial because the trial judge should have permitted him 14 peremptory challenges in his capital case. The State indicated prior to trial that it intended to seek the death penalty with respect to defendant, but not with respect to Harris. The trial judge allowed both defendant and Harris eight peremptory challenges each during voir dire. The relevant Illinois Supreme Court rule states that a \u201cdefendant tried alone shall be allowed 14 peremptory challenges in a capital case, *** [while] in a single trial of more than one defendant, each defendant shall be allowed 8 peremptory challenges in a capital case.\u201d (107 Ill. 2d R. 434(d).) Because defendant will be tried alone upon remand and will therefore be entitled to 14 peremptory challenges under this rule if the State again seeks the death penalty against the defendant, we need not address the defendant\u2019s argument that he was entitled to 14 peremptory challenges in his first, joint trial.\nFor the reasons stated, defendant\u2019s convictions are reversed, and the matter remanded for a new trial consistent with the views expressed herein.\nReversed and remanded.\nLINN, J., concurs.", "type": "majority", "author": "JUSTICE McMORROW" }, { "text": "PRESIDING JUSTICE JIGANTI,\ndissenting:\nI respectfully dissent from the opinion of the majority because I believe that any error which may have resulted from the failure to sever was harmless beyond a reasonable doubt,\nRafael Lopez, an eyewitness to the crime, positively identified the defendant as the offender both in a pretrial photographic array and again in court. His identification testimony was clear and unequivocal. He stated at trial that he described the offender to police at the scene as a white-skinned black man with blonde hair, approximately 5 feet 8 inches tall and 20 or 21 years old. Officer James Entress testified that the description in the police report was of an unusually light-skinned male black with light hair, 5 feet 7 inches tall and 20 to 22 years old. The defendant in fact fit the very unique physical description. The defendants\u2019s appearance was so unique that no lineup was conducted because the police could not find anyone else who even remotely fit the description. The eyewitness also testified that the defendant fell in the alley as he fled the scene. At the time of his arrest two days later, the defendant had scrape marks on his elbows and the back of his arms and a cut on the palm of his left hand. The defense at trial was alibi. However, the defendant made a very detailed pretrial statement, properly admissible against him, which placed him at the scene of the offense and which essentially admitted all of the elements necessary to convict him of felony murder. In light of this evidence, I believe it can be said beyond a reasonable doubt that neither the pretrial statement nor the trial strategy of the codefendant in any way affected the jury\u2019s verdict.", "type": "dissent", "author": "PRESIDING JUSTICE JIGANTI," } ], "attorneys": [ "Randolph N. Stone, Public Defender, of Chicago (Kendall Hill, Assistant Public Defender, of counsel), for appellant.", "Richard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry and Gael M. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." ], "corrections": "", "head_matter": "THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee, v. GILL O. BAILEY, Defendant-Appellant.\nFirst District (4th Division)\nNo. 1\u201486\u20140866\nOpinion filed April 27, 1989.\nJIGANTI, P.J., dissenting.\nRandolph N. Stone, Public Defender, of Chicago (Kendall Hill, Assistant Public Defender, of counsel), for appellant.\nRichard M. Daley, State\u2019s Attorney, of Chicago (Kenneth T. McCurry and Gael M. O\u2019Brien, Assistant State\u2019s Attorneys, of counsel), for the People." }, "file_name": "0867-01", "first_page_order": 889, "last_page_order": 896 }