People v. Austin

767 N.E.2d 433, 328 Ill. App. 3d 798, 262 Ill. Dec. 973, 2002 Ill. App. LEXIS 168
CourtAppellate Court of Illinois
DecidedMarch 15, 2002
Docket1-99-3224
StatusPublished
Cited by22 cases

This text of 767 N.E.2d 433 (People v. Austin) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
People v. Austin, 767 N.E.2d 433, 328 Ill. App. 3d 798, 262 Ill. Dec. 973, 2002 Ill. App. LEXIS 168 (Ill. Ct. App. 2002).

Opinions

JUSTICE REID

delivered the opinion of the court:

Following a bench trial, Michael Austin was convicted of three counts of attempted first degree murder (720 ILCS 5/8 — 4, 9 — 1 (West 1992)), three counts of armed violence (720 ILCS 5/33A — 2, 12 — 4(a) (West 1992)), and three counts of aggravated battery with a firearm (720 ILCS 5/12 — 4.2(a)(1) (West 1992)). Austin was sentenced to three consecutive 30-year terms to be served consecutively with a 120-year sentence from a prior conviction in the case of People v. Austin, 1 — 99—1272 (December 11, 2001) (unpublished order under Supreme Court Rule 23). The trial court further sentenced Austin to three concurrent 30-year terms on the armed violence convictions. The trial court merged the aggravated battery convictions. His total aggregate sentence in both of these cases is 210 years.

THE FACTS

Monique Holmes went alone to the Tasty Sub restaurant on the evening of November 30, 1995. She had intended to run errands but instead met up with friends. She left the restaurant to call a cab from a nearby pay phone, then returned to wait outside the restaurant for her food to be prepared. Though the sun had set and it was “kind of dark,” there were streetlights illuminating the area. Holmes saw two gunmen standing behind a girl in french braids. The gunmen were in a vacant lot on the north side of Chicago Avenue. One of them was holding a silver gun. During November 1995, the north and south sides of the street had been used in an ongoing gang war which involved the exchange of gunfire. On the night in question, shots were fired at the restaurant window. Someone said, “get down, Monique, run.” A bullet wounded her in the right side of the head, causing permanent paralysis from her waist down and partial paralysis in her left arm and the left side of her face. As a result of her injuries, Holmes is permanently confined to a wheelchair. Bryan Sullivan suffered a gunshot wound to the head which caused him to lose his right eye. Verlee Barron suffered two gunshot wounds, one to the left side of his head near his ear and the other to the back of his left shoulder.

Defendant Michael Austin and co-offender Melvin Chapman began shooting at the people outside of the restaurant, then ran westbound along the north side of Chicago Avenue. They fired several more times as they ran. The police recovered four 12-gauge shotgun shell casings near the vacant lot and 13 9-millimeter casings at various locations on the north side of Chicago Avenue. A live 9-millimeter casing was also found. Holmes identified both Austin and Chapman. Barron also identified Michael Austin, although he knew him under a different gang nickname. The police approached Barron while he was hospitalized as a result of the shooting. Barron was afraid to tell them what happened because he feared reprisals if he talked. He was similarly afraid to speak several days later when the police came to his home to make a second attempt at getting a statement. Approximately six weeks after the shootings, Barron was asked to view a lineup, at which point he identified Austin as the person who shot him.

On the day of the shooting, Sullivan saw Austin and Chapman in the vacant lot wearing black coats and carrying firearms. Sullivan saw the guns and heard the gunshots before he received his injuries. Like Barron, Sullivan indicated he did not wish to cooperate with the police for fear of reprisals while he was hospitalized. Sullivan ultimately agreed to view the lineup, where he immediately identified Austin as the shooter.

Trial commenced on July 13, 1999. The People’s case in chief consisted of Holmes, Barron, Sullivan and a Chicago police forensic investigator. The parties also stipulated to the testimony of a Chicago police firearms examiner, three treating physicians from Cook County Hospital and two treating physicians from the Rehabilitation Institute of Chicago. The People also presented photographs, shell casings, fired bullets and the single cartridge before resting.

At the close of the People’s case in chief, the defendant unsuccessfully moved for a directed verdict. Defendant’s case in chief then proceeded by stipulation. The parties stipulated to Holmes’ prior sworn account of the incident. In her statement, Holmes contradicted herself, indicating that the shooter was the one with the silver gun. She indicated the person with the silver gun was Chapman, not Austin.

The parties next stipulated to Barron’s conversation with Detective Marsalek relating to his whereabouts and knowledge during the shooting. At that time, Barron indicated he had no knowledge of anyone answering to the gang nickname attributed to Austin. The parties further stipulated to an oral conversation between Sullivan and Detective Breska. Sullivan later gave a written statement to the State’s Attorney. In the oral statement Sullivan reported seeing Austin and two other men and that the shooter was one of the other men. In the written statement, Sullivan reported sighting Austin before he went into the restaurant and that he was shot only after he ran from the scene and returned to assist Monique Holmes.

In rebuttal, Detective Breska testified that the source of Austin’s gang nickname was Monique Holmes’ boyfriend, Joseph Williams, and not from the police before the lineups. Breska acknowledged the following other statements by the witnesses to the lineups: (1) Barron said he did not see the shooting; and (2) Sullivan said he could provide no information beyond saying that he saw a car go by. Breska summarized the out-of-court statements as not identifying a person familiar to the witnesses. In his recollection, one of the witnesses disclosed that the shooter “wasn’t anybody he knew.” Breska indicated he interviewed both Sullivan and Barron, then submitted general progress reports (GPR) regarding each interview. The Barron GPR was presented without problems. The Sullivan GPR was missing, so the trial court entered a continuance to allow Breska to look for it. When next in session, Breska explained to the court that he looked for the Sullivan GPR but could not find it. The State rested in rebuttal without further evidence.

After closing arguments, the trial court found Austin guilty on all counts. The trial court then denied a motion for new trial and entered sentence. The court then allowed Austin to argue an oral motion for a new sentence and gave him the right to supplement the argument in writing at a later date. The trial court rejected the lone argument that the maximum sentence imposed was excessive. No written motion for a new sentence was ever filed.

ANALYSIS

I

Austin argues on appeal that the evidence did not prove the identity of the offender. According to Austin, the opportunity to observe the offender was fleeting, a key accuser was impeached by former testimony of the failure to see the shooter, and no witness was positive, consistent and rehable. Austin also objects, whether or not he uses it himself, to the repeated use by the People of the inflammatory nickname “Psycho Mike.” He claims the nickname was used insidiously to bolster the People’s case by casting him in a worse light than was necessary.

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Cite This Page — Counsel Stack

Bluebook (online)
767 N.E.2d 433, 328 Ill. App. 3d 798, 262 Ill. Dec. 973, 2002 Ill. App. LEXIS 168, Counsel Stack Legal Research, https://law.counselstack.com/opinion/people-v-austin-illappct-2002.