People v. Wheeler

929 N.E.2d 99, 401 Ill. App. 3d 304, 340 Ill. Dec. 795, 2010 Ill. App. LEXIS 390
Appellate Court of Illinois·Decided May 12, 2010·No. 3-08-0208·Published·Cited by 24 cases

Opinion

JUSTICE SCHMIDT

delivered the opinion of the court:

A jury found defendant, Derrick Wheeler, guilty of first degree murder. Thereafter, the circuit court sentenced defendant to a term of 34 years in the Department of.Corrections. Defendant appeals, arguing that: (1) he was not proven guilty beyond a reasonable doubt; and (2) he was deprived a fair trial due to counsel’s failure to tender a jury instruction regarding testimony of an accomplice. We reverse and remand for a new trial.

BACKGROUND

On September 10, 1997, defendant was charged in a two-count indictment with first degree murder. 720 ILCS 5/9 — 1(a)(1), (a)(2) (West 1996). A jury found defendant guilty of count I and the circuit court sentenced him to a 48-year term of imprisonment.

Defendant filed a direct appeal and the appellate court remanded the cause to the trial court for a hearing to determine the degree to which Leuco-Malachite Green (LMG) testing was accepted in the scientific community. The reviewing court retained jurisdiction pending the outcome of that hearing. In a supplemental opinion following the hearing, this court again reversed and remanded the case, holding that, at least in the absence of visible evidence of blood, LMG testing was not generally accepted in the scientific community as a means of raising a presumption, rather than just a possibility, that blood was present. People v. Wheeler, 334 Ill. App. 3d 273, 777 N.E.2d 961 (2002).

On January 29, 2007, jury selection began on defendant’s second trial. During direct examination of the State’s first witness, a response was made referring to defendant’s “last trial.” The bailiff made the court aware that one of the jurors had picked up on the comment and had asked the bailiff if something was going to be done. Based on this development, the court granted defendant’s request for a mistrial.

On January 30, 2007, a new voir dire commenced. Following testimony and during jury deliberations on February 2, 2007, a number of notes were sent to the court, including one that stated the jurors were unable to reach a verdict. In response, the court read the Prim, instruction to the jury. Following additional notes, the court ultimately declared a mistrial on February 6, 2007, when the jurors indicated they were hopelessly deadlocked.

The jury selection for defendant’s fourth trial began on November 13, 2007. The trial commenced the following day. After opening statements, the State called Jacque Buckley as its first witness. Buckley testified that he had known Monte Love, the victim, for 15 to 20 years and was with Love on the day he was murdered. Buckley and defendant rode together to defendant’s house, where a man named “Peanut” (who is now deceased) and “some girl” were hanging out. Buckley explained that while they were at defendant’s house, “Peanut” and the girl began making “fake dope.” Buckley acknowledged he was no stranger to drugs and had convictions for possession of controlled substances in 1997, 1999, and 2002.

Eventually, defendant, Buckley, and Love left defendant’s house and drove around the neighborhood attempting to sell the fake drugs. Buckley testified that he was driving defendant’s car and that Love announced he had to use the bathroom. Buckley pulled the car to the side of the street underneath 1-80. Love exited the car and moved toward the rear of the vehicle. Defendant also exited the car. Buckley heard two “pops” that startled him and caused him to lurch the car forward. Defendant then jumped back into the car and Buckley saw defendant holding a gun, which he then placed into a bag. Buckley also noticed a woman, who was out walking a dog, looking at them.

Defendant told Buckley he was “straight” and Buckley then drove the car back to the neighborhood. He saw Love lying on the ground as they drove away. Buckley then stopped near a key store, and defendant exited the car and went inside the store. Buckley testified he was scared and confused and that defendant never told him what the shooting was all about. Buckley then gave defendant the car keys and caught a ride with another friend to his grandmother’s house.

After the shooting, Buckley tried to avoid police because he simply did not want to talk about the incident. He eventually spoke to the police when he was locked up on another case in the Will County jail. He denied that he asked for a deal from the police or that any deal was offered. During the interview, Buckley told the police the same information that he testified to. He then identified People’s exhibit No. 5 as a photograph of defendant’s vehicle that he was driving on the day in question and People’s exhibit No. 4 as a photograph of Love.

During cross-examination, Buckley testified that while in jail on unrelated charged, he refused several requests by the police to talk with him. He did not know what they wanted to talk to him about and, at the time, he was very involved in selling drugs. Buckley acknowledged that although the police never offered him anything, he believed someone from the State’s Attorney’s office offered him immunity. At that time, Buckley claimed it was unclear as to whether the immunity extended to his involvement in Love’s murder or to the charge he was then incarcerated for. He acknowledged asking the assistant State’s Attorney (Patton) if he could get a bond reduction on his current case and she declined. On redirect, Buckley stated that although there was no deal in place at the time he spoke to police, he was ultimately granted immunity for the killing of Love and received probation on the other case pending against him.

Camille Sharp testified that at approximately 7:30 a.m. on January 18, 1997, she went outside to walk her dog and noticed a man urinating alongside a car about 80 feet away under the 1-80 overpass. She then saw a second man exit the car and get behind the first man. He brought a gun up, pointed it to the back of the man’s head, brought it down briefly to fix it, and then put it back up to his head. He shot the man in the back of the head and then fired two additional shots. At the same time, she saw the vehicle lurch forward. She observed the shooter bend down and either place something on or remove something from the victim’s chest. The shooter then reentered the car. She could not identify the shooter because of the distance, but described him as African American, wearing a do-rag, a black basketball-like shirt with blue numbers, and black baggy pants.

Sharp then ran back to her house and dialed 911. According to Sharp, the vehicle was a four-door, older model, white, cream-colored with a vinyl top that was a bit darker than the rest of the car. She was taken by the police to view several cars, but admitted she could not identify any of the vehicles.

Nicholas Peterson testified that he was currently in the custody of the Department of Corrections. Peterson pled guilty to aggravated criminal sexual assault, burglary, robbery, and armed robbery without a firearm. He explained that he was familiar with defendant and identified him in the courtroom. While incarcerated with defendant, defendant told him that he got into an argument with “one of the guys” regarding drugs and then shot the man from the car.

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People v. Wheeler, 929 N.E.2d 99, 401 Ill. App. 3d 304, 340 Ill. Dec. 795, 2010 Ill. App. LEXIS 390 (Ill. Ct. App. 2010).

929 N.E.2d 99 (People v. Wheeler) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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