Appeal from the Circuit Court of Cook County. The Honorable Loretta H. Morgan, Judge Presiding.
Rehearing Denied August 2, 1994. As Modified on Denial of Rehearing August 9, 1994. Petition for Leave to Appeal Denied December 6, 1994.
DiVito, Scariano, McCormick
The opinion of the court was delivered by: Divito
MODIFIED ON DENIAL OF REHEARING
Presiding Justice DiVito delivered the opinion of the court:
Following a jury trial, defendant Thomas Basden was found guilty of first degree murder (Ill. Rev. Stat. 1987, ch. 38, par. 9-1, now codified as 720 ILCS 5/9-1 (West 1992)) and sentenced to 20 years in the custody of the Department of Corrections. On appeal, defendant contends that: (1) the court improperly instructed the jury to return a verdict on the murder charge if it found him guilty of both murder and involuntary manslaughter; (2) his right to a fair trial was prejudiced by the State's closing argument; (3) the circuit court erroneously allowed the State's expert to testify to matters beyond his expertise and made comments encouraging the jury to believe the State's expert rather than defendant's; and (4) he was rendered ineffective assistance of counsel. For reasons that follow, we affirm.
Defendant and codefendant Shawn Downey were jointly tried by a jury; codefendants Robert and Michael George were simultaneously tried by the court. At trial, the following evidence was presented. Joseph Gutierrez testified that on the afternoon of February 29, 1988, he was walking with approximately ten of his friends, several of whom were members of the "2-6" street gang, when he saw codefendant Robert George and three other people walking towards them. George was a member of a rival street gang, the Satan Disciples, and made hand signals for the Disciples and against the 2-6. George then pulleda gun up from his pants far enough that Gutierrez could see the handle. George then put his hand out in front of him, and Gutierrez interpreted this to mean that he would see him "later on," but admitted that it could have meant to "stay back." Gutierrez and his friends then went to an alley near Pershing Road and St. Louis Avenue, where they played basketball.
While they were playing basketball, Joe Dominguez, who was a member of the 2-6, and Juan Madrigal, who was not a member of any gang, drove up. Shortly thereafter, James Pelican, the leader of the 2-6, arrived at the alley and walked over to Dominguez and Madrigal. A blue four-door car, that Gutierrez identified as being the Buick belonging to defendant's father, pulled into the alley. The car stopped, and six or seven shots came from the passenger's side. After the shooting stopped and the car sped off, Gutierrez looked around and saw that Madrigal had been shot and was lying on the ground. Approximately two minutes later, the police arrived and took everyone to the police station.
Dr. Michael Chambliss of the Cook County medical examiner's office testified that he conducted an autopsy on Madrigal and determined that the cause of death was a gunshot wound to the head. On cross-examination, Chambliss stated the wound was "atypical" because the bullet entered Madrigal's body on the side rather than head on, something that was consistent with a ricochet.
Joseph Dominguez testified that 2-6 territory extended from 37th on Kedzie to 39th, west of Kedzie to the railroad tracks, and east of Kedzie to California. East of California was Satan Disciples territory. At the time Madrigal was killed, a feud was in progress between the 2-6 and the Satan Disciples.
At about 3 p.m. on February 29, 1988, Dominguez was in the area of 38th and St. Louis with two friends, one of whom, James "Jimbo" Pelican, was the head of the 2-6. They met Juan Madrigal, and after a 15-minute conversation, he drove Pelican and Madrigal to a restaurant 10 minutes away in Madrigal's car. Pelican and Dominguez waited outside for 30 to 40 minutes as Madrigal ate. Madrigal was not a member of the 2-6; Dominguez knew him from high school. Madrigal was a college student, and had been dating his sister, who lived with him at the time, for 6 years.
Dominguez then drove Madrigal and Pelican to Pelican's house at 39th and St. Louis, dropped Pelican off in front, and went to the alley behind the house where he parked Madrigal's car. From the south side of the alley he and Madrigal then watched the basketball game being played behind Anthony Medina's house. They were joined by Pelican and Pelican's two-year-old son. After about an hour and ahalf, Madrigal suggested that Pelican take his son into the house, and Pelican brought the boy to say goodbye to Madrigal before going inside. When Madrigal was saying goodbye to Pelican and his son, he was a foot from Pelican. Madrigal was holding the child's hands and the child was between Madrigal and Pelican. Pelican was 2 or 3 feet away from the game, and had his back to it. Dominguez was 2 to 3 feet from Madrigal and 3 feet from Pelican at the time.
At that moment Dominguez heard the sound of tires on gravel, and he saw the headlights of a dark blue four-door car, which he identified as the Buick belonging to defendant's father, coming down the alley from Pershing and stopping at the "T" of the alley. He saw shots fired from the back door passenger side of the car. At that moment he, Pelican's son, and Madrigal were only 4 garages away from the blue car. Dominguez dropped to the ground, and heard 5 or 6 shots, some louder and some softer, and the sound of tires on gravel again. He saw the back end of the blue car head toward 38th Place. Pelican had run down the alley with his son, but Madrigal was lying face down in the alley two feet from Dominguez. He was dead.
Richard Chenow testified as an expert witness in firearms identification for the State. He has been a firearms examiner in the tool-mark and firearms section of the Chicago police department crime laboratory and active in the field of firearms identification for 17 years. He examines and submits reports about all types of firearms and fired evidence, and issues receipts for them. He also examines victims' garments for gunshot residue. He has attended numerous seminars on the federal, state, and local level on firearms identification, and has visited almost every ammunition and firearms manufacturing plant in the country. He has examined over 14,000 pieces of fired evidence, not including test firings. He was accepted as an expert in the field of firearms identification.
The basis of identification of firearms is the microscopic comparison of test firings from a firearm, and identification of the similarities in matching class and individual characteristics. Class characteristics are common to many different firearms, and individual characteristics are specific to one firearm. Chenow conducted his examination of the bullets with a microscope which magnifies four and one-half times what the naked eye can see.
Chenow testified that five casings, a bullet found in a bucket in a garage at the scene, and the bullet found in Madrigal's body were fired from the same .45 Colt automatic pistol. The two bullets sustained similar damage, in that both were flattened on one side and had linear-like scrapings and indentations on the nose, consistentwith striking a hard object at an angle. The bullet found in the bucket, however, had blue or gray material on its periphery, which appeared to Chenow to be paint. This indicated that the bullet had penetrated an object. Chenow found no foreign material on the bullet recovered from Madrigal's body.
In Chenow's opinion, the bullet recovered from Madrigal's body was not consistent with any ricochet bullet he has seen in 17 years. The damage to that bullet could have been caused by the bullet hitting a bony material. Chenow could not determine if the bullet was damaged in flight or after striking the victim. Generally, a bullet has more penetrating power if it strikes point first instead of striking sideways. Here, the bullets had a copper alloy jacket which made them quite a bit harder than the .45 caliber bullets that are composed of soft lead only.
There was some controversy about whether Chenow could appropriately testify to certain matters concerning the bullets. Chenow told the court that his opinion was based on information he acquired over the years about what a bullet might or might not be designed for. Outside the presence of the jury, defendant asked the court to ask Chenow if he considers himself a ballistics expert. The court responded that, because Chenow has been in the business for 17 years, it is inappropriate to suggest that he doesn't know the properties of projectiles. The court further stated:
"I'm finding him an expert. You have made your record that you do not feel he is an expert. You can examine him all you want. You can bring in as much diminution to his responses and his range of expertise if you want. I think it's ridiculous to suggest that that man who has been in the business and assembling and making weapons himself, I think it's ridiculous to suggest that he doesn't have the capacity and demonstrated expertise to talk about the capability of this bullet. I think that's absurd."
Chenow later admitted that he is not an expert on ballistics. Defendant moved to strike Chenow's testimony, and the court denied the motion.
Ricky Cataldo testified that at about 5 p.m. on February 29, 1988, he was at a hot dog stand at 35th and Western with defendant, Michael George, Robert George, and Shawn Downey. After about 20 minutes, the five walked to defendant's house at 35th and Artesian. When they arrived, defendant went inside, and Cataldo went to the alley. When he returned from the alley, the four others were standing around and talking. When he approached, they stopped talking and all five went toward defendant's father's car, a blue four-door Buick. There had been no conversation at the hot dog stand or on the wayto the alley where the shooting took place about shooting anyone. Defendant was driving, Robert George was in the front passenger seat, Shawn Downey was in the back seat behind the driver, Michael George was in the back seat behind Robert George, and Cataldo was in the back between Downey and Michael George. Defendant drove to 39th and St. Louis, at which point he drove "medium slow."
Defendant then drove to Downey's house; Downey went inside and then returned to his seat behind the driver. Defendant then drove back to 39th and St. Louis and stopped the car. At this point, Robert George and defendant switched places, with defendant in the front passenger seat and Robert George in the driver's seat. Downey and Michael George also switched places, with Downey behind defendant on the passenger side of the car. Although Cataldo had not been aware of a plot to kill anyone up to that point, he became suspicious. Robert George then turned the corner on 39th Street, heading toward the railroad tracks, while defendant rolled down the window on the passenger side of the front seat. Robert George drove to the alley, turned in, and stopped at the "T" of the alley.
Defendant then pulled a .45 automatic from his jacket and pointed the gun out the open window toward the crowd in the alley. Cataldo ducked, and heard shots both from in front of him and at his side. He did not see where defendant was shooting; he could not see any people in the alley whom he could readily identify nor, from where he was seated in the car, could he hear anyone's voice in the alley. He heard three or four shots from where Downey was sitting and four to five from defendant. Robert George then pulled away, drove through the alley across 38th Place, came out on St. Louis, went to 38th Street, and turned on 38th toward the Santa Fe rail yard. At the rail yard they stopped and defendant and Robert George switched places again, so defendant was driving. Defendant drove to the K-Mart at 51st and Kedzie, where they dropped off Michael and Robert George. Michael George told defendant and Downey to give him the guns and they did so. Cataldo had seen both guns, the .45 fired by defendant and the .22 fired by Downey, previously, when he had been in their company. When defendant dropped him off at his house, Cataldo told his mother what had happened, but neither he nor his mother contacted the police.
Defendant and the State stipulated that Chicago police officer Reynolds, an evidence technician, would testify that on February 29, 1988, he was in the company of his partner, Chicago police officer McHugh. He spoke with Chicago police detective Kill and observed Madrigal's body. Upon examining the body, he observed a gunshot wound to the left side of the head. The distance from the body to theT-section in the alley was approximately 100 feet. There was a bullet hole about six inches above the ground in a garage door 60 to 65 feet from the "T" in the alley. Inside a bucket in the garage, about five feet from the garage door, was a spent .45 caliber bullet. In the west wall of the garage, located about 50 to 55 feet from the alley "T", Reynolds discovered another bullet hole, approximately four feet above the ground. Finally, Reynolds recovered one spent casing from a citizen named Trevino.
Officer James Spratte of the Chicago police department, a gang crimes specialist, testified that a gang sign flashed upside down by a member of another gang means "death to that gang." The area around 38th and St. Louis is the territory of the 2-6 gang, and directly to the east is the territory of the Satan Disciples. On February 29, 1988, the two gangs were "at war." The primary hand sign of the 2-6 gang was the Playboy bunny, and the primary hand sign of the Satan Disciples was the "devil pitchforks". The colors of the 2-6 were black and tan; the Satan Disciples wore black and canary yellow. James Pelican was the leader of the 2-6, and the second in command was Ramon Rocha.
After running the license plate of the blue car through his computer and ascertaining that it was registered to defendant's father, Spratte and his partners went to defendant's house. They placed defendant in the back seat of their squad car, and read him his Miranda rights. Defendant indicated he understood his rights, and that he would answer questions at that time. Defendant denied knowledge of the shooting.
While on the way to the Area 3 Violent Crimes office, however, defendant admitted that he was there, and said that he was the driver, and that Robert George had done the shooting. He said that Michael George and Ricky Cataldo were also in the car. Spratte informed his partners of what defendant had told him, and went to pick up Ricky Cataldo. Later, he and his partners picked up Shawn Downey, whom Spratte identified in court.
Spratte read Downey his Miranda rights, and Downey indicated that he understood them. He transported Downey to the Area 3 office, and placed him in an interview room. He then informed Detective Kill that Downey was in the room. Previously, Downey and defendant had indicated to Spratte that they were members of the Satan Disciples.
Detective Michael Kill testified that he and his partner were westbound on 39th Street near Kedzie at about 6:55 p.m. on February 29, 1988, when they responded to a call of a man shot. He found Madrigal in the alley at 3542 W. Pershing, 100 feet from the "T" section of the alley, and unsuccessfully attempted first aid. He discovered a large caliber bullet hole behind Madrigal's left ear. After speaking with witnesses, Kill proceeded westbound through the alley, past the last house, where at 3552 W. Pershing he observed four .45 caliber shell casings on the ground.
Madrigal's car was parked facing westbound on the north side of the alley before the "T". Kill observed an indentation on the car, twelve inches to the right of the left front fender and one inch above the left headlight bracket. The left front tire of the car was flat.
Kill described the bullet hole found in the garage door as an elongated, backwards "D" shape, which appeared to him to be caused by a bullet striking at an angle. He recovered no .22 caliber bullets or casings.
Kill returned to Area 3 at 8 p.m. and began interviewing witnesses. At around 8:30 p.m., Kill spoke with Spratte who, accompanied by other officers, then went looking for Robert and Michael George and a blue, full-sized GM car. They returned with defendant and Shawn Downey.
At about 11 p.m., Kill had a conversation with defendant. He advised him again of his Miranda rights, and defendant indicated that he understood them. Kill told defendant that he had had conversations with Ramon Rocha and Ricky Cataldo, and that he wanted to talk to him about the switching of places in the car while it was parked at 39th and St. Louis. Defendant then related the story of the entire incident. He had a .45 caliber semiautomatic pistol, and Downey wanted to go home to pick up a .22 caliber revolver. He told of switching places in the car, and related how he fired five or six times and how Downey fired four or five times down the alley. He said that Robert George took the .45 caliber pistol with him when he left the car, and Michael George took the .22 caliber revolver with him. He stated that Cataldo had nothing to do with the planning or the execution of the shooting.
After interviewing defendant, Kill notified the felony review unit of the state's attorney's office, and then interviewed Downey. He advised Downey of his Miranda rights, and Downey indicated that he understood them and agreed to speak with him. Downey then related the entire story. The only differences from defendant's story were that Downey said he had the .22 caliber revolver with him before he went home (he had gone home merely to pick up a pack of cigarettes); Downey fired only three shots; and he heard defendant fire four to five shots. Downey said that the shooting was the result of on-the-spot planning among the four defendants; defendant had not said when the shooting was planned. Downey also said that Cataldo wasnot involved in the planning or the commission of the shooting. Kill was present for part of the assistant state's attorney's questioning of both Downey and defendant, and he was present when statements to a court reporter from both were taken. Kill signed both statements as a witness.
Former assistant state's attorney Larry Axelrood testified that he separately read defendant and Downey their rights, and took separate statements to a court reporter from each at around 3 a.m. Defendant related that after he got his father's car, he and his codefendants went driving in the area of 39th and St. Louis to see if they could find any members of the 2-6 gang. They saw the people playing basketball in the alley on their first pass through the area, and went down 39th Street to see if they could identify them. They saw that the people in the alley were members of the 2-6 gang, and then went to Downey's house where Downey got the .22 caliber revolver. Defendant already had his .45 with him. The .22 belonged to Michael George, but was carried by Downey. They returned to the area, and he and Downey switched places with Robert George and Michael George at 39th and St. Louis.
When Robert George turned the corner by the "T" of the alley, he slowed down and defendant and Downey started firing. Defendant was shooting at the car, and Downey was shooting at the crowd. Defendant fired four or five shots, but did not know how many Downey fired. Defendant and Robert George switched places again after leaving the alley, and defendant drove down Fire Road across 47th, then across Archer and east of Lawndale, then to 51st and Kedzie. At this point the Georges took the guns and got out of the car. Defendant took Cataldo home, then drove Downey home.
Downey told Axelrood that when they went to the area of 38th and St. Louis, he had his .22 caliber revolver and defendant had his .45. He returned home to get a pack of cigarettes. When they returned to the area, they saw some 2-6 gang members in the alley, and drove around the block discussing whether they should "jump" them (engage in a fist fight). Someone said that since they had guns they should just shoot, but Downey did not know who said it. After he and defendant switched seats with the Georges, they drove into the alley, slowed down at the "T", and pointed the guns out the window. Downey aimed a little high because he didn't want to hurt anyone. He fired three or four times toward the people in the alley, trying to aim above their heads. Defendant fired three or four times, trying to aim at a white car parked in the alley. As they drove out of the alley, Robert George was not driving too well so defendant took over, dropping off the Georges, with the weapons, at the K-Mart on Kedzie. Downey and defendant then drove Cataldo home, and then defendant dropped Downey at his house.
Following Axelrood's testimony, the State rested its case in chief.
Robert Boese testified for the defense as an expert witness. Boese is the president and director of B & W Consulting Forensic Chemists, and he previously worked for 28 years for the Chicago police crime laboratory. He has examined 25,000 casings from various types of bullet sizes and shapes, 12,000 to 15,000 weapons, and has testified approximately 150 times. He was accepted as an expert in firearms identification. *fn1
Boese examined both the bullet recovered from the body and the bullet found in the bucket in the garage. He microscopically examined both bullets using a stereo binocular microscope, which allows magnification up to 60 to 70 times normal eye power. Then, using a fine platinum wire, and while viewing the bullets microscopically, he collected material embedded in the striations on the sides of both bullets and examined that material under a polarizing light microscope, which magnifies 400 times.
Boese determined that both bullets had striations or shearing action on one side, indicating that the bullet had struck a hard object. On the bullet recovered from the body, there was also a small indentation on the opposite side from the shearing action. Small pieces of tissue-like paper and mineral similar to stone or asphalt were recovered from the bullet found in the body. Boese testified that the recovery of the paper was consistent with the bullet having been wiped with tissue. A similar material and paint were embedded in the bullet found in the pail. Boese performed no chemical tests to determine the nature of the foreign substances recovered from the bullets.
In Boese's opinion, the striations to the sides of the bullets were caused when the bullets struck a harder object or surface while moving forward. When a bullet is fired it spins on its axis, but when it is sheared it cannot move forward and rotate but changes course and begins to tumble. The bullet recovered from the bucket came into contact with a painted surface and also hit something mineral in nature. The bullet recovered from the body hit at least two objects, one a very hard surface and the other a much softer material, but one which had enough resistance to deform the bullet. In his opinion, that bullet struck a very hard object before it entered the body.
Boese could not determine at what time in the bullet's flight the deformity occurred; there could be a half-dozen possibilities as to what it had struck.
If the gun had been dropped on some type of rock material, one could probably find the type of rock material found on the bullet in the first few millimeters of the gun barrel. The damage on the bullet could not be caused by the normal firing of the weapon. Boese admitted on cross-examination that he did not examine any gun as part of his analysis in this case.
After closing arguments, the court submitted the following among its instructions to the jury:
"When you retire to the jury room you will first elect one of your members as your foreperson. He or she will preside during ...