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August 23, 1995


Appeal from the Circuit Court of Cook County. Honorable Mary Jane Theis, Judge Presiding.

As Corrected September 20, 1995.

The Honorable Justice Cerda delivered the opinion of the court: Greiman, P.j., And Tully, J., Concur.

The opinion of the court was delivered by: Cerda

JUSTICE CERDA delivered the opinion of the court:

After a bench trial, defendant, Lonny Homes, was convicted of attempted first-degree murder (720 ILCS 5/8-4, 9-1 (West 1992)), aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 1992)), armed violence (720 ILCS 5/33A-2 (West 1992)), and two counts of aggravated battery (720 ILCS 5/12-4-(a) (West 1992)). He was sentenced to nine years imprisonment.

On appeal, defendant asserts that (1) he was denied his right to a fair trial because the State improperly used the post-arrest silence of a defense witness to impeach that witness's credibility; (2) the State failed to prove that he was guilty beyond a reasonable doubt; (3) his conviction for attempted murder under the theory of transferred intent must be reversed because he was found not guilty of the attempted murder of the alleged intended victim; and (4) the one act one crime doctrine bars judgment and sentencing on all the offenses.

For the following reasons, we affirm in part, reverse in part, vacate in part, and remand in part.

On March 20, 1992, at 5:10 p.m., 14-year-old Tinesha Moore was the victim of a drive-by shooting. Ms. Moore testified that she was walking home from Rico's, a store located at the corner of Dorchester Avenue and 70th Street in Chicago, while it was still daylight. She saw a gray four-door Chevrolet stop on 70th Street near the intersection, then saw a silver gun sticking out of the driver's side window. There were two people in the car. One was in the driver's seat and the other in the front passenger's seat. Ms. Moore tried to run, but she was shot in her left buttock, the bullet exiting her stomach. She was in the hospital for 12 days following the shooting.

Chicago police officer Jacqueline Talley testified that she arrived at the scene around 5:15 p.m. on March 20, 1992. Ms. Moore was lying on the ground about 12 feet from the corner with a gunshot wound in her left buttock. After speaking with witnesses and determining that the shooter's name was "Lonnie," Officer Talley went to the police station to speak to defendant's brother, Corey Homes, who was in custody as a suspect in the shooting. She then arrested defendant at his home.

Glenn Florence, 16, testified that he was walking on 70th Street toward Rico's at 5:10 p.m. on March 20, 1992, when he saw a gray four-door Chevrolet stop at the corner of 70th Street and Dorchester Avenue. Defendant was driving and Corey Homes was sitting in the front passenger seat. At that time, Florence had known defendant and Corey for about a year.

Florence was about 30 feet from the car when the shooting occurred. He saw defendant point a small chrome automatic weapon toward the pay phones outside of Rico's and fire four shots from the driver's side window before driving away. After the shooting, Florence went to the pay phones where he saw Timothy Shelly and Ms. Moore on the ground. Florence stated that he told the police officers at the scene that defendant was the shooter and later that night, he identified defendant in a lineup at the police station.

Timothy Shelly testified that on March 14, 1992, he was at a roller skating rink at 87th Street and Greenwood Avenue in Chicago where he and his friends got into a fight with defendant, defendant's brother, and their friends. Defendant told Shelly that he was going to "kick [Shelly's] ass," and Shelly responded that defendant was not "going to kick shit."

On March 20, 1992, around 5 p.m., Shelly was standing at the corner of 70th Street and Harper Avenue with a friend. Defendant drove to within 10 feet of Shelly. He was driving a gray four-door Chevrolet and his brother, Corey Homes, was in the passenger seat. After defendant stopped the car, he asked Shelly, "What is up?" and then told him, "We are going to get you." After Shelly responded, "Come on and get me; you got one chance," defendant drove away. At that time, Shelly had known defendant and Corey Homes for about eight months.

Ten minutes later, while it was still daylight, Shelly was speaking on a pay phone outside of Rico's. When the gray four-door Chevrolet stopped at the corner of 70th Street and Dorchester Avenue, a friend of Shelly's called out, "Tim, get down." As Shelly ducked down, a shot rang out. Shelly heard a second shot and saw Ms. Moore fall to the ground. Shelly grabbed Ms. Moore, covered her up, and looked up to see defendant getting out of the car. He saw another person in the car, but could not see his or her face.

Shelly testified that defendant was pointing a nickel-plated gun at the pay phones where Shelly was on the ground. According to Shelly, defendant was shooting at him and no one else on the street corner. After defendant fired two more shots, he got back into the car and drove away.

After the State rested its case, defendant's brother, Corey Homes, 15, testified that he was alone in a white Chevrolet at 69th Street and Dorchester Avenue sometime around noon or 2 p.m. on March 20, 1992, when he fired shots from the passenger side window. He stated that he was shooting at "some boys" whose names he did not remember and did not see Ms. Moore on the corner when he shot her. At the time of the shooting, Corey was five feet tall and weighed 80 pounds.

On cross-examination, Corey Homes testified that he was arrested for the shooting and questioned at the police station. While in custody, he learned that defendant had also been arrested for the shooting, but he did not tell the police officers that defendant was not involved. In April 1992, Corey pleaded ...

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