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05/22/97 PEOPLE STATE ILLINOIS v. DAVID FORNEAR

May 22, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, APPELLEE,
v.
DAVID FORNEAR, APPELLANT.



The Honorable Justice Harrison delivered the opinion of the court.

The opinion of the court was delivered by: Harrison

JUSTICE HARRISON delivered the opinion of the court:

Defendant, David Fornear, was charged by indictment in the circuit court of Lake County with aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1992)), aggravated battery with a firearm (720 ILCS 5/12-4.2 (West 1992)), unlawful use of weapons by a felon (720 ILCS 5/24-1.1 (West 1992)), and unlawful use of weapons (720 ILCS 5/24-1(a)(7) (West 1992)) in connection with the shooting of his fiancee, Michelle Wilkinson. The unlawful use of weapons by a felon charge was severed for trial, and a jury returned verdicts of guilty of aggravated discharge of a firearm, unlawful use of a weapon, and an uncharged count of reckless conduct (720 ILCS 5/12-5 (West 1992)), which, at defendant's request, the jury was instructed to consider as a lesser-included offense of the aggravated battery count. He was acquitted of the aggravated battery with a firearm charge.

The trial court sentenced defendant to a 13-year term of imprisonment for aggravated discharge of a firearm and a concurrent 5-year term for unlawful use of weapons. The reckless conduct charge was not addressed by the sentencing court. The State's motion to nol-pros the unlawful use of weapons by a felon charge was granted. The appellate court, with one justice dissenting, affirmed. People v. Fornear, 283 Ill. App. 3d 171, 669 N.E.2d 939, 218 Ill. Dec. 618. We allowed defendant's petition for leave to appeal (155 Ill. 2d R. 315), which raises, as its sole issue, whether the jury's verdicts of guilty of aggravated discharge of a firearm and reckless conduct are legally inconsistent.

The State adduced the following evidence at trial. It was stipulated that, if called to testify, Colleen Kay would state that she is employed as a dispatcher by the Wauconda police and fire departments. At approximately 12:13 a.m. on November 15, 1993, Kay was on duty when she received a 911 call from a man requesting rescue services for a person who had been shot. Kay would further state that all incoming 911 calls are recorded on the dictaphone tape recorder at her work station, and that State's exhibit No. 2 is a true and accurate recording of the entire telephone conversation that took place at that date and time. State's exhibit No. 2 was played for the jury in open court and admitted into evidence. On the recording, the following colloquy, inter alia, is heard:

"KAY: 911, what is your emergency?

CALLER: My girlfriend was shot.

KAY: Your girlfriend was shot?

CALLER: Yeah, I think she was.

KAY: Where is she?

CALLER: 27358 Route 176. I'm at a pay phone because we don't have a phone at home.

KAY: How do you know she got shot?

CALLER: She was mad at me and she was gonna shoot me and the gun went off and I looked at her chest and there's a little bullet thing.

KAY: Is she conscious?

CALLER: Yeah, but she's scared she's dying or something. ...


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