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12/04/97 PEOPLE STATE ILLINOIS v. ERIC EPPINGER AND

December 4, 1997

THE PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,
v.
ERIC EPPINGER AND JORDAN LANDIS WATKINS, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of the 10th Judicial Circuit, Peoria County, Illinois. Nos. 95--CF--830 and 95--CF--675. Honorable Robert A. Barnes, Judge Presiding.

Rehearing Denied January 12, 1998. Released for Publication January 15, 1998.

Present - Honorable Michael P. Mccuskey, Justice, Honorable William E. Holdridge, Justice, Honorable Thomas J. Homer, Justice. Justice McCUSKEY delivered the opinion of the court. Justice Holdridge Specially concurs. Justice Homer dissents.

The opinion of the court was delivered by: Mccuskey

The Honorable Justice McCUSKEY delivered the opinion of the court:

Following a joint jury trial, the defendants, Eric Eppinger and Jordan Landis Watkins, were each convicted of aggravated battery with a firearm and aggravated discharge of a firearm. 720 ILCS 5/12--4.2(a)(1), 24--1.2(a)(1) (West 1994). Both defendants were sentenced to eight-year terms of imprisonment. In this consolidated appeal, the defendants contend: (1) the State's identification evidence was insufficient to prove them guilty beyond a reasonable doubt; and (2) they were prejudiced by the trial judge's communication with the jury. After carefully reviewing the record, we affirm.

FACTS

At trial, 19-year-old Wesley Zolicoffer testified that on June 23, 1995, he lived at 927 Greenlawn, Peoria, Illinois, with his grandparents. Around 11:20 p.m., he was sitting in the enclosed front porch smoking when he observed two young men approach the house from a gangway across the street. Wesley observed the men by the light from a street lamp two houses away and noted that the men carried guns. When they reached the curb in front of the house, they raised their guns and fired a rapid succession of bullets at the house. Wesley ran indoors where he found his grandfather, James Zolicoffer, bleeding from gunshot wounds to his arm and hip. Wesley telephoned the police.

Wesley told the police that one of the shooters, whom he recognized as "Jordan," wore a Blue Devils baseball cap. Wesley identified a photograph of Jordan Watkins as this shooter. Wesley told the police the other shooter wore a hooded sweatshirt and testified that he recognized this individual as "Eric" by his hair, build and gait. At some point, Wesley also told the police that he could recognize Eric because his eyes were green. At trial, he explained the defendants had been walking by the house several times during the day of the incident, and he saw Eric carrying a gun. Wesley thought he also saw Eric in the neighborhood a month or so earlier. However, he admitted that he did not know Eric's name until Wesley's cousin, who was visiting the Zolicoffers, told him on the day of the incident. On cross-examination, Wesley said the shooter he identified as Eric was taller than Jordan. He also testified that he went inside the house before the shooters left the scene.

Officer Jeffrey Kice testified that Wesley was highly agitated when he was interviewed on the night of the shooting. According to Kice, Wesley said that Jordan was the taller of the two shooters. Kice also said that Wesley told him he saw the two men run back across the street following the shooting.

Susan Cagle, a neighbor of the Zolicoffers, testified that the only streetlight on the block had been shot out and not replaced prior to June 23, 1995. Further, the parties stipulated that Detective Drew Helms would testify that Wesley did not give the police Eric's name or tell them that Eric had green eyes until more than a month after the incident.

Wesley's 15-year-old brother, Talya, testified at trial that he saw Jordan and Eric in the neighborhood with a group of young men earlier in the day. Talya heard someone in the group tell Eric to "pop" him. Talya did not witness the shooting, but said he told the police Jordan's and Eric's names on the night of the shooting based on Wesley's identification. Talya said that he had never seen Eric before the day of the shooting.

Nattie Eppinger, Eric's mother, testified that Eric was in juvenile detention in Champaign, Illinois, for six months until June 22, 1995. She said that he and several friends, including Jordan, were in and out of her home all day on June 23. She said that she saw Eric on a bed in his sister's room when she checked the room at 11 p.m. and midnight. Nattie admitted that she did not know what time Jordan left the house.

At 11:30 a.m. on the second day of trial, the jury received instructions and began its deliberations. At 8:05 p.m., the jury returned to the courtroom and informed the trial judge that it could not reach a verdict. The following dialogue ensued:

"THE COURT: Two things I would wish to point out. One is I don't want to know what the vote is or which way it is, you understand, but I want to also know--you realize there are two cases here. *** As to the case of Mr. Eppinger, what ...


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