The opinion of the court was delivered by: Justice Maag
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Appeal from the Circuit Court of St. Clair County.
Honorable Michael J. O'Malley, Judge, presiding.
Marcus Jackson was charged with aggravated battery with a firearm for allegedly shooting David Rhodes in the chest. Jackson was tried before a jury and was found guilty. He was sentenced to a 20-year term of imprisonment. Jackson appeals.
The facts are as follows. On January 17, 1995, David Rhodes was shot. At trial, he claimed that he spent most of the day in question at his grandmother's house. He stated he also spent some time at Paula Carter's house, drinking beer and smoking marijuana. Rhodes testified that at about 10:30 or 11 p.m. that night, he was walking back to the Carter residence when a Nissan Maxima pulled up beside him. He claimed he recognized the driver as Jackson, whom he had known for about seven years. He further testified that the driver asked him what he was up to, to which he responded "nothing much", and then the driver shot him. Rhodes made it to the Carter residence, and before he lost consciousness, he managed to tell them that "Jack, Pug's cousin," shot him. "Jack" was the name Rhodes used to refer to defendant, Marcus Jackson. "Pug" was the name Rhodes used to refer to Belgium Lewis, Jackson's nephew.
Rhodes claimed that he was standing beside the passenger's side window, close to the car, looking in, but not actually pressed against the car. The police did not find blood, nor did they find Rhodes' fingerprints on Jackson's car.
Jackson was arrested on January 19, 1995. Illinois State Police Sergeant Gregory Fernandez testified that he saw a pistol on a night stand in the bedroom where he arrested Jackson. The pistol was a .357 Magnum revolver. Jackson claimed that the gun belonged to one of his friends, but he admitted that his fingerprints would probably be found on it. Two salient points must be stated at this time. First, because the bullet had not been surgically removed from Rhodes at the time of trial, the caliber of the bullet was not established and no ballistics tests had connected the bullet to the pistol on Jackson's night stand. Second, no witnesses ever identified the pistol on the night stand as the weapon used to shoot Rhodes. Despite these facts, the pistol was admitted into evidence without objection.
The police compiled a photo lineup, which included Jackson, and took it to the hospital to Rhodes for identification. Rhodes picked out Jackson as the person who had shot him.
Jackson's former girlfriend, Tewonda Walton, testified during trial that Jackson was with her during the time Rhodes was shot. She stated that Jackson picked her up from work at 5:30 p.m. on January 17. They went to her mother's house, where she showered and ate. She further testified that they left about 7 p.m. to go to the movies. After they could not decide which movie they wanted to see, they went to Jackson's brother's house, where they sat and talked. Then they decided to go to a hotel. She stated they arrived at the hotel between 9:30 p.m. and 10 p.m. They left between 10:45 p.m. and 11 p.m. Walton stated that they got something to eat, went to Jackson's brother's house for a short time, and then went back to her house. Jackson did not get out. Walton testified that they sat in the car for a while outside her home and then she went in. She stated that the last time she saw Jackson was between 11:30 p.m. and midnight.
The State called Officer Martin Milkovich as a rebuttal witness. Milkovich testified that in his statement on January 19, 1995, Jackson did not mention the hotel, getting food, or going to his brother's house. Milkovich further testified that based upon the time of the 9-1-1 call, he would estimate that the shooting occurred between 11:46 p.m. and 11:48 p.m.
The issues presented for review on appeal are:
1.Whether Jackson was denied a fair trial by the admission of a pistol that was never identified by the complainant and where the complainant did not describe the weapon used to attack him as a pistol and there was no evidence that the weapon was capable of producing a wound compatible to the one suffered by complainant.
2.Whether Jackson was denied a fair trial by the closing argument of the prosecutor, during which erroneous statements were made ...