Appeal from the Circuit Court of Kane County. No. 94--CF--76 Honorable James T. Doyle, Judge, Presiding.
The opinion of the court was delivered by: Justice Rapp
IN THE COURT OF APPEALS OF THE STATE OF ILLINOIS
Following a jury trial, defendant, Lavelle Davis, was convicted by a jury of first-degree murder while attempting to commit an armed robbery (720 ILCS 5/9--1(a)(3) (West 1992)), attempted armed robbery (720 ILCS 5/8--4 and 18--2(a) (West 1992)), and armed violence (720 ILCS 5/33A--2 (West 1992)). He was sentenced to 45 years' imprisonment for the murder conviction and 10 years each for the attempted armed robbery and armed violence convictions, to be served concurrently. In the instant appeal, defendant argues that (1) the trial court erred in admitting expert testimony regarding lip print identification without holding a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923); (2) the evidence was insufficient to prove he was guilty beyond a reasonable doubt; (3) his trial counsel was ineffective; and (4) that the trial court erred by convicting and sentencing him for attempted armed robbery and armed violence because of the "one-act, one-crime" rule.
On December 18, 1993, Patrick "Pall Mall" Furgeson (Pall Mall) was shot and killed at the Burnham Mill (the Mill) apartment complex in Elgin. According to the forensic pathologist who performed the autopsy, Dr. Joseph Cogan, Pall Mall died as a result of a gunshot wound to the abdomen from a 12-gauge shotgun fired at close range. Dr. Cogan also noted that the victim had an injury to the back of the head caused by some type of blunt-force trauma. A spent shotgun wad *fn1 and approximately 20 shotgun pellets were found inside the victim's body. Jack Welty, assistant lab director of the Illinois State Police forensic science lab in Rockford and an expert in the area of firearms identification, testified that the spent shell and wad fired were consistent with the shotgun found at the scene.
On January 25, 1994, defendant was charged by indictment with attempted armed robbery (720 ILCS 5/8--4 and 18--2(a)(West 1992)), murder in the first degree (while attempting to commit an armed robbery) (720 ILCS 5/9--1(a)(3)(West 1992)), and an alternative count of murder in the first degree (strong probability of death) (720 ILCS 5/9--1(a)(2) (West 1992)). A subsequent amended indictment charged defendant with an additional count of armed violence (720 ILCS 5/33A--2 (West 1992)). Co-defendants Raymond Mims (Raymond) and Kari Brown, otherwise known as Major Julius Hill (Major), were tried in separate proceedings.
Defendant's first trial was in October 1996. Sharlet Clements testified as part of the State's case in chief. Clements had given a taped statement to police on the night of the shooting that identified defendant as the shooter. On the stand, however, Clements could not remember the night in question or whether her statement was accurate. During a break in Clements's testimony, a friend of Clements approached the State's Attorney and informed her that Clements now wanted to tell the truth, that defendant was the shooter. Defense counsel's motion for a mistrial was granted.
During defendant's second trial, Sabrina Roberts testified that at 5:22 p.m. on December 18, 1993, she heard a loud noise and a girl scream outside her apartment. She went outside and saw a man lying on the ground bleeding from a hole in his stomach; two children and a woman, who Roberts later learned was Clements, were standing nearby. Roberts did not see who shot the man, but she did notice a sawed-off shotgun in the bushes.
Pall Mall's son, 11-year-old Jerrial Tharpes, testified that he and his sister, Jakira, were with their father at the Mill the day Pall Mall died. At the time, Jerrial was eight years old and Jakira was four years old. Jerrial testified that he and Jakira stayed in the car while Pall Mall went to an apartment in the Mill. Jerrial testified that he saw two men meet his father by an apartment; one man wore a light blue and light gray "Dukes" coat and the other man wore a black and gray Raiders coat. One of the men was carrying a gun, but he did not see the men's faces. Jerrial testified that the "man with the Dukes coat shot [Pall Mall] and the man with the Raiders coat choked him." The men ran away after the shooting, and the children went to their father.
Jerrial's previous inconsistent statements and testimony were elicited on cross-examination. He admitted that he previously lied to the police when he said that he could identify the men and when he told a police officer and the assistant State's Attorney that Raymond shot his father. At defendant's first trial, Jerrial testified that the man with the Duke coat choked his father and the man with the Raiders coat shot his father.
Clements testified in the second trial that in December 1993 she was pregnant and resided in the Mill with her boyfriend, Raymond. She knew defendant only as one of Raymond's friends. Clements testified that on the night before the incident she overheard Raymond tell defendant that Pall Mall had a lot of money and drugs. She also overheard defendant state that he needed money for a car.
Clements further testified that on December 18, 1993, Raymond, Major, and defendant were at her apartment. Corey Bowen came over briefly to give Raymond the keys to his car, a brown Chevrolet. Later that day, Raymond told Clements he was going to use a pay phone, and the three men left her apartment. Just prior to leaving, the three men changed clothes. According to Clements, when they left the apartment Raymond was wearing black jeans, a blue or black "hoodie," and a black coat that could have been a Raider's coat; defendant was wearing black pants, a blue and white Georgetown Hoyas coat with a tear in the right sleeve, and a black hoodie or black shirt; and Major had changed into black pants and a hoodie.
Shortly thereafter, Clements saw Corey's car pull into the parking lot with the three men inside; it continued running with the lights off. A few minutes later, Pall Mall came to her apartment and asked for Major, stating that he received a page. When she responded that Major wasn't there, Pall Mall left her doorway. She followed Pall Mall around the corner of her apartment and saw him stop close to some bushes where Raymond and defendant met him. Although both men wore masks, Clements recognized them due to their clothing. Clements heard defendant tell Pall Mall that it was a "stick-up" and hit Pall Mall in the back of the head with a shotgun. She also saw Raymond choke Pall Mall from behind as Pall Mall wrestled and struggled. She saw the shotgun go off when defendant was pointing the gun at Pall Mall's stomach.
Defendant dropped the shotgun after it fired, and he and Raymond ran to the brown car with Major behind the wheel. Clements followed them, and defendant pushed her out of the way, telling her that she hadn't seen or heard anything. As they tried to leave the parking lot in the car, they were blocked by another car simultaneously entering the parking lot. Major blew the horn and yelled at the driver, and the other car moved to the side.
That night, Clements originally told police that she did not see anything. She later gave a taped statement at the police station, consistent with her testimony at defendant's second trial. At Raymond's trial, however, she testified that she did not see the shooting, and, at defendant's first trial, she could not remember what happened after Pall Mall came to her door. Clements admitted that she was "too scared" to tell the truth previously because Raymond abused her prior to the shooting and threatened to kill her if she told anyone. She admitted that Raymond never threatened her about her testimony; yet, Raymond frequently contacted her from jail and told her that she did not have to testify.
Clements testified at Raymond's trial and at Major's trial that because she was pregnant police officers intimidated and pressured her into making the taped statement. When Clements gave her taped statement that defendant was the shooter, she was at the police station for six to eight hours. She testified that, when police officers told her that she could go home if she told them what they wanted to hear, she made the statement. However, Clements admitted that the police did not tell her what to say.
Clements also identified a roll of duct tape found at the scene as the same roll that she saw in her house earlier that day. She testified that Raymond had the tape and she never saw defendant with the tape. She also identified a pair of gloves found at the scene and testified that she "believed" they belonged to defendant.
Marsha Williams testified that on the day after the shooting she accompanied Clements to a house in Chicago belonging to a relative of defendant. Defendant was present and talked about the events of the night before. According to Williams, defendant admitted that he and Raymond attempted to rob Pall Mall and the gun defendant was holding discharged after a struggle with Pall Mall.
On two different occasions, Williams told police that the last time she saw defendant was the night before the shooting. Williams testified that she told this to the police because she "didn't want to get involved in the murder." On cross-examination, Williams admitted that she changed her story and agreed to testify in exchange for a deal on a pending unrelated felony charge. Her sentence was deferred until after she testified in this case.
Sherri Dorsett testified that she saw Major, Raymond, and a third man, whom she did not recognize, at the Mill around 2:00 p.m. on the day of the shooting. She saw the men for only a short period of time, but in the courtroom she identified defendant as the third man. Sherri did not give a statement in this case until January 1996, more than three years after the shooting.
Another resident of the Mill, Deborah Anderson, was driving home between 5:20 and 5:30 p.m. on December 18, 1993. She testified that she could not enter her parking lot because there was a mid-sized tan or cream-colored older model car blocking the entrance. She saw a black male in dark clothes get into the passenger side of the car and two other people already in the car that appeared to be black males. She did not see anyone chasing the black male who jumped into the passenger side, nor did she see the faces of the black men. Her car blocked the other car from leaving. As she moved her car to allow the other car to pass, the other car left very rapidly. It was elicited on cross-examination that she previously testified that she saw only the race of the person running and that the car was tan colored, not cream.
Another Mill resident, Roger Renard, testified that as he was taking his garbage out to the dumpster between 5:15 and 5:20 p.m. on December 18, 1993, he heard a gunshot and saw two men jogging toward a light brown car. According to Renard, both men were wearing Chicago Bulls jackets. On the passenger side of the car, he also saw one of the men push a little boy out of the way. Then he testified ...