The opinion of the court was delivered by: Presiding Justice O'brien
Appeal from the Circuit Court of Cook County
Honorable Daniel J. Kelley, Judge Presiding.
A jury convicted defendant, Lionel Eaton, of four counts of attempted first degree murder and four counts of aggravated discharge of a firearm in connection with the shootings of Officers Eldridge and Richards. The trial court merged all the counts into two counts of attempted first degree murder and sentenced defendant to two concurrent 20-year terms of imprisonment. On appeal, defendant argues: (1) the trial court erred by allowing the State to present excessive and irrelevant gang evidence; (2) the State committed a series of discovery violations that prejudiced the defense; (3) the State improperly commented on a polygraph examination during closing arguments; and (4) the trial court abused its discretion during sentencing. We reverse and remand for a new trial.
At trial, Officers James Eldridge and Warren Richards testified that at approximately 10:30 p.m. on May 22, 1994, they responded to a report of shots fired at the LeClair Courts housing project. As they neared LeClair Courts, the officers heard shotgun blasts, rifle fire, and automatic pistol fire. The officers notified the dispatcher and requested assistance.
Officers Eldridge and Richards drove into the housing complex. At 44th Place and LeClair, several persons on the street pointed in the direction of the gunshots and yelled that there was a gang fight. The officers proceeded to drive in the direction of the gunshots.
At 4908 West 44th Place, Officers Eldridge and Richards saw 8 to 10 men firing weapons. As the officers approached the scene, shots were fired at their car. The officers drove down a fire lane and took cover behind a building approximately 15 yards away. They exited their vehicle and saw the men run away.
Officers Eldridge and Richards ran into a courtyard. As they came around a corner, they saw a black man in his late teens or early twenties, approximately 5-feet-7 inches tall and weighing about 300 pounds, wearing blue jeans and a dark shirt. He was standing in a "combat position" with both hands on a gun pointed at the officers. Officer Eldridge and Officer Richards identified defendant as the man they saw in the courtyard.
Defendant fired at the officers. Officer Eldridge returned fire, and defendant ran away. As the officers chased after defendant, Officer Richards saw defendant turn around and point his gun at him. Officer Richards yelled "police, drop it," and fired his weapon. Defendant stumbled, fell to the ground, and dropped his gun. The officers ran to defendant.
Officer Eldridge handcuffed defendant and asked him if he was shot. Defendant replied "no, [expletive]." Officer Richards recovered the gun that defendant dropped, a 9 millimeter semi-automatic handgun with the slide lock back, indicating that it was empty. Officer Eldridge radioed for more assistance, and a few minutes later, Officers Charmaine Kielbasa and Kenneth Thelan arrived.
Officer Kielbasa testified that, when they arrived on the scene, they saw defendant handcuffed and on the ground, with Officers Eldridge and Richard next to him. Officer Thelan performed a pat-down search of defendant, then he and Officer Kielbasa drove defendant to the police station. At the police station, Officer Thelan again searched defendant and found a fully loaded 9 millimeter clip with 20 rounds in his right back pocket. Officer Robert Baikie, a forensic investigator assigned to the case, testified he did not perform a gunshot residue test on defendant. Officer Baikie explained that a gunshot residue test is usually performed when a question exists as to who fired the weapon. Officer Richards testified he did not ask that a gunshot residue test be performed because he saw defendant fire the gun.
For the defense, Leon Hemphill testified he was walking around LeClair Courts at approximately 10:30 p.m. on May 22, 1994, when he saw defendant drive up to 44th Place. Defendant exited his car and told Hemphill that his wife had just had a baby and that he was on his way to pick up his other son. While they were talking, they heard gunshots in the distance and saw a "bunch of guys" run past them. Hemphill and defendant dove toward the ground.
Hemphill testified that, a few seconds later, the police ran toward defendant and handcuffed him. About five minutes later, two more police officers arrived, pushed defendant into their car, and drove away. Hemphill testified he tried to explain to the police that defendant had not been part of the shootings, but the officers told him to shut up and go home. In rebuttal, Officer Richards testified that, after apprehending defendant, he did not see anyone near defendant on the ground, nor did he see any other person in the area until the other police officers arrived. Officer Richards testified that no one approached him at the scene and told him that defendant was not involved in the shootings.
Defendant testified that at approximately 3 p.m. on May 22, 1994, he visited his wife and their new baby in the hospital. He left the hospital around 9 p.m., stopped to get something to eat, then drove to LeClair Courts to pick up his other son. Defendant saw Hemphill on 44th Place and stopped to talk to him. While they were talking, they heard gunshots in the distance. Eight men then ran past them. Defendant heard "real close" gunfire and he and Hemphill dove toward the ground.
Defendant testified two police officers came up to him, handcuffed his hands behind his back, and lifted him off the ground. A few minutes later, a police car drove up and one of the officers in that car searched him and then drove him to the police station. At the police station, defendant told the assistant State's Attorney that he did not have a gun or a clip and that he had not fired at any police officers. Defendant testified that he did ...