Appeal from the Circuit Court of Cook County. No. 96 CR 13489 Honorable Joseph J. Urso, Judge Presiding.
The opinion of the court was delivered by: Justice Wolfson
Throughout this first degree murder trial the prosecution contended Romelle Wetzel, the defendant, or Dorian Jefferson, the defendant's companion, fired the fatal shot at Leonard Brown. The defendant claimed he was firing his .380 semi-automatic pistol at a wall, not at Brown or anyone else. Some members of the jury had yet another theory and, after deliberations began, three times asked the trial Judge about it. After the third time, the Judge answered the jury's question with a single, underlined word.
We conclude the jury was incorrectly reinstructed. We reverse the defendant's first degree murder conviction and remand this cause for a new trial.
At about 11 p.m. on May 6, 1996, Chicago police officer Sandra Otero and her partner, Officer Ronald Heard, were riding in an unmarked police car headed westbound on 75th Street when they heard about eight gunshots in rapid succession. They proceeded in the direction of the shots. Within a minute, the officers reached the corner of 75th and Dorchester, where they saw a black Nissan car parked 10-15 feet from the corner, on the east side of Dorchester Street. The car's front doors were open and two black men were standing on either side of the car. The man on the passenger side, later identified as Wetzel, was leaning over the roof of the car, firing a gun. The officers saw Wetzel fire at least three shots. Neither officer saw anyone on the street when Wetzel was shooting.
Officer Otero testified she saw Wetzel "shooting in a "northwest direction." When asked by the State, "What is located in that direction?" Otero responded, "Residential houses and a vacant lot." She was impeached with her arrest and case reports, in which she said Wetzel had been firing "westward." On redirect, the State asked Otero what she told Detective Bernatek. Otero said she told Bernatek, "He was firing northwest."
Officer Heard, who had prepared the arrest report, testified Wetzel fired in a "westward" direction. He clarified his answer by saying "westward" meant "at an angle" going north.
The officers turned onto Dorchester and parked directly behind the Nissan. Wetzel stopped shooting, got in the front passenger seat, and threw his gun out the window. The man standing on the driver's side of the Nissan later was identified as Dorian Jefferson. He, too, had a gun. The officers saw Jefferson throw his gun under the Nissan when he saw the approaching police car. Jefferson then got in the driver's seat and closed the door.
Officers Otero and Heard immediately placed Jefferson and Wetzel under arrest, read them their rights, and turned them over to other officers to be transported to the police station. The guns Wetzel and Jefferson had discarded were recovered and secured as evidence.
Officer Otero testified the gun she saw Wetzel firing was a Jennings .380 semi-automatic pistol. It held one live round in the chamber and two live rounds in the magazine. The gun recovered from under the Nissan, where Jefferson had thrown it, was a nine millimeter (9mm) Jennings semi-automatic pistol. It, too, had one live round in the chamber and two live rounds in the magazine.
A minute or two after arriving on the scene, while placing Jefferson and Wetzel under arrest, Officers Otero and Heard saw an 18-year-old man, later identified as Leonard Brown, stumble out from the vacant lot located at about 7426 South Dorchester (the middle of the block) and collapse in the street at about 7434 South Dorchester (northwest of the Nissan). Brown had a gun shot wound to his abdomen and was bleeding heavily. An ambulance was called. Brown was transported to Christ Hospital, where he later died.
Nancy Jones, an Assistant Cook County Medical Examiner, performed an autopsy on Brown. At trial, Jones testified Brown died as a result of a through-and-through gunshot wound to his abdomen. The external examination showed that the bullet entered Brown's left upper abdomen and exited the right side of his back. The wound, she said, would not have been immediately incapacitating.
A forensic investigator for the Chicago police department, Frank DeMarco, took several photographs of the crime scene and recovered a number of spent cartridge casings. At trial, DeMarco testified about the photos, which showed the area where Brown collapsed, the vacant lot, and locations where physical evidence was recovered.
DeMarco recovered cartridge casings from three locations: six spent .380 cartridge casings were found on the parkway and street in the vicinity of 7449 South Dorchester, near where the Nissan was parked; three spent .380 cartridge casings were found across the street, on the sidewalk at 7450 South Dorchester by the hot dog stand on the northwest corner of 75th and Dorchester; and three spent .380 cartridge casings, a spent 9mm cartridge casing, and a fired 9mm bullet were found on the sidewalk around the corner from the hot dog stand, near some public telephones at 1358 East 75th Street. No weapons, bullets, or casings were found in the vacant lot. No bullet holes were found in the Nissan or in the brick wall of the hot dog stand. No fingerprints were detected on any of the recovered cartridge casings. There is no evidence connecting a recovered casing to Brown's fatal wound.
It was later stipulated that Ernest Warner, a Chicago Police Crime Lab firearm expert, if called, would testify he examined the cartridge casings microscopically. Based on his examination of the casings, he found: four of the six .380 casings recovered at 7449 South Dorchester appeared to be consistent with and could have been fired by a Jennings semi-automatic pistol such as the gun recovered from Wetzel; the 9mm fired bullet and cartridge casing recovered at 1358 East 75th Street appeared to be consistent with and could have been fired by a Jennings 9mm semi-automatic pistol such as the gun recovered from Jefferson; the remaining six .380 discharged casings found at 7450 South Dorchester and 1358 East 75th Street did not appear to be consistent with a Jennings type pistol and probably were not fired by the guns used by either Wetzel or Jefferson. It could not be determined whether the remaining casings were fired from more than one gun.
Forensic expert Scott Rochowicz testified he performed a gunshot residue test on Wetzel's hands, but could not say with any degree of scientific certainty whether Wetzel had fired a gun on the night of May 6, 1996. He opined that the results of the test were inconclusive because there had been a four hour time lag between Wetzel's arrest and the administration of the gun residue test.
Assistant State's Attorney Ursula Walowski testified she arrived at Area Two police headquarters on May 7, 1996, and spoke with Wetzel regarding the shooting death of Leonard Brown. At that time, Wetzel told her "he did not shoot anyone, that he did not have a gun, that the police were putting this on him, and that he saw this sort of thing in a movie."
The State's final witness was Detective Paul Bernatek. He testified he spoke with Officer Otero at the Third District police station shortly after the incident on May 6, 1996. The following colloquy took place:
"Q: (State) Did she in fact at that time [1 a.m.] tell you that she looked northbound on Dorchester and observed a male black now known as Romelle Wetzel leaning over the hood of a black Nissan firing a gun towards a vacant lot at approximately 7426 South on Dorchester?"
Hearsay objections were made to this testimony, but were overruled.
Defendant testified. He said he and Jefferson had been riding in Jefferson's Nissan on the night of May 6, 1996, when they stopped so he could use a pay phone. As he walked toward the pay phones at the corner of 75th and Dorchester, Wetzel said, he heard six or seven gunshots. He said he didn't see anyone on the street and didn't know where the shots were coming from.
Wetzel said he ran back to Jefferson's car, pulled out his .380 semi-automatic gun, and fired three to four shots over the hood of the car in a westward direction. Wetzel claimed he did not aim his gun at anyone, but instead fired at the brick wall of the hot dog stand located across the street, in an attempt to "scare off" whoever was shooting.
At defense counsel's request, the jury was instructed on involuntary manslaughter in addition to murder. However, the trial court refused defense counsel's request to instruct the jury on No. 3.11 of the IPI Criminal, 3d, in its entirety. Instead, the court instructed the jury on the first portion of the instruction only -- that prior inconsistent statements may be considered for impeachment purposes only, not as substantive evidence.
After hearing argument, the jury retired to deliberate. After some time, the jury sent ...