The opinion of the court was delivered by: Justice McMORROW
This matter comes before the court on the direct appeal of the jury conviction of defendant, Murray Blue, of one count of first degree murder (720 ILCS 5/9-1(a)(1) (West 1992)); three counts of attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1992)); two counts of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 1992)); and two counts of possession of a controlled substance with intent to deliver (720 ILCS 570/401(a)(2)(A) (West 1992)). Defendant elected to have the same jury deliberate his subsequent capital sentencing hearing. 720 ILCS 5/9-1(d) (West 1992). The jury determined that defendant was eligible for the death penalty, and that there were no mitigating factors sufficient to preclude the imposition of the death penalty. 720 ILCS 5/9-1(b), (d) (West 1998). The trial court entered judgment on the verdict and sentenced defendant to death.
Defendant appealed his convictions and sentence directly to this court. 134 Ill. 2d R. 603. On appeal, defendant contends that errors occurring at the guilt and sentencing phases of his trial entitle defendant to a new trial or, in the alternative, to a new sentencing hearing.
This court holds that cumulative errors occurring at trial deprived defendant of his due process right to a fair trial. U.S. Const., amend. XIV, §1; Ill. Const. 1970, art. I, §2. We reverse the trial court's judgment on defendant's convictions, vacate the sentence entered on the judgment, and remand for a new trial.
The trial of defendant Murray Blue encompassed multiple crimes. The State alleged that, on the afternoon of March 8, 1995, defendant was involved in two separate shooting incidents. Testimony of several witnesses and physical evidence admitted at the guilt phase of defendant's trial revealed the following course of events.
A. The Victor Young Shooting
Victor Young testified that, from 1990 until 1991 or 1992, he sold cocaine and heroin for defendant at the corner of Maypole and Kildare streets in Chicago. Defendant controlled drug sales at Maypole and Kildare. At the beginning of each day, defendant would give Young two guns to carry with him. Defendant would collect the guns at the end of the day. At the time, both Young and defendant were members of the Gangster Disciples street gang. Young identified other individuals that sold drugs for defendant as Clyde Cowley and Jimmy Parker.
Young stopped selling drugs for defendant when Young joined the Conservative Vice Lords, a rival street gang. In March 1995, Young was selling drugs for the Conservative Vice Lords at the corner of Karlov and Maypole streets.
On March 8, 1995, at approximately 2:30 p.m., Young and his friends Jermaine White and Lawrence Walker were walking on Maypole Street, between Kildare and Keeler. As they passed 4245 W. Maypole Street, defendant yelled at Young from the first-floor window of an apartment building. Defendant accused Young of talking to the police about defendant. Young denied it and told defendant that defendant was not going to harm Young. Young turned to walk away and defendant called after him. When Young turned back toward defendant, he saw that defendant was holding a "TEC-9" semiautomatic gun. Young started to run away from the apartment building and defendant began shooting at him. Young estimated that defendant fired 12 to 20 shots. Young was hit in the hip or buttocks and fell to the ground.
Lawrence Walker, who was standing next to Young at the time the shooting began, testified that he heard defendant fire at least 15 shots. Walker continued to run from the scene when the shooting started.
From the ground, Young looked behind him and saw defendant run out of the apartment building, accompanied by Clyde Cowley and Jimmy Parker. Parker was also holding a weapon and, at defendant's direction, shot at Young as well. Young then heard defendant say, "Let's get out of here. It's getting too hot."
Young saw defendant, Cowley and Parker run through a vacant lot. A few minutes later, Young observed a black Lincoln Continental automobile drive north on Kildare street at 40 miles per hour. Young could not see inside the car, but he knew that the car belonged to defendant.
B. The Shooting of Daniel Doffyn, Milan Bubalo, Murray Blue and Clyde Cowley
On the same day that the shooting of Young took place, March 8, 1995, Geneva Walker was living in an apartment in a building located at 754 N. Lorel Avenue in Chicago. The apartment building also contains the address of 750 N. Lorel, and is located approximately 17 blocks from the 4200 block of West Maypole. At 3:15 p.m., Walker heard the sound of glass breaking. Looking outside her window, she saw a man sitting on the window ledge of another first-floor apartment. She observed the man removing broken glass and dropping it on the ground. She called 911 and reported what she saw.
The 15th District station of the Chicago police department is directly across the street from 750 N. Lorel. Several police officers responded to the call of a burglary in progress at the apartment building. Officer Elois Jackson testified that she was in the warrant office at the 15th District station when she heard the report over her police radio of a burglary in progress. Jackson told the dispatcher she could respond to the call and walked across the street to 750 N. Lorel.
As she approached the building, Jackson saw Officers Milan Bubalo and Daniel Doffyn walking to the front of the building. Jackson entered a gangway at the south side of the building, leading toward its rear. As she reached the far end of the gangway, she was approached by two black males. One carried a TEC-9 gun, with his hands extended in front of him. The other male appeared to be unarmed. Jackson keyed in her radio that she had an emergency, pointed her gun at the men, and yelled at them to get on the ground.
The man with no gun, later identified as Parker, raised his hands in the air, but did not immediately go to the ground. The other male turned and started to run away. Eventually, Parker followed Jackson's command to get to the ground. As he did so, Jackson heard the sound of gunfire. Jackson remained behind the wall of the gangway, with her gun trained on Parker, until other officers arrived.
Officers Milan Bubalo and Daniel Doffyn were in the parking lot of the 15th District station when they learned of the suspected burglary at 750 N. Lorel. Doffyn and Bubalo went across the street together to investigate the reported burglary. The officers saw broken glass on the ground from a window next to the entrance to 750 N. Lorel. Bubalo testified that, followed by Doffyn, he went inside the building. Bubalo knocked on the front door of the apartment with the broken window. Bubalo could hear the sound of several feet running to the back of the apartment and the sound of breaking glass.
Doffyn ran down the steps from the first-floor landing and out the building. Bubalo followed Doffyn as Doffyn ran from the front of the building to the rear, through a gangway at the north side of the building. When Bubalo entered the gangway, Doffyn was already rounding the far corner of the gangway, into the back yard of the building. According to Bubalo, Doffyn never drew his service weapon at any time.
When Bubalo reached the backyard of the building, he saw Doffyn struggling with a black male. Doffyn had the individual, whom Bubalo identified in court as Clyde Cowley, in a "bear hug" and Cowley was trying to break free. Almost immediately, Bubalo heard the sound of several gunshots fired in quick succession. Both Doffyn and Cowley fell to the ground, with Doffyn lying face down on top of Cowley.
Bubalo's testimony continued as follows: just as Doffyn and Cowley dropped, Bubalo felt himself get shot in his left hip. As he fell to the ground from his own wound, Bubalo saw defendant running toward him, from "around the corner." Defendant was firing a gun at Bubalo and Bubalo returned fire. The officer fired until he fell on two knees and one hand. Bubalo fired a total of five shots; one struck defendant in the back of the head as defendant ran past Bubalo. This shot caused defendant to fall face forward to the ground, slightly behind Bubalo.
After defendant fell, Bubalo radioed for help, disarmed defendant, and crawled to the aid of Doffyn and Cowley. As Bubalo was attempting to reach Doffyn, Officer Robert Podkowa ran past Bubalo to help Doffyn.
After telling Podkowa what happened, Bubalo lay back on the ground. The wound in his hip prevented him from walking. Bubalo underwent surgery the next day for a total replacement of his left hip.
Several officers arrived on the scene immediately after the shooting. Officer Podkowa testified that he ran to the rear of the building from the police station after hearing the sound of gunfire. He found Bubalo on one knee, and saw three other bodies on the ground. After learning what had happened from Bubalo, Podkowa went directly to Doffyn because Doffyn appeared to be the "worst hit." There was a lot of blood near where Doffyn lay.
Doffyn was lying on top of Cowley. Podkowa pulled Cowley out from beneath Doffyn. Because Cowley was moving, he searched Cowley to make sure Cowley had nothing in his hands. Podkowa found a loaded, .38-caliber revolver in Cowley's right pants' pocket.
A Chicago police department detective searched defendant inside the ambulance that took defendant from 750 N. Lorel to the hospital. The detective found a nine-millimeter pistol in defendant's right front pants' pocket and a box of nine-millimeter bullets in his other pocket.
From the crime scene, police recovered a TEC-9 gun, a Taurus model revolver and spent cartridges. They also found a black Lincoln automobile parked "a couple of doors" south of 750 N. Lorel.
Police officers searched the first-floor apartment with the broken front window. They discovered that the window of the rear door to the apartment had also been broken. In the living room, officers found several bags of marijuana on a table, and a jacket with .38-caliber bullets in its pocket. In the bedroom, police found plastic bags containing rock cocaine and folded tin packets containing heroin. Also in the bedroom were $5,385 in cash, a scale and a razor blade. An open box of nine-millimeter cartridges lay on the bed.
Chicago fire department ambulance commander Steven Schulz stated at trial that he arrived at 750 N. Lorel at approximately 3:30 p.m. on March 8. At the rear of the building, he found four persons on the ground, including Doffyn. Doffyn was in critical condition, with a bullet wound to the head. Schulz saw "a quantity of blood ... and brain matter" in the snow. Schulz was unable to secure an airway in the unconscious Doffyn, because the officer's jaw was clenched and Schulz could not get a laryngoscope between his teeth. Schulz established an IV and used an ambu-bag to try to hyperventilate Doffyn with oxygen.
Additionally, Schulz cut the straps of Doffyn's shirts and bullet proof vest. Schulz saw a gunshot wound to Doffyn's upper right chest near the clavicle. Schulz found out later that the bullet to the chest had traversed one of Doffyn's major blood vessels. He also learned later that evening that Doffyn had died.
Reviewing a report prepared by other paramedics, Schulz averred that Cowley had been shot in the back.
The chief medical examiner of Cook County, Edmund Donoghue, performed an autopsy on Doffyn on March 9, 1995. Donoghue found evidence of a bullet wound to the right side of Doffyn's head, a few inches above his right ear. As he opened Doffyn's skull, Donoghue found that the bullet wound coursed through the right parietal and frontal lobes of Doffyn's brain. Donoghue recovered a bullet and lead fragments from the right frontal lobe of the brain.
Donoghue further described an injury to Doffyn's right upper chest. He said the gunshot wound was "very large," involving the first rib, the space between the first and second ribs, the second rib, the right upper, middle and lower lobes of the lung, the anterior surface of the liver, the abdominal wall and the left thigh. Donoghue recovered another bullet from Doffyn's left thigh.
Doffyn died of multiple gunshot wounds. Either of the wounds described could have killed Doffyn, according to Donoghue.
The State called Richard Chenow, formerly of the firearms section of the Chicago police department, to render expert forensic evidence. Chenow opined, inter alia, that the bullet recovered from Doffyn's thigh was fired from the TEC-9 pistol recovered from defendant. The bullet taken from Doffyn's head was so mutilated that it contained insufficient individual characteristics to indicate, beyond a reasonable doubt, that the bullet had been also fired from the TEC-9. However, Chenow did say that the bullet came from the same class of weapons as a TEC-9.
Chenow stated that the bullet removed from Young also came from the TEC-9 gun, "to the exclusion of all other firearms." As to the bullet removed from Bubalo's body, Chenow could not positively identify it as fired by the TEC-9; however, he could not rule out the TEC-9 as the source of the bullet.
The State called Etoya Nelson as a witness. She is the mother of two of defendant's children. Nelson testified that she and defendant lived together for a period of time, ending in February 1995. Nelson spoke by telephone to defendant on March 4 and March 5, 1995. Defendant refused to tell her where he was; defendant said he was on the run from the police. Defendant called Nelson again on March 7 and came to see her.
On the witness stand, Nelson denied the substance of a statement she allegedly made to an assistant State's Attorney on March 9, 1995. Nelson denied reporting that defendant told her, two days previously, that "people were running over him, they had taken everything he had." However, Nelson admitted having signed the statement taken by the prosecutor on March 9.
Defendant presented the testimony of two witnesses in defendant's case in chief. Officer James Lukas of the office of professional standards of the Chicago police department participated in the departmental investigation that followed the shooting of Bubalo and Doffyn on March 8, 1995. Lukas testified that a recording of 911 telephone calls indicated a message was broadcast to all police at "15.28:38 hours" that "all had been captured and [sic] offender had been caught." Lukas stated that a second broadcast, approximately one minute later, indicated that two officers and two others were shot, and an evidence technician was requested.
The stipulated testimony of Hernando Torres, M.D., established that on March 8, 1995, defendant received a bullet wound to the left side of his head.
Additionally, the theory of defendant's case evolved during the course of the trial. During opening statements to the jury, counsel for defendant posited that Doffyn was not killed by bullets fired by defendant, but rather by gunfire from Bubalo's weapon. Defendant's attorney also implied that members of the Chicago police department discussed the shooting of Doffyn and Bubalo in an attempt to reach a consensus as to what had occurred. By the time defense counsel delivered the closing argument at the guilt/innocence phase of the trial, defendant retreated from this theory significantly, and instead argued generally that the State had failed to meet its burden of proof.
C. Defendant's Sentencing Hearing
The same jury that deliberated the guilt/innocence phase of defendant's trial also heard the capital sentencing phase. Regarding defendant's eligibility for the death penalty (720 ILCS 5/9-1(b) (West 1998)), the parties stipulated that all of the evidence and signed verdict forms admitted at the guilt/innocence phase could be admitted for the purpose of determining defendant's death eligibility.
Evidence adduced at the aggravation/mitigation phase (720 ILCS 5/9-1(d) (West 1998)) demonstrated the extent and nature of defendant's criminal history. The State introduced the testimony of Antron Person, whom defendant had employed to sell drugs. Person stated that in 1995, defendant earned $30,000 a week selling drugs.
Person further averred that, in February 1995, Louis Moret told Person that defendant had pulled a gun on Moret and told Moret to "get away before defendant could hurt him." Defendant put a gun to Moret's head and told him to leave the corner of Kildare and Maypole. Also in February 1995, defendant had complained to Person that police took "stuff" from defendant, and that "the last thing he [was] going to do is kill a police [sic] before he let them kill him."
A variety of law enforcement officials testified to defendant's arrests and convictions in the years preceding March 8, 1995. In October 1991, the Chicago police arrested defendant for unlawful use of weapons after defendant attempted to pull a gun from his waistband during a protective, pat-down search by a police officer. The charge was later dismissed.
In September 1994, defendant was arrested and charged with unlawful possession of alcohol, marijuana and weapons. Pursuant to this arrest, defendant pleaded guilty to three counts of unlawful use of weapons.
Authorities recovered two unregistered semiautomatic weapons from defendant's residence in July 1992. During the search of his apartment, defendant told the officers where the guns were and that they were registered. The guns were not registered. Officers also found $1,740 in cash in the bedroom of the apartment. Defendant told the police that he was unemployed and could not account for the cash. Defendant was charged with mob action and failure to register handguns. The mob action charge was subsequently dismissed.
Defendant was arrested in December 1994 on charges of unlawful possession of weapons and controlled substances. As a result of the arrest, police recovered a loaded, .38-caliber handgun, $1,250 in cash, heroin, and 150 bags of rock cocaine.
A joint project by the Chicago police department and the United States Bureau of Alcohol, Tobacco and Firearms (ATF), conducted in July 1993, investigated how handguns were coming into the City of Chicago. According to ATF agent John Taylor, the ATF and Chicago police learned that a man named Barry Jones was a "straw purchaser" of guns for defendant. Taylor testified that Jones was forced to purchase guns for defendant to repay a $1,500 debt Jones owed to defendant. Defendant had also ordered gang members to beat up Jones because of his failure to repay the debt, Taylor said.
Taylor stated that when defendant wanted Jones to make a purchase, defendant would pick up Jones in defendant's car and drive to a gun shop. Defendant would give Jones money and a list of guns that defendant wanted Jones to buy. Once purchased, Jones would turn the guns over to defendant. Jones allegedly purchased 28 guns for defendant.
The State introduced additional evidence concerning defendant's purported involvement in a shooting that occurred shortly before March 8, 1995. Terrence Hall testified that on February 26, 1995, he was working as the manager of an Amoco filling station at Washington and Pulaski. At approximately 10 p.m., Hall saw a gray customized van pull into the station and begin to refuel. A car pulled into the other side of the station. The driver of the car, later identified as Louis Moret, approached the driver of the van and spoke to him. Then Moret walked to a line at the cashier station. Two men emerged from the van and approached Moret. One of the men from the van, subsequently identified as defendant, seemed very angry and pulled a gun from his pocket. Moret began to run and defendant fired several shots at Moret, killing him. Hall stated that defendant followed Moret as Moret tried to run from defendant. Both defendant and the second person from the van then walked to the van and drove away.
Detective Gerhardstein of the Chicago police department investigated Moret's murder. He counted 14 bullet wounds on Moret's body, including one wound in the middle of Moret's forehead, and wounds to Moret's neck, chest and back. Gerhardstein said that witnesses at the station identified the shooter as defendant. Gerhardstein obtained an arrest warrant for defendant on March 4, 1995; he arrested defendant for Moret's murder on March 8, 1995.
In mitigation, defendant introduced the testimony of acquaintances, family members and medical experts. Jacqueline Wheeler, a teacher at the Austin Community Academy High School between 1979 and 1992, testified that she selected defendant to participate in the "principal scholars program." The program is designed for minority students who show academic promise.
Defendant's grade point average in high school was 2.6, which was considered "the cream of the crop" at that Austin Community Academy. To her knowledge, defendant had no disciplinary problems while in high school.
Family members averred that defendant visited his children on a regular basis and participated in their upbringing. Testimony from the mother of two of defendant's children, and defendant's eight-year-old daughter indicated that defendant's children would miss him if he were put to death. Defendant has five children by four different women.
Defendant's brothers, Robert Lee Blue and Curtis Blue, testified that defendant came from a family of 13 children. It was a single-parent family. Robert and Curtis described defendant as a very good student in high school and a very good employee, when defendant was working at Church's Chicken.
Defendant's brothers professed not to know about defendant's alleged history as a drug dealer. In addition, Robert admitted that he did not know what defendant was doing for employment in 1995, because Robert was away at school. He did not know why guns and drugs were found in an apartment where defendant was living in 1995. Defendant encouraged Robert not to get involved with drugs or gangs.
Both Robert and Curtis knew defendant was accused of killing Doffyn, but neither had spoken to defendant ...