Appeal from the Circuit Court of Lake County. No. 98--CF--83 Honorable John T. Phillips, Judge, Presiding.
The opinion of the court was delivered by: Justice Inglis
Defendant, Seneca L. Davis, appeals his convictions of aggravated battery with a firearm (720 ILCS 5/12--4.2 (West 1996)) and aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1996)). Defendant contends that he was unduly prejudiced as a result of improper jury instructions, improper prosecutorial argument, and evidentiary errors. We reverse and remand.
Defendant was indicted for the offenses of aggravated battery with a firearm, aggravated discharge of a firearm, and unlawful possession of a weapon by a felon, all of which arose from a December 27, 1997, shooting. Defendant severed the unlawful possession of a weapon charge from the other two charges and proceeded to trial on the aggravated battery and aggravated discharge charges. The following evidence was presented at trial.
Eight-year-old L.B. testified that, on December 27, 1997, he was washing his hands in his bathroom when he heard gunshots. L.B. testified that a bullet grazed his left arm.
Robert Biggers testified that, on December 27, 1997, he was sitting on the back porch of his apartment when he observed a car approach the building. The car turned and shots were fired from the car. Biggers identified defendant as the shooter.
During cross-examination, Biggers admitted that he disliked defendant. He further testified during cross-examination that, on January 12, 1998, he spoke with Detective Karlstrand of the Waukegan police department and viewed a photographic lineup. Biggers admitted that he told Karlstrand that he was unable to identify the shooter and that Karlstrand told him, "Sure you know who did it." Biggers agreed that he felt pressured to choose one of the photographs as that of the shooter. Biggers testified that the shooter's photograph was in the second position in the lineup. Biggers also testified that the picture of defendant showed him to be heavier and darker than he remembered at the time of the shooting.
Biggers also admitted on cross-examination that he had been twice convicted of unlawful possession of a weapon by a felon. The State stipulated that Biggers had been twice convicted of unlawful possession of a controlled substance.
On redirect examination, Biggers testified that he was initially reluctant to identify defendant as the shooter because he feared retaliation.
Officer Eric Deveau of the Waukegan police department testified that, on December 27, 1997, at approximately 11 a.m., he responded to a "shots fired" call at Biggers's apartment. When he arrived, he spoke with L.B. and observed a visible and bleeding wound on L.B.'s upper left arm. L.B. informed Deveau that, at the time of the shooting, he had been standing before the sink in the first-floor bathroom. Deveau observed two holes in the bathroom, one in the north wall above the bathroom sink and one in the south wall. Deveau ran a string between the holes and, from the resulting trajectory, estimated that the shots were fired from the corner of the street and alley behind the apartment building, roughly the same place as indicated by Biggers.
Deveau testified that he also spoke with Biggers. Deveau testified that Biggers told him that the shooter fired six or seven shots. Biggers also informed Deveau that the shooter drove a dark blue or black Oldsmobile Cutlass that had gray primer on the front of the vehicle. Biggers accompanied Deveau as they searched for the car. Approximately a mile from Biggers's apartment, Deveau found the car and Biggers identified it as the same car used in the shooting.
Deveau testified that he searched the car before having it towed away. Deveau testified that he did not find a gun, shell casings, or other contraband in the car. He further testified that he did not smell the odor of burnt gunpowder in the car as he searched it. Deveau also testified that he did not attempt to retrieve fingerprints from the car.
Detective Karlstrand testified that defendant was arrested on March 6, 1998. Karlstrand read preprinted Miranda warnings to defendant, after which defendant signed the form to indicate that he understood his rights. Karlstrand testified that defendant agreed to be questioned.
Karlstrand testified that defendant first stated that he was not present at the shooting. According to Karlstrand, after continued questioning, defendant said, "Robert Biggers had a gun, too." Upon further questioning, Karlstrand testified that defendant admitted that the recovered car was his, that he had seen the police searching the car and towing it away, and that he was the only one who drove it. Karlstrand also testified, over objection, that defendant terminated the questioning, stating that he "didn't have anything further to say" and "that he would take his chances in court."
Officer Randy Furlow testified about a number of pictures of the scene of the shooting and about the recovered bullets from the apartment building. Following Furlow's testimony, the State rested its case. ...