Appeal from the Circuit Court of Cook County. No. 95 CR 9702 Honorable Daniel J. Kelley, Judge Presiding.
The opinion of the court was delivered by: Justice O'brien
Defendant, Clyde Cowley, was found guilty of the first degree murder of Chicago police officer Daniel Doffyn, attempted murder of Chicago police officer Milan Bubalo, attempted murder of Victor Young, aggravated battery with a firearm of Officer Bubalo and of Young, and possession of a controlled substance with the intent to deliver after a severed but simultaneous jury trial with co-defendant Murray Blue. Defendant was sentenced to natural life imprisonment for first degree murder and concurrent lesser sentences for the other offenses. Defendant appeals.
On appeal, defendant contends the circuit court erred in: (1) telling the jury before trial that the death penalty was not a possible sentence; (2) admitting a mannequin wearing the shirt of the victim into evidence and allowing the jury to use the mannequin in the jury room; (3) permitting the prosecutor to argue in closing argument that the murder victim's family needed to "hear" from the jury; (4) failing to properly instruct the jury; and (5) failing to appoint new counsel after defendant alleged ineffective assistance of counsel in a pro se motion for a new trial. Defendant further contends the evidence was insufficient for the jury to find him guilty beyond a reasonable doubt of the murder of Officer Doffyn and the attempted murder of Officer Bubalo under an accountability theory, was insufficient to find him guilty of the murder of Officer Doffyn under a felony-murder theory, and was insufficient to find him guilty of possession of a controlled substance with intent to deliver. We reverse and remand for a new trial.
This case involves two shootings at different times and different locations: the shooting of Victor Young (the first shooting), and later the same day, the simultaneous shooting of Officers Doffyn and Bubalo (the second shooting).
Our supreme court has addressed this exact record in People v. Blue, 189 Ill. 2d 99, 724 N.E.2d 920 (2000), the co-defendant with whom this defendant was tried in the same courtroom with the same prosecutors. This statement of facts contains portions of the statement of facts of the supreme court.
At 3:30 p.m. on March 8, 1995, paramedic Schultz answered a "shooting call" at 750 North Lorel in Chicago. There, he found Officer Doffyn in critical condition with a bullet wound to the head. The wound ultimately proved fatal. Defendant, co-defendant Murray Blue, and Officer Bubalo had also suffered gunshot wounds, but survived their injuries.
Five minutes later, Detectives Maher and Salemme arrived at the scene. Detective Maher rode in an ambulance with Murray Blue en route to the hospital and recovered a nine millimeter loaded handgun (TEC-9) and a box of bullets from Blue's pockets. Detective Salemme rode in an ambulance with defendant. Defendant was in stable condition but had feeding and oxygen tubes.
Detective Salemme gave defendant his Miranda warnings in the ambulance and defendant indicated he understood them. Defendant then gave an oral statement to Detective Salemme. Defendant said that he was "out south" when Murray Blue and Jimmie Parker pulled up in a black Lincoln Continental and said they were on their way to kill "Puff", a rival drug dealer. Defendant agreed to go with them and act as a lookout. Parker gave defendant a .38-caliber weapon; defendant put it in his pocket. The three men went to Blue's apartment on Lorel Street to get rid of some excess guns in the car. Once inside the apartment, the three men heard police at the front and fled out the back window. Defendant still had the .38-caliber weapon and Blue had two other weapons. As they ran, Blue shot at the police and hit defendant by mistake. This was the totality of defendant's statement in the ambulance.
At the hospital the next day, an assistant State's Attorney (ASA) went to the intensive care unit to question defendant further. Defendant was on pain medication and told the ASA that he was uncomfortable but understood that hospital personnel were doing their best. The ASA questioned defendant intermittently from 2 or 2:30 p.m. until 6 p.m. Defendant communicated and did not fall asleep during questioning. The ASA never inquired whether defendant was tired and did not know whether defendant might have dozed off during periods when the questioning had been interrupted by medical personnel. The ASA did not call defendant's parents before questioning him, although defendant was 16 years old.
Defendant gave a written statement to the ASA at the hospital. Defendant told the ASA that on the afternoon of March 8, 1995, Blue, Parker and Charlie "Chow Mein" pulled up in Blue's Lincoln Continental and told defendant they had to take care of business with Puff, a rival drug dealer infringing on their territory. Blue gave defendant a loaded .38-caliber gun to protect himself and "watch the others' backs." The four men then went to a building at 4300 Maypole to wait for Puff and his workers. They intended to kill Puff or one of his workers to teach them a lesson. Before Puff or any of his workers arrived, Charlie left the building. Shortly thereafter, Parker saw Charlie talking to Victor Young. Young had sold drugs for Blue in the past, but at the time of the incident was selling drugs for someone else and had been known to stick up Blue's workers. Although Young did not work for Puff, Blue said, "Let's shoot him" and started shooting. As Blue, Parker and defendant left the building to run to Blue's Lincoln Continental, Parker also fired at Young. Defendant still had the .38-caliber gun when they left the scene of the this, the first shooting that day.
Defendant also told the ASA that they drove down Lake Street fast because they thought Puff's guys or the police would be looking for them. The plan was to "chill" at Murray Blue's apartment and then continue the plan to kill Puff or one of his workers. Blue let Parker and defendant in the back door of the apartment and told them he had to break the front window because he forgot his keys. Blue and Parker went to the bedroom to stash a couple of extra shotguns under the bed and defendant went to the living room to drink a glass of soda pop. Parker reported that the police had arrived. Upon hearing this, Blue stated, "We're all in this together!" Blue then grabbed the TEC-9 he had just used to shoot Young and followed Parker outside through a window. Defendant, still armed with the .38-caliber weapon, followed Parker and Blue out the window and to the alley. Defendant then heard someone yell, "Police! Stop!" Defendant turned around and ran into a police officer who grabbed him. Blue began shooting and hit the officer and defendant. Both fell.
Defendant suffered two gunshot wounds to the chest and left arm, two to his right arm, and a superficial wound to the left thigh. When questioned about his condition, defendant said he had been treated well by police and paramedics. He had received a pain shot at 11:15 a.m., which he said did not affect his ability to remember and explain the shooting. He said his family knew where he was.
The ASA testified that defendant was not able to sign the statement, summarized by the ASA, because his arm was injured or because medical equipment obstructed use of his arm. Defendant signed with an "X" because "his muscle control wasn't what it obviously would be."
Victor Young testified that, from 1990 until 1991 or 1992, he sold drugs for Blue at a particular corner where Blue controlled drug sales. At the beginning of each day, Blue would give Young two guns to carry with him. Blue would collect the guns at the end of the day. At the time, both Young and Blue were members of the same street gang. Young identified defendant and Jimmie Parker as other people who sold drugs for Blue.
Young stopped selling drugs for Blue when Young joined a rival street gang. In March 1995, Young was selling ...