Appeal from the Circuit Court of Cook County 97 CR 21053 The Honorable Thomas R. Sumner, Judge Presiding.
The opinion of the court was delivered by: Justice Cousins
Defendant-appellant, Sam Armstead, was convicted of aggravated battery with a firearm and was sentenced to 12 years' imprisonment. Defendant presents the following issues upon appeal: (1) the State failed to prove him guilty of aggravated battery with a firearm beyond a reasonable doubt; (2) the trial court improperly admitted hearsay testimony; (3) the prosecutor, during cross-examination of defendant, asked questions that depicted to the jury that defendant was of bad moral character, denying him of a fair trial; and (4) during closing argument, the prosecutor improperly argued that the complainant and a non-testifying witness were afraid to testify that defendant was the offender, attempted to shift the burden to the defense, and repeatedly misstated the evidence, denying him of a fair trial.
At defendant's jury trial, James Morris was called by the State. Morris testified that on July 14, 1997, he "noticed somebody downstairs fighting" and he "went down to break the fight up." There was a light pole about three feet away, which was dimly lit. Morris discovered that it was his cousin, Rochelle Appling, fighting with defendant's cousin, Yolanda Armstead. Morris stated that two of defendant's nephews, Latrell and Jen, were also there. As he broke up the fight between the two women, Morris was involved in "a little tussle" with defendant's two nephews. At that time, he did not see a weapon.
After the fight between the two women was broken up, Morris went upstairs with his mother. Approximately 5 to 10 minutes later, Morris went back outside. While outside, Morris spoke to his friend Vernon Martin for about five minutes on the sidewalk. About five feet away from them was a crowd of 5 to 10 people. Morris testified that he heard someone say "Don't mess with my cousin." As Morris turned toward the voice, he noticed someone shooting at him. He initially testified that he did not see the shooter or the gun. He then testified that he could see the gun and as he tried to grab the gun, he fell and the shooter fell on top of him. The shooter quickly got up and ran away. He testified that he did not see the shooter's face.
Morris further testified that on July 15, 1997, the day after the shooting, police officers came to speak with him at the hospital. A female detective showed Morris a picture of defendant. Morris testified that she asked, "Is this the one that shot you?" and he told her, "This is the one I heard shot me."
On July 22, 1997, two or three officers visited Morris at the hospital to tell him that they caught defendant and asked Morris to identify defendant from five pictures. Morris testified that he told the officers that he heard that the defendant shot him. When the State asked, "Isn't it true that you told them that, 'Sam was the one that shot me'? Isn't that what you told the detectives at the hospital?", Morris replied, "I don't remember."
On cross-examination, Morris testified that on the day after he was shot, his mother came to the hospital and told him that while she was on the porch of their sixth floor apartment, she saw the defendant shoot him. He stated that he saw the gun but did not see the face of the shooter. The following questioning occurred during cross-examination:
"MS. CAROTHERS [defense attorney]: And now, when you were in the hospital on the 15th when you talked to the woman detective, did she also show you a photograph?
Q: And did you tell the detective that this was Sam Armstead?
Q: Okay. Now, why did you tell her that was the person that shot you?
A: Because that's who I thought shot me, and that's who I heard shot me."
During redirect examination, the following colloquy occurred:
"MR. FAHLGREN [assistant State's Attorney]: Now, do you recall myself, my partner and your mother Minnie Morris coming into the cell to speak to you?
Q: And didn't you answer in response to that question that it was Sam Armstead that shot you?
Q: Weren't you -- were you asked the question, 'The night you were shot, did you see the shooter'?
Q: And you said yes, correct?
Q: And you said you recognized him, correct?
Q: And yesterday during that conversation didn't you tell myself and my partner and your, in your mother's presence that the night of the shooting you did see Sam Armstead shoot you? Is that correct?
Upon re-cross-examination, the defense attorney inquired:
"MS. CAROTHERS [defense attorney]: And you knew that your mom had said that she saw the shooting from the balcony on the sixth floor of the project, right?
Q: And you said that because you didn't want to make your mother out a liar, did you? You didn't want to do that to your mom, did you?
The State also called Minnie Morris, James Morris' mother. She testified that on the evening of July 13, 1997, she was on her balcony with two friends. From there she noticed her niece, Rochelle Appling, fighting with Yolanda Armstead. She observed her son, James, attempt to stop the fight and saw two young men start fighting him. Mrs. Morris then went downstairs and told James to go upstairs, but he did not go at that time. While downstairs, Mrs. Morris saw a young woman pick up a piece of glass and try to cut Rochelle. Yolanda was cut instead. She testified, "Then Latrell had pulled a gun out, and a boy grabbed him, and next thing I know, he was gone. And I looked around and I told James to come upstairs. I made him come upstairs where I was."
Mrs. Morris stated that about 10 minutes later, Vernon Martin asked James to come back downstairs. She watched James go downstairs and talk with some people for a short while. She saw James walk over to an adjacent building with Vernon Martin. Shortly thereafter, she heard a car approach and saw Latrell get out of the car and he pointed toward her son and Vernon Martin. She testified that she also saw the defendant walking toward James and Vernon. The pertinent testimony regarding the shooting included the following:
"A: I don't know if he said anything to him or anything. Only thing I can see was firing coming out the gun. He was shooting, shooting, shooting, shooting.
A: He was shooting my son James Morris.
I seen Sam come down, going down 14th Street coming from over there with the gun in his hand."
During cross-examination, the following colloquy occurred between defense ...