Appeal from the Circuit Court of Kane County. No. 98--CF--535 Honorable Donald C. Hudson, Judge, Presiding.
The opinion of the court was delivered by: Justice McLAREN
The defendant, Armando Amaya, appeals his convictions of and sentences for attempted murder, first-degree murder, and aggravated discharge of a firearm after three people were shot, one fatally, at an apartment building in Elgin. We affirm in part and vacate in part.
On April 28, 1998, the defendant was charged in a six-count indictment with two counts of first-degree murder in that the defendant shot Jermaine Lambert with the intention of killing him (720 ILCS 5/9--1(a)(1) (West 1996)) and that the defendant shot Lambert knowing such act created a strong probability of death or great bodily harm (720 ILCS 5/9--1(a)(2) (West 1996)); two counts of attempted murder (720 ILCS 5/8--4(a) (West 1996)) in that the defendant shot and intended to kill Alonzo Matthews and Tara Harris; two counts of aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 1996)) in that the defendant committed a battery by means of discharging a firearm and shooting Matthews and Harris; and one count of aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 1996)) in that the defendant knowingly discharged a firearm in the direction of a person.
The evidence at trial revealed the following. One of the victims, Alonzo Matthews, testified that he was visiting a friend at an apartment at 309 New York Street in Aurora, Illinois, on October 29, 1997, and, as he listened to some girls argue outside the apartment building, he felt someone creep up behind him. A "Mexican" man, 5 feet 8 inches to 5 feet 9 inches tall, 140 to 145 pounds, was dressed in black with a hood on his head and came from the direction of Lincoln Street. Matthews saw the man for only two seconds before the man shot Matthews in the stomach. The shooter's gun was chrome or black, a revolver or an "automatic," and had a wheel-like chamber. Matthews underwent surgery and remained in the hospital for nine days. Matthews admitted that he was on probation in Wisconsin for a drug crime, but he denied being a gang member and did not know why anyone would want to shoot him. The parties stipulated that at the hospital Matthews told a police officer that he could recognize the shooter. During cross-examination Matthews stated that he did not see the shooter in the courtroom.
The other surviving victim, Tara Harris, testified that on October 29, 1997, she was taking her daughter's diaper to the Dumpster on the side of her apartment at 309 New York Street in Aurora, Illinois, when she stopped to watch some girls arguing. A "Mexican" or "Spanish" man, 5 feet 5 inches or 5 feet 6 inches tall, in his late teens or early 20s, approached the area from the Lincoln Street end of the building. His hands were in his pockets and he wore a jacket with a hood. The hood covered the man's head but not his face. When Harris turned away, she heard two gun shots but did not see a gun. Harris had been shot in the back but did not realize it until she was back in her apartment. She blacked out and later underwent surgery and stayed in the hospital for nine days. The bullet was still in Harris's back at the time she testified. Harris admitted that at the time of trial she was on probation for a drug crime, but she denied being a gang member and did not know why anyone would want to shoot her.
Shayla Johnson testified that she also was watching the girls argue outside the New York Street apartment building on the night in question when she saw the defendant come from the direction of Lincoln Street. The defendant wore black or navy blue, was 5 feet 4 inches tall, and weighed 130 to 140 pounds. The defendant approached the group of girls, bumped into a woman, pushed her out of the way, walked three or four more steps, and started to shoot. Handling the weapon "wildly," the defendant shot five or six times with what Shayla thought was a revolver. Shayla stated that she got a good look at the shooter and recognized him as a man known as "Scarecrow," whom she had seen five or six times before the shooting. Shayla ran from the shooting and did not speak to the police officers at the scene because she did not want to get involved and did not think anyone had been shot. Earlier that evening, as Shayla walked toward the apartment building to meet some friends, she saw the defendant and two other Hispanic men in a white, four-door Celebrity or Century with a red stripe. Two of the car's occupants hung out of the car windows yelling "King love," "GDK," and "Kings rule."
Shayla stated that, less then two months later, on December 19, 1997, she spoke to the Aurora police about the shooting while she was at the police station regarding an unrelated incident. On February 4, 1998, Shayla identified the defendant as the shooter in a lineup and admitted speaking with her friend, Nicole Pearson, another witness, about the incident. Shayla admitted that she had charges for theft and other offenses pending against her and was presently in custody after being arrested for failing to appear in court.
Nicole Pearson testified that on the evening of October 29, 1997, she argued with some girls on the side of the apartment building in question. When the argument ended, a short, teenage "Mexican" man, dressed in black and wearing a black hat, approached from Lincoln Street, carrying a "big gun." Pearson identified that man as the defendant. The defendant fired the gun, and the crowd scattered. The defendant had difficulty handling the gun. Pearson stated that the defendant pointed the gun at her but did not fire because she was on the ground. The defendant moved away and continued to shoot, and Pearson stood up and ran away. Pearson stated that she had seen the defendant before near a taco restaurant and knew his name as "Scarecrow." Earlier that evening, she saw the defendant in a white car with two other men but did not hear them say anything.
Pearson explained that at the February 1998 lineup she did not think the defendant was the shooter because he had gained weight since the shooting. Pearson also told the officers that she was hesitant to testify because she was afraid that the defendant would kill her. Later Pearson identified the defendant to the police as being present during the shooting and in the white car that evening, but not as the shooter. Still later, after discussing the matter with the police after the lineup, Pearson identified the defendant as the shooter. Pearson admitted that her friend, Shayla Johnson, told Pearson that she (Shayla) believed that the defendant was the shooter and that Shayla told Pearson that the defendant's nickname was "Scarecrow." But Pearson, who lived with Shayla Johnson at the time of the shooting, denied speaking with Shayla about the incident before speaking with the police. Pearson admitted that she had prior convictions of retail theft, resisting a peace officer, disorderly conduct, and criminal trespass and had cases pending for mob action and battery. Pearson denied being a gang member but admitted that she associated with members of the Gangster Disciple gang, wore Gangster Disciple colors, and knew that she was in Gangster Disciple territory the night of the shooting. Pearson also stated that one of the victims, Lambert, was her friend.
William McCalister testified that he saw a man outside the apartment building just before the shooting who wore dark clothing with a hood. McCalister did not see a gun but heard gunshots a few minutes later. McCalister admitted that he had a theft charge pending at the time of trial.
Tracy Johnson testified that just before the shooting he was drinking alcohol with his friends when he saw three Hispanic men in a white Chevrolet Celebrity drive by the New York Street apartment building two or three times. The men in the Chevy made gang signs that were insulting to Gangster Disciples. Later, Tracy heard three gunshots and then saw the three men that were in the Celebrity run from the area of the shots, cross the street, and get into the same white Celebrity that was parked at the Lincoln Laundry on Lincoln Street. At approximately 10:30 p.m., Tracy saw the men being stopped by the police. Tracy then told the police what he knew and gave a taped statement at 11:50 p.m. Tracy admitted that, both before and after the incident, he drank a pint of gin and some beer with his friends that evening and that he previously received substance abuse treatment. In addition, Tracy admitted that he had a prior conviction of a felony drug charge and convictions of several residential burglaries, burglary, attempted burglary, and retail theft.
Aurora police officer Scott Wolters testified that he stopped the white Celebrity that evening at approximately 10:30 p.m. The defendant sat in the front passenger seat wearing faded blue jeans and a hooded overcoat with a black hooded sweatshirt. Romero Sandoval was also in the car wearing a dark Nike hooded pullover and a black leather jacket. The third man in the car was George Gamboa. Wolters found no weapons or ammunition either in the vehicle or on any of the men in the car.
Officer Mike Doerzaph testified that Tracy reported that he had seen the three men who had been stopped running from the scene of the shooting.
Aurora police sergeant Mike Langston, an expert in gang activity, testified that the defendant and the two others who were arrested were members of the Latin Kings gang and that the defendant's nickname was "Scarecrow." The Latin Kings were rivals of the Gangster Disciples; however, none of the victims, nor Shayla Johnson or Nicole Pearson, was a member of any gang. The shooting occurred in Gangster Disciple gang territory. The Lincoln Laundry, the place where the white Celebrity was parked during the shooting, was located on the edge of Gangster Disciple territory. The phrase "King love" showed respect for the Latin Kings, and "GDK" stood for "Gangster Disciple ...