The opinion of the court was delivered by: Justice Wolfson
Appeal from the Circuit Court of Cook County.
Honorable Lon William Schultz, Judge Presiding.
The State presented seven witnesses and 27 exhibits to support its claim that Gabriel Bedoya fired a gun from a car at three Chicago buildings in the early morning hours of May 27, 1994. Bedoya was not on trial for firing those gunshots. He was charged with murdering Jose Rodriguez during a struggle at a tavern a short time later. A jury found him guilty of first degree murder. Introduction of the other offense evidence was a contested issue at trial and is at the center of this appeal. We reverse Bedoya's conviction and remand this cause for a new trial.
On May 27, 1994, defendant, a Milwaukee police officer, shot and killed Jose Julian Rodriguez (Rodriguez), a bouncer at a Chicago bar. Defendant fled to Milwaukee, where he was taken into custody. There were two trials.
In the first trial, defendant was charged with first degree murder, but also was indicted for a number of shootings that occurred earlier in the evening. The State alleged defendant fired his gun at several buildings in Chicago's Gold Coast neighborhood before he ended his evening at the club where the victim was killed. The State claimed defendant shot at the Claridge Hotel, the Ambassador Hotel, and at Cardinal Bernadin's residence. He was charged with four counts of aggravated discharge of a firearm.
A jury found defendant not guilty of aggravated discharge of a firearm, but convicted him of first degree murder despite his claim that he killed the victim in self-defense. We reversed and remanded the case because the trial court did not allow defendant to introduce evidence of the victim's prior violent acts. People v. Bedoya, 288 Ill. App. 3d 226, 681 N.E. 2d 19 (1997).
Before the second trial the court made two rulings that form the serious issues on appeal. First, the trial court, over defense objection, said it would allow the jury to hear evidence of the prior shootings. It would come in as other offense evidence, relevant to the defendant's mental state at the time the fatal shot was fired. Second, the defense would be precluded from telling the jury Bedoya had been acquitted of the aggravated discharge of a firearm charges.
Chicago police investigator Lloyd Jones testified he was a patrol officer in May 1994. In the early morning of May 27, 1994, Jones and his partner responded to a report of "shots fired" at the Claridge Hotel. When he got to the hotel, Jones noticed one of the picture windows in the front of the building had a hole in it. The hotel's security guard told the officers a gun shot had been fired through the glass plate window. The bullet struck a chair in the front lobby area of the hotel. Jones said he found a spent bullet round on the floor next to the chair. The officer also found an empty .40 caliber shell casing on the curb in front of the hotel. The hotel was open when the shots were fired.
Jones said they later recovered another .40 caliber shell casing from the sidewalk across the street from the hotel. A resident of the neighborhood contacted the police department after she found the casing. The State asked Jones to identify a series of photographs showing the damage to the window of the Claridge hotel and the chair in the lobby. Jones was asked to identify a picture of the shell casing that was on the floor next to the chair.
Chicago police officer Gerald Breiman was on patrol on May 27, 1994, when he and his partner responded to a radio call of "shots fired." They went to the Claridge Hotel and were told that shots had been fired at the hotel. Breiman and his partner drove around the neighborhood in an attempt to find the shooter's car. As they were driving, a doorman at the Ambassador Hotel flagged them down. The doorman told Breiman he was sitting at his desk when he heard four or five gun shots. When he walked outside to see what had happened, he saw a bullet hole in the front window of the Ambassador Hotel.
Officer Breiman testified he saw one bullet hole in the front window of the Ambassador Hotel. The officer went inside the hotel and saw an area on a brick wall that the bullet appeared to have hit. He saw what he believed to be a bullet fragment on the floor by the brick wall. The State asked Officer Breiman to identify a number of pictures documenting the damage to the window and the area where the bullet fragment was found.
Chicago police sergeant James Sims testified he was a field training officer in May 1994. On May 27, 1994, he was assigned to a call of "shots fired" at a high rise residential building on North Astor Street. Sergeant Sims said the building's doorman heard the shots but thought they were fired across the street. Cardinal Bernadin's mansion was directly across the street from the high rise. Sergeant Sims did not find any evidence that there were gunshots at the high rise building. He walked across the street to the Cardinal's residence and spoke with the officer who was assigned to the residence that night.
Sergeant Sims and the other officer walked around the residence looking for evidence of gun shots. At one of the entrances, Sims found bullet holes on the woodwork inside the vestibule as well as four bullet holes in the door itself. The State asked Sims to identify several pictures showing the damage to the house.
Chicago police officer Raymond Trezise testified he was an evidence technician in May 1994. Trezise was responsible for photographing crime scenes and collecting evidence. Trezise testified he was assigned to collect evidence at the Cardinal's residence on May 27, 1994. Trezise photographed the crime scene and inventoried evidence. The evidence consisted of one fired bullet and five bullet fragments. The bullet and fragments were recovered from inside a door to the house and on the steps leading to the door. Trezise testified he did not find any bullet casings. The State asked Trezise to identify a number of photos he took of the damage to the Cardinal's residence. Trezise was asked to identify the bullet and fragments he recovered.
Trezise testified he also was assigned to recover evidence from the Ambassador Hotel. Trezise photographed the bullet hole in the front window and recovered a bullet fragment from the lobby. Trezise said he recovered several bullet casings from the sidewalk in front of the hotel. Trezise was asked to identify several photographs of the damage to the hotel.
Trezise testified he recovered evidence from the Claridge Hotel on the same night. Trezise looked for damage and photographed the scene. He recovered a spent bullet from the lobby of the hotel and a bullet casing another police officer found on the sidewalk. Trezise again identified a series of photographs of the damage to the hotel and the bullet casing and fragments he recovered.
John Koch testified he was a police officer for the Milwaukee police department in May 1994. Koch said he was dismissed from the department after pleading guilty to aggravated discharge of a firearm, obstructing justice, and aiding a fugitive. These charges were brought against him in connection with the shootings at the Claridge Hotel, the Ambassador Hotel, and the Cardinal's residence, as well as for Koch's actions following Rodriguez' death. Koch agreed to testify against defendant in exchange for a sentence of three years' probation. Koch said he pled guilty to aggravated discharge of a firearm because "[he] failed to take the appropriate actions when [he] witnessed a crime."
Koch admitted he also had been convicted of criminal damage to property in relation to a domestic dispute with an ex-wife. He also was convicted for failure to pay child support.
Koch testified defendant was his roommate in May 1994. Defendant's girlfriend and her two children were also living at the condominium. On May 26, 1994, defendant and Koch made plans to go out that evening. They decided to go to Chicago. Koch said they planned on staying in Chicago overnight. Defendant and Koch were drinking gin and tonic before they left for Chicago.
Koch said he and defendant were both wearing their weapons that night, though they were off-duty. Both weapons were .40 caliber semi-automatic handguns issued by the Milwaukee police department. Koch and defendant left Milwaukee at about 8:30 p.m. They were in Koch's car, a 1990 Toyota Camry. After they crossed the state line, Koch stopped at a gas station and bought a six-pack of beer. They drank the beer during the drive to Chicago.
Koch and defendant arrived in Chicago at around 10:30 p.m. and went to a night club called "Cassanova." Defendant told Koch how to get to the club. Koch said he and defendant each had two drinks at Cassanova. Defendant told Koch the night club was owned by a relative. Koch said he and defendant went to a club called "Dynasty" after they left Cassanova. Koch allowed defendant to drive because he wasn't familiar with the bar's location.
Koch testified defendant told him to expect the bouncer at Dynasty to frisk them as they entered the club. Koch said defendant told him not to worry about being frisked because he would tell the bouncer that they were police officers. When they got to the bar, the bouncer did not frisk them, but defendant identified himself as a police officer. Defendant opened his jacket and showed the bouncer his gun and his badge. When they got inside the bar, defendant saw someone he knew. Koch said the person was an off-duty Chicago police officer. The officer suggested the men go to another bar called "Mother's." Koch and defendant left Dynasty and defendant drove to Mother's. During the drive, Koch took his gun off and put it inside the glove compartment.
Koch and defendant arrived at Mother's. They parked about a block from the bar. Koch and defendant ordered drinks and Koch began to dance with another patron. Koch had another drink before he and defendant left the bar.
While Koch was walking to the car he heard a loud noise. Koch looked up and saw defendant with his gun out. Defendant was aiming his gun at a 45-degree angle toward the ground. Koch testified he asked defendant what he was doing. Defendant told him, "This is the city, we're not gonna get caught."
Once they got back to the car, defendant drove. Koch said he was "nodding off" while defendant was driving. Koch awoke to the sound of more gunfire. Koch said defendant was leaning on him, shooting out of the passenger side window at a building. Koch testified defendant's arm was directly across his chest, with the barrel of the gun pointed out the window. Koch again asked defendant what he was doing. Defendant responded, "I just hit a lobby."
Koch testified defendant continued to drive and shot at another building. Defendant then drove back to Dynasty. He parked the car directly in front of the club. Koch said the men did not encounter a bouncer when they entered the club. Koch and defendant had another drink. As Koch finished his drink, he noticed defendant walk out the door. Koch followed defendant. When he got outside, Koch said he saw defendant struggling with Rodriguez. The men were arguing in Spanish. Koch does not speak Spanish and could not understand what the men were arguing about.
Koch walked behind Rodriguez and tried to grab his arms because he wanted to stop the altercation. Rodriguez shrugged Koch off and Koch stumbled backward. At that point, Koch heard a loud noise that sounded like a gunshot. Koch said Rodriguez made a "strange sound" and uttered a sentence in Spanish. Rodriguez relaxed his grip on defendant, turned around and walked toward the bar. Koch testified defendant was holding his gun in his right hand. Defendant put his gun back in his holster and started to walk away. Koch said he heard defendant say, "I shot the motherfucker."
Koch testified he and defendant walked to a corner, turned, and walked another half a block. Defendant told Koch to get in the car and meet him around the corner. Koch said he walked back to where the car was parked. As he was getting into the car, Koch saw emergency lights and heard sirens coming in his direction. Koch got into the car and picked up defendant. They drove about half a block when defendant told Koch to pull over and allow him to drive.
Koch remembered stopping at another location after that, but couldn't remember where it was. The next thing Koch remembered was waking up in the car the next morning. The car was parked at his condominium. Defendant was in the driver's seat. Both doors were open and the Milwaukee police were around the car. The police woke Koch up and put him in the back of one of the unmarked squad cars. Koch said he found that he had vomited and urinated on himself.
Before Koch was taken to the police station, the officers asked him where his gun was. Koch told them it was in the glove compartment of the car.
During cross-examination, defense counsel asked if he fired the gun during the shootings at the Claridge Hotel, the Ambassador Hotel, and the Cardinal's residence. He said he did not. Counsel asked why he pled guilty to the charges of aggravated discharge. Koch testified he plead guilty "by accountability." The State objected to the line of questioning and the court sustained the objection and told counsel not to "get into the legal issues of accountability." Koch also testified that while his license plate was on the back of his car when he and defendant left for Chicago, it was removed at some point. Koch said he did not know when it was removed.
Miguel Lopez testified he worked at Dynasty as a bartender in May 1994. Lopez could see shadows and movement through a glass wall that separated the bar from the vestibule leading into the bar. Lopez said Rodriguez was working as a bouncer in May 1994. Rodriguez started work at around 9 or 10 p.m. on May 26, 1994.
Lopez said he saw defendant and Koch enter Dynasty at around 1 or 1:30 in the morning and said they stayed for about 10 or 15 minutes. Lopez saw the men enter the bar again at about 2 a.m. They stayed for 10 or 15 minutes, then walked toward the exit door. As they were walking toward the exit, Lopez realized a glass was missing from the bar. Lopez looked out the glass wall and saw Rodriguez outside on the sidewalk. Lopez said he walked out onto the sidewalk ...