Appeal from the Circuit Court of Cook County. 00-5002576-01 The Honorable Daniel Lynch Judge Presiding.
The opinion of the court was delivered by: Justice Greiman
Released for publication.
At the conclusion of a jury trial, the defendant, Kurt Human, was convicted of one count of battery and four counts of aggravated assault. Defendant was sentenced to one year of conditional discharge and 30 days in the Cook County Department of Corrections.
The issues presently before the court are (1) whether the trial court abused its discretion when it decided not to allow the introduction of the third-party confession of defense witness Eric Leeson, (2) whether it was proper for the police to show a single photo of defendant to the victims while the victims were in the presence of one another, (3) whether it was proper for the trial court not to allow Eric Leeson to take the witness stand for the purpose of exercising his fifth amendment privilege against self-incrimination, and (4) whether the trial court's decision not to allow Eric Leeson to be exhibited to the jury deprived defendant of his due process right to make a defense.
On April 1, 2000, from 7 p.m. until 11 p.m., 16 year-old John Sadler, 14 year-old Amy Morrissey, 13 year-old Katie McCord, 14 year-old Sarah Sabatino and 11 year-old Angela Morrissey went roller skating at a rink located at 87th Place and Southwest Highway. After roller skating, they went to Pizza Plus, which is located in the same mall, to get some soda. At approximately 11:20 p.m., they left Pizza Plus and began walking home west down 87th Place.
John, Katie and Amy walked in front of Angela and Sarah. As the group walked toward the corner they observed defendant standing in the parking lot beneath a street light. As the group walked closer to defendant, he began to walk in circles. According to the testimony of the entire group, they moved to the other side of the street. John testified that he instructed the girls to keep walking and not look back. Despite John's direction, the girls glanced at defendant. Defendant then removed a pellet gun from his waistband and began shooting at the group. John testified that he directed the girls to position themselves behind him so they would not get shot and to run home. One of the shots struck John on the right side of his head and another grazed the back of his head. After being shot, John stated that he yelled at defendant and ran home. According to John and Amy, no one beside defendant was in the area at the time of the shooting.
John's house is located behind the roller rink at 87th Place and Keeler. The girls ran in the opposite direction toward the Morrissey house, which is less than one block from where the shooting occurred. Angela and Amy both testified that Angela began to cry as she was running home and tripped. Amy had to drag Angela to their house. Amy testified that when she turned to pick up her sister, she saw defendant calmly walking in their direction like nothing happened. When the girls arrived at the Morrissey house, they banged on the door and screamed. From the porch of the Morrissey house, Katie and Angela testified that they saw a black hat through the fence. The girls testified that they relayed what happened to Mrs. Morrissey and that John called the Morrissey house to say that he had been shot. Mrs. Morrissey and John then contacted the police.
At trial, Amy, Angela, Katie and Sarah gave nearly identical descriptions of defendant. Each of the girls testified that despite the fact that John told them not to look back and to keep running, they each looked back at the shooter. The girls testified that defendant was approximately 5'10'', heavy set and dressed in dark clothing, including a black hat with a bill. Furthermore, each of the girls described the shooter as having an unshaven beard. Due to the bill on the shooter's hat, the girls testified that they could not see his entire face. On cross-examination, Katie was specifically asked to describe any additional facial features of the shooter besides his facial hair, but she could not. Similarly, Angela and Sarah specifically indicated in their testimony that they could only see the lower half of the shooter's face.
Officer Tom Brokop testified on behalf of the State. According to Brokop's testimony, while he was en route to the Morrissey house he did not observe anyone in the area. Brokop testified that the girls briefly told him what happened and stated that defendant was wearing dark clothing. Brokop further stated that the girls recalled that defendant had a scruffy beard, was approximately 5 feet10 inches and somewhat heavy. Brokop then left the Morrissey house and went to the home of John Stadler.
Brokop testified that he interviewed John and photographed his injuries. Brokop stated that the projectile that struck John on the side of the head caused a hole, which ultimately left a scar. John gave Brokop a description of defendant's clothing but was unable to give a description of his face. John testified that he could not give a detailed description of the shooter because he was not wearing his glasses on the night of the incident.
After interviewing the girls and John, Brokop testified that he returned to the police station where he advised Officer James Kouski of the situation. Kouski obtained a photograph of defendant from a prior arrest to show to the victims. Brokop testified that he and Kouski decided to show the victims a photograph of defendant because on two prior occasions defendant was involved in "some neighborhood trouble" with local teenagers.
Officer Frank Hickey testified that one week prior to the incident at bar he responded to a complaint of kids crossing someone's yard in the vicinity of where the shooting occurred. Hickey stated that when he arrived at the scene, he did not find a complainant or an offender, so he drove around the area to see if he could find a group of kids. On 87th Place between Keeler and Merrion Lane, Hickey testified that he found a group of 4 to 5 teenagers, none of whom are the victims in the case at bar. While speaking with the teenagers, Hickey testified that the complainant and defendant drove up. According to Hickey's testimony, defendant asked him what he was going to do about these teenagers crossing people's yards and throwing litter. Hickey testified that he responded to defendant's question by stating that he had warned the teenagers about crossing people's yards. Further, Hickey testified that he looked around and did not see any litter in the area. Hickey stated that defendant responded to him by stating, "Well, if you are not going to do your damn job, then I will."
Brokop also testified that they knew defendant lived approximately 50 yards from where the incident occurred. Further, at this point, Brokop stated that the officers determined that a pellet gun had been used based on the noise described to them by the female victims and the size of the injury sustained by John.
Next, the officers returned to the Morrissey house and showed the photograph of defendant to all of the girls at the same time, except for Sarah, who had already returned home. Katie, Amy, and Angela all agreed that the man in the photograph was the shooter. Later, the officers went to Sarah's house to show her the photograph. Like the other girls, Sarah also identified the man in the photograph as the shooter. The officers then showed the photograph to John, who stated that since he did not see the shooter's face, he could not state whether the man in the photograph was the shooter.
Next, Brokop testified that he proceeded to the defendant's address. Once Brokop arrived at the defendant's home, he asked defendant to accompany him to the police station. Brokop testified that he noticed defendant had a "scruffy beard." Brokop did not have a search warrant and, therefore, did not search defendant's house. A pellet gun was never recovered.
At the close of the State's case, defense counsel moved for a directed finding, arguing that the photo identification was highly suggestive, and, therefore, the identification was ...