Appeal from the Circuit Court of Cook County No. 98-CR-2713 The Honorable Ronald A. Himel, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Cohen
MODIFIED UPON DENIAL OF REHEARING.
Following a bench trial, defendant was convicted of attempted first degree murder (720 ILCS 5/8-4 , 9-1 (West 1998)) and was sentenced to eight years' imprisonment. On appeal, defendant argues that: (1) he was denied effective assistance of counsel; (2) the State failed to prove him guilty of attempted first degree murder beyond a reasonable doubt; and (3) he was denied due process of law where the trial judge relied on improper evidence and failed to properly recall the evidence. For the following reasons, we affirm.
Defendant was charged by indictment with one count of attempted first degree murder (720 ILCS 5/8-4, 9-1 (West 1998)) in that he fired a handgun at Keenan Harris with intent to kill. Defendant was also charged with two counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2) (West 1998)) in that he: (1) knowingly or intentionally discharged a firearm in the direction of Harris; and (2) knowingly or intentionally discharged a firearm in the direction of a motor vehicle he knew to be occupied by Harris. Defendant waived his right to a jury and the matter proceeded to a bench trial.
In his opening statement, defense counsel suggested that the evidence would show discrepancies between the testimony of the State's witnesses and that Harris' credibility would be impeached. The following colloquy between the trial judge and defense counsel then ensued:
"THE COURT: Well, so I take from what you gave me very sketchy [sic] is part of your defense is going to [sic] throw as much on the wall as possible and see what sticks or do you have a specific reason why I would, you know, is there a theory out there, and if there is a confrontation are you saying that this was self-defense? Give me a hint as to what I am supposed to be listening to.
So your client is not the shooter, not involved, not there?
MR. PALMER [defense counsel]: Yes.
THE COURT: Not even there?
The State then called Harris as its first witness. Harris testified that, at the time of the shooting, he knew the defendant only by the nickname "Poo." Harris was dating Bianca Pulliam at the time, and defendant was dating Bianca's sister Rene Pulliam. Harris met defendant through Harris' relationship with Bianca for one or two weeks prior to the shooting.
Harris further testified that he had been driving a van southbound on State Street with his friend Ronald Evans and someone known only as "Ears" when he saw Bianca, Rene and defendant near 106th Street and State Street. As Harris began pulling over to talk to Bianca, defendant walked "into the middle of the street like on the yellow line" and "started flagging his hand down * * * trying to stop the van." Defendant was on the driver's side of the van when Harris stopped.
"I stopped the van and I opened up the door. And I asked him [defendant] if there was something that he had to say to me because somebody told me that he was looking for me so I asked him did he have anything to say to me."
According to Harris, defendant replied, "Yes," pulled an automatic handgun from his pants, pointed it directly at Harris, and started shooting. Harris testified that he was still in the van with the driver's side door opened when defendant pointed the gun at him. Harris heard a gunshot, slammed the door, and turned right down 106th Street.
The first bullet struck the driver's door "right where [Harris] slammed it at, right by the driver's window," continued through the interior of the van and struck "the part of the side by the window, by the front windshield." The second bullet "came from the back window and went into the passenger's side, the front driver's passenger [sic] side." A third bullet struck the rear of the van. Several photographs depicting the damage to Harris' van were admitted into evidence.
Harris continued driving until he saw a police sergeant at 106th and Wentworth and stopped. Harris reported the incident to the police, provided a description of the shooter, and indicated that he knew the shooter as "Poo." The police then spoke with Bianca, who provided them with defendant's proper name. Later in the evening, the police called Harris and asked him to view a lineup. Harris identified defendant from that lineup as the shooter. At trial, Harris marked a photograph of the lineup to identify defendant. The photograph was admitted into evidence.
On cross-examination, Harris denied having told an Officer Howard that the shooter came from between two houses on the east side of State Street and fired several shots. Harris did not recall whether he had told the officer that Bianca had witnessed the occurrence. Defense counsel further questioned Harris about Harris' statements to the police as follows:
"Q. You didn't tell [the detectives] that as you pulled up Poo had flagged down the car.
Q. You told them that you actually started talking to Bianca, you pulled over and ...