Appeal from the Circuit Court of Cook County. Honorable Daniel P. Darcy, Judge Presiding.
The opinion of the court was delivered by: Justice Hoffman
Following a jury trial, the defendant, Michael Flournoy, was found guilty of attempted first degree murder, armed robbery, and aggravated battery with a firearm. He was sentenced to a twenty-four year prison term for each offense, the sentences to be served concurrently. On appeal, the defendant contends that he was denied a fair trial because: 1) improper and highly prejudicial hearsay testimony that a non-testifying witness identified him from a photographic array and a lineup was admitted at trial; and 2) a comment made by a witness during his testimony suggested to the jury that the defendant had another witness killed prior to trial. The defendant further maintains that his trial counsel provided ineffective assistance in that he failed to preserve either of these issues for review. Finally, he contends that the trial court abused its discretion in sentencing him to 24 years in prison. For the following reasons, we reverse and remand for a new trial.
The State presented the following evidence at trial. Ronald Hill testified that, at 11:45 p.m. on February 23, 2000, his friend, John Theus, was giving him a ride home. Theus stopped at a gas station located at 78th Street and King Drive. Before pumping gasoline into Theus's vehicle, Hill went inside the station and pre-paid for the gasoline. A second car was parked about eight feet away from Theus's car. According to Hill, Theus was "in the doorway" of his car, with one leg outside the car, speaking to a friend of his who was sitting in the second car. Hill testified that, as he was pumping the gasoline, a white sports utility vehicle (SUV) pulled into the station and parked in such a manner as to "cut off" the cars of Theus and his friend. A man whom Hill identified in court as the defendant exited the driver's side of the vehicle brandishing a gun and said to Theus, "what's up bitch, you got something for me." The defendant then walked over to the second car and shook hands with the driver. Next, the defendant walked over to Theus and, in Hill's words, "started to question him, asking him about I hear you've been around here asking questions about me, you're trying to get in touch with me, you got something for me". According to Hill, a second person, a light-skinned man with braids, then exited the SUV and "ran over" to where the defendant was standing.
Hill testified that he was afraid and was going to run, but a third person, a "stocky, brown-skinned" man, exited the SUV, approached him, and stated that he would "pop" Hill if he ran. Hill understood this to mean that he would be shot. This man put Hill on the trunk of the car, searched his pockets and took about $350, and told Hill that if he "wanted to live long, [he] shouldn't hang around certain people." At that point, Hill looked up and saw the defendant and the man with braids hitting Theus in the face with guns. The defendant was hitting Theus on the top of the head with the barrel of a .45-caliber gun, and the other man was hitting Theus in the face with the handle of a gun. The two men hit Theus "numerous" times.
Hill testified that, after taking his money, the stocky man told him to get into the back seat of the car, which Hill did. This man then held a 9-millimeter Glock to Theus's thigh and fired. Theus jumped up and grabbed the barrel of the gun, at which point the defendant asked Theus if he wanted "some more" and stated: "You don't want to do that." Theus released the barrel of the gun. According to Hill, the beating that Theus received lasted 15 to 20 minutes.
Hill testified that, after the gunshot, the second car, with whose occupants Theus had been conversing, drove away. The defendant walked up to Theus and kissed him on the mouth. Theus then got into his car, pulled forward a bit, placed the car into reverse gear, and backed up into the man who shot him, which was the same man that robbed Hill. At that point, Hill testified, "[e]verybody started shooting." Hill ducked down onto the floor in the back seat of the car and heard more than 10 shots. Theus drove out of the gas station and, eventually, went to Jackson Park Hospital. At the hospital, Hill noticed that Theus was bleeding from the top of his head and his lips were swollen. Hill testified that, at the hospital, he gave the police a physical description of the defendant as being 20 to 25 years old, standing 5' 10'' tall, weighing 180 pounds and wearing his hair in twists or cornrows. Hill testified that Theus died two weeks prior to trial.
Hill testified that, on March 5, 2000, Chicago police detective Fidyk showed him some photographs from which he identified the defendant. The prosecutor asked Hill if anyone was with him at the time he viewed the photographs. Hill testified that Theus was with him and had also viewed the photographs. The prosecutor then asked Hill if Theus had identified anyone from the photographs. Defense counsel objected, and the trial court overruled the objection. Hill testified that Theus identified the defendant. Hill also testified that, on September 12, 2000, he went to the police station and viewed a lineup from which he identified the defendant as the man who drove the SUV and who "initiat[ed] everything." Hill testified that he had never seen the defendant before this incident occurred on February 23, 2000.
Hill acknowledged that he had been convicted of burglary, unlawful use of a weapon, possession of a controlled substance, possession of a stolen motor vehicle, and forgery.
On cross-examination, Hill testified that, on February 24, 2000, the day after the incident in question, he saw the defendant in a vehicle stopped at a stoplight at 79th Street and Cottage Grove. He did not, however, tell the police about this until September 2000. Defense counsel asked Hill whether he received an early release from prison in exchange for his trial testimony. Hill denied this. On re-direct examination, the prosecutor asked Hill whether he had been promised anything in exchange for his testimony. Hill testified that he had not. The following exchange then took place:
"Q: Why are you testifying here?
A: Because my friend is now deceased, I'm scared for my family and I just -
MR. ABRAMS [DEFENSE COUNSEL]: Objection.
COURT: Objection sustained. Answer will be stricken. Jury ordered ...