Appeal from the Circuit Court of Cook County. Honorable Robert Bertucci, Judge Presiding.
The opinion of the court was delivered by: Justice Reid
Following a jury trial, Willie Young appeals his conviction of first degree murder resulting from the shooting of Jeffrey Sturghill. Young surrendered himself to police after a warrant had been issued for his arrest. Charged with violations of sections 9-1(a)(1) and (a)(2) of the Criminal Code of 1961 (720 ILCS 5/9-1(a)(1), (a)(2) (West 1998)), Young was convicted and received a 50-year sentence. On June 29, 2001, this court entered an opinion reversing and remanding the matter for a new trial. On January 28, 2004, in an exercise of its supervisory authority, the Illinois Supreme Court ordered us to vacate our previous opinion and reconsider our judgment in light of People v. Johnson, 208 Ill. 2d 53 (2003). Having done as the supreme court instructed, we again reverse and remand for a new trial.
On July 4, 1997, Young and his cousins Russell Warner and Jeannette Junious, who was visiting from Minnesota, left Warner's home and went to 31 East 120th Place in Chicago for a backyard barbeque at the home of Kenneth and Doanita Simmons (Kenneth and Doanita). Ms. Junious remained in the car while Young and Warner joined the party. From this point on there are conflicting accounts of what occurred.
Kenneth testified as a witness for the State. Though he had moved to Alabama on July 7, 1997, three days after the shooting, he was brought back to Illinois at the expense of the State's Attorney's office. At one time, he told the police he had no information regarding the shooting of Sturghill. After submitting to and flunking a lie detector test, he gave a different version of the events, indicating he did not want to implicate the defendant because he feared him and his gang affiliation. This was the subject of a defense motion in limine, the court ruling that the prior statements would not come in unless the defendant opened the door during the trial. At trial, Kenneth testified on direct examination that Young and Warner arrived at the party just before dark. On cross-examination, however, Kenneth stated that they arrived at 10 or 11 p.m. According to Kenneth, Sturghill and Young began to argue over money owed to Young. He had previously heard them argue over the same $40 on another occasion. Kenneth heard Sturghill tell Young that he had just gotten out of jail and could not pay him until the next day. Young then allegedly pulled a gun on Sturghill, who then ran through the front door inside the house. The argument continued with Young outside and Sturghill inside the house. Young allegedly then told Sturghill to come on outside and talk and that he was not going to "smoke" him. Kenneth then stated that Sturghill told Young, "I'm not coming out, you got a gun and I don't." Kenneth then testified that, after Sturghill came out of the house, Young and Sturghill began to struggle over the gun. A shot was fired during the struggle and Warner indicated that he was shot in the hand. Kenneth then ran from the scene, looking back to see Young shooting at Sturghill as he fell over the porch railing. Kenneth stated that he did not see Sturghill with a gun at any time during the day. He further stated that Young told him after the shooting to either "get the steel" or "take the steel." He understood that to mean Young was trying to get him to take his gun. On cross- examination, he admitted that Young was not handing him anything when he said that to him.
Doanita also testified for the State. She had since moved to Missouri and had come to testify at the expense of the State's Attorney's office. She is the sister-in-law of Kenneth and on July 4, 1997, lived on the second floor at 31 East 120th Place. She was mainly an "ear" witness and mostly stated what she allegedly heard from her apartment. Between 11 and 11:30 p.m., she heard three people talking outside the house. As she was familiar with all three voices, she identified them as Young, Kenneth, and a Kenneth Williams. She heard Young say "Everybody around here owes me money and they pay and he gone [sic] pay me too." The two Kenneths then attempted to get Young to leave the individual who owed him money alone. She then stated that she later heard Sturghill say, "Nah man, I ain't opening up the door, I ain't got no gun in my hand and he got a gun in his hand." In contrast to Kenneth's testimony, she said these words were said in response to Kenneth saying "Come on out, you know, I don't need this in my mother's house." This was also allegedly said while Kenneth was banging on the door trying to get Sturghill to come out. Only then did she say that she heard Young say "Ah, man, come on out, I ain't gone [sic] smoke you." She then heard Sturghill say "All right, I ain't got no problem with that." She then heard the door being unlocked. She then heard what she described as a struggle. She did not identify who was involved. She then heard Sturghill say, "Man, I told you I just got out of jail two days ago and I ain't got no money. I'll pay you in the morning, I'll give you some money in the morning." Kenneth had testified that these statements took place in the backyard and not on the porch or in the house.
She then heard a gunshot, and, while looking out of her window, she saw a person running from the house saying, "ah, man, you shot me." She said she saw a hole in the palm of this individual's hand. Then more shots were fired. She was not able to see who fired the shots. She then saw Young running from the house with a gun in his hand. The parties stipulated, however, that if called to testify, Detective Jack Hines of the Chicago police department would testify that he was assigned to this case, he interviewed Doanita and she said that she never saw Young with a gun on the day in question.
In addition to Kenneth and Doanita, the State's case consisted of Joyce Sturghill, Jeffrey Sturghill's mother. She testified, as a life and death witness, to having seen her son when he was alive and again when he was dead.
The State also called John Paulson, an employee of the forensic division of the Chicago police department. He works for the department as an evidence technician forensic investigator. He explained his job as photographing and collecting physical evidence found at a crime scene and transferring that evidence to the Illinois State Police crime lab. Once Paulson received the call about Sturghill's death, he got to the scene approximately 30 minutes later. He indicated the crime scene had been roped off by the patrol officers and was being protected from tampering. After speaking with the police personnel on the scene, Paulson immediately began the processing of the crime scene by taking photographs of the entire location with the body and adjoining areas. Paulson indicated he found the victim lying on his back, face up. There were cartridge cases on the adjoining porch and one cartridge case near the victim's body. The total number of cartridge cases was seven, with one of that seven being the case near the body. After putting on plastic gloves and breaking out the evidence envelopes, Paulson collected and packed up the evidence. Before fingerprinting Sturghill, Paulson indicated he administered the gunshot residue test to his hands. He then gave inventory numbers to the cartridge cases he found. The cases on the porch were given the inventory number 1839767, while the cartridge found near the body got inventory number 1839766. The gunshot residue test kit was inventoried as 1839768. Paulson then described the bags and envelopes used by the forensic division in their duties. On cross-examination, Paulson reiterated what he found when he processed the crime scene. He was also asked to describe, step-by-step, the process of doing a gunshot residue test on a dead person's hands to determine the presence of lead, antimony and barium.
Following the testimony of Paulson, the trial court was told that Dr. Barry Lifschultz, a staff forensic pathologist with the Cook County medical examiner's office, had once again modified his opinion regarding the nature of the entrance and exit wounds on Sturghill's body. This announcement was made to the trial court a mere 15 minutes before Lifschultz was set to testify. The assistant State's Attorney in this case had just, one day before trial began, advised the defense counsel that Dr. Lifschultz had advised the prosecutor that he would give opinions on entrance and exit wounds. The trial court was asked to bar testimony regarding the entrance and exit wounds. In explanation of the change of opinion, the trial court learned that Lifschultz had further reviewed the photographs and was prepared to give a more thorough explanation of the entrance and exit wounds and was now able to render an opinion about the wound on Sturghill's leg. The trial court indicated it would not prevent Lifschultz from testifying thoroughly about the entrance and exit wounds. Although the trial court indicated it did not feel the leg testimony would prejudice the defendant's case, it offered the defense a chance to have Lifschultz testify out of sequence. In spite of the trial court's offer, and in spite of defense objections to the late disclosure of the new opinions by the State, the defense indicated it was ready to proceed. The defense counsel admitted he was lacking in the expertise necessary to appropriately cross-examine Dr. Lifschultz on his new and improved medical opinions. In spite of this, defense counsel did not seek a continuance because he did not wish to break his four-term trial demand.
Following the colloquy with the trial court about the change in testimony, Lifschultz was tendered to the trial court as an expert witness in forensic pathology. He testified to the autopsy process in general and the autopsy of Jeffrey Sturghill in particular. He found three through-and-through gunshot wounds, a small abrasion over the left eye and a small abrasion on the back of the right ankle. Lifschultz found that the abrasions were consistent with a fall over the railing. He testified that he can tell the difference between entrance and exit wounds because of the tearing of the skin associated with exit wounds and the presence of specific abrasions of the tissue surrounding the entrance wounds. Lifschultz concluded that the wound at the side of the back was an entrance wound. The wound at the left side of the back was also an entrance wound. The corresponding wound on the right side of the belly was an exit wound. There were also gunshot wounds to the left hip and lower right leg, the photographs of which were marked by the witnesses as to entrance and exit.
On cross-examination, Lifschultz was questioned as to how he could be so certain at trial as to which were entrance and exit wounds even though there were no such designations made at the time of the autopsy. At no point in the autopsy report did Lifschultz document which were entrance and which were exit wounds. He was then questioned as to the change in his opinions from the time they were originally made until 15 minutes prior to the testimony for which he was being cross-examined. Lifschultz claimed his new opinion was a refinement of his original opinion.
Next to testify was Scott Rochowicz, an employee of the Illinois State Police Forensic Science Center in Chicago, Illinois. He testified to the gunshot residue test. He found elevated levels of barium, antimony and lead on the decedent's hands. He found the levels to be inconclusive of gunshots because those levels were not as high as he would have expected, though he admitted he found levels that were elevated above the amounts normally found on the general population. He did not test the decedent's clothing for gunshot residue, even though he admitted there could have been residue there.
Finally, the State called Michael McDermott, a detective with the Chicago police department. He testified to the process he went through while searching for Young. This process was cut short when Young turned himself in.
The defendant's version of the events is different. Warner testified that he was an assistant family teacher at Maryville Academy. Young is his first cousin and he has known him all of his life. On July 4, 1997, he was at his mother's house at 69th and Justine together with his mother, her boyfriend, his sister, his half sister Jeannette Junious, nephews, and his cousins, including Young. At 10 p.m., he, Young and his half sister decided to go visit some friends on 120th Street. Kenneth was Young's friend. He drove. He and Young got out of the car and went to the backyard of the house. Young was talking to Kenneth when some third person started making some comments and then drew a gun. Kenneth and Young told him to put the gun up and he did. Then he saw the three of them go into the house. He followed them into the house. Young and Kenneth were having a conversation and the third person (Sturghill) was getting into their conversation. At that point, Sturghill drew his gun again. Warner, Young and Kenneth spoke to him and told him to calm down and put the gun up. Sturghill appeared to Warner to be kind of frustrated, but he listened and went out on the front porch. Warner then followed him out on the front porch. On the porch, Warner said, he was trying to calm Sturghill down and get him to put the gun up. Young and Kenneth were still inside the house. Sturghill motioned like he was going to go back inside the house.
Warner stepped in front of him and told him to put the gun up. After about two minutes, Sturghill appeared to have calmed down and put the gun back in his waist. Warner started to go into the house and saw out of his peripheral vision that Sturghill was raising the gun. Warner thought that he was about to be shot. He went for the west side of the porch and jumped off the porch. He felt a twinge of pain in his left hip. He reached back to feel it and then saw blood on his hand. He then realized he had been shot. He then screamed "I been shot." He pulled himself up on the fence and then got into his car. Warner's clothing that he wore that day and his wound in the left hip near the buttocks were displayed to the jury. On cross-examination, he admitted that he did not go to a hospital. He did not see Sturghill get killed. On July 26, 1997, the police picked him up for questioning. A nine-page statement was taken and he was instructed to sign each page by an assistant State's Attorney. He then testified that he tried to tell the police about the decedent having a gun and about being shot by the decedent, but they did not want to hear that and he did not put that in the statement when he talked to the assistant State's Attorney. He felt intimidated by the police officer who was present at all times. He testified that the police said he could be charged as an accessory to murder and they did not want to hear anything that sounded favorable to his cousin. He was held in custody for almost two days before he spoke to the assistant State's Attorney. The statement was partially disclosed on cross-examination to the effect that Warner said he had gone to a liquor store and returned to hear three voices arguing along the front sidewalk on the south side of 120th Place (two of which belonged to Young and Kenneth) and that he heard gunshots coming from the front porch. After he heard the shots fired, he got down on his hands and crawled back to his car, where his sister was, and that he never looked back to see who was shooting. The statement also said he did not recall looking at his hands or seeing any blood on them and that, as soon as he got in the car, Young got in on the passenger side. He stated that he made some of this up in order to placate the police. He was asked if he knew Ms. Simmons and the following exchange took place:
"A. No, I do not. I know of her. I do not know her.
Q. Can you think of any reason in the world why she would testify that you are a bald face liar?
Defense Counsel: Objection.
THE COURT: Sustained. Don't ...