Appeal from the Circuit Court of Kane County. No. 04-CF-2383 Honorable Philip L. DiMarzio, Judge, Presiding.
The opinion of the court was delivered by: Justice Callum
Defendant, Ian F. Washington, was tried by jury for attempted first degree murder (720 ILCS 5/8--4(a) (West 2004)), aggravated battery with a firearm (720 ILCS 5/12--4.2(a)(1) (West 2004)), aggravated discharge of a firearm (720 ILCS 5/24--1.2(a)(2) (West 2004)), and mob action (720 ILCS 5/25--1(a)(1) (West 2004)). The trial court granted a mistrial on the mob action charge. On June 24, 2005, the jury found defendant guilty of the remaining offenses. The trial court denied defendant's motion for a new trial and sentenced defendant to 12 years' imprisonment. Defendant timely appeals, arguing that: (1) an alternate juror was erroneously substituted for a deliberating juror after the original jury had reached a verdict on one count; (2) the trial court abused its discretion in permitting the introduction of gang-related evidence; (3) defendant's right to confront and cross-examine witnesses was violated; (4) the cumulative impact of trial errors deprived defendant of a fair trial; and (5) the State failed to meet its burden beyond a reasonable doubt. As we agree with defendant on the fifth issue, we need not reach the others. For the following reasons, we reverse.
The following evidence was adduced at trial. On July 4, 2004, at around 2 a.m., Cesar Puga drove Jesus Laras to Margarita Salgado's house at 1309 Grand Boulevard in Aurora. Puga pulled his car into a driveway across the street from Salgado's house. Puga heard someone shouting. When he turned around, he saw through his back window that a van was positioned in the street so as to block the driveway behind him. A streetlight made it difficult to see, but Puga believed that the van was gray and dark red. Puga saw a chrome-colored gun pointed at him from the van's driver's window. Puga could not see how many people were in the van, nor whether the individual holding the gun was a man or a woman. He could, however, see that the person's skin color was black. Puga put his hands up and said that he did not want any problems. He turned around to tell Laras that they were in trouble, and the van's occupant fired the gun. Puga's back window broke, and a bullet hit him in the upper part of his left arm. The van drove away. Puga put the car in reverse and drove to his friend Juliana Uribes's house.
While driving Puga to the hospital, Uribes was stopped by the police. Puga told the police officer what had happened, giving a description of the van and the color of the driver's skin, and told the officer that the driver was male, based on the voice that was yelling at him in the driveway. At trial, he recalled the van as being gray with dark red coloring. Puga stayed at the hospital overnight, and a bullet was later removed from his arm. Puga was not a member of a street gang when he was shot.
Margarita Salgado testified that, on July 4, 2004, she was dating Jesus Laras. At around 2 a.m., Salgado was on the telephone when she saw a car drive near her house and pull into the driveway across the street. Wondering who was there, she went outside. A van drove up and stopped behind the driveway, blocking the car's exit. Salgado was not wearing her contact lenses (which she needs to drive). It was dark, and the van was too far away for her to see how many people were in it. Salgado did not hear any shouting or yelling. She heard one noise that sounded like a firecracker but did not think that the noise was a gunshot. After the van left, the car pulled out of the driveway and drove away. About five minutes later, Salgado saw a van being followed by the police that looked like the same van that had blocked the driveway. She conceded that it could have been a different van.
Jesus Laras testified that, before getting into the car with Puga on July 4, 2004, he had "quite a lot" to drink and was intoxicated. He asked Puga to drive him to Salgado's house. When they arrived, Puga pulled his car into the driveway across the street from Salgado's home. Laras was seated in the front passenger seat. When Puga was about to back out, a van was blocking the driveway. Laras recalled that Puga and someone in the van were talking, but he did not know what they were saying. He did not turn to look out the back of the vehicle. Laras was not able to see the person talking from the van, and he was unable to get a good look at the van. He could not say what color the van was or how many people were in the van. Laras heard a single gunshot, and the car's back window broke.
Officer Tunney testified that she had worked for the Aurora police department for four years. On July 4, 2004, at around 2:09 a.m., she observed a vehicle traveling at a high rate of speed in front of her. As she started to catch up with the vehicle, the driver, Juliana Uribes, pulled over and jumped out of the car. Uribes said that Puga had been shot and that she was trying to get him to the hospital. Tunney asked Puga where the shooting had occurred and whether he could provide any suspect or vehicle information. Puga told Tunney, through Uribes, who was interpreting Spanish to English, that the vehicle was a gray and black van with an unknown number of male blacks inside. Tunney got on her radio and announced over the air that a shooting had occurred and that an unknown number of black males in a gray and black van were responsible. Tunney then followed Uribes and Puga to the hospital. There, Tunney spoke with Jesus Laras, who told Tunney that he saw a gray and black van pull up behind them in the driveway.
Lorena Hernandez testified that she had been an officer with the Aurora police department for almost three years. On July 4, 2004, at around 2:09 a.m., she responded to Tunney's radio transmission and proceeded to the 1300 block of Grand Avenue. When she arrived at the 1200 block of Grand Avenue, where Grand intersects Sumner Street, she observed a full-sized, "gray over black" van. She pulled behind the van and followed it, advising over the radio of her location and that she was behind a vehicle matching the description of that from the shooting. She then turned on her overhead lights and spotlight and effected a "felony stop." Hernandez agreed that, although Tunney's description appeared to match that of the van in front of her, the van did not do anything unusual or commit any violations during the time that she followed it.
Other squad cars, with at least four other officers, arrived and pulled both in front of and behind the van. All officers had their guns drawn. Hernandez exited her vehicle and noted that the van appeared fully occupied. The van had three rows--the front row with the driver's and passenger's seats, a middle row, and a back row. She called the van's occupants out of the vehicle, one at a time. First, the driver exited the vehicle. He was directed to walk backward toward the officers and was then handcuffed and taken into custody. The driver was later identified as Lorenzo Ingram. The front passenger was directed to leave the vehicle and was taken into custody. He was later identified as defendant. The individual occupying the middle row of the van was later identified as Dontal Rayford. Finally, the individual occupying the back row was later identified as Jonathan Phillips.
Matthew Hix testified that he had been an officer with the Aurora police department for over six years. On July 4, 2004, at around 2:15 a.m., Hix responded to the felony stop. Hix explained that a felony stop is conducted by holding the vehicle occupants at gunpoint, removing them one at a time, and handcuffing them as the occupants make their way toward the police. Hix identified defendant as one of the individuals who exited the van. Hix searched the van after it was cleared and located a handgun under the backseat closest to the rear door. He described the gun as a black, revolver-type handgun with a white handle. "I guess you would describe it kind of like a cowboy type gun, appeared to be." Hix did not find any chrome-colored guns in the van, nor any shell casings.
After the gun was secured into evidence, Hix interviewed Margarita Salgado and brought her in his squad car to the van's location. When Hix asked Salgado, "Is that the van you saw?" she said yes. At that time, she was seated inside the police car roughly 50 to 75 feet away from the van. He did not ask Salgado whether she wore glasses or contact lenses, nor did he see her put any contact lenses into her eyes before making the identification.
Glenn Casamassimo testified that he had been an officer with the Aurora police department for over six years. Casamassimo arrived at the felony stop and observed that two individuals in the back row of the van, where the gun was eventually found, quickly ducked down toward the van's floor. Casamassimo later secured the gun, a small, black, .22-caliber revolver with a white handle, and placed it into evidence. There was no chrome on the gun. There were four bullets in the gun and two spent shell casings. There was no way for Casamassimo to know when the gun had last been fired prior to his receiving it to put it into evidence. A check revealed that the gun was not stolen; Casamassimo did not know who was the gun's registered owner.
Jonathan Phillips testified that, on July 3, 2004, at around 9:20 p.m., he was at the Lavillita Liquor Store with two friends. Phillips saw a full-sized, pink and black van, with two Hispanic individuals dressed in black, hooded sweatshirts, circling the area. He was nervous because the individuals looked like gang members and like they were "out to kill." They were driving slowly, and he was alarmed by the fact that they were Hispanic because, in that neighborhood, "most of the Hispanics are Kings." Phillips is affiliated with the Gangster Disciples street gang in Aurora. He testified that the Gangster Disciples and the Latin Kings do not get along and that they "shoot on sight." He told his friends about the van, and they went inside the liquor store. Five minutes later, they left the store and got into their car. They saw the van circling the area again and, as Phillips and his friends were pulling away, the van's passenger began shooting at their car. More than one shot was fired; the back tires were hit, a window shattered, and Phillips was scratched by the glass. After driving away and parking at a gas station, Phillips got out and walked down the middle of the street, shouting and yelling. As he was screaming, a police officer approached him. Phillips provided a statement and then went to his aunt's house, near where the shooting occurred. He stayed there for an hour or two, changed his clothes, and left to drink and smoke marijuana with some friends. He remained "pissed off" about the shooting.
At some point, defendant pulled up in his van, with Dontal Rayford and Lorenzo Ingram. Phillips had seen defendant's van before, but testified that, on July 3 or 4, 2004, he was not a friend of defendant. He was a friend, however, of Ingram and Rayford. Phillips testified that defendant was driving, Ingram was seated in the passenger seat, and Rayford was in the backseat. Phillips approached the van, eventually climbed in, and relayed what had happened to him at the liquor store. Ingram gave Phillips a hooded sweatshirt and a .22-caliber revolver--black with a white handle--and told Phillips that he "was gonna show [Phillips] how to do this, how to hit 'em." Phillips understood that Ingram was going to show him how to kill some Kings. Defendant did not say much that evening. Defendant then drove through "King hood." Phillips testified that, if he had seen a King member, he would have shot him.
They were drinking alcohol and smoking marijuana while in the van. At some point, everyone in the van spotted on Grand Boulevard in the opposite lane a car with two Hispanics driving toward the van. According to Phillips, defendant was still driving. After the car pulled into a driveway, defendant pulled the van behind the driveway so as to block the car in. Defendant then yelled "KK," meaning "King Killer," toward the car. Defendant grabbed a black, 9-millimeter gun from Ingram's lap and said that the "damn gun better not jam." Defendant fired out of the driver's window one shot that hit the car's back window. After defendant fired, he said that "this damn gun jammed," and he pulled away. Defendant drove back down Grand Boulevard toward Calhoun Street, where he pulled over by his house. Ingram grabbed the gun, jumped out of the van from the front passenger seat, and stashed the gun by defendant's house. Ingram returned to the van and got into the driver's seat. Defendant jumped into the passenger seat. Shortly thereafter, they were all arrested. When they were pulled over, Ingram was driving. Phillips stashed the .22-caliber revolver under the seat; the revolver was later confiscated.
On cross-examination, Phillips agreed that after the arrest, he, in contrast to his direct testimony, told the police that the van's occupants were not involved in a shooting and that Ingram had been driving the entire evening because defendant was drunk. Phillips testified that everything he told the police in his July 4, 2004, statement was "a lie." Phillips did not tell the police the truth that night because he was not a "snitch," and he intended to remain silent. All of the van's occupants were released without charges. Phillips testified that nobody fired the black, .22-caliber revolver with a white handle that night. Indeed, the crime laboratory's test results ultimately showed that the .22-caliber revolver was not the gun used to shoot Puga. Gunshot residue tests were performed on defendant, Phillips, Ingram, and Rayford. The tests came back negative. The black, 9-millimeter gun that Phillips described was never found.
Phillips was later charged with attempted first degree murder, aggravated battery, and aggravated discharge of a firearm. At the time of trial, Phillips was on felony probation out of juvenile court for possession of a controlled substance. Phillips did not wish to be transferred to an adult prison or tried as an adult. In addition, after he read the statements given by Ingram, Rayford, and defendant, which implicated Phillips in the shooting, Phillips determined that "it's every man for their self." Therefore, in March 2005, Phillips told the State that defendant was driving the van and shot the gun. On April 20, 2005, Phillips entered into an agreement with the State's Attorney's office, in exchange for his testimony, whereby the State agreed not to proceed on a petition to transfer him to adult court. Phillips agreed to plead guilty to aggravated discharge of a firearm, and the remaining charges were dropped. His sentence under the agreement was 60 months' probation and 30 days in the Kane County Juvenile Justice Center. On cross-examination, Phillips testified that the State repeatedly instructed him to tell the truth. Nevertheless, his understanding was that he could not testify that defendant was innocent and still receive the deal and that, in order to get the deal, he had to testify that defendant shot the gun.
On July 4, 2004, after being arrested, Dontal Rayford told the police that he was not involved in any shooting that night. At trial, after invoking his fifth amendment right to remain silent and receiving use immunity, Rayford testified that, at the end of the day on July 3, 2004, he was in defendant's van with defendant, Ingram, and Phillips, who was "mad about something."
"Q: And you were basically kind of cruising around in the van with your friends, correct?
Q: For no particular purpose, except you were just kind of chilling out, correct?
Q: It was a holiday weekend, wasn't it?
Q: So, is it fair to say you were relaxing and having a good time?
Q: So, you're driving around, smoking and drinking, and there was no particular purpose to that, was there?
A: Not that you were aware of?
Rayford testified on direct examination that Ingram was the driver. The State sought to clarify whether it was his testimony that Ingram was the driver, and Rayford confirmed that it was. The State asked whether Rayford recalled giving an audiotaped statement to the police on August 21, 2004. Rayford testified that he did not recall the statement. The State asked whether Rayford recalled that, during that statement, he was asked who was driving when they were cruising around in the van and that, contrary to his testimony on direct examination, he answered that defendant was the driver. Rayford testified that he did not recall. Rayford also did not recall numerous other questions and answers from his August 21, 2004, statement.
The August 21, 2004, taped statement was played for the jury and entered into evidence. In the statement, Rayford said that defendant blocked the car in the driveway with the van and then yelled "King Killer, woo woo, KK" out the window. Rayford heard one gunshot, defendant pulled away, and Phillips came to the back of the van with a gun in his hand. Rayford testified that, in that interview, he was "just going along telling them a story." However, Rayford and the interviewing officer, Greg Spayth, confirmed that he did not tell the police at that time that defendant ...