Appeal from the Circuit Court of Cook County 04 CR 7304 Honorable James B. Linn, Judge Presiding.
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the opinion of the court: This case involves the limits on the use of a past guilty plea to impeach a defense witness. A grand jury indicted Sylvester Gray for the murder of Michael Sommerville and the aggravated battery of Dominique Washington. At trial, the State's witnesses identified Gray as the shooter, while defense witnesses identified Gray's cousin, Darral Geder, as the shooter. One of the defense witnesses had pled guilty to illegal possession of a gun in connection with the same incident. The prosecutor introduced into evidence at Gray's trial the prosecutor's statement of the factual basis for that witness's guilty plea. The factual basis included collateral matters not necessary for the guilty plea but severely prejudicial to Gray. The trial court entered judgment on the jury's finding that Gray committed murder and aggravated battery. In this appeal, we hold that the trial court committed plain error when it allowed the use of the transcript from the witness's guilty plea as evidence against Gray. We reverse the convictions and remand for a new trial.
On November 26, 2003, London Smith drove with her boyfriend, Gray, to pick up Gray's sister from her high school. Gray's sister, LaTonya Snell, told Gray that a boy from her high school, named Larry, called her names. In Smith's car on the way home, Snell pointed to Larry standing at a bus stop with two other boys. Smith pulled over and Gray got out of the car. Gray asked Larry why he was bothering Snell. Larry hit Gray and they started fighting.
Sommerville drove up in a black van, with his friend Telika Griffin as a passenger. Sommerville got out of the van and intervened in the fight. The fight grew to include Sommerville and Geder, who was also at the scene. Some witnesses said that two other boys from the bus stop also joined in the fight. Gunshots rang out and a bullet hit Washington, who had been watching the fight. Several bullets hit Sommerville as he tried to run away. Sommerville died from the bullet wounds. A police investigation led to the arrest of Gray for the murder of Sommerville and the shooting of Washington.
Geder testified at the trial by a videotaped evidence deposition. The court explained that Geder could not come to court because he had joined the armed services and had started serving in Iraq. In the videotaped deposition, Geder testified that in 2003 he belonged to the Gangster Disciples. On November 26, 2003, Smith and Gray picked up Geder from the corner where he was selling cocaine, before driving over to the high school to pick up Snell. When the fight with Larry started, Geder stood near the two boys at the bus stop, watching the fight. Geder recognized Sommerville as a member of the Black Disciples street gang. Sommerville joined the fight against Gray and the two boys at the bus stop started fighting with Geder. Geder saw Gray run over to Smith's car, then Geder heard gunshots. Geder saw Gray raise his arm toward Sommerville, then Geder heard more shots. After the shooting stopped, Geder saw Gray with the handle of a gun sticking up from his pants. Smith drove Snell, Gray and Geder away from the crime scene.
On cross-examination, Geder admitted that when police first interviewed him, he lied about the incident. He swore that even though he sold drugs for his gang, he never carried a gun. When asked if he wanted people to call him by the nickname he used as a member of the Gangster Disciples, he answered he would rather people called him "Private," for his status in the Army.
Washington contradicted some particulars of Geder's testimony. She testified that Geder sometimes carried a gun. Washington saw both Geder and Gray beating up Larry before Sommerville arrived. But Washington corroborated the crucial parts of Geder's testimony. She saw Smith hand a gun to Gray, and she saw Gray shoot the gun at Sommerville. A bullet hit her after she started to run. Washington admitted that she did not know Gray before the shooting.
Griffin testified that she saw four or five boys fighting when Sommerville pulled up to the scene. Sommerville fought with Gray, and then Griffin saw a gun in Gray's hand. Griffin tried to warn Sommerville as Gray raised his arm, pointing the gun at Sommerville. Griffin dove back into the van and put her head down on the seat. When she thought the shooting stopped, she lifted her head and saw Gray shoot again at Sommerville. Griffin ducked her head and heard more gunshots. Like Washington, Griffin had not known Gray before the shooting.
Police never recovered the gun. The cartridge cases left at the scene bore no useful fingerprints. All came from a single gun.
Gray presented three witnesses: Snell, Smith, and Gray himself. Gray testified that Geder did not ride to the scene in Smith's car. Instead, Geder ran over to the scene of the fight coming from the home of Geder's grandmother, who lived a few houses away from the corner where the fight took place. After Gray and Larry stopped fighting, Geder began fighting with Larry. Sommerville drove up and started fighting with Gray. A gun fell to the ground near Larry and Geder. Smith picked up the gun and went back to her car. Gray heard shots and saw Geder shooting. Gray admitted that he lied to police about the incident.
Snell corroborated much of Gray's testimony. Geder arrived with the fight already in progress. After Gray stopped fighting, Geder began hitting Larry. Sommerville fought with Gray, and then two other boys from the bus stop joined in the fight. A gun fell to the ground and Smith ran over and picked it up. Snell testified that she saw Geder run over to the car and take the gun away from Smith. He started shooting in different directions. Gray yelled at Geder to stop shooting. Geder drove off in his own car.
Smith testified that she had seen Geder with a gun he kept for his work for the gang. Like Gray and Snell, Smith testified that Geder arrived after the fight began, and he started fighting with Larry. Later, Sommerville and the two boys from the bus stop joined the fight. Geder's gun fell to the ground near him. Smith picked it up and took it to her car. Geder took the gun from her hand and started shooting. Smith saw Geder shoot Sommerville.
Smith admitted that she pled guilty to a charge of possessing the gun. The court imposed a sentence of two years' probation. Smith's lawyer told her she did not need to agree to any of the facts the prosecution stated on the record for the guilty plea. The transcript of the hearing on Smith's guilty plea shows that Smith's attorney stipulated only that some State witnesses would testify to certain facts and that the testimony would sufficiently support a finding that Smith possessed the gun illegally. Neither Smith nor her attorney agreed to the accuracy of the facts to which those witnesses would testify.
At Gray's trial, in rebuttal to the defense case, the trial court permitted an assistant State's Attorney to read into the record, over Gray's attorney's objection, the factual basis the prosecutor presented when Smith pled guilty to possessing the gun. The assistant State's Attorney read the following parts of the factual basis into the record:
"[O]n November 26, 2003, *** Smith *** gave a handgun to her boy friend, Sylvester Gray.
Sylvester Gray in return used that handgun and fired several shots. One of those struck the victim, Michael Sommerville, and he did ...