No. 08CF181 Appeal from McLean County Honorable Robert L. Freitag, Judge Presiding.
The opinion of the court was delivered by: Justice Pope
JUSTICE POPE delivered the judgment of the court, with opinion. Presiding Justice Knecht and Justice Turner concurred in the judgment and opinion.
In April 2009, a jury found defendant, Michael B. Brown, guilty of two counts of first degree murder (720 ILCS 5/9-1(a)(1), (a)(2) (West 2008)) for the deaths of Calvin Walls and David Walls and of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)) in the shooting of Levar Walls. Additionally, defendant was found not guilty of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)) in the shooting of Montell Jones. In June 2009, the trial court sentenced defendant to natural life in prison on each first-degree-murder conviction to run concurrent with a 30-year prison term for the aggravated-battery-with-a-firearm conviction.
Defendant appeals, arguing (1) the trial court erred when it instructed the jury mid deliberation with Illinois Pattern Jury Instructions, Criminal, No. 24-25.09 (Illinois Pattern Jury Instructions, Criminal, No. 24-25.09 (4th ed. 2000) (hereinafter IPI Criminal 4th No. 24-25.09); (2) the evidence was insufficient to convict defendant of two counts of first degree murder and one count of aggravated battery with a firearm beyond a reasonable doubt; and (3) defendant is entitled to a $5-per-day credit against fines imposed for time spent in jail awaiting trial and sentencing. We affirm as modified and remand with directions.
At defendant's jury trial, Detective Daniel Donath, a crime-scene detective for the City of Bloomington, testified he went to an apartment building located in the 300 block of Riley Drive, Bloomington, Illinois, on February 12, 2008. When he arrived, he was told by another detective two deceased persons were found in the hallway between apartments five and six. He entered the building and noticed a bullet shell casing on the stairs leading to apartments five and six. As he walked upstairs, he saw the deceased body of David Walls on the landing outside the apartments. To the right of David Walls, he noticed the deceased body of Calvin Walls. He also noticed additional shell casings in the hallway and patterns of blood on the hallway doors and walls. Upon entering apartment six, he observed a small spot of pooling blood on the living-room carpet. Also in the living room of apartment six, he observed shell casings on the floor, a black-handled knife on top of a big screen television, and a small black-handled paring knife underneath a fish tank. He also noticed four holes in the front door.
Detective Donath exited the back door of apartment six and proceeded to apartment five. He noticed a trail of blood coming from the carpet of apartment five that continued on the carpet and walls leading to the back door of the building. In apartment five, he observed shell casings on the living-room floor. He also observed a few holes in the living-room wall, a hole by the front door that was approximately waist-high, and a hole in the ceiling by the front door. He found a box for a Glock handgun containing a receipt showing the gun was purchased on October 4, 2000, by Rogers T. McElroy. He also found a magazine for a Glock handgun in the bedroom. Outside the apartment building, he observed a blood trail leading from the back entrance of the building to 601 Bradley, Bloomington, Illinois.
Additionally, he testified in April 2008 he responded to a call regarding a handgun found at Oakbrook Court Apartments in Bloomington, Illinois. He retrieved the handgun that was found on the roof of a single-story garage.
Detective Timothy Power, a detective for the City of Bloomington, testified he was dispatched to the scene of the incident on February 12, 2008. He observed two deceased black males on the upstairs landing of the apartment building. The bodies were later identified as David Walls and Calvin Walls. The two bodies were facedown with David Walls lying on top of Calvin Walls.
While in the hallway, he heard a male voice in apart- ment six crying in pain and saying he had been shot. The male was later identified as Levar Walls. Levar was lying on the living-room floor in a pool of blood. Levar told Detective Powers "Bam" had shot him and his two brothers.
Detective William Buchanan, a detective with the Bloomington police department, testified he was one of the initial officers dispatched to the call of shots fired at Riley Drive. While in apartment five, Detective Buchanan noticed the entire framework of the front door, including the door, was pushed inward. The door was still closed and undamaged
Detective Brent Smallwood, a detective with the Bloomington police department, testified he was also dispatched to the crime scene. Upon arrival, he parked his squad car at the corner of Mecherle and Riley Streets to question individuals leaving the area. When he stopped Jerry Nored's vehicle, Nored stated his passenger, Montell Jones, had been shot. Jones told Detective Smallwood he had been shot in the leg and arm.
Eric Purchis, a paramedic for the City of Bloomington, testified he was dispatched to Riley Drive to treat multiple gunshot wounds. He testified he treated Montell Jones, who had two gunshot wounds in his left forearm, two gunshot wounds in his right forearm, and one gunshot wound in his outer right calf.
Tracy Miller testified she lived at 333 Riley Drive, apartment two, in February 2008. On February 12, 2008, defendant briefly visited the apartment Miller shared with her boyfriend, Darron Epps. Defendant lived upstairs in the same apartment
building. After defendant left, Miller heard a loud commotion on the stairs outside her apartment. Both she and Epps went into the hallway to determine the source of the commotion. While in the hallway, she observed David, Calvin, and Levar Walls being shoved out of defendant's apartment. She then observed the brothers attempt to regain entry by kicking and pushing the front door. As she was heading back to her apartment, she heard a loud bang that sounded like a door being kicked open. She also heard several gunshots and a commotion down the back stairwell. She then heard a young man screaming and two children crying. She ran upstairs and observed two men lying on top of each other in the doorway of Levar Walls' apartment. She also observed Levar Walls lying on the living-room floor in front of the fish tank, and two children sitting on the couch. She grabbed the children and went down the back staircase to her apartment. As she was going downstairs, she noticed blood on the stairs and wall.
Darron Epps testified he was in his apartment watching television with his girlfriend, Tracy Miller, on the night of the shooting. Defendant was visiting their apartment when they heard noises coming from defendant's upstairs apartment. Defendant left to check on his apartment. After defendant left, Epps continued to hear loud noises coming from defendant's apartment, and he went upstairs to investigate. He observed defendant pushing people into his apartment, while Levar Walls pushed people into the hallway. Once defendant's friends were inside his apartment, the door was closed. It is unclear from Epps' testimony whether defendant or Levar closed the door to defendant's apartment. Epps observed a man kick defendant's front door off its hinges and the three men enter defendant's apartment. Epps then heard gunshots, and he ran back to his apartment. He stayed in his apartment until he heard Levar Walls calling for help. As he was going upstairs, he noticed two men lying in the hallway by the front door to apartment six. He testified he did not observe anything in anyone's hands during the altercation.
Levar Walls testified in February 2008 he lived at 333 Riley Drive, apartment six, with his girlfriend, Tanesha Phillips. On February 12, 2008, he was inside his apartment when he heard a loud noise at his front door. He opened the door and saw his two brothers arguing with a tall black man, a white man, and Montell Jones in the hallway outside defendant's apartment. He went into the hallway and grabbed his brothers. The tall black man attempted to hit Calvin, and the white man and Jones grabbed David and pulled him into defendant's apartment. Because the apartment door had been locked, Calvin kicked the door open. Levar and Calvin grabbed David and headed to Levar's apartment. Levar testified he was not holding anything in his hands during the confrontation, and he did not observe anything in his brothers' hands. He further testified he did not enter defendant's apartment that night, and he did not see Calvin enter the apartment.
As Levar walked back to his apartment, he heard a loud bang. He turned around and saw defendant shooting a gun at him. He was shot twice in the buttocks before he was able to reach his apartment. He entered his apartment and closed the door, but defendant continued shooting through the closed door. Levar was knocked down by a shot to his leg. Defendant then entered the apartment, pointed the gun at Levar, and said he was going to kill him. David and Calvin ran upstairs to Levar's apartment, and defendant turned around and immediately started shooting at them. Calvin reached the front door of the apartment before defendant shot him. David reached defendant and attempted to push his left arm down before falling on top of Calvin. Defendant then left the apartment building with his friends.
Leonard Hosea testified he was at defendant's apartment playing video games. He testified defendant, a white guy, Montell Jones, and defendant's uncle were also present. Everyone was in the living room when he heard pounding on the front door. Defendant answered the door, and Hosea heard a man ask defendant if his brother was in the apartment. Defendant's uncle claimed he knew the man from prison, but the man said he was mistaken. When defendant's uncle stood up, the man entered the apartment and pushed defendant's uncle in the face. Hosea and defendant tried to intervene and prevent the men from fighting. Hosea testified a second man entered the apartment and started fighting with Jones. He further testified he did not observe anything in the two men's hands during the confron- tation. Hosea exited the apartment before the gunshots occurred.
Tanesha Phillips testified on February 12, 2008, she lived at 333 Riley Drive, apartment six, with her boyfriend, Levar Walls. That night, she heard a loud knock at the front door. Levar opened the door and went into the hallway. He came back into the apartment, and told Phillips his brothers were arguing in the hallway. He then stepped back out into the hallway. Phillips went to the open door and saw Levar, David, and Calvin standing in the hallway. Because the argument was getting louder, she went into the kitchen, grabbed a butcher knife, and set it on the television in the living room. She then heard gunshots and rushed to the front door. She observed defendant in the hallway holding a gun and sparks coming from the gun. Levar ran through their front door, and closed the door behind him. She observed bullets coming through the front door, striking Levar. Defendant entered the apartment and told Levar not to play with him because he would kill Levar. Defendant then turned around and started shooting into the hallway. Defendant left the apartment after firing the gun several more times.
Phillips was trying to locate her car keys when she noticed David lying in her doorway. After she found the keys, she left the apartment to bring their car around front. When she opened the back door of her apartment, she saw defendant and his friends running out the back door of defendant's apart- ment.
David Robinson testified on the evening of February, 12, 2008, a black male knocked on his back door and asked to use his telephone. Robinson told the man he did not own a telephone, but he could find a phone at the local gas station.
Eric Foster testified on February 12, 2008, he was at defendant's apartment playing video games when he heard a knock at the front door. Defendant answered the door, and Foster heard Montell Jones' uncle say he recognized one of the men at the door. After words were exchanged, the three men in the hall tried to enter the apartment. Foster grabbed the man who entered the apartment in an attempt to calm him down, but the man slammed him against the living-room wall.
He then noticed defendant walking toward the living room with a pistol. Foster was in the kitchen when he heard five or six gunshots. However, he did not see the person firing the gun. Jones told Foster he had been shot, and Foster ran out the back door of the apartment with Jones and Jones' uncle. He returned to the apartment to retrieve his and Jones' coats, and he saw two men lying in the hallway outside the apartments. He went back outside and noticed Jerry Nored pull into the parking lot, and he asked Nored for a ride to the hospital. The police stopped the truck before they reached the hospital.
Steven Clifford, an officer for the Bloomington police department, testified once defendant was placed in custody, he repeatedly asked defendant for the location of his weapon. Eventually, defendant informed him he had thrown it somewhere but did not know its location. On April 17, 2008, Officer Clifford observed a handgun on a garage roof at Number One Oakbrook, Bloomington, Illinois.
Michael Johnson, an officer for the Bloomington police department, testified on February 13, 2008, he was transporting defendant to the police department when defendant informed him he wanted to turn himself in, and it was not his fault. Defendant also stated he felt bad about the incident. Officer Johnson further testified defendant appeared visibly shaken.
Montell Jones testified he was playing video games at defendant's apartment with defendant, Leonard Hosea, Eric Foster, and his uncle, Andrew Walker. While they were playing video games, two men knocked on the door. Walker said he recognized one of the men, but the man denied knowing Walker. Everyone in the apartment walked toward the door where the two men were standing. After words were exchanged, the man Walker had recognized swung at Walker, while the second man pushed Jones into the living-room wall. Jones then noticed defendant and Walker were holding the door closed. Jones asked for help because the second man was choking him. Both Walker and defendant were walking toward Jones when the front door was kicked in by the men in the hallway. He observed people enter the apartment, but his attention was returned ...