Appeal from the Circuit Court of Cook County. Honorable Dennis J. Porter, Judge Presiding. 06 CR 5756
The opinion of the court was delivered by: Justice Neville
JUSTICE NEVILLE delivered the judgment of the court, with opinion. Presiding Justice Quinn and Justice Steele concurred in the judgment and opinion.
After a bench trial, the trial court found the defendant, Spencer Martin, guilty of the attempted murder and the attempted armed robbery of Erlin Pinnix. On appeal, Martin argues the court should not have allowed the State to present evidence that he shot someone else a month before the attempted murder of Pinnix. Martin also contends that the court committed plain error when it admitted evidence (1) that Pinnix's cousin told Pinnix that Martin offered to pay Pinnix not to testify; (2) that Pinnix discussed the offer with someone else; and (3) that Martin met Pinnix and offered Pinnix cash not to testify. Because defense counsel failed to object to these three pieces of evidence, Martin argues that he received ineffective assistance of counsel.
We find that evidence that the prior shooting involved the same gun justified the court's decision to permit the evidence of the other crime to bolster the identification of Martin as the offender here. The record does not show that the trial court made any inappropriate use of the evidence of what Pinnix's cousin told Pinnix or of Pinnix's discussion of the offer with another man. Because Pinnix acted as an agent of the State, trying to elicit incriminating evidence when he met with Martin, Martin's counsel should have objected to the evidence of what Martin said to Pinnix in that meeting and the trial court should have excluded that evidence. However, we find no reversible error because the admissible evidence overwhelmingly proved Martin guilty.
In the early morning hours of February 4, 2006, Pinnix drove to a gas station on the north side of Chicago to buy some food. As he paid for the food, a man walked up next to him and put a gun to his head. The man said, "Gimme what you got." Pinnix reached into his pocket. When the man looked away, Pinnix grabbed the gun. The men struggled for control of the gun. During the struggle, the gun discharged and injured Pinnix. The man walked away, then returned a few seconds later, aimed the gun at Pinnix and pulled the trigger. The gun jammed. The man walked away again, and again he turned around, approached Pinnix, aimed the gun and pulled the trigger. Again the gun jammed. The gunman left the scene in a van. Pinnix drove himself to the hospital.
Police officers who investigated the incident watched a video recording from the gas station's security camera. The man who shot the gun appeared to have braided hair. The officers showed Pinnix an array of six photographs, of which two depicted men with braided hair. Pinnix chose one of those photographs, the picture of Martin, as a photograph of the man who shot him. In a lineup at the police station, Pinnix identified Martin again as the shooter.
Investigators conducted ballistic tests on the shell casings found at the gas station and discovered that the bullets came from the same gun that someone had used to shoot Johnnie Williams and another man at a restaurant on January 14, 2006. Police showed Williams an array of photographs, and he chose the picture of Martin as the picture of the man who shot him. Williams identified Martin again in a lineup at the police station.
In March 2006, a grand jury indicted Martin for the attempted first degree murder and the attempted armed robbery of Pinnix.
On August 19, 2006, Pinnix went to the jail to visit his cousin, Ivan Byers. Martin came to the same visiting room at the same time, because his girlfriend came to the jail to visit him. Martin talked to Byers in jail, and later Pinnix came to the jail to talk to Martin. Pinnix wore an audio transmission device so that police could listen to his conversation with Martin.
Before trial, the State moved for permission to introduce evidence that Martin shot Williams and that Martin sought to bribe Pinnix. The trial court granted the motion.
At the bench trial, Pinnix again identified Martin as the man who shot him. He added that he recognized Martin from the neighborhood, but he had never spoken to Martin, whom he knew only as Spencer. The State played the video recording of the incident at trial, and the unclear video showed a flash, which Pinnix identified as the gunshot which occurred during the struggle, at a point just out of the camera's range. A man who looked like Martin then appeared on screen, aiming a gun, walking away, and returning and aiming the gun again, before he left the scene in a van.
On cross-examination, Pinnix testified that he had drunk one beer on the night of February 3 to the morning of February 4. The State stipulated that tests at the hospital showed that Pinnix had a blood alcohol level ...