Appeal from the Circuit Court of Lake County. No. 07-CF-2424 Honorable Victoria A. Rossetti, Judge, Presiding. Appeal from the Circuit Court of Lake County. No. 07-CF-2431 Honorable Victoria A. Rossetti,Judge, Presiding.
The opinion of the court was delivered by: Justice Burke
JUSTICE BURKE delivered the judgment of the court, with opinion.
Presiding Justice Jorgensen and Justice McLaren concurred in the judgment and opinion.
Defendants, William S. Fillyaw and Johnny C. Parker (referred to as defendants collectively, and Fillyaw and Parker separately), were found guilty of the first-degree murder of Lasondra Shaw (Lasondra) and of the attempted first-degree murders of Lebraun Graham and Ernest Hughes. The offenses arose from an incident that occurred shortly after midnight on June 29, 2007, when two armed men broke through the front door of Lasondra's apartment and opened fire, killing Lasondra and severely injuring Graham and Hughes. After hearing three or four shots, Deshae R. went to the window of her mother's apartment, located across the street from Lasondra's apartment, and saw two men running out the front door of Lasondra's apartment building and through an alley by the building. From photo arrays, she identified defendants as the men she saw. During trial, the trial court permitted the admission, as substantive evidence, of a written statement that State witness Ricky Powell had given to Detective Gianni Giamberduca. The statement detailed several alleged interactions between Powell and Fillyaw, including the allegations that Powell had facilitated the sale of a shotgun and shotgun shells to Fillyaw before the offense and that Fillyaw had told Powell that he and Parker went to rob some people, kicked down the door, and shot three people.
Fillyaw contends on appeal that his trial counsel rendered ineffective assistance (1) by failing to object to the admission of Powell's statement as substantive evidence pursuant to section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2008)); and (2) by failing to file a motion to suppress the identification testimony of Deshae R. In a supplemental brief, Fillyaw contends that the trial court abused its discretion by restricting access to and cross-examination regarding Deshae R.'s mental health records and mental health diagnosis.
Parker contends on appeal that (1) his constitutional due process rights were violated when the prosecutor repeatedly elicited, and relied upon substantively, Fillyaw's hearsay statement explicitly inculpating Parker, who was tried jointly with Fillyaw before a single jury; (2) his trial counsel was ineffective for failing to request a severance based on the admission of the hearsay statement inculpating Parker; and (3) the trial court improperly limited the disclosure of and cross-examination regarding Deshae R.'s mental health records and mental illness.
We consolidated the appeals for review, as the facts apply to both defendants and they were tried jointly before a single jury. For the following reasons, we reverse and remand both causes.
On June 28 and 29, 2007, Lasondra, Damien Shaw, Lebraun Graham, Yetta Little, and Ernest Hughes were at Lasondra's apartment, located on the second floor of 900 13th Street, North Chicago. They were in Lasondra's living room playing cards, smoking marijuana, and drinking cognac. Around 12:30 a.m., someone kicked the front door twice. When the door opened, two men entered and starting shooting at everyone inside the apartment. Lasondra died from a gunshot wound and Graham and Hughes were seriously injured.
Prior to trial, Fillyaw filed a motion to sever, which was denied. Two days later, Parker filed a separate motion to sever, arguing that the State would be introducing evidence of a shotgun connected to Fillyaw. The trial court denied this motion also.
Both defendants requested medical records for Deshae R., who was a minor at the time of the offense and the trial. Defendants learned that Deshae R. had been committed to Allendale Association, a mental health residential treatment facility, prior to the shooting, and had been recommitted in August 2008. The defense wished to probe her motivation for testifying, the reason she was committed, her treatment, her prescribed medications, and whether these medications affected her ability to testify. The trial court issued a subpoena and, after an in camera review of the records, the court tendered to counsel the portion of those records that the court determined were relevant.
After the jury was selected but before the trial began, the State indicated that it did not expect Powell to cooperate, and it anticipated impeaching him with the statement that Powell had given to Giamberduca. The statement detailed several alleged interactions between Powell and Fillyaw that took place two months before the shootings and shortly after. The statement indicated that before the shootings Powell had facilitated the sale of a shotgun and shotgun shells to Fillyaw and that afterward Fillyaw had told Powell that he and Parker went to rob some people, kicked the door down, and shot three people. The State asked the court to determine which portions of the statement were relevant. Fillyaw's counsel objected to Powell's statement because it indicated that his client was a drug dealer and that he illegally possessed a shotgun. Parker's counsel argued that, when Powell made the statement, Powell was facing criminal charges and his appointed attorney was neither present for, nor informed of, his meeting with the detective. The court ruled that it would not allow any testimony regarding the sale of drugs but that it would permit examination of Powell's conversations with Fillyaw and Powell's testimony about the sale of the shotgun and ammunition.
The evidence presented at trial, which began on April 13, 2009, revealed the following. Officer Michael O'Neill responded to the dispatch regarding the shooting. At the scene, he observed Lasondra lying on the kitchen floor. Hughes, who was in the living room, was yelling that he had been shot. In a back bedroom, O'Neill found two men, one of whom was Graham, who also was yelling that he had been shot. O'Neill said that an exterior light over the apartment building's front door was on when he arrived at the scene.
Forensic pathologist Eupil Choi performed the autopsy on Lasondra's body. Choi concluded that Lasondra suffered multiple shotgun wounds and that the cause of her death was a shotgun wound on the left side of her neck. The parties stipulated that Hughes and Graham suffered serious injuries as a result of the shootings.
Steven Kueber, an evidence technician, arrived at the scene within an hour of the crime, and he recalled that the exterior light over the front entrance to Lasondra's apartment was off. A video taken by Kueber around 2 a.m. was admitted into evidence. Kueber stated that the lighting shown in the video reflected the actual lighting conditions at the time it was made. He recollected no exterior lighting anywhere near the building's front and stated that the entire street around it was dark. Kueber identified photographs of a cell phone found in an alley on the building's west side.
Witnesses established that the cell phone and a service contract for that phone had been purchased by Parker a few days before the shooting. Parker's home was located about two blocks away from this alley. Detectives recovered shotgun shell casings and spent handgun casings at Lasondra's apartment, but they did not recover any weapons. Other photos showed Lasondra on the kitchen floor, bloodstains throughout the apartment, and damage to the front door. No fingerprint or footprint evidence was recovered and no DNA comparisons were performed. At 7 p.m. on June 29, detectives searched Parker's home but did not recover any human tissue or blood evidence.
1. Identification Testimony
Little did not see either offender's face because, according to her, both men wore masks exposing only their eyes. Little saw one of the offenders, wearing a brownish jacket, stand over one of the male guests in the living room and say, "Die motherfucker die," as he shot that guest with a large black gun. Little identified a jacket as the jacket worn by that offender. Giamberduca identified the same jacket as that worn by Parker at the time of his arrest. The other offender wore all black. Shortly after the shootings, Little observed the offenders flee from the apartment.
Graham maintained that the offenders' faces were not covered and that he recognized defendants, having seen them a few times on the streets. Graham observed Fillyaw fire a shotgun and Parker fire a handgun. Graham ran to a back bedroom after Fillyaw shot him in the shoulder and he did not see the offenders escape. The entire incident lasted seven to eight minutes.
The police interviewed Graham at the hospital following Graham's shoulder surgery, approximately 13 hours after the incident. Graham identified defendants from two separate photo arrays. At the time, Graham was medicated on morphine and in a great deal of pain. Before making the identifications, Graham had spoken with several members of his family. Graham claimed that, during the police interview at the hospital, he also identified a third offender, Earl Epps, who stood outside the apartment during the shooting. Giamberduca denied that Graham had mentioned Epps to him during the hospital interview. According to Giamberduca, Graham first mentioned Epps over a month after the incident, when Graham voluntarily approached the police to provide a statement he drafted in which he claimed that Epps was the second offender to enter the apartment. Although Graham testified at trial that he did not witness the offenders flee, in his drafted statement Graham claimed that he saw all three offenders leave the apartment. Graham also chose Epps' photo from a photo array.
Four months prior to trial, Graham told representatives of the State's Attorney's office that he had mistakenly identified Epps in connection with the case. During his testimony at trial, Graham admitted that he no longer believed that Epps was present at the scene.
At the time of trial, Graham was in jail waiting to be conveyed to prison, having recently pled guilty to charges of escape, fleeing and eluding, and some traffic offenses. Graham's attorney had discussed the possibility of Graham receiving leniency in exchange for the guilty plea. However, at trial, ...