No. 06 CR 20692 Appeal from the Circuit Court of Cook County Honorable Frank Zelezinski, Judge Presiding.
The opinion of the court was delivered by: Justice Robert E. Gordon
JUSTICE ROBERT E. GORDON delivered the judgment of the court, with opinion. Presiding Justice Garcia and Justice McBride concurred in the judgment and opinion.
Following a bench trial, defendant Damon Simon was convicted of first
degree murder for the shooting death of Robert Hill. Defendant filed a
motion for a new trial, which was denied, and after hearing
aggravation and mitigation, the trial court sentenced defendant to 50
years in the Illinois Department of Corrections. On appeal,*fn1
defendant argues that his conviction should be reduced to
second degree murder and remanded for resentencing because he acted
with an actual, though unreasonable, belief in self-defense.
Alternatively, defendant claims that he is entitled to a new trial
because: (1) the trial court erred in barring evidence that supported
defendant's theory of self-defense, (2) the trial court relied on an
erroneous recollection of the evidence in weighing witness
credibility, and (3) the State failed to disclose a witness' felony
conviction and allowed the witness to provide perjured testimony when
it failed to correct the witness' misstatement of his criminal history. We
On August 14, 2006, defendant was arrested and subsequently indicted for first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) for the shooting death of Robert Hill (the victim). In his answer to the State's motion for pretrial discovery, defendant stated that he would assert the affirmative defense of self-defense. Defendant waived a jury trial and proceeded with a bench trial on November 12, 2008.*fn2
The State called Aaron Jackson as a witness, who testified that he was present in the parking lot at Corona's Food Mart in Calumet Park at approximately 1 p.m. on July 21, 2006, attempting to purchase marijuana. He observed defendant in the passenger seat of a vehicle in the parking lot, and another individual was in the driver's seat. Jackson approached the vehicle and asked defendant whether he had any marijuana. Defendant responded that he did and turned to reach behind his seat. Defendant then turned around quickly to face forward, left the vehicle, and told Jackson to move out of the way. Jackson observed that defendant appeared surprised when he turned to face forward, and he observed defendant remove a gun from his waistband.
When defendant left the vehicle, Jackson observed the victim approaching from behind Jackson, riding a bicycle in the direction of the vehicle. Jackson was familiar with the victim, as both Jackson and defendant were members of the Black P Stones gang and the victim was a member of the Gangster Disciples gang. Since the victim was behind him when Jackson was speaking to defendant in the automobile, Jackson was unable to observe the victim while he was approaching. Jackson did not observe any other people approaching defendant's vehicle with the victim. When Jackson first noticed the victim, the victim was approximately 8 to 10 feet from defendant. Both of the victim's hands were gripping the bicycle's handlebars.
From his location of approximately 10 feet from where the shooting occurred, Jackson observed defendant walking up to Hill while pointing the gun at Hill. When he spotted the gun, Jackson began running away, running approximately 30 feet before stopping and turning to face defendant; Jackson was unable to hear anything that was said while he was running. On redirect examination, Jackson testified that when he ran away, he ran backwards and was able to observe the scene while backing away without losing sight of either the victim or defendant. He overheard defendant tell the victim, "talk that shit now," to which the victim responded "what, what," while holding up his hands with his palms facing out; the victim was not holding anything in his hands. Jackson observed that the victim appeared surprised. Jackson observed defendant stand in place and shoot the victim twice. After Jackson observed defendant shoot the victim, Jackson "[t]ook off," but heard an additional four gunshots. Jackson later testified that after the shooting, he observed defendant "tak[ing] off" in the vehicle. Jackson did not hear the victim make any threats to defendant, but during the entire altercation, Jackson was unable to determine whether the victim had anything in his back pocket.
Jackson testified that he did not have any felony convictions. The State objected to defense counsel's question, engaging in the following colloquy:
"STATE: Judge, we spoke with Counsel prior to the witness testifying regarding his background. We agreed with Counsel and I thought we were in agreement with this that we were going to look into his background. There is a question as to whether he has a felony conviction or not.
We don't believe he does, but we told Counsel we would look into it. So until we look into it, I would object to the question because it's our position that he does not have an adult felony conviction.
THE COURT: Do you have anything to support a felony conviction? I will allow you lee way [sic] to Cross Examine if you know what he's got, Mr. Vance. If you don't know what he's got, don't set the --
STATE: There's no good faith basis.
DEFENSE: What they tendered me today, it's a disposition of guilty on unlawful possession of a weapon by a felon. That's what it has right there.
STATE: May I see that, Counsel? These are also juvenile arrests, counsel.
DEFENSE: I have nothing further."
The State also called Anthony Green as a witness, and he testified that on July 21, 2006, approximately five minutes before the shooting, he was standing with defendant in front of the home of the victim's girlfriend, Star Gardner. Green observed the victim come out from the home with a handgun in his back pocket. When defendant observed the gun, he "disappeared." Green ran up to the victim and told him to put the gun away because both the victim and defendant were Green's friends and he did not want to see either killed. The victim then went back to Gardner's home; when he emerged from the home, Green no longer observed the gun.
Green testified that he observed the victim "pistol whip" defendant several days before the shooting. Green also testified that he had heard about the victim previously shooting defendant and when the State objected, the trial court sustained the objection.
"WITNESS: I told [Hill] to cool it because it was a lot of friction. They said that he shot. It was said that [Hill] shot Damon a few years back, and they was beating up my friend -- well, Damon. They was putting pressure on the man.
STATE: Objection, your Honor. Strike that answer as hearsay. He said they said.
THE COURT: Sustained as to that portion. *** DEFENSE: Did you see [Hill] pistol whip [defendant]? WITNESS: Yeah. And it was said that he shot the man in the leg a few years back.
THE COURT: Sustained as to that."
After speaking with the victim, Green left to find defendant and went to Corona's Food Mart, located a block from Gardner's home, to purchase a beverage. Green encountered defendant inside the store and they had a conversation as they walked from the store to a vehicle in the parking lot in which a man unknown to Green was sitting in the driver's seat; defendant entered the vehicle. Green spoke to defendant through the vehicle's passenger window when defendant pushed Green back and drew a gun. Green backed up, turned around, and observed the victim on a bicycle. Defendant opened the door, left the vehicle, and fired at the victim while he was on the bicycle. Green testified that once he observed the victim being shot the first time, "it was like, I blanked out."*fn3
The State questioned Green about a statement that Green gave to a police detective on July 25, 2006; Green acknowledged making the statement, but could not recall the date because he "[u]sed a lot of drugs." In the statement, Green stated that the victim did not have a weapon and never moved toward defendant. Green testified that while the statement included that assertion, "to be realistic, I didn't know what the hell was going on." He acknowledged that he signed the page and was allowed to make corrections but "I can't barely even read cursive, so I don't know how I can correct something that [the detective] wrote." However, Green admitted that there were several places within the statement where he had made corrections.
Green testified that after the victim was shot, Green was in shock and backed up, leaving the scene. He did not observe defendant entering the vehicle and leaving. The State read from Green's statement that Green was attempting to leave the scene when he observed defendant in a vehicle and heard defendant yell "GDK," which Green knew to mean "Gangster Disciple killer." After hearing the statement, Green testified that defendant "jumped in the car [, rode] past and said it to me, GDK." Green later testified that the yell could have come from defendant or from another member of the Black P Stones named Mooney*fn4 who was nearby. Green testified that he was a Gangster Disciple with the victim, but that there were no other Gangster Disciples in the area of the shooting. Green later testified that there were people near the victim when he was riding his bicycle toward defendant, and the people were the same ones who had been present when the victim had pistol-whipped defendant.*fn5
Green testified that he observed defendant shooting the victim once, after which "it was over for me." The State read from Green's statement that once defendant shot the victim once or twice, the victim "went down,"and defendant stood over the victim, shooting him "maybe five or six or seven times altogether." During cross-examination, the defense questioned Green about the assertion in the statement, and Green testified that the statement could not be true because the gun could not have held that many bullets. Green further testified that the detective taking his statement did not write down "the majority of what the truth was or what I had to say," but that most of the assertions in the statement were true; while still under cross-examination, Green later testified that they were not true but admitted during redirect examination that he had reviewed the statement shortly before trial and told the State's Attorney the statement was true. During cross-examination, Green testified that he was considered a suspect at the time he gave his statement to police and heard the detective's account of what had occurred prior to giving his statement. He testified that he signed the statement because he was in fear of being sent to jail and that he had been in the holding cell of the Calumet Park police department for three days without being given food or water before signing the statement. Green also testified that he was unable to read the majority of the statement.
The State called Eric Celauro, a former assistant State's Attorney who worked in the Cook County State's Attorney's office on July 25, 2006, to testify about his interview with Green and the circumstances under which the statement was obtained. Celauro was contacted by two detectives from the Calumet Park police department about interviewing Green. The interview took place in the State's Attorney's office and Celauro, Green, and the two detectives were present. Celauro informed Green that he could either write a statement himself or Celauro could write it for him, after which Green would check it for accuracy. Green requested Celauro to write the statement. The State then asked to publish the statement, and defense counsel objected. The court allowed the statement to be admitted into evidence and published for the purposes of impeaching Green's testimony.
In the statement, Green said that on July 21, 2006, at approximately 1 p.m., he was standing in front of his mother's house. He observed the victim leaving his girlfriend's house and further observed the handle of a gun protruding from the victim's back pocket. Since Green knew the victim well, he told the victim to "cool out" and put the gun away because there were children nearby. At the time, defendant was outside, one building away, and at some point, defendant went inside. Green said that defendant and the victim were in different gangs.
After Green spoke to the victim for a minute, he left to go to work. On the way, Green stopped at Corona's Food Mart and went inside. As he walked in, he observed defendant pull up in a vehicle in the passenger seat. Defendant entered the store and left before Green. As Green left the store, he observed defendant sitting in the passenger seat of the vehicle and walked over and spoke with defendant. Green observed a handgun in defendant's lap.
Green did not have a chance to have a real conversation with defendant because defendant looked around Green "like he saw someone." Green turned and observed the victim on a bicycle. Defendant pushed Green away and exited the vehicle. Defendant was a few feet from the victim and walked toward him with a pointed gun. Green did not observe the victim with a weapon and the victim never moved toward defendant. The victim attempted to get off of his bicycle as defendant "got right up on him" and said something like, "what's that shit you was talking about." The victim laid his bicycle on the ground and stood with his hands in the air, saying something like, "are you going to do this in broad daylight," and partially turned his back on defendant.
Defendant began shooting the victim from a foot or two away. After the first or second shot, the victim "went down" and defendant stood over him and continued shooting "maybe five or six or seven times altogether." Green said that at some point, Jackson or someone named Moonie also appeared on a bicycle and observed the scene as well. Green attempted to walk away from the scene and observed defendant "jump" into the vehicle and drive away, yelling "GDK" from the vehicle, which meant "Gangster Disciple killer."
The State's next witness was Dan Maloney, an assistant State's Attorney for Cook County who was a witness to a conversation between one of the prosecutors, Shital Thakkar, and Green on November 12, 2008. Maloney testified that Green did not want to be involved and did not know why he was "locked up," after which Thakkar explained to Green that he was arrested and held pending his testimony at trial due to a warrant issued after he did not appear in court after being subpoenaed. Thakkar told Green that he would review Green's statement with him and, if something was untrue, Green should inform Thakkar. Thakkar took Green's handwritten statement and read it to Green, asking every few sentences if the statement was true; Green responded to each question that the statement was true. Green began laughing when Thakkar read the assertion regarding defendant yelling "GDK" and said something to the effect of "it was just funny; I can't believe he said that"; Green acknowledged remembering the incident.
The State additionally called Antrelle Clayborn as a witness, who testified that on July 21, 2006, he was driving his automobile when he received a cell call from defendant. Clayborn had met defendant previously, but did not "fully" know him. Defendant told Clayborn that he had just observed Clayborn driving down the street and asked Clayborn to pick him up in the alley behind defendant's house. Clayborn complied and defendant entered Clayborn's vehicle with a 40-ounce beer and began talking about an incident that had occurred between defendant and someone else. Clayborn attempted to testify that "[defendant] said it was somebody on the front that he thought had a gun who was going to shoot him," but the court sustained the State's objection on hearsay grounds. Clayborn was later permitted to testify that "[h]e said that someone was trying to shoot him" and "he said that someone was on the front." Clayborn did not realize that defendant was referring to the victim and Clayborn did not observe defendant with a gun at the time.
Defendant asked Clayborn to drive to Corona's Food Mart. Clayborn parked the vehicle and defendant exited the vehicle and entered the store while Clayborn waited. Defendant exited the store four or five minutes later and entered the vehicle. A man named Yayo, whom Clayborn recently discovered was Anthony Green, walked up to the passenger side of the vehicle and asked Clayborn to take him to work. Clayborn responded that he would as long as Green gave him money for gas.
Clayborn testified that the victim came "riding up" on his bicycle, not riding at a fast speed. Clayborn observed him through the side window and made a gesture indicating " 'What's up?' " and the victim responded with the same gesture. Clayborn testified that the victim was riding toward the store, which was in the same direction as the vehicle, but that he turned toward the store and eventually parked in front of it; Clayborn opined that "[h]e wasn't never close to us or nothing." The victim was alone when he entered the parking lot.
Clayborn testified that defendant lifted his shirt and Clayborn observed the handle of a handgun in defendant's waistband and defendant told Green to move out of the way so that defendant could open the door. Defendant jumped out of the vehicle while pulling out his gun, "said a few words" that Clayborn was unable to hear, and shot the victim while he was still on his bicycle. Clayborn was able to see both of the victim's hands when he was riding up to the store and testified that both of his hands were on the handlebars of the bicycle and he was not holding anything else; Clayborn further testified that the victim's hands never left the handlebars. Clayborn was unable to see whether the victim had anything in his back pocket because his shirt was covering it.
Clayborn testified that defendant was approximately eight feet away from the victim when he first saw the victim and walked to approximately four feet from the victim when he shot the victim. Clayborn testified that the victim was facing away from them, looked over his left shoulder, and was shot in the left side of his back. Clayborn testified that he knew where the bullet hit the victim by observing the bullethole and seeing blood.
When Clayborn observed the first shot, he reversed his vehicle and attempted to back into traffic. However, there was traffic on the street and Clayborn was forced to move slowly. He heard two or three more gunshots. By the time that Clayborn had straightened his vehicle to leave, defendant had opened the door and jumped into the vehicle. Clayborn testified that he had "no choice but to take off" because defendant had a gun and Clayborn "barely knew" him. Clayborn spoke to defendant in the vehicle, explaining that Clayborn lived in the neighborhood and that the shooting would be a life-changing event. Defendant responded that the victim " 'had to get it.' " On cross-examination, Clayborn admitted that the statement that he gave to police did not contain the assertion that defendant said that the victim " 'had to get it.' " Clayborn drove to his cousin's house, where he told his family what had occurred and defendant gave Clayborn's cousin his gun to "put it up." Defendant received a number of telephone calls and left.
Clayborn took the gun the next day and sold it. Clayborn attempted to retrieve the gun approximately a month later, when he was taken into custody by the Calumet Park police, but was not able to repurchase the gun. Clayborn testified that he approached the police himself, because he had heard that they were searching for him and wanted to clear his name. While Clayborn was speaking with the police, they told him that defendant said that Clayborn had a gun; Clayborn denied having a gun.
The State also called Mohammed Suleiman as a witness. Suleiman was working at Corona's Food Mart on July 21, 2006. Shortly before 1 p.m., defendant entered the store, purchased some potato chips, and returned to the passenger side of a vehicle parked approximately 2 to 2 1/2 parking spaces from the store's front door; Suleiman did not observe a gun when defendant was inside the store. A man named Yale was standing near the passenger side door of the vehicle. Suleiman was sweeping the rug near the store's glass front door and observed the victim riding on his bicycle alone, coming from the opposite side of the parking lot. The victim did not have a gun in his hand and Suleiman did not observe the victim reaching for his waistband; while he was riding his bicycle, the victim's hands were on the handlebars. However, Suleiman was unable to observe the victim's back pocket. Suleiman opined that the victim was going to come to the store to make a purchase, since he was a regular customer. Suleiman observed the victim ride to within a few feet of the front door. He did not notice anything unusual about the victim and did not pay him any particular attention; after he first noticed the victim riding toward the store and before he heard the gunshots, Suleiman was not keeping eye contact.
Suleiman turned around to roll up the store's rug and heard several shots. He turned back and observed the victim on the ground and defendant entering the vehicle and leaving. Suleiman noticed a gun in defendant's hand. Suleiman testified that he never actually saw defendant shoot the victim because by the time he turned around, defendant was running toward the vehicle. Suleiman moved all of the store's customers to the back of the store approximately 50 to 60 feet away and called the police when he returned to the front of the store; Suleiman testified that it took 5 to 10 seconds to move everyone to the back of the store and estimated that he called the police within 15 seconds of the shooting.
Suleiman was able to see the victim lying on the ground with blood "all over his shirt" while he was calling police. No one approached the victim or took anything from him. Suleiman observed the fallen victim until the police arrived within a matter of seconds.
The State also called Calumet Park police officer Vito DiPaolo as a witness. Officer DiPaolo testified that he was called to the scene of the shooting on July 21, 2006. When he arrived at the scene, there were several people standing around, and the victim was lying on the ground in a fetal position in a pool of blood, with a bicycle a few feet away. There was no weapon recovered from the scene.
After presenting its witnesses, the State made an oral motion in
limine to preclude a portion of Star Gardner's expected testimony in
which she would testify that the victim told her that he had
previously "slapped the defendant around" on the basis of hearsay.
Defense counsel asked for time in which his investigator could contact
Gardner to determine if she observed the slapping incident but that it
was difficult to find Gardner since she refused to allow the State to
provide her address to the defense.*fn6 The court
continued the trial but ruled that "[at] this
juncture, without a valid exception to that hearsay, it
could not come in and this Court would not allow it to come in under
When the parties next came before the court, the prosecutor informed the court that he had spoken with Gardner and determined that all of her knowledge of the slapping incident was based on what the victim had told her and she did not witness the incident. The State renewed its objection on hearsay grounds and the trial court made a preliminary ruling that the testimony would not be allowed.
The parties also proceeded by way of stipulation. The parties stipulated that Dr. Nancy Jones, a forensic pathologist with the Cook County medical examiner's office, would testify that she performed a post-mortem examination of the victim on July 22, 2006, in which she found a "through-and-through" gunshot wound to the victim's lateral chest, which she classified as an entrance wound. There were also three gunshot wounds to the left back, from which medium-caliber, partially copper-jacketed, lead bullets were recovered. None of the gunshot wounds included evidence of close-range fire. Dr. Jones would further testify that in her expert opinion, the cause of the victim's death was multiple gunshot wounds and the manner of death was homicide.
The parties also stipulated that Illinois State Police forensic scientist William Anselme would testify that the three bullets were fired from the same firearm. The parties further stipulated to the fact that defendant was arrested on August 14, 2006, and that there was probable cause for his arrest.
The State entered several exhibits into evidence, then rested its case-in-chief. Defendant made a motion for a directed finding, which was denied.
In his case-in-chief, defendant called Patricia Simms to testify on his behalf. Simms was visiting her daughter on July 21, 2006, when defendant knocked on the door. After defense counsel asked Simms what happened when she answered the door, the State objected:
"WITNESS: He asked could he eat --STATE: Objection, Judge. Any statements that the defense is seeking to introduce by the defendant through ...