Appeal from the Circuit Court of Cook County No. 07 CR 1130 Honorable Stanley J. Sacks, Judge Presiding.
The opinion of the court was delivered by: Justice Harris
JUSTICE HARRIS delivered the judgment of the court, with opinion. Presiding Justice Cunningham and Justice Karnezis concurred in the judgment and opinion.
Following a jury trial defendant, Roscoe Woods, was convicted of one count of aggravated battery with a firearm and one count of attempted first degree murder. He was sentenced to 33 years in prison, which included an enhancement based on his personal discharge of a firearm causing bodily harm. On appeal, he argues that the State violated Illinois Supreme Court Rule 412 (eff. Mar. 1, 2001) by not disclosing an alleged prior statement of its rebuttal witness, Rosalinda Taufique. He urges this court to excuse his procedural default and review, under the plain error doctrine: whether the trial court erred in allowing the State to present other crimes evidence in rebuttal; whether the trial court violated Illinois Supreme Court Rule 431(b) (eff. May 1, 2007) when instructing the jury; and whether he was denied a fair trial by several comments made by the prosecuting attorney during closing argument. Additionally, defendant argues, and the State agrees, that he is entitled to an additional seven days of presentence credit. We hold that defendant has not carried his burden of proving that he was prejudiced by any alleged Rule 412 violation. Defendant has also not shown plain error and therefore we decline to excuse defendant's procedural defaults and review on the merits whether the trial court erred in allowing other acts evidence in rebuttal; whether the trial court violated Rule 431(b); and whether the State's closing and rebuttal closing arguments were improper. We agree with both parties that defendant's mittimus should be corrected to reflect 854 days of presentence credit.
The circuit court denied defendant's motion to reconsider his sentence on June 16, 2009. Defendant timely filed his notice of appeal on July 15, 2009. Accordingly, this court has jurisdiction pursuant to article VI, section 6, of the Illinois Constitution and Illinois Supreme Court Rules 603 and 606, governing appeals from a final judgment of conviction in a criminal case entered below. Ill. Const. 1970, art. VI, §6; Ill. S. Ct. R. 603 (eff. Oct. 1, 2010); R. 606 (eff. Mar. 20, 2009).
On December 11, 2006, Chicago police officer Lee Trevino was shot and injured on Division Street in Chicago, Illinois, after responding to a disturbance at nearby Clemente High School. On the first day of defendant's trial, the State filed a motion in limine seeking to introduce evidence that before the shooting, at approximately 8 a.m., and in the same general area of the incident, defendant approached Terrell Durham. Durham would testify that defendant had in his waistband a silver-colored pistol and said to Durham, "What you be about Cobra" and Durham responded that he was not a Cobra, but a member of a different gang. Defendant then walked away saying he did not have a problem with Durham. The State argued that this other crimes evidence was relevant to establish defendant's intent in firing the gun, his motive in firing the gun, and defendant's state of mind. The State additionally argued that the other crimes evidence was relevant to negate the defenses of an innocent frame of mind, mistake, necessity and self-defense.
Defendant's counsel argued that the incident was not relevant and that it was prejudicial. Specifically, defense counsel stressed that the shooting and the evidence of other crimes were two separate incidents occurring at different times of the day and that the evidence was prejudicial because from it, the jury could infer that defendant was predisposed to violence on the day of the shooting. In ruling on the motion, the trial court pointed out that defendant had raised two possible affirmative defenses, self-defense and necessity. The trial court barred the evidence as inadmissible in the State's case-in-chief, but cautioned that it may be admissible during rebuttal if the defendant opened the door, specifically "depending on what the defense offers or brings out on his examination of the witnesses."
Officer Michael Komo testified for the State that at about 2:30 p.m. on the day of the shooting, he received an assignment that there was a disturbance at the bus stop at the intersection of Division Street and Western Avenue near Clemente High School. He testified that he and Officer Lee Trevino were in uniform and drove a marked police car to the area near the bus stop, where they parked. He testified that the primary gangs operating in the area are the Spanish Cobras and the Maniac Latin Disciples, who "don't get along," and that he saw Spanish Cobra gang signs being "thrown up." He saw 6 kids fighting and then run westbound on Division Street past their marked police car. He stated that the kids continued fighting, shoving each other, "throwing up gang signs," and shouting gang words at each other. The two officers approached the 6 kids fighting while 30 other people were on the street. He was 15 to 20 feet from the fight and then identified himself as a Chicago police officer and shouted "get out of here, break it up," while waving his baton. He identified defendant as one of the kids fighting and testified that defendant was wearing a coat about thigh length with fur around the collar. When he shouted for the crowd to disperse, the 6 kids fighting looked at him and then ran. Defendant ran away from him on Division Street, and as he passed Campbell Street, defendant turned around, reached in his waistband, and produced a gun. As defendant was facing Officer Komo, he fired five or six shots in Officer Komo's direction. Officer Trevino was hit in the arm and shouted "I'm hit." Both officers took cover behind a parked car. He testified that after the shooting, he saw spent cartridges on the ground where defendant had fired his gun.
Danate Barnes testified for the State that he was in the area and saw the fight. He identified defendant, whom he knew as "Nu-Nu," as a member of the Maniac Latin Disciples gang. Barnes did not know defendant's real name. Barnes testified that defendant and another Maniac Latin Disciples's gang member, "Buckaroo," walked past members of the Spanish Cobras gang. The Spanish Cobras, defendant, and Buckaroo were verbally insulting each other. Defendant and Buckaroo walked away from the Spanish Cobras, but the Spanish Cobras followed them. Barnes testified that at some point the altercation turned physical, but that he ran away because he heard gunshots.
Kenyon Taylor testified for the State that on the day of the incident, he was at his girlfriend's house, which is approximately four blocks away from Clemente High School. Taylor testified he knew defendant because he was friends with defendant's cousin. He testified that both defendant and defendant's cousin were members of the Maniac Latin Disciples gang. On the day of the incident, defendant rang the doorbell and Taylor answered. Taylor described defendant's appearance as "rough," "scared," and "nervous." Defendant was wearing a black coat with fur on it. Defendant stated to Taylor that he was "in a jam," that he might have shot a police officer, and he asked Taylor to stash a black handgun for him. Taylor refused.
The State also called Torrey Davis, who had previously given a written statement to the police and testified before a grand jury. At trial, Davis's testimony was significantly different from his written statement and his testimony before the grand jury. At trial, Davis identified defendant, whom he knew both as Roscoe Woods and as "Nu-Nu." He testified that he did not know if defendant was a member of the Maniac Latin Disciples gang. Davis testified that he saw a Hispanic man fighting with an African-American man in the street and that they were the only two individuals fighting in the street. He testified he also saw a Hispanic man with a silver gun in the alley. Davis testified that the man with the silver gun had a mask over his face. Davis denied seeing defendant fighting, running, or shooting. Davis was questioned extensively on his earlier statements to the police and the grand jury, which were significantly different than his in-court testimony.
Assistant State's Attorney (ASA) Susan Jakubiak testified for the State in order to read into evidence Torrey Davis's written statement, which he had provided a few days after the shooting. The relevant portions of Davis's statement, as read into evidence through ASA Jakubiak, are as follows. Davis was 14 years old at the time of the incident and stated that he socialized with the Maniac Latin Disciples gang, but was not actually in the gang. Davis knew defendant as "Nu-Nu" and knew that he was a member of the Maniac Latin Disciples gang. Davis stated that at the time of the incident, he saw defendant with "Buckaroo, G-Money, and Little Feasy." Davis was walking with defendant and the other three individuals when a Spanish Cobra gang member walked up to them and asked if they were Maniac Latin Disciples. The Spanish Cobra then took off his shirt and curled his index finger to appear as though he was pulling the trigger of a gun. Davis did not see a gun on the Spanish Cobra, but he believed that the Spanish Cobra was signaling for someone to bring him a gun. Six other Spanish Cobras joined the original Spanish Cobra. He started running with defendant and the other three individuals. More Spanish Cobras appeared and defendant pulled a black gun out of his waistband and held it out like he was going to shoot. He told defendant not to shoot because there was a little girl present. Defendant then put the gun in his pocket and the group ran about four more steps, before Buckaroo said to defendant; "Why are you running, don't you got the banger?" Defendant then pulled the gun out of his pocket, stopped, and turned around. Davis heard five or six shots coming from defendant's direction. ASA Jakubiak testified that at the time he gave his statement, Davis never told her about a Hispanic gentleman with a silver handgun on the street.
ASA Sabra Ebersole testified regarding Davis's testimony before the grand jury, which was substantially similar to the written statement he provided to ASA Jakubiak. ASA Ebersole testified that Davis never told her about a Hispanic man with a silver gun.
The State also offered testimony from Detective Steven Suveda, who examined the crime scene and presented the expert testimony of Marc Pomerance, an expert in the field of firearms identification from the Illinois State Police Division of Forensic Sciences.
The State's final witness was the victim in this case, Officer Trevino. Officer Trevino's testimony was substantially similar to Officer Komo's regarding driving to the scene of the fight, the number of people fighting, and the location of the fight. He testified that during the incident he was focused on a Hispanic man who had his shirt off and was flashing gang signs. The next thing he remembers was that he heard five or six shots fired from in front of him in quick succession. He did not see who fired the shots. After he was hit by one of the shots, he and Officer Komo retreated for cover behind a parked car.
Defendant testified on his own behalf. He stated that at approximately 2:30 p.m. on the day of the incident, he got off the bus at the intersection of Division Street and Western Avenue en route to his grandmother's house, which was three or four blocks from the bus stop. He said that as he got off the bus, there was a crowd of people asking him if he was a Maniac Latin Disciple. He told the crowd that he was not a Maniac Latin Disciple and kept walking. He said that one of the people in the crowd accused him of being a Maniac Latin Disciple because defendant's cousin was a member of the Maniac Latin Disciples. He knew of the gang, but he was not a member of the gang. Defendant's cousin was killed a month earlier on his grandmother's porch. As defendant was walking, a few of his cousin's friends, "Little Feasy, G-Money, and Buckaroo" were standing by the bus stop and told him they would walk with him for safety. As defendant's group was walking, another group of people approached them from the front and said, "y'all Maniacs." Defendant testified that Little Feasy replied and a fight ensued. Defendant continued walking despite the ongoing fight, until some more Hispanic men stopped him. He saw one of them signal for a gun and then run away. Defendant next saw someone coming out of the alley and running toward him with a silver gun. Defendant ran, but when the man with the silver gun aimed at him, defendant shot his gun. He testified that when he shot the gun, his head was facing forward to see where he was running and the gun was behind him. He did not look back or see where the ...