Appeal from the Circuit Court of Cook County. No. 08 CR 03618 The Honorable Lawrence Flood, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Lavin
PRESIDING JUSTICE LAVIN delivered the judgment of the court, with opinion. Justice Pucinski concurred in the judgment and opinion.
Justice Sterba dissented, with opinion.
¶ 1 Following a jury trial, defendant Darrius Wilson was found guilty of aggravated unlawful use of a weapon (720 ILCS 5/24-1.6(a)(1) (West 2008)) and unlawful use of a weapon (720 ILCS 5/24-1(a)(4) (West 2008)), and not guilty of aggravated assault (720 ILCS 5/12-2(a)(6) (West 2008)). For the charges on which he was convicted, defendant was respectively sentenced to two and three years' imprisonment, to be served concurrently. On appeal, defendant contends that:
(1) the trial court denied his right to present a defense and cross-examine witnesses when it prevented defense counsel from introducing Independent Police Review Authority (IPRA) records to demonstrate bias and motive to testify falsely; (2) the trial court violated defendant's right to confront witnesses when it prevented defense counsel from "refreshing a witness' recollection in order to impeach"; and (3) his conviction for aggravated unlawful use of a weapon must be vacated under the one-act, one-crime rule.
¶ 3 At trial, Bennie Parker first testified on behalf of the State. He testified that on January 22, 2008, he was working as a security aide stationed at a metal detector in Wendell Phillips High School in Chicago. Two other security aides and Chicago police officer Anthony Davis were also present. At around 7 a.m. that morning, Parker observed that defendant was wearing a baggy, black coat, gray hooded sweatshirt, and dark blue jeans. Because defendant set off the metal detector twice, Parker decided to conduct a search and asked defendant to raise his arms. During the search, Parker felt an object in defendant's left hand. Defendant's hands were not visible due to his clothing. Parker testified, "I felt something like a gun. I felt around, felt the hammer." At that moment, Parker grabbed defendant's wrist and brought it down to the ground and yelled "gun" to warn security and the other students. Defendant pulled away from Parker and fled from the school building.
¶ 4 Parker and Officer Davis pursued defendant. Outside of the school, Parker got into his car while Officer Davis chased defendant on foot. Parker picked Officer Davis up during the pursuit and temporarily lost sight of defendant until they saw defendant enter a Green Line El station at 43rd Street and South Indiana Avenue. Officer Davis exited the car and confronted defendant. Parker heard Officer Davis yell, "police" while telling defendant to "drop it and get on the ground" approximately three or four times. Parker then testified he saw defendant "drawing out of his waist a silver object *** facing Officer Davis." Parker described the silver object as a "small silver semi-gun, a small metal gun." Parker saw defendant "to try to point the gun towards Officer Davis." Parker drove away from the station because he "knew that somebody was going to get shot." He heard two or three shots, turned around, and saw defendant facedown with Officer Davis on top of him. Moments later, Parker saw Officers Hosley and Kelly arrive. Officer Hosley retrieved defendant's gun, which was on the ground.*fn1
¶ 5 During cross-examination, Parker stated that he had searched defendant on other days prior to the incident in question when "[s]omething real small maybe from his belt or a game boy," had set off the metal detectors. Parker initially thought the object he discovered in defendant's possession on the day of the incident could have been a Sony PlayStation Portable (PSP), a handheld videogame console, which defendant had previously brought to school.
¶ 6 Defense counsel also elicited testimony from Parker that he saw "[d]efendant putting something in his waist" during the chase. Defense counsel then asked Parker if he spoke to an Investigator Delaney on January 22, 2008, but Parker replied, "I spoke with a lot of detectives, so I don't recall this particular detective." A brief sidebar then occurred, with defense counsel requesting to use the IPRA records to refresh Parker's recollection, which the trial court denied.
¶ 7 Lisa Gilbert, a latent print examiner for the Illinois State
Police, testified that the gun, bullets, cartridges, and magazine
recovered from defendant did not produce any latent prints
suitable for a meaningful comparison, while still allowing
that the lack of intact latent prints did not necessarily mean the
weapon was never handled, since the leaving of a print any given
object is subject to highly variable circumstances.
¶ 8 Officer Anthony Davis testified that he was working off duty as security guard at Wendell Phillips High School, wearing civilian clothing, with his badge dangling around his neck. At one point, Officer Davis heard a metal detector go off and then saw Parker doing a pat down of defendant. Officer Davis heard Parker yell that defendant had a gun and saw him turn and run out a door. Officer Davis called 911 and pursued defendant for several blocks on foot before getting into Parker's car. The two briefly lost sight of defendant before seeing him walking toward an El train station on 43rd Street.
¶ 9 Officer Davis exited Parker's car and entered the train station, where he saw defendant standing by a farecard vending machine. At that time, defendant's back faced Officer Davis, who identified himself as a police officer and told defendant to put his hands up. Defendant turned around and reached for the right side of his waist. From this vantage point, Officer Davis saw a gun in defendant's waist, prompting him to again tell defendant to put his hands up. Defendant then attempted to pull the gun from his waist, causing Officer Davis to fire his gun "for fear of [his] life and the life of others." After the gun shot, defendant attempted to go behind a nearby pillar. Officer Davis repeated his instruction for defendant to stop and put his hands up. Because defendant did not comply and still had his hands on his gun, Officer Davis fired his gun two more times. At that point, defendant fell to the ground and a gun fell to his side, on the ground. Officer Davis approached defendant and secured him. Although Officer Davis testified that an ambulance and other police personnel arrived, he did not see who picked up defendant's gun.
¶ 10 On cross-examination, Officer Davis stated that defendant only "attempted" to pull his gun out of his waistband and that the gun never left the waistband. Defense counsel then elicited testimony from Officer Davis that he was present for an "interview" in November 2008, where Officer Davis was asked, "What did [defendant] do?" During that interview, Officer Davis answered, "He turned and faced me. He tried to go to the station, and I told him again to drop the gun. At that point he reached in his waistband and pulled the gun out."
¶ 11 Sergeant Tony Brown testified next. On January 22, 2008, Sergeant Brown responded to a ca ll at approximately 8:25 a.m. at an El train station on 43rd Street. Upon arriving, he saw Officer Hosley, who informed Sergeant Brown that he had recovered a gun. In order to secure it, the two went into Brown's police car, where Brown"cleared" the gun, by removing the magazine and unchambering a round.
¶ 12 During cross-examination, Brown stated that, generally, gloves and a weapon recovery kit should be used if a gun is found at a crime scene. He conceded that a weapon recovery kit was not used in this instance and that he handled the gun without gloves. On redirect examination, Sergeant Brown stated that when a loaded gun is still within reach of a suspect or in the vicinity of civilians, a weapon recovery kit is not required to be used in securing the gun, because of the intrinsic safety considerations.
¶ 13 Fred Heidemann was the evidence technician on the day of the incident. He described the manner in which the evidence was collected from the crime scene, including receiving defendant's gun, magazine and bullets from Officer Hosley and inventorying them. He stated that he did not see a PSP at anytime while collecting and inventorying evidence. The State then rested its case.
¶ 14 Maxine Clark, defendant's mother, was the first witness to testify on behalf of defendant. She stated defendant owned a PSP which he took out of the house everyday, including the morning of January 22, 2008. She acknowledged, however, that she was not with defendant when he was at the school or at the train station.
¶ 15 Tyrone Porter testified that on the morning of the incident, he was outside a store across the street from the 43rd Street El station. He heard "hollering" across the street which caught his attention. He testified that someone was saying, "Get down, get on the wall, get on the wall," and a contemporaneous gunshot. Prior to the gunshot, Porter did not see defendant reach for anything in his waistband. After the first shot, defendant did not fall but began turning to a wall. Porter stated that the yelling continued and, after hearing another shot, he saw defendant fall to the ground. Porter did not see anything on the ground next to defendant. After the shooting, Porter saw the shooter get into a car with another individual. The two left for 10 to 15 minutes before returning. Porter stated that the shooting officer "smirked" after coming back.
¶ 16 On cross-examination, Porter acknowledged that he was across the street while witnessing the incident. He also denied he heard the shooter say "drop it." The State then presented a written statement given to Sergio Seritello, a private investigator, by Porter which indicated that he heard the shooter say, "Drop it, drop it." Porter, however, denied making this statement. When confronted with the written statement itself, Porter confirmed his signature on the statement but continued to deny that he stated he heard the shooter say "drop it" at any time.
It was later stipulated that Seritello would testify that Porter stated to him that a man in front of the 43rd Street station shouted, "Drop it, drop it," during the incident.
¶ 17 Frederick Stinson testified that on the day of the shooting, he was employed by the Chicago Transit Authority at the 43rd Street station. While Stinson was walking toward a booth, he saw a young man walk into the station. Shortly after entering a booth near the entrance of the station, he saw another man run into the station with a gun. Stinson dropped to the floor and heard him say, "[P]ut your hands up, put your hands up." Stinson made an emergency transmission on his radio and then heard gunshots. Stinson remained in the booth for several ...