Appeal from the Circuit Court of Cook County, Illinois. No. 07 CR 7156 (02) Honorable Diane Cannon, Judge Presiding.
The opinion of the court was delivered by: Justice Joseph Gordon
JUSTICE JOSEPH GORDON delivered the judgment of the court, with opinion.
Presiding Justice Epstein and Justice Howse concurred in the judgment and opinion.
¶ 1 Defendant Chad Johnson was charged with involvement in a drive-by shooting in which four people were injured, one of whom later died of his injuries. Following a jury trial, defendant was found guilty of first-degree murder and three counts of aggravated battery, and he was sentenced to 80 years' incarceration. Defendant now appeals. For the reasons that follow, we reverse and remand for a new trial.
¶ 3 On February 1, 2004, Super Bowl Sunday, a drive-by shooting occurred outside Mr. G's Food and Liquor Store in Chicago, Illinois. Christopher Dorbin, Desi Jones, Kentrae Wade, and Carol Holt were all injured by the shots that were fired, and Christopher died of his injuries on March 18, 2004. Defendant, Ricardo Lee, and Oliver Crawford were charged with the shooting. Defendant and Lee shared a severed trial, with defendant's case tried to a jury and Lee's case tried before the bench, while Crawford had a separate trial.
¶ 4 There was no physical evidence linking defendant to the offense. Instead, the State relied upon the eyewitness testimony of Desi and Kentrae, both of whom identified defendant as one of the shooters. Defendant raised an alibi defense, calling his ex-girlfriend, his ex-girlfriend's mother, and his friend to testify that he was in Fulton, Kentucky on the day of the shooting.
¶ 5 The jurors in this case were drawn from two panels. During voir dire, the trial court instructed the first panel of jurors as to the Zehr principles as follows:
"As I indicated, the defendant is presumed innocent of the charges against him. The State has the burden of proving him guilty beyond a reasonable doubt. He is not required to prove his innocence. He may testify; he may not testify, which is his right. If he elects not to testify, is there anybody who would hold that against him?
Defense counsel raised no objection to this instruction.
The trial court instructed the second panel of jurors as follows:
"As I indicated earlier, you were here to decide the guilt or innocence of Chad Johnson only. The defendant, Mr. Johnson, is presumed innocent of the charges against him. The State has the burden of proving him guilty beyond a reasonable doubt. The defendant has a right to testify; he has a right not to testify. If he exercises his right not to testify, is there anybody who would hold that against him?"
One of the prospective jurors indicated that he would hold a lack of testimony against the defendant, whereupon the court subsequently excused him. As with the previous panel, defense counsel raised no objection to the trial court's instruction.
¶ 6 At trial, during opening arguments, counsel for the defendant asserted that the case was one of mistaken identity:
"Mr. Johnson has been mistakenly identified as being the individual involved in a shooting on February the 1st of 2004. *** When someone is misidentified, it's not necessarily intentional. The person actually believes that they made a correct identification. And that is what can be so dangerous because it can sound so convincing."
¶ 7 Desi testified for the State that he was a member of the Gangster Disciples street gang. He said that in 2004, the 57th and Calumet branch of the GDs was at war with the 57th and Wabash branch of the GDs over turf. He, Christopher, and Kentrae were all members of the 57th and Calumet GDs, and Mr. G's was located in territory controlled by that branch. Defendant and Crawford were members of the 57th and Wabash GDs.
¶ 8 Desi testified that around 11:50 a.m. on February 1, 2004, Super Bowl morning, he went to Mr. G.'s to get supplies. He saw Kentrae and Christopher outside the store and began speaking with Christopher. While they were conversing, Desi noticed a purple Dodge driving the wrong way down Calumet, a one-way street. He also noticed that the windows of the car were down although it was very cold outside. The car came to a stop outside Mr. G's. Desi stated that he recognized defendant sitting in the front passenger seat and Crawford sitting in the back. He then saw defendant and Crawford both pull out automatic guns. Desi turned to run, but he was shot three times before the car sped away.
¶ 9 During cross-examination, defense counsel questioned Desi about various alleged inconsistencies between his trial testimony and prior statements that he had made about events on the day of the shooting. As noted, it was Desi's testimony at trial that when he first saw the car, it was on Calumet. Defense counsel asked Desi if he recalled giving grand jury testimony that he first saw the car on 58th Street between Calumet and Prairie. Desi replied that he did recall giving such testimony, but he denied any inconsistency, saying, "The same thing you read is the same thing I just said. It's just probably in a different way."
¶ 10 Defense counsel next asked Desi whether he had entered Mr. G's to purchase items and then exited the store before the shooting occurred. Desi stated that he could not remember. Defense counsel asked him if he recalled testifying before the grand jury that, on the day of the shooting, he went into Mr. G's, purchased Super Bowl supplies, and then exited the store and started speaking with Christopher. Desi stated that, yes, he recalled giving such testimony. Defense counsel then asked him if he recalled subsequently testifying on September 10, 2007, that he did not have an opportunity to enter Mr. G's to purchase supplies before the shooting occurred.*fn1 Desi replied, "I had got that part mixed up, sir, I'm sorry."
¶ 11 Defense counsel also asked Desi whether he was inside the store with Christopher at any time. Desi stated that he was not. Defense counsel then asked Desi whether he remembered telling Detective Williams, or any detective, on February 1, 2004, that he exited Mr. G's with Christopher. Desi said that he could not recall any such conversation.
¶ 12 Finally, defense counsel asked Desi whether the car had stopped when the people inside began shooting. Desi replied that, yes, it had. Defense counsel then referred Desi to a handwritten statement which he signed on March 23, 2004, after speaking with Detective Michael O'Donnell, in which Desi stated that "they both started shooting towards him and Christopher as the car pulled by." Desi acknowledged signing the statement but said, "They didn't take that down right. I didn't say the car pulled by. I say when the car stopped."
¶ 13 On redirect examination, over defense counsel's objection, counsel for the State elicited testimony from Desi that, in his statement to Detective O'Donnell on March 23, 2004, he made the following statements consistent with his trial testimony: On the day of the shooting, Desi saw a car with its front passenger and rear windows down, which he thought was strange because of the cold. He looked inside and saw defendant in the front passenger seat and Crawford in the back seat. He saw both of them pull out guns and fire before he was able to duck.
¶ 14 Kentrae, the next witness for the State, testified that he was a member of the 57th and Calumet GDs, which, in 2004, had been at war with the 57th and Wabash GDs for approximately the past five years. On February 1, 2004, shortly before noon, he was in front of Mr. G's with Christopher, Desi, and Carol. Christopher said, "On this car with these windows down," which, in street parlance, constituted a request to watch the car. Kentrae looked and saw a blue, four-door sedan. It struck him as unusual that the windows were down because it was extremely cold. He stated that he saw defendant sitting in the front passenger seat and Crawford sitting in the back. Both were 57th and Wabash GDs whom he had known for about four years. He also got a glance at the driver, who reminded him of Lee.
¶ 15 Kentrae stated that the car opened fire. He ran back into Mr. G's but was shot before he could get inside. Subsequently, the police arrived on the scene, and Kentrae was taken to the hospital for treatment.
¶ 16 During cross-examination, Kentrae stated that he spoke with an officer in the store after he was shot, but he did not identify any of the shooters at that time. "I didn't identify nobody until I was brought to the police station," he said.
¶ 17 Kentrae also stated during cross-examination that, later on the day of the shooting, while he was at the hospital, he spoke with two detectives. The following exchange then occurred:
"DEFENSE COUNSEL: And you told the detectives that you saw a black male with a gun in the front window?
PROSECUTOR: Objection. That's not impeaching.
DEFENSE COUNSEL: Sir, you never told the detectives when they interviewed you at the hospital that you saw [defendant] in the passenger seat?
KENTRAE: I don't remember telling them nothing besides it was a blue car because I was in pain at the time.
Q. And, sir, you also never told the detectives that you saw [defendant] with a gun on -- at the time of the shooting?
A. I only recall telling them officers that came to the hospital that it was a blue car, a four-door blue car."
¶ 18 The State also called two other occurrence witnesses, Carol Holt and Stacey Murray. Carol testified that around noon on February 1, 2004, she went to Mr. G.'s. There were approximately five to seven neighborhood guys hanging around outside. After making her purchases and exiting the store, she heard a car "screeching down the street." Carol stated that the car hit the brakes right in front of the store. The passenger-side front window was open, and she saw the passenger in front pull out a gun. She said that everyone was screaming and running. She was shot as she was attempting to run back into the store. She testified that she was unable to identify any of the people inside the car.
¶ 19 Stacey Murray testified that, like Desi and Kentrae, he was a member of the 57th and Calumet GDs. On February 1, 2004, around 11:50 a.m., he was driving to Mr. G's. When he was approximately a block away, he heard gunshots. After that, he saw a blue Dodge coming quickly toward him. It passed by him on the driver's side, and he saw three people in the car. He testified that Lee was the driver, and Crawford was in the back of the car, but he was unable to identify the third person in the car. Stacey said that he proceeded to Mr. G's, saw that people had been shot, and then called the police.
¶ 20 Vanessa Muhammad, a patrol officer for the Chicago Police Department, testified for the State that on February 1, 2004, she was assigned to the scene of the shooting to handle the preliminary investigation, interviewing witnesses to get information that might assist in the investigation. She testified that the victims named the defendant, Crawford, and Lee as the people in the car. During cross-examination, she stated that Christopher identified Crawford and Lee, and Kentrae identified Crawford, but neither of them identified the defendant. On redirect, over objection by the defense, counsel for the State asked, "[W]hile you were on the scene within minutes, you had [defendant] as a named offender in this matter?" and she replied, "Yes, we did."
¶ 21 After the State rested, the defense called three witnesses to establish an alibi defense. The first of those witnesses was Joyce Williams. Joyce stated that on February 1, 2004, she was living in Fulton, Kentucky with her parents. She said that she dated the defendant from the winter of 2003 until 2006, and, to the best of her knowledge, defendant never left the Fulton, Kentucky area during that time.
¶ 22 Joyce testified that on February 1, 2004, at approximately 10:30 or 11:00 a.m., she and her mother were preparing to leave the house to go shopping at a mall in Paducah. At that time, she met defendant briefly in the living room of her house. He gave her $80, she thanked him, and then she and her mother left the house. On cross-examination, Joyce stated that it was not unusual for her to go to the mall with her mother, but she remembered that particular occasion because she was going to be presented with a teacher of the year award the next day, and her picture was going to be in the newspaper, so she wanted to purchase new shoes.
¶ 23 Counsel for the State asked Joyce to elaborate on when in 2006 she stopped dating defendant. Joyce stated that defendant was incarcerated in Henning, Tennessee, and she wrote him a letter informing him that she was breaking up with him. The following colloquy then occurred:
"PROSECUTOR: Now, when he was incarcerated in Tennessee, you found out I'm sure--
DEFENSE COUNSEL: Judge, we would object.
PROSECUTOR: You found out, I'm sure, that he was being charged with a murder up here in Chicago, right?
Q. You didn't know that he was facing a murder charge in Chicago?
A. I thought drugs related 'cause he left Henning. The last time I saw him was August '06 in Henning, Tennessee.
Q. And he was incarcerated at that time?
A. Yes, then. And word was I heard he had left and came here. I assumed it was drugs."
She stated that she did not find out that defendant had been charged with murder until the fall of 2006, and she had never been informed that the murder at issue took place on February 1, 2004. She said that, if she had known that he was being charged with a murder that occurred on February 1, 2004, she would have notified the authorities earlier to inform them that he was innocent.
¶ 24 The next witness for the defense was Ora Russell, Joyce's mother. She said that on February 1, 2004, Super Bowl Sunday, she cooked food for her grandchildren and then went shopping with Joyce at a mall in Paducah. She testified that she saw defendant on that morning giving money to Joyce. She further stated that the 2004 Super Bowl stood out in her memory because her grandchildren were visiting and because people were talking about having a block party, although no block party was actually held.
¶ 25 Gloria Taylor also testified for the defense. She stated that she was a friend of defendant. In early 2004, she was employed at the Spot Bar and Grill in Fulton, Kentucky. On February 1, 2004, there was a Super Bowl party at the Spot -- in fact, the only formal Super Bowl party that was ever held at the Spot -- and she was working as a bartender. She testified that when she arrived at the Spot on that day, at around 4:30 p.m., she saw defendant in the parking lot. She stated that she also saw him inside the Spot during the game. Although she was not constantly watching him, she said that she knew he was present for the entire game, because she saw him after the game exchanging money with other patrons who had been betting on the game.
¶ 26 The defense next called Kimyona Taylor (no apparent relation to Gloria Taylor), who was employed as an investigator in defense counsel's office. Taylor stated that she and her partner, Patricia Gutierrez, were assigned to speak with witnesses in the area of Fulton, Kentucky and Union City, Tennessee. They made their first visit to the area in April 2008. Taylor testified that it took them approximately seven hours to drive to Fulton from Chicago even though, while she was driving, she sometimes went over the speed limit.
¶ 27 On cross-examination, counsel for the State questioned Taylor about her investigation. Taylor stated that during their first visit to Fulton, she and Gutierrez spoke with approximately seven or eight people, including Joyce and her parents. She told the interviewees that she and Gutierrez were from Chicago, that they had been sent by defendant's attorney, and that they needed to know whether the interviewees knew the defendant and whether they saw him on February 1, 2004. The following exchange then occurred:
"PROSECUTOR: When you told these people that you were interviewing that you were working for Mr. Johnson's lawyers, certainly someone asked you was he in any trouble?
TAYLOR: No, they actually already knew that he was in trouble.
Q. Were they able to tell you what kind of trouble he was in?
A. They say he was incarcerated on-- DEFENSE COUNSEL: Object.
THE COURT: Overruled. PROSECUTOR: You can finish, ma'am.
A. He was incarcerated on a drug charge.
¶ 28 Taylor further stated during cross-examination that she did not take any notes of her interviews. She testified that she did not need to take notes because she ...