Appeal from Circuit Court of Morgan County No. 08CF174 Honorable Richard T. Mitchell, Judge Presiding.
The opinion of the court was delivered by: Justice Steigmann
JUSTICE STEIGMANN delivered the judgment of the court, with opinion.
Justice McCullough concurred in the judgment and opinion.
Presiding Justice Turner specially concurred in the judgment, with opinion.
¶ 1 Following a March 2010 bench trial, the trial court convicted defendant, Perry Sykes, Jr., of (1) unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)) and (2) reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2010)). In May 2010, the court sentenced defendant to concurrent terms of five years in prison for unlawful possession of a weapon by a felon and three years in prison for reckless discharge of a firearm.
¶ 2 Defendant appeals, arguing only that the trial court erred by admitting certain prior inconsistent statements as substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2010)). We disagree and affirm.
¶ 4 A. The Charges in This Case
¶ 5 In November 2008, the State charged defendant with (1) unlawful possession of a weapon by a felon (720 ILCS 5/24-1.1(a) (West 2010)), in that defendant, a felon, knowingly possessed a firearm, and (2) reckless discharge of a firearm (720 ILCS 5/24-1.5 (West 2010)), in that defendant discharged that firearm in a residential area.
¶ 6 B. Defendant's March 2010 Bench Trial
¶ 7 Because defendant is not challenging the sufficiency of the evidence to sustain his conviction, the facts relevant to the issue on appeal are as follows.
¶ 8 1. The State's Evidence
¶ 9 Dortha Wilson testified that defendant was her neighbor and lived in the house across the street. Dortha testified that on the night of November 23, 2008, she was awakened by her daughter and looked out her window. She observed someone in defendant's front yard. The prosecutor probed further:
"Q. When you observed that person, did you observe them shoot a gun or do anything?
A. I seen a[n] arm went up in the air. I don't know if he was shooting off a bottle rocket or shooting off a gun. I really couldn't tell you, because I really don't remember that far back.
Q. At that point in time, when you saw an arm go up in the air, did you hear anything?
Q. Do you know how many pop sounds you heard?
Q. But you weren't able to tell from your distance who that was?
THE COURT: You need to say yes or no.
WITNESS: A. No. [PROSECUTOR]: Q. Do you know what police officer you talked to?
A. Nope, I don't remember their names. I do remember faces.
Q. If a police officer wrote down that you testified that it was Sykes [(who is the defendant in this case)] raising his arms and firing four shots into the air, would that be inaccurate?
A. No, that wouldn't be inaccurate.
Q. So that would be what you told that officer?
A. Probably. I don't remember what happened that night." (Emphases added.)
On cross-examination, Dortha testified that she could not be sure who she saw in defendant's front yard or whether that person was shooting a gun or setting off fireworks. She said that because the incident took place so long ago and she was not wearing her eyeglasses, she could not "really remember" exactly what happened that night.
¶ 10 Alisa Bowden, Dortha's 17-year-old daughter, testified that she was aroused from sleep when she heard "a gunshot or a firecracker." In response, she woke Dortha. Alisa explained that when she heard the noise again, she looked out her window. The prosecutor then inquired about the specifics of what Alisa observed from the window:
"Q. And when you looked out the window, you saw somebody?
Q. What was that person wearing?
A. Like a black hoodie or something.
Q. Did you see anything in their hands?
A. I seen something in their hands up in the air, but I'm not for sure what it was.
Q. [S]o their hand was up in the air? * * *
Q. When their hand was up in the air, did you hear anything?
A. I heard a few, like, shots, but I don't know if it was a bottle rocket or what.
Q. Okay. Do you know how many shots you heard?
A. Like three-two or three, probably four. I don't know.
Q. Did you hear or see anything else?
Q. On that morning, then, did you have an opportunity to talk to some police officers?
Q. How long after the incident was it when you talked to the police officers?
Q. Was it within an hour?
Q. Did you tell the police officers what you saw and heard on that early morning?
Q. If a police officer put in his report that you witnessed Sykes [(who is the defendant in this case)] raise one of his arms and fire approximately four shots, would that be true?
Q. So that's what you told the ...