Appeal from the Circuit Court of Cook County No. 06 CR 18831 Honorable Thomas V. Gainer, Judge Presiding.
The opinion of the court was delivered by: Justice Sterba
JUSTICE STERBA delivered the judgment of the court, with opinion.
Justices Fitzgerald Smith and Pucinski concurred in the judgment and opinion.
¶ 1 Defendant Correail Nash appeals his conviction following a jury trial of first degree murder based on his commission of the felony attempted aggravated vehicular hijacking. On appeal, defendant contends that the modified felony murder instruction tendered to the jury removed from the jury's deliberation whether defendant's cofelon's death was a foreseeable and direct consequence of the attempted aggravated vehicular hijacking. Defendant also claims that the trial court erred in tendering the jury instructions addressing self-defense since that was not an issue in the case. Defendant further claims that the trial court erred in its response to the jury's question because its answer was non-responsive. Additionally, defendant contends that the State did not prove him guilty beyond a reasonable doubt of first degree felony murder. Lastly, defendant claims that the mittimus must be corrected because it does not reflect the correct number of days of presentencing credit. For the reasons that follow, we affirm the judgment of the trial court and order correction of the mittimus to reflect 1,213 days of presentencing credit.
¶ 3 On July 16, 2006, the State charged defendant with the following offenses: (1) first degree murder of Qamont Parr; (2) attempted aggravated vehicular hijacking; and (3) unlawful use of a weapon by a felon. The case proceeded to a jury trial.
¶ 4 At the conclusion of opening statements, the trial court asked defendant to approach the bench because it wanted to have a conversation with him. The trial court asked defendant if he understood that his counsel, during opening statements, almost admitted that he was out on July 16, 2006 to hijack a vehicle. Defendant stated that he understood his counsel's remarks, that he discussed the remarks with counsel ahead of time and that counsel made the remarks with his permission. The State then called its first witness.
¶ 5 Darren Crowder testified that he is a Chicago police officer assigned to the tactical team of the 7th District of the Chicago police department. At approximately 3:20 a.m. on July 16, 2006, Crowder, who was not on duty, was backing his vehicle into the carport located behind his house after returning from J&J's Fish Market. On that day, Crowder drove a silver 2005 Dodge Magnum XXT. It had 22-inch Feroni chrome rims, which had a retail value of approximately $2,500. As Crowder backed his vehicle into the carport, he saw a green minivan that he did not recognize as belonging to a neighbor drive slowly past his carport and he saw the driver look in his direction and then face forward. Crowder saw red brake lights illuminate on a garage just to the north of his carport. At that time, Crowder reached to grab his service weapon along with his food. Approximately three seconds later, Crowder saw a man, who was later identified as Qamont Parr, walk around the garage that had the red brake lights illuminated on it. Parr approached the driver's side of Crowder's vehicle and pointed a black handgun at him. When that occurred, Crowder was seated in the driver's seat of his vehicle with the door partially open, which he then kicked, hitting Parr and causing him to fall to the ground. Crowder announced that he was a police officer, and Parr fled. Crowder could not see Parr so he proceeded to look for him. As he was looking for Parr, another man, who was later identified as defendant, began walking down the alley pointing a silver gun at Crowder, who heard the gun click. Defendant racked the gun three times, which means that the upper receiver was pulled back to either dislodge a round or put a round in the gun's firing chamber. After defendant racked the gun the last time, he pointed it at Crowder and he continued to run toward Crowder's vehicle. Crowder announced that he was a police officer and put his gun in the opening between the inside of the vehicle and the door. Defendant exclaimed "Oh, shit" and began to run. Crowder then saw Parr, who at that time was crawling on all fours to the alley and garage that he came from originally. Crowder exited his vehicle, ran to the middle of the alley and announced that he was a police officer and told them to stop. Parr and defendant were running parallel to each other and on opposite sides of the alley. Parr then turned in Crowder's direction and pointed a weapon in his direction. Crowder testified that because he feared for his life, he discharged his weapon twice in Parr's direction. Crowder then saw defendant turn and point the silver handgun in his direction. Crowder discharged his weapon over 10 times in defendant's direction. Crowder saw Parr run a little farther and then turn east into some bushes while defendant hobbled and continued to run south down the alley.
¶ 6 Crowder saw the green minivan turn eastbound onto 72nd Street from the end of the alley. Crowder ran through a gangway and came out onto Champlain Street to see if Parr was there. Not seeing anyone, Crowder ran back through the gangway toward the alley. Before walking farther down the alley, Crowder stopped at his vehicle to reload his weapon. He then walked down the alley shouting "Could you come out, police, come out, come out, come out, police." No one came out.
¶ 7 Crowder next called 911 stating that he is an off-duty police officer who was just involved in a shooting and some individuals tried to hijack his vehicle. After police officers and detectives arrived at the scene, Crowder spoke with them. A detective asked Crowder to escort him to the location where he saw Parr enter into the bushes. When they arrived near the bushes, Crowder saw Parr lying on his back. Crowder told the detective "That is the guy that I [sic] first came around the car holding the black handgun at me."
¶ 8 During cross-examination, Crowder stated that he had been a police officer for six years when the incident occurred in July 2006. While at the police academy, Crowder received training on how to identify different types of guns. Crowder's service revolver was a semiautomatic Baretta that held 16 bullets. Crowder acknowledged that defendant never discharged a round, but he heard the click from defendant's weapon and he racked the gun three times. Crowder stated that he told the two Chicago police officers who responded to the scene that defendant pointed his weapon at him, pulled the trigger and racked it. After Crowder announced that he was a police officer, defendant said "Oh, shit" and attempted to shoot him. Defendant then ran south down the alley. Crowder walked into the alley and discharged his weapon at the men running down the alley after they turned and pointed their weapons in Crowder's direction, but Crowder did not hear any shots fired. Crowder discharged at least 10 bullets in Parr's and defendant's direction and later learned that he shot Parr twice. When asked whether he told the Chicago police department investigator that defendant attempted to fire a weapon at him, Crowder responded that he did tell people, including investigators, police officers and detectives, that defendant pulled the trigger, racked the weapon and pointed it at him.
¶ 9 Officer Zuniga testified that at approximately 3:30 a.m. on July 16, 2006, he was in plain clothes riding in an unmarked vehicle with his partner. He received an assignment to go to the 7100 block of South Champlain, and once he arrived, he was told that shots were fired by the police and the possible armed offender ran southbound. Officer Zuniga's assignment was to search every house and yard for the possible offender. He walked through a gangway and opened the door to a fence at the end of the gangway. After opening the door, he saw Parr approximately five feet away lying on the ground, partially under a vehicle, near the front passenger's side by the tire. As Officer Zuniga approached Parr, he saw blood on his T-shirt, so an ambulance was requested. When the ambulance arrived, Officer Zuniga placed Parr in custody and went with him to Christ Hospital.
¶ 10 Carl Brasic is a forensic investigator with the Chicago police department. Brasic testified that at approximately 3:50 a.m. on July 16, 2006, he received an assignment to process a scene at 7108 South Champlain. When Brasic first arrived at the scene, he spoke with the assigned detectives to determine what occurred. He then walked through the area and recovered seven fired cartridge cases belonging to a 9-millimeter caliber in the rear of 7107 to 7109 South Lawrence. He also recovered a blood stained t-shirt in the rear of 7120 South Champlain near the front passenger tire of a 1995 Pontiac Grand Am. While at the scene, Brasic did not recover any weapons, but he recovered a loaded 9-millimeter Baretta from Crowder at the area two police station.
¶ 11 Officer Robert Cummings testified that he was on duty on July 16, 2006, and was assigned to conduct a weapon search in the area of the 7100 block of South Champlin. Officer Cummings located a dark-colored, four-door Pontiac Grand Am parked in a carport where Parr was previously located. Lying on his back, Officer Cummings felt under the vehicle's grill area and found a black semiautomatic gun. Officer Cummings set the gun on the ground and called the evidence technician to recover it.
¶ 12 Raymond Jaster is a forensic investigator with the Chicago police department. Jaster testified that he was on duty on July 16, 2006, and received an assignment to process the scene at 7108 South Champlain. Jaster and his partner recovered three expended shell casings in the alley at 7107 South Lawrence. Jaster's partner also recovered the black semiautomatic .40-caliber gun that was placed in front of the black 1995 Pontiac. The semiautomatic gun was unloaded and the magazine was empty. After arriving at the police station, Jaster and his partner took swabs of the weapon for DNA. From the swabs, Parr could not be excluded from having contributed to the male profile identified from the swabs of the weapon.
¶ 13 Rich Glenke is a detective with the Chicago police department. Glenke testified that on July 16, 2006, he worked in the violent crimes area of the police department and received an assignment to assist in a shooting at 71st and Champlain. At approximately 6 a.m., he received another assignment to go to St. Bernard Hospital and meet with defendant. Defendant told Glenke that he was standing on the corner at 60th and Indiana when a black vehicle approached. Individuals in the vehicle asked defendant if they could buy some weed from him, and then they just began shooting. Glenke left defendant's hospital room, but later returned with Detective Ford and Detective Weber. Detective Ford read defendant his Miranda rights. The detectives told defendant that he lied about how he was shot. The detectives told defendant that an individual got shot at 71st and Champlain and that defendant was trying to rob a Chicago police officer. Defendant said yes, he was in a van earlier that evening with Parr and a person named J.T., and they saw Crowder at J&J's Fish Market. Parr liked the rims on Crowder's vehicle and said "let's jack dude." Glenke asked defendant what "jack dude" meant, and he responded that it means "let's rob him -- let's take the rims from the Chicago police officer." Defendant stated that he gave Parr the following response: "yeah, and that car has a hemi." Defendant then told Glenke that they decided to follow Crowder to his alley on 71st and Champlain. According to the defendant, they followed Crowder in a van and passed him as he parked his vehicle. The van's driver stopped the van just past the officer's house. After the van stopped, defendant told Glenke that he and Parr exited the vehicle, and defendant noticed that Parr was holding a weapon in his hand. Parr and defendant went around a corner to "jack dude" when they heard Crowder yelling "Chicago Police, Chicago Police, I am the police." After hearing that, they took off running down the alley and shots were fired. Defendant ran to the end of the alley where the van was located, got in and told the driver to take him to the hospital because he had been shot. Defendant told Glenke that he knew Crowder was a Chicago police officer because he was shouting it as they approached him.
¶ 14 Aimee Stevens is a forensic scientist specializing in firearms identification and related examinations for the Illinois Department of Forensic Services Center in Chicago. The trial court found Stevens to be an expert in the area of firearms identification. From the 10 cartridge cases that she tested, Stevens concluded that they were fired from the 9-millimeter Baretta firearm. Stevens also examined the recovered black .40-caliber semiautomatic weapon and concluded that there were no unfired cartridges in the weapon's magazine or with the weapon.
¶ 15 During closing arguments, the State indicated that to sustain the charge of first degree murder, the jury "must find from the evidence beyond a reasonable doubt that the defendant or one for whose conduct he's legally responsible for, Qamont, Jerome, combined to do an unlawful act, such as commit attempted aggravated vehicular hijacking, and that the deceased was killed as a foreseeable consequence of the parties committing that unlawful act." The State continued by stating that it is very foreseeable for victims to fight back, which is what Crowder did when he was being "carjacked," and that "a person who has not initially, not initially provoked the use of force against him, has no duty to attempt to escape the danger before using force against the aggressor." The defense stated that "all of the physical evidence shows you that the aggressor at the time that Qamont Parr was killed is Darren Crowder." The defense continued by stating that once the danger was over, Crowder "didn't stop there. He continued until Qamont Parr was dead and until Correail Nash was shot twice. Without one of them firing a weapon in his direction.
As they ran down the alley trying to save their own lives. That's what the evidence in this case shows you. And that's truly undisputed."
¶ 16 Of the jury instructions offered by the State, defendant objected to the modified version of Illinois Pattern Jury Instructions, Criminal, No. 7.02 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 7.02) for felony murder, arguing that the instruction reduced the State's burden to show only attempt to commit aggravated vehicular hijacking and not that Parr's death resulted from the chain of events set in motion by the commission of that felony. The defense also objected to the State's offered Illinois Pattern Jury Instructions, Criminal, No. 24-25.06 (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 24-25.06) addressing the use of force because this was not a self-defense case. Defense counsel preferred the State's offered instruction of IPI Criminal 4th No. 24-25.06 over Illinois Pattern Jury Instructions, Criminal, No. 24-25.09X (4th ed. 2000) (hereinafter, IPI Criminal 4th No. 24-25.09X), which provides that a noninitial aggressor has no duty to attempt to escape danger before using force against the aggressor. The trial court tendered modified IPI Criminal 4th No. 7.02, IPI Criminal 4th No. 24-25.06 and IPI Criminal 4th No. 24-25.09X over defendant's objection.
¶ 17 During jury deliberations, the jury sent two notes to the judge asking two questions. The trial court read the questions in defendant's and counsel's presence. The first question asked the following: "Can we charge a lesser crime than first degree murder?" The parties agreed with the trial court's response, which was the following: "[Y]ou have all the evidence and the instructions on the law, please continue to deliberate." The second question, written on the self-defense instruction, asked the following: "Can this be considered as part of the charge consideration for first degree murder?" The trial court indicated to the parties that it did not understand the jury's question. The trial court offered the following response, which the parties did not object to: "The law that applies to this case is stated in the instructions which have been given to you. It is your duty to follow all of them."
¶ 18 At the end of deliberations, the jury found defendant guilty of attempted aggravated vehicular hijacking and first degree murder. The jury found defendant not guilty of unlawful use of a weapon by a felon. On November 9, 2009, defendant filed a motion for a new trial, which the trial court denied. On November 11, 2009, the trial court sentenced defendant to 32 years' imprisonment, with credit for 1,192 days spent in presentencing custody. On November 10, 2009, defendant filed a motion to reconsider the sentence, arguing that the sentence was excessive in light of his background and the nature of the offense. The trial court denied the motion to reconsider. Defendant timely filed this appeal.
¶ 20 A. Jury Instructions
¶ 21 Defendant contends that the trial court erred in tendering to the jury the modified felony murder instruction because based on the instruction, the jurors were charged with the responsibility of determining only whether defendant committed the attempted aggravated vehicular hijacking and not whether Parr's death was a foreseeable and direct consequence of the felony. Defendant claims that the instruction failed to clearly communicate to the jury that the State was required to prove that Parr's death was proximately caused by defendant's criminal conduct to find him guilty of felony murder beyond a reasonable doubt.
¶ 22 Defendant offered the following felony murder instruction:
"To sustain the charge of first degree murder, the State must prove the following propositions:
First Proposition: That Darren [Crowder] caused the death of Qamont Parr; and Second Proposition: That when Darren [Crowder] caused the death of Qamont Parr, the defendant was attempting to commit ...