Appeal from the Circuit Court of Cook County No. 08 CR 8348 Honorable James Michael Obbish, Judge Presiding.
The opinion of the court was delivered by: Justice Murphy
JUSTICE MURPHY delivered the judgment of the court, with opinion. Justice Neville concurred in the judgment and opinion.
Justice Salone concurred in part and dissented in part, with opinion.
¶ 1 Following a bench trial, defendant Christopher Hardin was found guilty of two counts of aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer and one count of aggravated discharge of a firearm. Defendant was sentenced to two 10-year terms of imprisonment for aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer and one 8-year term for aggravated discharge of a firearm, to run concurrently. On appeal, defendant contends that he was denied a fair trial before an unbiased trier of fact where the judge determined his guilt of aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer before he testified and that one of his convictions for that crime must be vacated pursuant to the one-act, one-crime doctrine. For the reasons that follow, we vacate one of defendant's convictions for aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer and affirm in all other respects.
¶ 3 Defendant was charged with multiple crimes for allegedly firing a gun in the direction of John Sharp and a vehicle occupied by two Chicago police officers on April 16, 2008. The State proceeded to trial on two counts of attempted first degree murder of a peace officer, one count of attempted first degree murder, two counts of aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer, one count of aggravated discharge of a firearm, and two counts of aggravated unlawful use of a weapon.
¶ 4 At trial, Chicago police officer Christopher Findysz testified that about 3:22 p.m. on April 16, 2008, he was on patrol in an unmarked police vehicle with his partner, Officer Sean Insley, in the vicinity of 65th Street and Cottage Grove Avenue. Officer Findysz explained that the police vehicle had municipal "M" license plates on the front and back and further testified that it looked like a regular blue and white squad car except that it was gray and had no lights on top. Officer Findysz testified that he saw Sharp running west on 65th Street and that the officers followed him as he turned north and ran down an alley. As they did so, Officer Findysz heard multiple gunshots that sounded as though they had been fired from his north and a little to his east. Officer Findysz could not see where the shots came from because there were buildings to his east blocking his view. As the officers continued to follow Sharp down the alley, Officer Findysz saw defendant fire two shots at Sharp with a handgun from a vacant lot to the east of the alley and north of the buildings that had previously blocked his view. Officer Insley turned the vehicle and proceeded toward defendant, who looked at the officers and ran away. Shortly after he began to flee, defendant turned toward the officers and fired his handgun one time at them while they were about 25 or 30 feet away. Defendant continued to run away and dropped his gun on the ground next to a car, and Officer Findysz exited the vehicle and pursued defendant on foot until he apprehended him and placed him in custody. As he was being arrested, defendant told Officer Findysz that he had not meant to shoot at the officers.
¶ 5 Officer Insley testified that about 3:22 p.m. on April 16, 2008, he was following Sharp down an alley near 65th Street and Cottage Grove Avenue in an unmarked police vehicle with Officer Findysz when he heard gunshots coming from his north and east. Officer Insley could not see who fired the shots because his view was blocked by buildings to his east. The officers continued to follow Sharp, and Officer Insley observed defendant firing a handgun at Sharp from a vacant lot. Officer Insley turned the vehicle and began to follow defendant, who looked at the officers and fired his gun at them one time as he ran away. Defendant dropped his gun as he ran, and Officer Findysz exited the vehicle and pursued him on foot. When Officer Insley heard over the radio that defendant had been placed in custody, he returned to the location where defendant had dropped his gun, but could not find it. On cross-examination, Officer Insley stated that he later discovered a gun with a partially ejected magazine on a rooftop near Sharp's apartment, which was a little north of the vacant lot where the shooting had occurred.
¶ 6 Chicago police detective Neil Maas testified that he met with defendant on the evening of April 16, 2008, and presented him with a reverse lineup identification from which he identified Sharp as the man at whom he had fired his gun earlier that day. On cross-examination, Detective Maas stated that defendant told him that he was not shooting at the police and that he was firing his gun because he saw someone shooting at him. On redirect examination, Detective Maas testified that defendant also told him that he had fired several shots at Sharp in the alley, but did not think he had hit him, and that he did not see a handgun in Sharp's possession and nobody shot at him.
¶ 7 The State rested its case, and the defense moved for a directed finding. The trial court granted a directed finding of not guilty as to attempted first degree murder of a peace officer and attempted first degree murder, but denied defendant's motion as to all other counts. The defense then began its case-in-chief, and the parties stipulated that, if called, Chicago police officer Peter Larcher would testify that on April 16, 2008, he recovered a 9-millimeter Luger cartridge case from a vacant lot at 6444 South Cottage Grove Avenue and a Mack model 1950 semiautomatic pistol from a garage roof at that same address. The parties further stipulated that, if called, forensic scientist John Laskamp would testify that he examined the cartridge case and pistol recovered by Officer Larcher and concluded that the cartridge case had been fired from the pistol.
¶ 8 Defendant testified that he did not fire a weapon at the police on April 16, 2008, and that he fired a handgun from a vacant lot at 6444 South Cottage Grove Avenue that afternoon because he had heard some gunshots and felt he needed to protect himself. On cross-examination, defendant stated that he saw Sharp near 65th Street and Cottage Grove Avenue on the afternoon of April 16, 2008. Defendant had previously been in fights with Sharp's friends, and Sharp began running down 65th Street as he approached the area, then turned down an alley. Defendant stated that he ran to a nearby vacant lot to see which way Sharp was running, but later testified that he had started to chase Sharp because he wanted to fight him and that he was trying to cut him off by running through the vacant lot. While in the lot, defendant heard two or three gunshots and then fired his gun in the direction from which it sounded like the shots had been fired, which was in the same direction as Sharp.
¶ 9 Defendant also stated on cross-examination that he saw the vehicle following Sharp after he had fired his gun and explained that he had seen that type of car before and knew it belonged to police officers, but did not know that particular vehicle was a police car because he did not see the municipal license plates and he had seen taxicabs that were the same make, model, and color. Defendant explained that he had begun running away after he fired his gun and before he saw the police vehicle and that he did not turn around and fire the gun even though it was still loaded. Defendant also stated that he realized he was being chased by the police when one of the officers exited the vehicle and that he had already dropped his gun in the vacant lot by that point because he did not want the gun in his hand while he was running. Defendant explained that he did not know that the vehicle following Sharp was a police car based on its sound, but could tell that it had a big engine and figured whoever was driving it must be someone he did not want to see. Defendant further stated that he provided Detective Maas with a handwritten statement on April 17, 2008, and that although the statement reflected that he had said that he knew the vehicle was a police car because he recognized its sound, he did not remember saying that.
¶ 10 The trial court found defendant guilty of aggravated discharge of a firearm in the direction of Sharp and aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer and merged both counts of aggravated unlawful use of a weapon into those convictions. In its finding of guilt, the trial court stated that it was finding defendant guilty of aggravated discharge of a firearm in the direction of Sharp because he had "basically admitted" to committing that crime in his testimony where he admitted firing a gun at Sharp. The court then addressed the two counts of aggravated discharge of a firearm in the direction of a vehicle known to be occupied by a peace officer and found that the State had proved beyond a reasonable doubt that defendant had fired his gun at the police car and that the only remaining issue was whether he knew it was a police vehicle when he did so.
¶ 11 On this issue, the court first stated that "we have the defendant's own testimony wherein he on two occasions said that he was aware that the kind of vehicle that was at issue in this particular case is the kind of vehicle that the Chicago Police Department uses" and that such testimony helped prove that defendant knew the vehicle at which he fired his gun was a police car. The court also stated that defendant's testimony that he did not fire his gun at the vehicle was "completely unbelievable" and that defendant was "entirely lacking in credibility on that particular issue." The court then stated that it found Officer Findysz to be a credible witness, noted the testimony showing that defendant ran away from the police vehicle and was armed when he did so, and reasoned that defendant must have known the vehicle was a police car because he otherwise would have had no reason to run. The court also noted the evidence showing that defendant threw away his gun as he fled and reasoned that he must have known the vehicle was a police car because he would have wanted to maintain possession of his gun unless he had decided to throw it away ...