Appeal from the Circuit Court of Cook County. 08 CR 16890 Honorable Nicholas Ford, Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Gordon
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justice Lampkin concurred in the judgment and opinion.
Justice Garcia dissented in part, with opinion.
¶ 1 Defendant Mark Anderson was charged by indictment with six counts of the first degree murder of Darryl Hart, two counts of the attempted first degree murder of Ozier Hazziez, and one count of aggravated discharge of a firearm for an incident that occurred on July 25, 2008. After a jury trial, defendant was convicted of all three charges, as well as two firearm enhancement allegations. On October 8, 2010, the trial court sentenced defendant to serve 20 years in the Illinois Department of Corrections for the first degree murder conviction, with a 25-year enhancement for the discharge of a firearm. Defendant was also sentenced to a consecutive 6-year term in prison for the attempted first degree murder conviction, with an enhancement of 20 years for the discharge of a firearm. Thus, defendant's consecutive terms amounted to a total of 71 years in the Illinois Department of Corrections.
¶ 2 On this direct appeal from the judgment of the trial court, defendant argues: (1) that the trial court erred when it instructed the jury regarding the firearm enhancements in a manner contradicting the directions of the drafting committee of the Illinois Pattern Jury Instructions, (2) that defendant's right to have the jury properly instructed was violated where the instructions for attempted first degree murder indicated "an individual" rather than the victim "Ortier Hazzier" specifically, and (3) that defendant is entitled to an additional 13 days of presentence credit.
¶ 3 For the following reasons, we find: (1) that the trial court did not err when it failed to instruct the jury on the firearm enhancements in the exact manner directed by the drafting committee, (2) that the trial court erred when it instructed the jury that the subject of the attempted first degree murder was "an individual" rather than the victim "Ortier Hazzier," and (3) that defendant is entitled to an additional 13 days of presentence credit.
¶ 6 Ozier Hazziez testified, on behalf of the State, that, on July 25, 2008, shortly after 2 o'clock in the morning, he went to Orbitz Submarine restaurant on 71st Street and Euclid Avenue after leaving his job as a hotel convention worker. Another man, who was not a restaurant employee, was also in the restaurant, talking on a cellular telephone. This man was later identified as Darryl Hart. After Hazziez placed his food order, three males, whom Hazziez did not know, entered the restaurant and placed a food order. Hazziez described the three men as a tall, skinny man; a short man; and a chubby man. At trial, Hazziez identified the "tall, skinny man" as defendant. Later, another "older" man entered the store, and Hazziez observed one of the first three men sell drugs to the older man inside the restaurant.
¶ 7 Hazziez testified that Hart, the man on the cellular telephone, began to argue with the three males, stating, "You don't belong around here. This is my area." Hazziez did not hear a response from the three men. Hazziez testified that he stepped outside, remained outside for a minute, and when he returned to the inside of the restaurant, the men were still arguing. Hazziez could not hear what the men were saying, other than the bickering about who sold the drugs. Hazziez testified that Hart subsequently stepped outside the store, followed by Hazziez, and later the "tall, skinny man," whom Hazzier identified as defendant. Hazziez testified that the "chubby man," whom he identified as Quentin Cooper, was outside, as well. Hazziez testified that Hart and defendant continued to argue outside. Hart then said, "You might as well shoot me," and Hazziez observed defendant shoot Hart. Hazziez testified that defendant was 5 feet away from Hart when defendant shot Hart and that he (Hazziez) was 10 feet away from defendant when the shots were fired. After Hart fell to the ground, Hazziez "took off in [his] car" and heard three more gunshots. He was not sure in which direction the shots were fired. Hazziez testified that defendant was wearing a jacket, and Hazziez identified the jacket in the store video surveillance introduced by the State at trial. He also testified that he did not observe a weapon on Hart.
¶ 8 Hazziez testified that, after the shooting, Hazziez drove for approximately 20 minutes, then exited his vehicle to check for bullet holes. He did not find any. Hazziez subsequently went to the police station, talked to the police, and viewed two photographic arrays. In the first photographic array, he identified the "short man" from the restaurant as Centrell Jackson. In the second photographic array, which included photographs of defendant, he was initially unable to identify anyone as being present at the restaurant. Three weeks later, Hazziez returned to the police station and viewed a physical lineup, during which he identified defendant as the shooter in the July 25 incident. At trial, Hazziez identified defendant in still photographs obtained from the restaurant's surveillance video.
¶ 9 Detective Sylvia Vanwitzenburg testified on behalf of the State that Hazziez identified Jackson as the individual with the shooter. She testified that, while viewing the second photographic array at the police station (the one in which defendant appeared), Hazziez stated that one of the individuals "looked familiar," but he was not "one hundred percent sure." Vanwitzenburg testified that Hazziez said that he would be able to identify the individual if he were to see him in person.
¶ 10 The State called Quentin Cooper as a witness. Cooper had known defendant for 12 years. Cooper testified that he was at Orbitz Submarine restaurant with defendant and another friend, Centrell Jackson, on July 25, 2008, at around 2 o'clock in the morning. Cooper testified that the three placed an order and sat in the restaurant, waiting for their food. Cooper was talking to a "young man," whose name he did not know. Cooper testified that he obtained his food and went outside to his vehicle, where he waited for Jackson to receive his food. Cooper claimed that "nothing happened" while he was there. Cooper testified that he and Jackson left with defendant and that he did not remember any type of shooting at the time. According to Cooper, after leaving the restaurant, his vehicle ran out of gas five blocks from the restaurant on 71st and Cornell Streets. Cooper testified that he and Jackson walked to a gas station, purchased gas, and walked back to his vehicle. Afterwards, Cooper drove Jackson home and then drove himself home. Cooper testified that he did not see defendant again that night and did not see him again until three weeks after the incident.
¶ 11 After Cooper's testimony, the State introduced a written statement, signed by Cooper, as well as Cooper's grand jury testimony as impeaching documents. At trial, Cooper testified that he provided a written statement and grand jury testimony because a detective with whom he met on August 13, 2008, forced him to. Cooper could not remember the name of the detective. Cooper claimed that the detective told him that, if he did not sign the papers, he would be charged with the murder of Hart. Cooper testified that he told the assistant State's Attorney (ASA) and testified at the grand jury to what the detective had coached him to say. At trial, the prosecutor read Cooper his statement, and Cooper responded that he did not recall everything in the statement and that he could not recall any of his grand jury testimony.
¶ 12 Cooper testified that he could not recall whether he had a gun in his vehicle on the night of the incident. He also testified that he did not know whether Jackson had drugs on him that night and that he did not dispose of a gun during the five-block drive. Defense counsel asked Cooper whether the reason he said that he had been threatened was because he was actually the one who had shot and killed Hart. Cooper responded "no" to this question. The defense also asked if the detective said he would "put [the murder] on [Cooper]" because he believed that Cooper was the shooter, to which Cooper again responded "no."
¶ 13 Chicago police detective Darryl Shaw testified on behalf of the State that in the early morning of August 13, 2008, he interviewed Cooper at the police station. He testified that he asked Cooper to tell him what he knew about the incident that transpired at Orbitz Submarine Restaurant. Shaw testified that he never coached or told Cooper what to tell the assistant State's Attorney. He stated that he never threatened to charge Cooper with murder of Hart if he did not testify a certain way. He also testified that Cooper was never under arrest.
¶ 14 An ASA testified on behalf of the State to the statement that Cooper provided him at the police station on August 13, 2008. The ASA testified that Cooper did not tell him that Detective Shaw had threatened to charge Cooper with the murder if Cooper did not make a statement or tell a certain story. Cooper also did not tell the ASA that Shaw told him what to say or that Shaw had coached him. The ASA told Cooper that he would like to write down what Cooper said in his statement and that Cooper would be able to review this statement and make any changes, corrections, or additions. Cooper agreed. When the ASA finished handwriting the statement, Cooper reviewed each page, making various changes and corrections, and the ASA, Detective Shaw, and Cooper signed the bottom of each page and initialed all the changes and corrections.
¶ 15 In the handwritten statement, Cooper stated that, on July 25, 2008, he was with defendant and Jackson during the early morning hours, and that around 2 or 3 o'clock in the morning, the three went to Orbitz Submarine restaurant. At this time, Jackson served as a "macbuddy," meaning someone who sells drugs to a drug user. Cooper stated that he believed Jackson sold drugs to a drug user because he heard a man he knew as "Sizzle" (Hart) make a statement about people "serving" (or selling drugs) outside the restaurant. Cooper stated that he knew Sizzle from grade school. According to Cooper's statement, Sizzle told Jackson and defendant, "Y'all can't be serving up in here. This ain't no free enterprise. There's a war going on." Cooper stated that he observed that defendant had a gun and stepped between defendant and Sizzle. He attempted to calm the situation by telling the three of them that it "was not worth it." Cooper stated that he believed that the situation was under control because defendant walked away. Cooper stated that he walked out of the shop, followed by Sizzle. Cooper stated that he apologized to Sizzle for the fact that Jackson "served" in the shop and that he did not observe any weapons on Sizzle. Cooper stated that, while he was outside, defendant walked out of the shop with "a look in his eyes that [Cooper] had never seen" and noticed that defendant had a gun out, pointing downward in his right hand. Cooper stated that he stepped between defendant and Sizzle once again, but defendant reached around him and shot Sizzle. Sizzle fell down with the first shot, and defendant fired two more times at Sizzle. Cooper stated that defendant then turned around and fired two shots at another man, who had been in the restaurant and who had been standing outside when defendant shot Sizzle. Cooper stated that, when defendant started to shoot the gun, Cooper yelled at him to stop. Cooper stated that after the shooting, defendant tried to enter his vehicle, and Cooper told him, "Get the f*** away from me. Don't jump in my car. Hell no." Defendant then ran around the corner. Jackson then exited the restaurant, and Jackson and Cooper left the scene.
¶ 16 Another ASA testified on behalf of the State that Cooper never stated that he had been threatened by Detective Darryl Shaw, neither while Cooper was alone with the ASA nor in front of the grand jury. The ASA testified that when he asked Cooper whether anybody had threatened him or forced him to speak to him, Cooper said, "No." The ASA testified that Cooper testified to the same version of events he gave in his written statement at the grand jury proceedings. The ASA testified that Cooper identified his statement for the grand jury and testified that no threats or promises were made to him when he made the statement.
¶ 17 Centrell Jackson also testified on behalf of the State. Jackson identified defendant as a person with whom he went to grammar and high school. Jackson testified that he was present at Orbitz Submarine restaurant with Cooper and defendant in the early morning hours of July 25, 2008. Jackson stated that he did not observe defendant shoot Hart. Jackson testified that "he got into an altercation outside the store with Hart." Jackson testified that the conflict took place due to Jackson selling two bags of crack cocaine, worth $20, on Hart's "turf." Jackson testified that the drug transaction was conducted in front of the restaurant and that the individual to whom Jackson sold the cocaine did not enter the store. Jackson testified that, when he entered the restaurant after the sale took place, Hart began to scream at Jackson. Jackson, Cooper, and defendant argued with Hart and a man with Hart, whom Jackson did not know. While Jackson was at the restaurant counter with defendant, defendant grabbed Jackson's food and left the restaurant. Jackson asked for his soft drink, and while he was waiting for it, he heard three or four shots fired. Jackson testified that, after the shots were fired, he stood inside the store for a few minutes, then walked outside, where he observed Hart lying on the ground. Jackson testified that he did not observe Hart with any kind of weapon. He testified that Cooper was also outside, but defendant was not. Cooper told Jackson to enter the vehicle with him, and the two drove home.
¶ 18 Officer Janick testified on behalf of the State that, on July 25, 2008, he was working with his partner, Office Bruno, when he was asked to assist with the investigation and viewed a surveillance video from the restaurant. He identified defendant and Jackson on the video and gave their names to Detective Shaw. Janick testified that he encountered defendant, Jackson, and Cooper on August 12, 2008, and placed defendant in custody and brought him to the police station. Defendant did not resist arrest.
¶ 19 Forensic scientist Carl Brasic testified on behalf of the State that he investigated the crime scene on East 71st Street in the early morning hours of July 25, 2008. While searching for evidence of fired bullets, he found one metal fragment and five fired cartridge cases on the sidewalk. He collected the evidence with gloved hands and placed them in evidence envelopes, assigning inventory number 11370507 to the five fired cartridge cases, and inventory number 11370473 to the metal fragment. Additionally, Brasic testified that he recovered a green and yellow "Athletics" jacket, which he recovered with gloved hands, placed in a paper bag, and assigned inventory number 11370508. Brasic testified that he also found a package of cigars and five loose cigarettes in the right outside pocket of the jacket, which he inventoried under number 11370510. At trial, Brasic viewed the evidence and stated that each item was sealed and in the same condition as when he originally recovered it.
¶ 20 Forensic scientist Cynthia Engelking Prus testified on behalf of the State that she was an expert in fingerprint analysis. She testified that she tested the five cartridge cases for fingerprints and determined that there were no latent impressions suitable for comparison. She then tested a matchbook, a package of cigars, and five cigarettes. Prus testified that she found a latent print suitable for comparison on one of the cigarettes. She compared the latent print to an inked palm print card marked "Mark Anderson." Prus opined, based on a reasonable degree of scientific certainty, that the print on the cigarette matched the inked print for defendant.
¶ 21 The parties stipulated that forensic scientist Scott Rochowicz of the Illinois State Police was qualified as an expert in the field of trace evidence. It was stipulated that, if called to testify, Rochowicz would testify that he tested the Athletics jacket for gun residue, taking samples from the right and left cuffs. The results indicated that the sample areas "may not have contacted a PGSR [primer gunshot residue] related item or may not have been in the environment of a discharged firearm."
¶ 22 The parties also stipulated that the cause of death of Hart was multiple gunshot wounds and that the manner of death was homicide. The parties also stipulated that the paramedics recovered nine clear plastic bags containing cocaine from Hart's mouth. The parties stipulated to the testimony that the bullets ...