Appeal from the Circuit Court of Cook County No. 04 CR 18171 Honorable Joseph G. Kazmierski, Jr., Judge Presiding.
The opinion of the court was delivered by: Presiding Justice Lampkin
PRESIDING JUSTICE LAMPKIN delivered the judgment of the court, with opinion. Justice Palmer concurred in the judgment and opinion.
Justice Robert E. Gordon dissented, with opinion.
¶ 1 After a jury trial, defendant Seneca Smith was found guilty of two counts of attempted first degree murder of a peace officer and two counts of aggravated discharge of a firearm. He was sentenced to a total of 55 years in prison.
¶ 2 On appeal, he contends that: (1) the State failed to prove his guilt beyond a reasonable doubt because the police officers' testimony was not credible and was contradicted by the physical evidence; (2) during closing argument, the State misstated and distorted the evidence and made improper suggestions; (3) defendant was denied effective assistance of trial and posttrial counsel; (4) defense counsel improperly coerced defendant to waive his right to testify; (5) the trial court erroneously instructed the jury about other offenses over defendant's objection; (6) the trial court failed to properly instruct the venire on fundamental principles of law; (7) the 20-year sentence enhancement imposed on defendant was improper under the statute; and (8) the number of defendant's presentence custody days should be corrected on his mittimus.
¶ 3 For the reasons that follow, we affirm defendant's conviction and sentence and order the correction of the mittimus.
¶ 5 The State arrested and charged defendant Seneca Smith with attempted first degree murder of Chicago police officers Calvin Chatman and Dwayne Collier, aggravated discharge of a firearm, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon, alleging that, on June 27, 2004, defendant shot at the officers with a handgun.
¶ 6 At the trial in October 2007, the State presented the testimony of Officers Chatman and Collier. According to the officers' testimony, on June 27, 2004, they were assigned to go to the 5300 block of West Congress Parkway and conduct surveillance on a red Chevy Caprice, which was believed to contain guns and drugs that were associated with a shooting that had occurred on that block earlier that day. Officers Chatman and Collier went to that location in a covert van. Officer Chatman was in the driver's seat, and Officer Collier was in the front passenger seat. They were in civilian dress and wore their police badges on chains around their necks. Officer Chatman was armed with a Sig Sauer 9-millimeter semiautomatic handgun with Luger hollow-point ammunition. Officer Collier was armed with a Smith and Wesson 9-millimeter semiautomatic weapon.
¶ 7 At about 10:30 p.m., the officers arrived on the block and parked their van facing westbound in front of 5310 West Congress Parkway, on the north side of the street. They were approximately five houses west of the intersection of Congress Parkway and Lockwood Avenue. The 5300 block of Congress Parkway is a one-way street for westbound traffic. Meanwhile, east of Officers Chatman and Collier's van, uniformed Chicago police officers Lacey Harris and Hymie Robertson were near the intersection of Congress Parkway and Lockwood Avenue. Officers Harris and Robertson's marked squad car was parked and facing southbound. They were at that location on a different assignment; they had responded to the shooting at 7:30 p.m. that day on the 5300 block of West Congress Parkway and were waiting for a tow truck to remove a vehicle allegedly involved in that shooting.
¶ 8 The red car under surveillance by Officers Chatman and Collier was parked on the south side of West Congress Parkway, approximately four or five houses west of the officers' van. The street lights were on, and other people were on the street, including a man watering his lawn, another man retrieving items from the trunk of his car, and a couple on the porch at 5310 West Congress Parkway. There was a group of 6 to 10 black males on the north side of the street about seven or eight houses to the west of the officers. One teen broke away from that group, approached the officers' van, and stopped directly in front of 5310 West Congress Parkway. He folded his arms and stared at the van. He stood parallel to the van's passenger-side door for 10 to 20 seconds and then walked back to the crowd and started to talk demonstratively and wave his hands. Then, he backed away from that crowd and pointed directly at the officers' van.
¶ 9 Within seconds, defendant came out of that crowd and walked east on the sidewalk, on the north side of the street, toward the van. Officer Chatman could not see both of defendant's hands as he walked towards the van. Defendant's right hand was underneath his jersey, so Officer Chatman unholstered his gun and held it in his right hand. He warned Officer Collier, who was using his cellphone, holding it about 10 inches in front of his chest while speaking into the speaker phone. Officer Chatman also pulled his badge out from beneath his jersey and draped it on his chest.
¶ 10 When defendant was approximately one house away from the van, his walk became a slight jog toward the van's passenger-side door. His hand was still underneath his jersey and he said,"What the fuck you niggers want, what you niggers on," and "What you doing here." Officer Chatman responded, "Relax, we're the police." Defendant constantly turned his head to look eastward to the intersection of Congress Parkway and Lockwood Avenue and then back to Officers Chatman and Collier. Defendant looked eastward one more time, said, "Fuck that," and raised a black-colored handgun in his right hand to the right side of Officer Collier's face. Officer Chatman extended his right hand, placed his knuckles into Officer Collier's chest area, and fired his gun twice in the direction of defendant.
¶ 11 Defendant went to the ground, and the officers exited the van. Defendant got up and ran westbound on the north side of the street. Officer Collier yelled, "Police, stop, " and chased him. Meanwhile, Officer Chatman ran parallel to them in the middle of Congress Parkway. Officer Collier continued to announce his office, and defendant ran in a southwesterly manner onto the street. Defendant turned and pointed his gun in his right hand in the direction of Officers Collier and Chatman and fired. Officer Collier testified that defendant fired once or twice, and Officer Chatman testified that he heard two gunshots. Although defendant was facing south, his upper body was twisted so that his arm was facing east. Officers Chatman and Collier veered back to the north side of the street but kept running westbound, and Officer Collier fired two gunshots at defendant.
¶ 12 Defendant ran to a building at 5331 West Congress Parkway and tried to force the door open with his right shoulder. Officer Collier took cover behind a large tree on the south side of the street at that address. Officer Chatman also took cover nearby behind a vehicle on the south side of the street. Officers Chatman and Collier testified that there was not a group of girls or civilians in the doorway of 5331 West Congress Parkway. Then, defendant pointed the gun in his right hand in the direction of Officer Collier, who fired two more gunshots. At that time, the door opened and defendant fell or went inside the dark vestibule. Officers Chatman and Collier never saw defendant throw or drop the gun during the entire incident.
¶ 13 Officer Collier cautiously approached the door with his gun drawn and went into the vestibule. He looked through an open doorway to a basement apartment and saw defendant lying at the bottom of the steps. At that point, Officer Collier heard women in the basement yelling and screaming. Officer Chatman testified that he heard people screaming after defendant entered the basement door, but he was not certain about the address from which the screams had emanated. Officer Collier went back outside and ran eastbound down the block to get assistance. He was met by Officer Robertson, and they returned to 5331 West Congress Parkway and stood in the street as more police cars started to arrive at the scene. Meanwhile, Officer Chatman returned to the van and drove around the corner to cover the back of 5331 West Congress Parkway to prevent anyone from leaving. Other officers, however, had arrived at the scene, so Officer Chatman directed them down the alley and then returned to the front of the building. When Officers Chatman and Collier met at the front of the building, they embraced, inquired into each other's well-being, and cried. The officers learned later that a bystander in the building, Chantel Davidson, had been hit by a bullet during this incident.
¶ 14 Fifty-six-year-old Jerry Blakes testified that he lived on the 5300 block of West Congress Parkway. At the time in question, he was cleaning glass out of his car, which had been damaged by the shooting earlier that day. He heard some noise and saw a policeman walk past with a badge around his neck. A few seconds later, the officer hollered, "police, police." Blakes did not see anyone else running on the street that evening and did not hear any gunfire.
¶ 15 Chicago police officer Paul Presnell was a forensic investigator. He and his partner arrived at the scene about 11:55 p.m. and processed the scene. They did not administer a gunshot residue test to defendant because he had already been taken to the hospital for medical treatment. At 5331 West Congress Parkway, there were two bullet holes in the glass of the front door. Blood and a metal fragment were on the vestibule floor, and blood was on the basement floor. Outside, they searched for evidence, starting on the eastern part of the block and moving west. They found 15 pieces of firearms evidence, placed numerical markers by the evidence and photographed the evidence. That evidence included 10 fired cartridge cases, 2 fired bullets, and 3 metal fragments. Concerning the fired cartridge cases, they recovered four Speer 9-millimeter Luger cartridge cases, two CBC 9-millimeter Luger cartridge cases, and four R & P 45 auto cartridge cases. For each piece of firearms evidence, Presnell testified concerning where it was recovered by reference to the nearby residential address and whether it was found on the street, grass or sidewalk.
¶ 16 After the investigators left the scene, they were called back about 45 minutes later to recover a Ruger 9-millimeter semiautomatic pistol from under a bush in front of the residence at 5318 West Congress Parkway. The scene was no longer taped off or secured. The gun had 1 live round in the chamber and 11 live rounds in the magazine. They also recovered from 5316 West Congress Parkway a fired S & B 9-millimeter Luger cartridge case. At 5324 West Congress Parkway, they recovered a fired R & P auto cartridge case. At 5328 West Congress Parkway, they recovered a fired Speer 9-millimeter Luger cartridge case. From a van located at 620 South Lockwood Avenue, they recovered one fired cartridge case and broken glass. They looked for, but did not find, blood on other parts of the street.
¶ 17 Tonia Brubaker, of the Illinois State Police forensic science command, testified as a firearms expert. She explained the process of firearms identification and had compared the cartridge cases and bullet fragments recovered in this case with the Ruger handgun that was found under the bush, Officer Collier's Smith and Wesson handgun, and Officer Chatman's Sig Sauer semiautomatic handgun. The Ruger was loaded with 11 unfired 9-millimeter Luger caliber cartridges and 1 in the chamber. She concluded that two 9-millimeter Luger cartridge cases, a bullet jacket fragment, and two other fragments were fired from the Ruger firearm. Moreover, four Speer 9-millimeter Luger cartridge cases and one bullet fragment were fired from Officer Collier's Smith and Wesson handgun. In addition, two Speer 9-millimeter Luger caliber fired cases were fired from Officer Chatman's Sig Sauer firearm.
¶ 18 Brubaker had received other cartridge cases, bullets and fragments in this case that did not match any of the three guns in this case. However, the Ruger also matched evidence from the shooting earlier that day on the same block. There were a total of 6 cartridges that were fired from the Ruger, which holds up to 17 bullets, and Brubaker had received a total of 12 unfired cartridges with the Ruger, which meant that the Ruger had been reloaded.
¶ 19 Davere Jackson was formerly employed by the Illinois State Police. She testified about her education, qualifications and experience, and the trial court, without any objection from the defense, found her qualified to testify as a DNA analysis expert. She briefly explained DNA and forensic DNA analysis to the jury and stated that the testing methods used in this case were generally accepted in the scientific community. She testified from her report that she had generated a DNA profile from defendant's sealed buccal standard and compared it with two sets of swabs that were collected from the Ruger firearm. Concerning the first set of swabs, which were collected from the left-side handle, trigger guard, magazine release and hammer spur of the Ruger, Jackson identified a mixture of human DNA profiles, which she interpreted as having been contributed by at least two people. It was a low level mixture, which meant that there was not enough DNA to make a full match with the standard. Due to the low level of DNA, the sample could not be used to differentiate between one person and another; it could only be used to exclude someone. Jackson stated that because there was an inconclusive result, no conclusion could be drawn as to whether or not defendant could have contributed to the mixed profile from the first set of swabs.
¶ 20 Concerning the second set of swabs, which were collected from the right-side handle, safety lever, trigger guard and butt of the Ruger, Jackson identified a mixture of human DNA profiles, which she interpreted as having been contributed by two people. She compared that mixture to defendant's DNA profile and concluded that he could not be excluded from having contributed to the mixture. It was a partial profile. Jackson looked at 10 areas on the DNA and was able to generate 6 of the 10 areas from the second set of swabs but 4 were missing. In addition to looking at areas, she also looked at the amounts, which was how she was able to do her interpretation. She was able to conduct a calculation to estimate how common or rare the mixture of DNA profiles were in the general population and concluded that approximately 1 in 11 black unrelated individuals could not be excluded from having contributed to that mixture; 1 in 21 white unrelated individuals could not be excluded from having contributed to that mixture; and 1 in 11 Hispanic unrelated individuals could not be excluded from having contributed to that mixture. Thus, of blacks, 9% of the population were included as contributors and 91% were excluded. Defendant was not excluded.
¶ 21 Jackson explained why frequencies among the populations can appear to be low. Fourteen areas on the DNA are looked at to determine statistics through frequencies, but this case involved a very low level of DNA and a mixed sample. Consequently, Jackson had to use everything she saw in the mixture, and she only saw things at six areas of the DNA. A calculation of frequencies of only six areas with several different DNA alleles lowers the statistical value of the calculation. Although Jackson did not have an expert opinion as to whether or not defendant could have handled the Ruger, Jackson testified that based on the results of her testing, it was possible that defendant could have handled the Ruger. She testified that factors which affect the transfer of DNA from skin to an object include whether the skin was broken, if there was a cut, how long the skin was in contact with the surface, if there was rough handling, and whether the subject's hands were clean.
¶ 22 Assistant State's Attorney (ASA) Catherine Gregorovic testified that on the evening of June 28, 2004, Katrina Robinson agreed to give a handwritten statement. According to the statement, Robinson was going to the store on June 27, 2004 at about 3 p.m., but she stopped at Van Buren Street and Central Avenue to listen to what her friend and defendant were saying. Defendant lifted up his shirt and showed Robinson's friend a gun. Furthermore, during the shooting at issue on appeal, Robinson was already in the vestibule when defendant pushed his way into the hallway, and Robinson could not see what was happening because she was pushed against a wall. Robinson gave her statement voluntarily, she had no complaints about her treatment, and her mother was present the entire time.
¶ 23 ASA Karin Swanson testified that she presented Robinson to the grand jury on July 7, 2004, and Robinson's testimony was completely consistent with the handwritten statement she had given to ASA Gregorovic.
¶ 24 Katrina Robinson testified that she was 15 years old in 2004 and knew defendant from her neighborhood. She did not remember seeing him lift his shirt or whether he was alone or with somebody else. Initially, she said she did not remember speaking to an ASA on June 28, 2004, but later admitted that she read over her statement and signed it. She said she did not remember telling the ASA the things that were in her statement, but even if she had said those things, she "was trying to get them up out of [her] face." When she was asked if she had said in her handwritten statement that no threats or promises were made to her, she said, "I probably did, but that don't mean it was true." When she was asked specific questions about her grand jury testimony, she responded either, "I don't remember," "I guess," or "Lie."
¶ 25 On cross-examination, Robinson said she was outside of 5331 West Congress Parkway when the police were out there and defendant was shot. After the shooting, she gave a statement at the police station but she was very tired. She asserted that, contrary to her written statement, she did see what was happening in the hallway at 5331 West Congress Parkway and defendant did not have a gun when the police were shooting at him.
¶ 26 The parties stipulated that Chantel Davidson was treated at the hospital on June 27, 2004 for a gunshot wound, and a bullet was removed from her upper back. The parties also stipulated that defendant was treated "for multiple gunshot wounds to the chest, a gunshot wound to the arm, and a gunshot wound to the leg." Furthermore, a "lodged bullet was removed from [his] left upper back." Photographs of Davidson and defendant as they appeared at the hospital were submitted into evidence.
¶ 27 For the defense, 19-year-old Shanice Wooden testified that her family lived at 5314 West Congress Parkway at the time of the shooting. On that day at about 7 p.m., she was sitting with three people in a car across the street from her house. They were listening to music, and the car windows were down. Shanice's brother Sean was sitting on their grandmother's van. Shanice's sisters were on the porch, and her mother, Dora Wooden, was on the upstairs balcony. Then, Teddy and two other males came around the corner of Congress Parkway and Lockwood Avenue. One of the males called Sean over to them, but Dora Wooden told him to run because the men had guns. Teddy had two guns, and the two males both had a single gun. Sean, who did not have a gun, ran, and the three males chased him and fired their weapons. Sean was shot in the back by Teddy on the north side of the street a few houses away from 5314 West Congress Parkway and fell paralyzed onto the grass.
¶ 28 Shanice testified that Teddy dropped one of his guns, and he and the other two shooters ran into a crowd of people and blended in. Shanice picked up Teddy's gun and chased the three men. When she got to the end of the block, a police officer ordered her to stop. She dropped the gun, and the police recovered it. She never fired the gun. Shanice was arrested and questioned by the police at the station. She was released the next morning and never charged. She never saw defendant on the street at the time Sean was shot. She had spoken to defendant a couple of times, and Sean and her mother, whom defendant called Cookie, had also spoken to defendant. Sean, who was deceased, was not in a street gang.
¶ 29 Dora Wooden, Shanice's mother, testified consistently with Shanice about the shooting of Sean. Around 10:30 p.m., Dora Wooden, her husband, and her daughter returned home from the hospital and police station. They had parked their car around the corner and were talking as they walked on the north side of the street, near 5310 West Congress Parkway. Defendant was standing near Dora Wooden's house and said, "Ma." Dora Wooden looked up and saw that defendant had a green, plastic soda bottle in his hand. He did not have a gun. People were sitting in a van parked in front of Dora Wooden's house and drinking from Styrofoam cups. A person in the van yelled something like, "motherfucker, you," and the person on the passenger side of the van pointed a gun out of the van and fired. Defendant was shot in the chest, rolled over backwards and then ran west. The people exited the van, and Dora Wooden noticed the police badges dangling from their necks. Dora Wooden ran onto her porch and lost sight of defendant. There was blood on the sidewalk near the soda bottle defendant had dropped. Dora Wooden told the police officers who were securing the area about the soda bottle, and one officer picked it up.
¶ 30 Dora Wooden testified that her son Sean was not in a street gang but he would "adapt to his environment" and had called himself a Four Corner Hustler when he was a child. Defendant and Sean were friends, and Sean had filed complaints against the police in the past. Dora Wooden advised the Warfields to sue the police. She denied telling the police after the shooting that defendant had the bottle in his left hand and she could not see his right hand or the right side of his body.
¶ 31 Carrie Warfield testified that she was 24 years old and lived in the basement apartment at 5331 West Congress Parkway. She received income from Social Security and from doing hair in her home. At 10:30 p.m. on the date in question, she was coming home from the store with Chantel Davidson, Katrina Robinson and five other females. Warfield knew defendant, who was across the street, and greeted him as he walked east on Congress Parkway with a soda bottle in his hand. When Warfield heard gunfire, she ran into her vestibule with the other females. The vestibule door did not have a lock, and defendant ran up behind them and came in the door. Warfield heard more gunfire, screamed and beat on her apartment door and her landlord's door. The gunshots were getting closer, and the females were screaming and hollering. Defendant grabbed four women, none of whom was Chantel Davidson, and "grabbed them like to the back of him and he put his hands around them." He did not have a gun. Gunshots came through the glass of the door. Defendant was hit by bullets and was lying on the floor. Warfield's sister inside the basement apartment unlocked the door, and the females stepped on defendant as they ran down the basement steps. Defendant could not move, so Warfield put her hands under his arms and they "flipped" down the stairs. The basement door slammed shut and automatically locked. Defendant landed on his back, and Warfield saw that he had no gun.
¶ 32 Warfield telephoned the police, who arrived immediately. When Warfield opened the door for the police, they put their guns in everyone's face, grabbed defendant, and handcuffed him. Warfield consented to the officers' request to search the apartment. The police made the females sit on the couch during the search. Then, the officers moved some items that blocked the back door of the apartment and made the girls go out the back door. Warfield never saw anyone in her group take a gun anywhere. Warfield and other members of her family were suing the police department concerning this shooting incident.
¶ 33 When Warfield was asked specific questions about her deposition testimony in her civil case, she denied stating that defendant pushed open the door to get inside the vestibule. Warfield also denied telling the police that she did not know defendant at all. In addition, Warfield had testified at her deposition that she was suing because Dora Wooden had said that she saw people sitting in the van and told defendant to find out who they were, but before defendant got to the van, two males jumped out of the van, fired their guns at defendant and chased him.
¶ 34 In rebuttal, the State presented the stipulated testimony of Detective Schalk, who would testify that he interviewed Dora Wooden after the shooting of defendant and she said that defendant had a plastic bottle in his left hand and she could not see his right hand. The parties also stipulated that Carrie Warfield stated in her deposition that she did not know where defendant was when she got through her front door and entered her vestibule. She also said that the vestibule door was closed when she was trying to put her key in her apartment door and defendant pushed the vestibule door open to get in. Furthermore, she said that she told the police she did not know defendant because she did not feel safe and the police were harassing her about a gun.
¶ 35 The jury found defendant guilty of two counts of attempted first degree murder of a police officer and two counts of aggravated discharge of a firearm. The trial court merged the aggravated discharge of a firearm counts into the attempted murder counts, and sentenced defendant to 35 years for each count, to run concurrently. The trial court added 20 years for the discharge of a firearm for a total of 55 years in prison. Defendant appealed.
¶ 37 A. Sufficiency of the Evidence
¶ 38 Defendant argues the State failed to prove his guilt beyond a reasonable doubt because the testimony of Officers Chatman and Collier was unconvincing, improbable, and contradicted by the physical evidence. Specifically, defendant asserts it was unbelievable that Officer Collier remained on his cell phone if defendant approached the van in a confrontational manner, and that defendant would have pointed a gun at Officer Collier's head when uniformed police officers were in a squad car near the end of the block. Further, defendant asserts it was unbelievable that the officers did not see or hear the group of females in the vestibule and did not attempt to seize defendant or check whether the females were hurt. Moreover, the Ruger gun defendant allegedly used was not found on him or at the scene when he was taken into custody, and the partial DNA profile the State used to link defendant to the Ruger gun was questionable. In addition, the integrity of the firearms evidence was compromised because it was intermingled with evidence from the earlier shooting of Sean Wooden, and the location of the recovered bullet jacket fragments contradicted the officers' testimony about where defendant allegedly fired gunshots at them.
¶ 39 Criminal convictions are not to be overturned on review unless the evidence is so improbable or unsatisfactory that it creates a reasonable doubt of the defendant's guilt. People v. Collins, 106 Ill. 2d 237, 261 (1985). The test to be employed on review is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Id. The jury is charged with the responsibility of weighing the credibility of witnesses and resolving any conflicts and inconsistencies in their testimony, and the jury's determination of a defendant's guilt or innocence is entitled to great deference. People v. Schott, 145 Ill. 2d 188, 206 (1991); People v. Parker, 234 Ill. App. 3d 273, 274 (1992).
¶ 40 The same arguments defendant raises on appeal were made to the jury by trial counsel. The jury must resolve factual disputes and make credibility determinations, and the record establishes that the jury was fully aware of all of the impeachment issues in this case by defense counsel's cross-examination of the witnesses and arguments. The jury, however, necessarily rejected defendant's arguments because the jury found him guilty. After reviewing the evidence in the light most favorable to the State, we conclude that the evidence was not so unreasonable or unsatisfactory that it raised a reasonable doubt of defendant's guilt.
¶ 41 The testimony of Officers Chatman and Collier was credible and consistent. Moreover, their testimony was corroborated by other evidence. The fired casing found inside the van corroborated the officers' testimony that Officer Chatman, who was in the driver's seat, reached across Officer Collier's chest and fired the gun while inside the van when defendant was just outside the van alongside Officer Collier. That fired casing refuted Dora Wooden's contrary testimony that she saw someone's hand point a gun outside the van and fire at defendant, who was simply standing by the sidewalk. Furthermore, the recovered firearms evidence supported the officers' version of the exchange of gunfire as they chased defendant down the street. The fired cartridge cases found near 5316 and 5321 West Congress Parkway matched the Ruger gun found after the shooting. In addition, the testing of the low level DNA mixture found on the Ruger indicated that defendant was not excluded from the 9% of the black population that could have contributed to that DNA mixture.
¶ 42 Although the defense claimed that defendant was shot while he was standing in the vestibule and protecting the women behind him when the officers carelessly fired into the building, the firearms evidenced supported the Officers' account that defendant was outside the vestibule and pointed his gun at Officer Collier, who fired two gunshots in response. Specifically, those two gunshots went through the glass door near the doorknob, and one bullet was found on the vestibule floor and the other bullet was removed from Chantel Davidson's upper back. Moreover, given defendant's height, the gunshot wounds to his chest and lower left leg were not consistent with the height of the two bullet holes in the glass door at the level of the doorknob.
¶ 43 The trier of fact is free to accept or reject as much or as little of a witness's testimony as it pleases (People v. Logan, 352 Ill. App. 3d 73, 81 (2004)), and Katrina Robinson's favorable trial testimony for defendant was severely impeached by her prior handwritten statement and grand jury testimony. Furthermore, a rational trier of fact could have concluded that the bullet fragments that were fired by the Ruger gun and were not consistent with the officers' accounts were on the street as a result of the shooting of Sean Wooden earlier that same evening. A rational trier of fact also could have concluded that it was possible to hide defendant's Ruger gun or smuggle it out of 5331 West Congress Parkway because the building was left unguarded by the police for a brief moment and it was possible to move any items that may have blocked the back exit of the basement apartment.
¶ 44 Taking all the evidence in the light most favorable to the prosecution, we cannot say that no rational trier of fact could have found the testimony of Officers Chatman and Collier credible and consistent with the other incriminating evidence and concluded that defendant was proven guilty beyond a reasonable doubt of attempted first degree murder of two police officers.
¶ 45 B. Improper Closing Arguments
¶ 46 Defendant contends he was denied his right to a fair trial based on the prosecutor's erroneous and prejudicial comments during closing argument.
¶ 47 A prosecutor is allowed wide latitude during closing arguments. People v. Nieves, 193 Ill. 2d 513, 532-33 (2000). A prosecutor may comment on the evidence presented at trial, as well as any fair, reasonable inferences therefrom, even if such inferences reflect negatively on the defendant. People v. Nicholas, 218 Ill. 2d 104, 121 (2005). Remarks made during closing arguments must be examined in the context of those made by both the defense and the prosecution, and must always be based upon the evidence presented or reasonable inferences drawn therefrom. People v. Coleman, 201 Ill. App. 3d 803, 807 (1990). The character and scope of closing arguments are left largely to the discretion of the trial court, and we will not disturb its decision absent an abuse of discretion. People v. Aleman, 313 Ill. App. 3d 51, 66-67 (2000). We will reverse a conviction on the ground of improper argument only if the challenged comments constituted a material factor in the conviction, without which the jury might have reached a different verdict. Id. at 67.
¶ 48 First, defendant asserts the State claimed, without any supporting evidence, that the recovered Ruger gun belonged to defendant and that somebody got rid of it. Contrary to defendant's argument, however, the record establishes a clear evidentiary basis for the prosecutor's comments. Specifically, the officers testified that defendant had a gun, fired it at them during the chase, and pointed it at them before he went inside the vestibule. Moreover, there was evidence that the Ruger found on the street the next day had been fired on the night of the shooting. There were several people in that basement apartment and it was full of "junk," so it was a reasonable inference that someone in that basement took control of that gun until it was found later the next morning under a bush on the street. See People v. Shum, 117 Ill. 2d 317, 347-48 (1987) (although there was no eyewitness testimony that the defendant had concealed the gun in question, it was a legitimate inference based upon the fact that a gun was used in the assault and not recovered).
¶ 49 Next, defendant asserts the prosecution stated, without any supporting evidence, that defendant's partial DNA was found on the Ruger gun. Defendant has forfeited review of this issue because counsel did not timely object during the prosecution's closing argument to the comments about defendant's partial DNA being found on the gun. See People v. Enoch, 122 Ill. 2d 176, 186 (1988) (in order to preserve an issue for review, the defendant must both timely object at trial and include the issue in his posttrial motion).
¶ 50 A court may, however, consider a forfeited issue as plain error. The plain error doctrine allows errors not previously challenged to be considered on appeal if either: (1) the evidence is closely balanced and the jury's guilty verdict may have resulted from the error; or (2) the error was so fundamental and of such magnitude that the defendant was denied a fair trial and the error must be remedied to preserve the integrity of the judicial process. People v. Hudson, 228 Ill. 2d 181, 191 (2008); People v. Herron, 215 Ill. 2d 167, 177 (2005). "In plain error review, the burden of persuasion rests with the defendant." People v. Thompson, 238 Ill. 2d 598, 613 (2010). The first step of plain error analysis is deciding whether any error has occurred. Id.; People v. Durr, 215 Ill. 2d 283, 299 (2005).
¶ 51 Although the dissent concludes that the prosecutor's remarks that defendant's partial DNA was found on the Ruger were "factually wrong and horribly misleading," the complained-of remarks must be reviewed in the context of the closing arguments made by both the defense and the prosecution. Coleman, 201 Ill. App. 3d at 807. In context, the complained-of statements about the DNA evidence were neither wrong nor misleading.
¶ 52 According to the record, the State initially stated that the Ruger was tested a month after it was recovered, nobody knew that it would be connected to the firearms evidence collected in the street in this case, and it supported the officers' accounts of the shooting. Concerning the DNA evidence, the prosecutor said:
"The gun in this case did not have a full profile. We know that from the expert. It did have a partial profile that was compared to the defendant's DNA.
What did the expert tell you? Well, when she compared it to the defendant's DNA, he could not be excluded as having touched that gun.
It was a partial profile. 91 percent of the population could be excluded, but not him. Another coincidence? No.
When you combine that with everything else you have in this case, it points to defendant's guilt."
¶ 53 Thereafter, the defense argued, inter alia, that if defendant was holding a gun instead of a soda bottle, then a gun would have been found with him in the basement apartment. According to the defense, the recovered Ruger was simply one of the two guns Teddy used when he fired at Sean Wooden on the street earlier that evening. The defense stressed that no witness testified that defendant had the recovered Ruger at the time of the shooting. Moreover, no physical evidence established that defendant had the recovered Ruger at the time of the shooting or that the Ruger was even fired during the shooting involving Officers Chatman and Collier.
Furthermore, the firearms evidence recovered from the street could not be "differentiate[d]" between the 7:30 p.m. and 10:30 p.m. shootings. The police lied about not seeing the women outside the building defendant ran into, and there was no fingerprint evidence or gunshot residue evidence to show that defendant had the Ruger. Concerning the DNA evidence, the defense argued:
"[y]ou can't just put aside the fact that it's a partial profile, which means it cannot be matched to any individual.
What the technician said was people cannot be excluded, but she also said there are approximately 600 million other people who could not be excluded. That's a big group of people that you can't say couldn't have contributed to some of that DNA.
And you know what? It doesn't mean any of those 600 million people actually had to have touched that gun. It means when they are looking at the profile of the DNA, it's somewhat consistent with what they found."
¶ 54 The defense then made an analogy between the DNA evidence and the first three telephone numbers--869--for all the telephone numbers in the criminal court building. Without the other four numbers, a person would not be able to exclude any of the other telephone numbers in the building. Accordingly, "[y]ou can't just say that because [defendant's] partial profile is like 600 million other people, that therefore he had this gun. So you have no physical evidence, and you have really no testimonial evidence to say that he was ever in possession of this particular weapon."
¶ 55 In response, the prosecutor argued that it does not make any sense to presume that the recovered Ruger was one of Teddy's guns, because it was used to shoot Sean, yet "[h]is buddy's[--i.e., defendant's--]partial DNA is on the gun." Then, the prosecutor discussed how the "math doesn't work" for Teddy to have used the Ruger because it holds 17 rounds but 12 rounds were found in it, 4 casings were recovered on the street from the earlier shooting incident involving Sean, and Officer Collier testified that the Ruger was fired twice. The prosecutor argued that in order to account for that total of 18 rounds, someone would have had to put one more bullet into the Ruger before tossing it under the bush, but that does not make any sense because:
"[i]f this is a gun being used to shoot at [Sean] Wooden, his buddy, why is his partial DNA on it?"
Then, concerning defense counsel's analogy about the DNA evidence and telephone numbers, the prosecutor argued that someone dialing 869 might not reach his telephone extension, "[b]ut guess what? 869 gets you in the [building]. It doesn't put you down the block. It doesn't put you in the other county.
That's why we presented that evidence to you. It's circumstantial evidence. We are not saying that in of itself makes it his gun.
We are telling you it's circumstantial evidence. It's another piece in the puzzle that you will consider, and you will get instructed on ...