Court of Appeals of Illinois, First District, Fifth Division
Rehearing denied January 17, 2014
The testimony of three witnesses who said that they saw defendant standing at an intersection and aiming a handgun at the vehicle in which the witnesses were riding and then firing several shots was sufficient to establish defendant's guilt of aggravated discharge of a firearm, notwithstanding defendant's contention that there was no evidence of any property damage to any vehicles or neighboring residences, since poor marksmanship is not an affirmative defense, whether defendant lacked the intent to shoot the witnesses' vehicle or was an unskilled shooter was a question of fact for the trier of fact, and the trial court's finding that defendant was a "bad shot" would not be disturbed.
Appeal from the Circuit Court of Cook County, No. 11-CR-10475; the Review Hon. Larry G. Axelrood, Judge, presiding.
Scott F. Main, of DePaul Legal Clinic, DePaul University College of Law, of Chicago, for appellant.
Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg and Douglas P. Harvath, Assistant State's Attorneys, of counsel), for the People.
PRESIDING JUSTICE GORDON delivered the judgment of the court, with opinion. Justices Palmer and Taylor concurred in the judgment and opinion.
PRESIDING JUSTICE GORDON
¶ 1 Following a bench trial, defendant Saber Daheya was convicted of four counts of aggravated discharge of a firearm and sentenced to seven years in the Illinois Department of Corrections. 720 ILCS 5/24-1.2(a)(2) (West 2008). At trial, three eyewitnesses, Jermaine Fox, Fox's girlfriend Amanda Padilla, and Ndeyiah Corneh, testified that, on June 14, 2011, they were traveling in a minivan near Jensen Park in Chicago when they observed defendant running toward their vehicle aiming a handgun and heard four shots being fired. Fox and Padilla testified that defendant was a member of the Conservative Vice Lords street gang, which was a hostile rival to the gang that Fox was associated with, the Simon City Royals.Fox and Padilla also testified that Christian Ramos and Zay Russell were with defendant at the time of the shooting; however, Ramos testified that he was in school that evening and the parties stipulated that Russell was not present because he was incarcerated. Responding police officer John Geisbush testified that he recovered four bullet shell casings at the scene of the crime, though he did not discover any property damage to nearby residences or vehicles.
¶ 2 A fourth eyewitness, Jessica Palmer, signed a handwritten statement for the police that stated that she observed defendant running toward the vehicle holding his waistband moments before she heard gunshots, but she recanted her statement at trial, claiming that she did not observe defendant and that the police forced her to sign the statement. Assistant State's Attorney (ASA) Bob Groebner testified that Palmer provided her signed statement voluntarily and without coercion.
¶ 3 On this direct appeal, defendant claims that the State failed to prove him guilty beyond a reasonable doubt because there is no physical evidence that links defendant to the crime, and that Fox and Padilla are biased witnesses since they are affiliated with a street gang that is a rival with defendant's gang. Defendant also points to inconsistencies in Fox's and Padilla's testimony to argue that they are not credible, such as the misidentification of Ramos and Russell at the scene of the crime. Defendant also argues that Corneh's testimony alone is not sufficient to affirm the conviction because she testified that she did not actually observe defendant fire the handgun. For the following reasons, we affirm defendant's conviction and sentence.
¶ 4 BACKGROUND
¶ 5 Prior to trial, defendant was charged with four counts of aggravated discharge of a firearm and three counts of attempted murder. The State argued in its opening statement at trial that defendant fired a handgun at Padilla and Fox's vehicle because they were affiliated with a rival gang. The State called seven witnesses, including four eyewitnesses, two police officers, and the assistant State's Attorney who obtained the handwritten statement from Palmer. The defense called Christian Ramos, who testified that he was in school during the shooting, and Detective Thomas Kolman, who testified that he canvassed the area near the crime scene the day after the shooting and did not find any property damage or additional witnesses. Defendant exercised his constitutional right not to testify.
¶ 6 I. Amanda Padilla's Testimony
¶ 7 Amanda Padilla testified that she is 18 years old and that Jermaine Fox is her boyfriend.On the evening of June 14, 2011, Fox was driving a motor vehicle to pick up her friend, Ndeyiah Corneh, at Jensen Park in Chicago, and Padilla was sitting in the front passenger side of the vehicle. Fox was driving his grandfather's minivan southbound on North Lawndale Avenue, which is a single-lane, one-way street with vehicles parked on each side of the street. Jensen Park is located on the west side of Lawndale Avenue, between Leland Avenue on the north and Wilson Avenue on the south. Fox stopped the vehicle halfway down the block, and Corneh entered the passenger side of the vehicle and sat in the backseat behind Padilla. Fox continued driving south on Lawndale Avenue and slowed down as they approached the intersection at Wilson Avenue.
¶ 8 At that point, Padilla observed a group of people walking along the sidewalk on the west side of Lawndale Avenue, and she recognized them as defendant, Jessica Palmer, Christian Ramos, Jerrell Russell, and Zay Russell. Padilla knew defendant because she had previously observed him two or three times per week at school, in the neighborhood, and in Jensen Park. Padilla identified defendant in court. As the group walked near the vehicle, Padilla felt concerned for her safety because there was hostility between the street gang that people in the group were members of, the Conservative Vice Lords, and the gang that Fox was associated with, the Simon City Royals.
¶ 9 As the vehicle stopped at the stop sign at the intersection of Lawndale and Wilson Avenues, Padilla observed defendant run toward them, while the rest of the group stayed behind and watched. Defendant stopped at the corner, removed a black handgun from under his shirt, and pointed it at the vehicle. Padilla asked Fox to drive away, saying, "Go. He has a gun, " but Fox had to wait for a jogger that was crossing the intersection on the other side of Wilson Avenue. Defendant then adjusted the handgun as Fox drove through the intersection. From a distance "[a]bout a car's length away, " defendant fired four shots at the vehicle. Padilla had an unobstructed view of defendant, and it was still daylight.
¶ 10 After defendant fired at the vehicle, people in the park, including defendant, ran in various directions. Fox continued to drive south on Lawndale Avenue from the intersection as Padilla called the police on her cellular telephone. Fox then returned to the park, and several police officers arrived. Padilla exited the vehicle and told the officers what she observed. She identified defendant as the shooter, and she voluntarily looked up his last name by logging on to Facebook on her cellular telephone.
¶ 11 On cross-examination, Padilla testified that she was not a member of any street gang, but admitted that she has been found "delinquent" as a minor for possession of a stolen motor vehicle. Padilla testified that, the day after the shooting, she did not tell Detectives Kolman and Katz that defendant was a gang member, or that she had observed the entire group running toward the corner with defendant, rather than standing behind.
¶ 12 Padilla admitted that, when she warned Fox that defendant had a handgun, Fox was already facing forward and did not look back as he drove through the intersection. She observed Corneh ducking her head down. At that moment, Padilla also turned around and faced forward as the vehicle drove through the intersection. Padilla first testified that she observed the handgun discharge, but when asked to describe what she observed, she admitted that she did not actually observe defendant fire the gun but heard the first shot. Padilla observed defendant aiming the handgun with two hands, but did not observe any bullets strike the vehicle. At the time, Padilla, Fox, and Corneh did not display gang signs or yell out the window to instigate the shooting.
¶ 13 II. Jermaine Fox's Testimony
¶ 14 Jermaine Fox testified that Padilla is his girlfriend. On June 14, 2011, he and Padilla were traveling in his grandfather's minivan to pick up Padilla's friend Corneh at Jensen Park. After picking up Corneh, Fox drove the vehicle southbound on Lawndale Avenue, a one-way street, and slowed down as he approached a stop sign at the intersection with Wilson Avenue. Fox observed a group of people walking south along the sidewalk in Jensen Park, but he did not pay attention at first to who was in the group and he continued driving.
¶ 15 As Fox stopped the vehicle at the intersection, Padilla warned him that one member of the group was approaching the vehicle with a gun. Fox turned back to look and he observed defendant, whom he knew from the neighborhood, running toward them and pointing a black handgun in the direction of the vehicle. The rest of the group, including Christian Ramos and Zay Russell, stood behind defendant and screamed at him. Fox identified defendant in court and explained that he knew defendant from the Albany Park neighborhood. Defendant stopped for a moment and adjusted his handgun, while a jogger crossed the intersection, preventing Fox from speeding away. As the jogger crossed Lawndale Avenue, Fox drove through the intersection, and he observed defendant fire four shots at the vehicle from the distance of "about a car's length." Nothing obstructed Fox's view of defendant, and he did not observe anyone else with a firearm. It was still daylight at the time of the shooting, and the windows on the passenger side of the vehicle were rolled down.
¶ 16 Everyone that was present in the park at the time of the shooting, including defendant, ran away after defendant fired his handgun. Fox continued to drive away from the intersection while Padilla called the police on her cellular telephone. The 911 operator told Padilla to return to the park, so Fox drove back to the intersection of Lawndale and Wilson Avenues, and the police were already there when they arrived. Fox did not discuss the incident with Padilla and Corneh before they returned to the park because they were "still in shock." Fox told the police what he observed, and Padilla showed defendant's Facebook page to a police officer to identify defendant's last name.
¶ 17 On cross-examination, Fox testified that he was never a "member" of the Simon City Royals street gang, though he had been "affiliated" with the gang in the past because he was friends with gang members. Fox testified that he did not remember telling Detectives Kolman and Katz that he was a member of the Simon City Royals gang. Though Fox denied a current gang affiliation, he stated that Padilla was affiliated with the Simon City Royals because she associated with members of the gang. Fox did not display any gang signs or do anything else to instigate the events, and Jensen Park was considered a neutral territory for children and was not run by any particular gang.
¶ 18 Fox testified that he was looking straight ahead when he heard the first gunshot, but he looked back over his shoulder and observed defendant fire the handgun in the direction of the minivan a second and third time. Fox also described defendant as aiming the handgun at the vehicle with one hand, not two ...