Court of Appeals of Illinois, First District, Sixth Division
Appeal from the Circuit Court of Cook County No. 06 CR 21382 Honorable Joseph M. Claps, Judge Presiding.
JUSTICE REYES delivered the judgment of the court, with opinion. Presiding Justice Rochford and Justice Hall concurred in the judgment and opinion.
¶ 1 Following a jury trial in the circuit court of Cook County, defendant Elliot Robinson was found guilty of first degree murder (720 ILCS 5/9-1(a)(1) (West 2004)) and sentenced to 48 years in prison. On appeal, defendant contends: (1) the admission of the victim's statement made shortly before his death violated defendant's right to confront the witnesses against him; (2) the trial judge should have excluded the toolmark and firearms identification evidence as lacking a scientific basis or conducted a hearing on the admissibility of the evidence; (3) the trial court should have suppressed testimony regarding defendant's statement made in the lockup; (4) the trial court erred in admitting defendant's statement that he sold bullets to the victim; and (5) the jury venire was improperly questioned during voir dire in violation of Illinois Supreme Court Rule 431(b) (eff. May 1, 2007). For the following reasons, we reject defendant's arguments and affirm the judgment of the circuit court.
¶ 2 BACKGROUND
¶ 3 The record on appeal discloses the following facts. Defendant was indicted on six counts of first degree murder and four counts of aggravated unlawful use of a weapon for the October 12, 2005, shooting death of Centrale Collins (Collins). Prior to trial, defendant filed five motions in limine relevant to the issues raised in this appeal.
¶ 4 Pretrial Motions
¶ 5 Defendant filed a motion to exclude statements Collins provided to paramedic Leroy Phillips (Phillips) shortly before his death. Defendant argued these statements were inadmissible testimonial hearsay under Crawford v. Washington, 541 U.S. 36, 68 (2004). The trial court denied the motion, ruling the statements were admissible as dying declarations and not testimonial.
¶ 6 Defendant also filed a motion seeking a hearing on the admissibility of the State's proposed use of toolmark and firearms identification evidence pursuant to Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). The motion argued toolmark and firearms identification analysis has not been scientifically validated and lacks objective standards or a known error rate. The motion also asserted there is no general consensus that toolmark and firearms examiners can make an identification based on a few matching characteristics. The trial court, indicating there is no scientific process involved in firearms comparison which would be subject to Frye, denied the motion for a hearing.
¶ 7 Defendant subsequently moved to preclude the State's firearms examiners from testifying that their conclusions were within "a reasonable degree of scientific certainty." The trial court ruled the State's firearms examiners would be permitted to testify regarding their expertise in their respective fields, but would be barred from opining and testifying their conclusions were within "a reasonable degree of scientific certainty."
¶ 8 In addition, defendant filed a motion in limine to bar the State from introducing evidence that defendant was involved in the June 2, 2005, armed robbery of Arne Kent (Kent) and Geneva Benton (Benton) (the Kent robbery). The State sought to admit evidence of the Kent robbery because the firearms evidence indicated cartridge cases recovered by police at the scene of the Collins shooting and cartridges fired during the Kent robbery were fired from the same weapon. As one of the victims in the Kent robbery identified defendant as the perpetrator, the State argued the evidence of the Kent robbery was admissible as evidence of the shooter's identity in this case. The trial court denied defendant's motion to exclude the evidence from the Kent robbery.
¶ 9 Lastly, defendant moved to exclude any statements defendant made which were not recorded in accordance with state law. See 725 ILCS 5/103-2.1 (West 2008). The trial court heard this motion prior to the trial testimony of Chicago police detective Danny Stover. At the suppression hearing, Detective Stover testified defendant, while being taken to the lockup area to be processed, admitted he was at the scene of the shooting, but asserted he was not the shooter. The police previously recorded defendant denying any knowledge or information regarding the shooting. The trial court denied the motion to exclude the testimony as to defendant's statements, finding the statements in the lockup area were spontaneous and not the product of police interrogation.
¶ 10 Jury Selection
¶ 11 During voir dire, the trial court explained the following legal principles to the jury venire: defendant was presumed innocent; the State bore the burden of proving defendant guilty beyond a reasonable doubt; and defendant had the right to not present evidence and not testify. After discussing each principle, the trial court requested the potential jurors to raise their hands if they had a problem with the principle. No jurors raised their hands after these questions were posed. Defense counsel lodged no objection to this procedure.
¶ 12 Trial
¶ 13 Defendant's trial commenced on December 1, 2009. Neil Sennett, a paramedic for the City of Chicago fire department, testified that on October 12, 2005, he was dispatched to the corner of 71st Street and Champlain Avenue at 3:57 p.m. Sennett observed Collins lying on his back in the rear garden of 7131 South Champlain Avenue and the first responders from fire engine 61 (the engine) were administering emergency care with oxygen, trauma dressings and saline IVs. Sennett spoke to Collins at the scene. According to Sennett, Collins was conscious and alert. Sennett requested Collins' name, date of birth and address, and Collins responded accordingly. Sennett further testified that after Collins was placed in the ambulance, he was given oxygen, another saline IV, and wound care because he was bleeding profusely. According to Sennett, Collins was not administered painkillers because the only painkiller on board was morphine, which would have dropped his blood pressure further.
¶ 14 Inside the ambulance, Collins inquired of Sennett whether he was going to die. Sennett testified he held Collins' hand and said, "[Y]es, young man, I'm sorry you are going to die." Immediately thereafter, Sennett heard his partner Phillips inquire whether Collins knew who shot him. Sennett heard Collins respond it was "Elliot." Phillips inquired where Elliot was from, to which Collins responded, "71st and Champlain." When Phillips inquired of Collins why he was shot, Sennett heard him reply Elliot accused Collins of stealing Elliot's weapon.
¶ 15 Sennett then drove the ambulance to Stroger Hospital at 4:13 p.m. According to Sennett, Collins was conscious when he opened the rear of the ambulance, but Collins died before he and Phillips transported Collins through the first set of hospital doors.
¶ 16 Phillips testified he was dispatched to 7131 South Champlain on October 12, 2005. Phillips confirmed the engine paramedic at the scene had administered Collins an IV with two bags of fluid, oxygen and bandages before Phillips arrived, but no medication. After speaking with the engine paramedic, Phillips spoke to Collins and inquired about his name, date of birth and other general questions. According to Phillips, Collins was awake and conscious when the questions were being posed to him.
¶ 17 After Collins was placed in the ambulance, Collins inquired of Sennett whether he was going to die; Sennett informed him he was. Phillips testified he then inquired of Collins who shot him and Collins responded "Elliot." Philips then inquired, "Elliot who?" and Collins replied, "Elliot from 71st and Champlain." Phillips also testified he asked Collins "Why did he shoot you?" and Collins said, "Over a stolen gun."
¶ 18 Phillips and Sennett then transported Collins to Stroger Hospital. Phillips further testified he completed a run sheet regarding the incident and noted Collins provided a statement while being prepared for transport.
¶ 19 Dr. Kendall Crowns, a Cook County deputy medical examiner, testified he performed the autopsy of Collins on October 13, 2005. Dr. Crowns observed five through-and-through gunshot wounds. Dr. Crowns also observed several abrasions on the body and a bruise to the right eye, which Crowns opined could have been caused from a fight or a fall. Dr. Crowns opined the cause of death was multiple gunshot wounds and the manner of death was homicide.
¶ 20 Detective Danny Stover testified he was assigned to investigate the Collins shooting and proceeded to 7131 South Champlain Avenue at 5:15 p.m. Detective Stover was informed by other detectives Collins had died, but had provided statements to the paramedics. Detective Stover's partner, Timothy Murphy, searched a database of public records for an "Elliot" near 71st Street and Champlain Avenue, which yielded one result, for defendant at 7141 South Champlain Avenue. Detective Stover testified he proceeded to that address with other officers and spoke to defendant's mother. Detective Stover left the residence, but remained outside for a short while, at which point a vehicle carrying defendant arrived. Detective Stover identified defendant in court. Stover also testified he notified defendant his name was mentioned in an investigation. After defendant agreed to talk, Detective Stover and defendant proceeded to Area 2 police headquarters. According to Detective Stover, crime laboratory personnel performed a gunshot residue test on defendant before Detective Stover escorted him to Area 2 for an interview.
¶ 21 Detective Stover further testified he and Detective Tom Shebish informed defendant of his constitutional rights. The police then spoke to defendant regarding the shooting, even "fishing" with lies to see how he would respond, for instance, to the assertion Collins had been shot 20 times. Detective Stover added the conversation with defendant was recorded on a videotape, a redacted version of which was shown to the jury, with instructions the jury was not to speculate regarding the contents of the redacted portions.
¶ 22 On the videotape, defendant acknowledged he knew Collins, but indicated the two were not close friends. Defendant stated he met with Collins on the Monday prior to the shooting, at which time Collins informed him "some guys were fing with him." According to defendant, Collins said he needed bullets and defendant replied he would attempt to obtain some bullets from his brother. Defendant further stated he obtained the bullets at Collins' request and sold them to Collins for $30. In addition, defendant stated that on the day of the shooting he attended a class at Chicago State University. Defendant learned of the shooting in a telephone call he received before leaving school at 3:45 p.m. Defendant proceeded from class to meet Tazie Williams (Williams). Defendant proceeded by bus and arrived at 4:40 p.m.
¶ 23 Continuing with his testimony, Detective Stover testified he confronted defendant with the statement Collins provided to the paramedics before he died and defendant denied any involvement. After defendant's statements were recorded on the videotape, he was transferred to the 5th District lockup to be photographed and fingerprinted. While waiting for lockup personnel to open the door, defendant informed Detective Stover and a Detective Shebish he wanted to talk. According to Detective Stover, defendant stated "this was bogus" and he was at the scene but did not shoot Collins.
¶ 24 In February 2006, Detective Stover learned the firearms evidence in the Kent robbery matched the firearms evidence in this case. Detective Stover met with Kent and Benton. On August 30, 2006, defendant was arrested for the murder of Collins.
¶ 25 Thomas Mander (Mander), a forensic investigator for the Chicago police department, testified that on October 12, 2005, he processed the crime scene at 7131 South Champlain Avenue, which was a boarded-up two-flat building. At the scene, Mander recovered five cartridge cases, identifying them all to be .40 caliber, but from three different manufacturers.
¶ 26 Tiffany Kimble, a forensic scientist employed by the Illinois State Police, testified she examined five discharged cartridge cases from the Collins shooting and determined there were no suitable latent finger impressions on any of them.
¶ 27 Caryn Tucker (Tucker), a forensic scientist in the firearm and toolmark section of the Illinois State Police Forensic Science Center, testified she held a bachelor's degree in biology, with a minor in chemistry from Quincy University, as well as a master's degree in forensic science from the University of Illinois at Chicago. Tucker completed a two-year training program sponsored by the Illinois State Police, which included practical examinations of firearms and ammunition components. She also attended courses from the federal Bureau of Alcohol, Tobacco and Firearms (ATF) and firearms manufacturers regarding the operation and internal workings of firearms. Tucker also was trained to use the integrated ballistic identification system (IBIS), a computerized database which captures images of fired cartridge cases and bullets to compare evidence collected from various crime scenes. Tucker testified she has been qualified to testify as an expert in firearms identification on 27 occasions. Tucker had completed two proficiency tests in her field during the prior year.
¶ 28 Tucker explained firearms identification is a subdiscipline of forensic science concerned with determining whether a fired cartridge case or bullet was fired by a particular weapon. According to Tucker, the basis of firearms identification is in the reproduction and similarity of what examiners refer to as class characteristics and individual characteristics. Class characteristics are features determined prior to manufacture, such as caliber, the breach face pattern, the firing pin impression shape, the number of lands and grooves and direction of twist. Individual characteristics are imperfections and irregularities caused during manufacture or resulting from use, abuse, coercion or rust. Tucker testified firearms examiners use a comparison microscope, which is essentially two microscopes joined by an optical bridge, to compare the class and individual characteristics of two pieces of evidence.
¶ 29 On cross-examination of her qualifications, Tucker testified her comparisons are a subjective determination, but they are based on objective scientific principles and verified by a second examiner. Tucker also testified she applied the definitions and guidelines promulgated by the Association of Firearm and Tool Mark Examiners (AFTE). Tucker agreed the AFTE guidelines are not mandatory, but added she must follow them to reach conclusions to a level of certainty with which she is comfortable. Tucker acknowledged it would be impossible for her to state with absolute certainty that two firearms could not produce identical markings on a fired cartridge case. Tucker further testified the increased automation in firearms manufacture since 1929 creates potential carryover in subclass characteristics, e.g., when something on a manufacturing tool carries over from one weapon to the next, but the weapons would not have similar individual characteristics. Moreover, Tucker testified the AFTE theory of identification, which is followed by most firearms examiners in the country, was the subject of a validation study.
¶ 30 After the trial court found Tucker qualified to testify as an expert, Tucker testified she received the fired cartridge cases from this shooting in December 2005. Tucker's microscopic examination of the cartridge cases led her to conclude they were all discharged from the same weapon, a conclusion verified by a second examiner in her laboratory. Tucker then placed one of the cartridge cases into the IBIS, which generated possible links to other incidents. Tucker called for the delivery of evidence from two other incidents for comparison, ...