Court of Appeals of Illinois, First District, Third Division
JOHNETTA DAVIS, as Special Administrator of the Estate of Darryl Hamilton, Deceased, Plaintiff-Appellee,
THE CITY OF CHICAGO, a Municipal Corporation, and DAVID GARZA, Defendants-Appellants
Appeal from the Circuit Court of Cook County. No. 07 L 7680. The Honorable Edward Washington II, Judge Presiding.
In a wrongful death and survival action arising from an incident in which plaintiff's son was fatally shot by defendant police officer while being pursued on foot by the officer, the trial court's grant of a new trial to plaintiff based solely on remarks made by defense counsel in opening statements regarding a pending weapons charge against the deceased was reversed, since that evidence had been ruled admissible at the time the statements were made, the statements were made in good faith, there was no indication plaintiff was prejudiced by the statements, and any objection by plaintiff was waived when she opposed the grant of a new trial on that basis; therefore, the order granting a new trial was reversed and vacated and the verdict for defendants was directed to stand.
COUNSEL FOR APPELLANTS: Stephen R. Patton, Corporation Counsel of the City of Chicago, Chicago, IL; Benna Ruth Solomon, Myriam Zreczny Kasper, Kerrie Maloney Laytin, Of Counsel.
COUNSEL FOR APPELLEES: James D. Montgomery, Melvin L. Brooks, John K. Kennedy, Of Counsel, Cochran, Cherry, Givens, Smith & Montgomery, L.L.C., Chicago, IL.
JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Presiding Justice Hyman and Justice Mason concurred in the judgment and opinion.
[¶1] This case is before us on interlocutory appeal after the trial court granted plaintiff's motion for a new trial following a
jury's verdict in favor of the defense in her wrongful death suit for the death of her son caused by the defendant police officer. The defendant officer and City of Chicago's defense was that the officer acted in self-defense and reasonably believed the decedent pointed a gun at the officer. The trial court granted a new trial based solely on the defense's references to the decedent's pending gun charge at the time of the shooting in opening statements. Defendants argue that the trial court abused its discretion in granting a new trial on this ground because there was no substantial prejudice to plaintiff by the isolated references to the gun charge.
[¶2] Plaintiff moved in limine before trial to bar defendants from introducing evidence that the decedent had a court date on a pending gun charge the day after the incident in this case. The court denied plaintiff's in limine pretrial motion and ruled that the defense would be allowed to admit evidence of the decedent's pending gun charge. The defendants thus made two references to the pending gun charge during the defense opening statement. Plaintiff objected but was overruled. After the plaintiff's case and after all but two remaining defense witnesses testified in the defense case, the court sua sponte changed its in limine ruling, finding that the gun charge could not be used to prove motive, and barred admission of the pending gun charge into evidence. Defendants moved for a mistrial based on prejudice to their case but plaintiff opposed a grant of a mistrial, specifically stating that plaintiff believed the remarks in opening statement would not influence the jury. At that time, the trial was near conclusion when the court denied the defense's motion for a mistrial. The trial continued with the last two defense witnesses. No evidence was admitted regarding the pending gun charge and no further reference was made to it. The trial concluded two days later with a verdict for the defense. After the verdict plaintiff moved for a new trial, arguing for the first time that the defense opening statement remarks were prejudicial. The court granted a new trial solely on this basis.
[¶3] We hold that the plaintiff waived any objection to remarks made by the defense in opening statements concerning the decedent's pending gun charge and, in fact, later opposed the grant of a mistrial based on the same issue. In reviewing for any plain error, we hold that the trial court abused its discretion in granting a new trial where there was no error because at the time of the remarks the court had ruled the evidence admissible and there was no bad faith by the defense in making the remarks, and because there was no showing by plaintiff or any indication in the record of substantial prejudice to plaintiff as a result of those remarks.
[¶4] Second, we address plaintiff's alternative argument that the grant of a new trial was appropriate due to alleged faulty jury instructions. We hold that the grant of a new trial cannot be supported on the alternate basis of allegedly faulty jury instructions because the court properly instructed the jury on the applicable law regarding willful and wanton conduct in the context of the Local Governmental and Governmental Employees Tort Immunity Act (745 ILCS 10/1-101 et seq . (West 2002)). We therefore reverse and vacate the order granting a new trial and remand with instructions that the circuit court enter judgment on the jury verdict.
[¶6] Plaintiff's four-count complaint alleged wrongful death and survival claims against Officer Garza and the City of Chicago (the City) for the death of her son, Darryl Hamilton. counts I and II alleged
wrongful death and survival claims, respectively, against the City pursuant to respondeat superior based on Officer Garza's commission of a battery in intentionally shooting Hamilton. Counts III and IV alleged wrongful death and survival claims against Officer Garza for battery in intentionally shooting Hamilton.
[¶7] Defendants asserted the affirmative defense for Officer Garza of immunity under section 2-202 of the Act, which provides that " [a] public employee is not liable for his act or omission in the execution or enforcement of any law unless such act or omission constitutes willful and wanton conduct." 745 ILCS 10/2-202 (West 2002). The City asserted immunity under section 2-109 of the Act, which provides that " [a] local public entity is not liable for an injury resulting from an act or omission of its employee where the employee is not liable." 745 ILCS 10/2-109 (West 2002). At trial, the City and Officer Garza presented evidence that Officer Garza shot Hamilton in self-defense because he saw Hamilton point a gun at him.
[¶8] Prior to this trial, plaintiff had voluntarily dismissed the action just before the first trial was scheduled to take place. Plaintiff then refiled and there were two trials prior to the trial at issue in this appeal. The first trial resulted in a mistrial during voir dire, and the second trial resulted in a hung jury, split 7 to 5. In this trial, the court initially denied plaintiff's motion in limine to bar evidence that Hamilton had a pending gun charge against him, with a hearing in court set for the day after the shooting, and the jury heard a reference in opening statements regarding the pending gun charge. The court later sua sponte changed its ruling and barred evidence of the pending gun charge. No issue is raised in this appeal regarding the previous trials. The retrial began on October 6, 2011.
[¶9] Trial Testimony
[¶10] The following facts are from the transcript of the trial testimony.
[¶11] The evening of December 2, 2003, Darryl Hamilton was watching television with his grandmother, Bessie Hamilton. Bessie's house was on the east side of Dante Avenue in Chicago, directly across from the Enrico Fermi Elementary School. Plaintiff, Darryl's mother, lived a half-block away from Bessie, on the other side of the school. Darryl would spend time at both homes. Sometime around 9:20 p.m., Darryl left Bessie's house.
[¶12] At approximately 9:30 p.m., Officer Garza and his partner, Officer John Moss, were patrolling in a marked police squad car in the area around 70th Street and Dorchester Avenue in Chicago, the intersection where the school is located. Officer Garza testified that this area was known for gang shootings, narcotic sales, burglaries and other crimes, and the officers had received orders to pay attention to it.
[¶13] Officer Garza first observed Hamilton as the officers were driving southbound on Dorchester, across from the school, near the intersection of 70th and Dorchester. Officer Garza testified that Hamilton's behavior seemed suspicious because it was late at night, the school was closed, no one else was around, and Hamilton was standing in front of the school, looking up and down the street. When Hamilton saw the squad car, he immediately turned and started walking quickly
toward the school grounds. The officers followed Hamilton in their squad car into the school parking lot and pulled up alongside him near the southeast corner of the school. Hamilton's hands were not visible. Instead, they were in his waistband area " bunched up." Hamilton took a step or two toward the squad car, then immediately turned and started running away.
[¶14] Officer Garza exited the squad car and pursued Hamilton on foot. He lost sight of Hamilton when Hamilton rounded the southeast corner of the school, heading southwest. When Officer Garza rounded the corner, he saw Hamilton squatting to pick up a gun off the pavement. Hamilton looked up at Officer Garza and pointed the gun at him. Officer Garza reversed and tried to take cover behind the corner of the school building. Officer Garza did not have his gun out at that time. The south side of the school was well lit with artificial lighting.
[¶15] Hamilton took off running again westbound along the south wall of the school. Hamilton then rounded the southwest corner of the school and ran north. Officer Garza again lost sight of Hamilton. Officer Garza continued to run west, unholstered his gun, and followed Hamilton around the corner. Officer Garza was yelling, " Stop, police, drop the gun."
[¶16] When Officer Garza regained sight of Hamilton after rounding the southwest corner of the school, he saw Hamilton running north on the west side of the school. The lighting on the west side of the school was not as good as it was on the south side of the school, but it was sufficient for Officer Garza to see. Officer Garza was holding his gun in a " low ready position," approximately 8 to 10 inches below his eyes. He looked for and focused on the gun in Hamilton's hand. As Hamilton ran, Hamilton glanced back, swung his arm holding the gun out, and extended the gun back, pointing toward the corner where Officer Garza was. Officer Garza testified that he feared imminent death or great bodily harm and thought Hamilton was going to kill him. Officer Garza fired four rapid shots at Hamilton. One shot struck Hamilton on his right upper arm and another struck him in the back of his head.
[¶17] After firing the shots, Officer Garza saw Hamilton lying face down on the ground. Officer Garza testified that he remembered feeling his mind go black and feeling like he was going to be sick. He was " pretty shaken up" and did not have a good sense of how much time elapsed. Officer Garza approached Hamilton with his gun drawn because he knew that Hamilton was armed. Officer Garza could not see either the gun or Hamilton's right hand. Hamilton was not moving. Officer Garza handcuffed Hamilton by standing over him and pulling Hamilton's hands behind his back to minimize the chance Hamilton could use the gun. He could not see the gun as he handcuffed Hamilton. Officer Garza did not know at that point that he had shot Hamilton in the head. Once Hamilton was handcuffed, Officer Garza took him by his right shoulder and rolled him toward his left to check if he was still alive. At that point, Officer Garza saw the gun lying under Hamilton's waist area. Hamilton died on the scene.
[¶18] Plaintiff called Marlow Collins, who testified that on December 2, 2003, he lived in the building on the southwest corner of 70th and Dorchester, across from the school, with his then-girlfriend, Carmelita Dowdell. In the late evening hours, he and Dowdell were returning home from grocery shopping, walking along the west side of Dorchester, across from the school. After they reached a set of railroad tracks heading north, Collins observed Hamilton crossing Dorchester from the west side of
the street to the east side, heading toward the west side of the school. He then saw a patrol car turning into the school parking lot. The car followed Hamilton as he was walking toward the south side of the school, and Hamilton began running toward the east side of the school. Collins lost sight of Hamilton after Hamilton rounded the southeast corner. He saw the squad car follow Hamilton around the corner.
[¶19] Hamilton then came running back westward, and Collins observed him fumbling with the front of his jacket as he ran. According to Collins, as Hamilton reached a set of double doors on the south side of the school, he pulled out a gun and threw it up on the school roof. Collins did not see the gun come back down after Hamilton threw it up on the roof. Collins did not know for certain whether the gun actually went onto the roof. To his eyes, it appeared to land on the roof, but Collins conceded it could have hit something and fallen. Collins then saw that Hamilton ran at full speed around the southwest corner of the school with both arms pumping. He saw the officer stopped on the southwest corner of the school yelled, " Stop" or " Freeze," and then he shot Hamilton, and Hamilton fell.
[¶20] According to Collins, Hamilton's back was turned toward Officer Garza when he was shot, and he did not see Hamilton in any other position. Collins admitted that his attention was focused on Officer Garza during the shooting, and he did not see Hamilton fall until the shooting stopped. Collins conceded that there were four shrubs between him and Hamilton when he witnessed the incident. After the incident, Collins told people on the scene that he believed that Hamilton had thrown a gun onto the roof. Responding officers searched the school roof and did not find any weapon.
[¶21] Paramedic Steven Beauregard testified that, after arriving on the scene several minutes after the emergency call at 9:35 p.m., he found a gun when he rolled Hamilton's body over. The gun was positioned around Hamilton's waist area.
[¶22] Plaintiff also called Dowdell, Collins' former girlfriend, who testified that she and Collins were returning from the grocery store heading toward the home where they resided together on the west side of Dorchester at 9:30 p.m. on December 2, 2003. She first saw Hamilton when she was on the south side of the train tracks, as Hamilton crossed Dorchester from west to east toward the school. Hamilton headed east along a path on the south side of the school, and a squad car entered the school parking lot and traveled east along that same path. Hamilton rounded the southeast corner of the school, and the police car followed him. Dowdell then lost sight of Hamilton and the police car.
[¶23] A few seconds later, Dowdell regained sight of Hamilton and saw him running back westward along the path and also saw the officer chasing Hamilton on foot. She observed that Hamilton almost fell when he reached an area on the south side of the school. She observed Hamilton reach down to the ground, but did not see Hamilton pick up anything from the ground and did not see anything in his hands.
[¶24] Dowdell further testified that Hamilton rounded the southwest corner of the school and ran north. Hamilton's arms were in running position, and she did not observe his arms in any other position. When the officer who was following Hamilton reached the southwest corner of the school, he halted and yelled " Stop" and something else she could not discern. The officer then fired several rapid shots. Dowdell's testimony was somewhat contradictory.
Dowdell testified that she did not see anything in Hamilton's hands while the officer was firing the shots; however, Dowdell was watching the officer at the time he was shooting. The shooting was loud and startling which drew Dowdell's attention to the officer. As the officer was shooting, Dowdell was able to see the officer's hands extending outwards and pointing north and observed that one of the officer's hands was cupped under the other as he held his gun. She saw Hamilton fall face forward. On cross-examination, however, she testified that she was watching Hamilton the entire time while standing right next to Collins.
[¶25] After the shooting, a lot of people from the neighborhood came outside, and other officers arrived on the scene immediately. Dowdell went inside her home briefly and, after coming back outside, she observed police officers on top of the roof of the school. She also observed two officers holding up a blue sheet near Hamilton's body, which obstructed her view of the body. Dowdell testified that she never saw Hamilton throw or attempt to throw a gun up on the roof, although she heard Collins tell others that Hamilton had thrown a gun on the roof.
[¶26] Plaintiff also called Carol Coursey, whose testimony at trial was by videotaped evidence deposition. On December 2, 2003, at 9:30 p.m., Coursey was on the side of her house getting her work schedule from her parked car. Coursey's house was on Dorchester Street directly across from the school. Coursey saw Hamilton running fast from south to north. She did not see Hamilton extending his right arm backwards and could not see anything in his hands. Hamilton's hands were moving up and down in a running motion. Coursey remembers hearing three or four shots. Hamilton's hands went up and out, and he fell forward and hit the ground. She observed the police officer who fired the shots was standing on the south side of the school with his arms extended and both hands on his gun. Coursey testified that she closed her car door and ran into her house. Coursey put on her contact lenses and went back outside within two minutes. Once she went back outside she saw an officer on the school roof and heard him say something like, " I got something," or " he[re] something."
[¶27] Coursey wears contact lenses but was not wearing her contact lenses at the time she observed the shooting. Coursey conceded that it was dark outside and she went inside for the purpose of putting in her contact lenses so that she could see better. Coursey admitted that she has problems seeing far without her contacts and has to squint to see things at a distance, but claimed that she was able that night to see without squinting from where she was standing. She claimed remembering that Hamilton was wearing a black coat and black or dark blue pants, but admitted that during her discovery deposition she had testified that she did not remember what Hamilton was wearing.
[¶28] Initially Coursey told the police that she had not seen anything. She testified that she did not tell the police that she had witnessed the shooting because she was scared. Coursey denied that she first heard the shots and then looked up. Coursey denied that she was not looking at Hamilton at the time he was shot. She admitted that she had previously testified under oath that she heard three or four gunshots and then looked up, at which point she saw Hamilton fall forward. Coursey had previously testified that she was looking through the front windshield of her car as she was reaching for her schedule when she saw Hamilton running. When she saw Hamilton running, she grabbed her work schedule sticking out
from her open purse and " [w]hen he got shot, when he hit the ground, that's when I looked up."
[¶29] Coursey denied closing her car door before she heard the shots, claiming she first heard the shots, but admitted that, at her deposition, she had testified to closing the door first and then hearing the shots. Coursey had also previously testified that when she saw Hamilton running, she was moving toward the front of her car and admitted that there were trees between where her car was parked and where Hamilton was running.
[¶30] Shortly after the shooting, Bessie Hamilton heard that something had happened at the school and went outside. Bessie saw a young man's body lying on the ground. She knew it was Darryl because of the jacket he was wearing.
[¶31] Nichelle Fraction, a City investigator assigned to investigate Hamilton's shooting, also testified. As part of that investigation, she took a statement from Coursey on December 3, 2003. Coursey told her that she had not seen the shooting but " [h]eard shots, looked out of [the] window, saw two police officers in uniform drag a body that was close to the school, north to south approximately 10 feet. Then more units arrived."
[¶32] Dr. Shaku Teas, a forensic pathologist, testified as an expert for plaintiff. In her opinion, the bullet to Hamilton's arm entered in the back and exited through the front. According to Teas, this was consistent with someone being shot from behind who was running in a normal fashion with his arms moving. Plaintiff then rested.
[¶33] Defendants called Lucien Haag, who testified that he was a forensic firearms investigator who had examined the shirt that Hamilton was wearing on the night of the incident. Based on his examination, he concluded that there were firearm residues on multiple areas of the lower part of Hamilton's shirt, which was consistent with Hamilton's carrying a firearm in his waistband during the incident. He also examined Hamilton's gun and concluded that scratches along the gun's right side were consistent with the gun falling on a hard surface and landing in the position in which it was recovered under Hamilton. On the opposite side of the gun's cylinder there were abrasions and impact damage consistent with the gun being thrown into the air and then falling down and hitting the pavement. Haag also testified that because the abrasions were on opposite sides of the cylinder it could be inferred that these impacts occurred close in time to each other, because with the passage of time and the firing of the gun, the cylinder would rotate.
[¶34] Dr. William Lewinski, a behavioral scientist, testified as an expert for the defense. Lewinski opined that it takes a quarter of a second for someone to move an arm from in front of the body to back behind the body in a " strong arm back" position that would allow a shot to pass through the front of the arm and exit through the back of the arm. It would take just under one-fifth of a second to return the arm from the strong arm back position to a square back running position. A transitional position, in which the arm was rotating from a strong arm back position to a square back running position would allow a bullet to enter through the back of the arm and go through the front of the arm. From that position, it would take less than one-fifth of a second to complete the transition to the square back running position. Lewinski opined that a person could rotate his head and torso from looking behind to looking toward the front in under one-fifth of a second. That turn would be completed before someone could finish saying, " One." Lewinski testified it would have been possible for Hamilton,
in between any of Officer Garza's four shots, to rotate his head and torso from backward to forward quickly enough to receive a shot to the back of his head.
[¶35] Lewinsky reviewed the deposition testimony and opinion of Dr. Eupil Choi, deputy chief medical examiner and forensic pathologist who performed Hamilton's autopsy, and also plaintiff's expert, Teas. Choi had opined that the shot to Hamilton's arm was the reverse from Teas' opinion, and that the bullet went from the front to the back of his arm, not from the back to the front. Lewinsky opined that both Choi's and Teas' theories for the position of Hamilton's arm when he received the bullet wound were consistent with running away and pointing a gun back at Officer Garza. Both positions could be achieved while running at full speed. Lewinski also opined that the location where the gun was found under Hamilton's torso close to his waistband was consistent with Hamilton using the strong arm and transitional positions, then getting shot and falling. Lewinsky testified that for Hamilton to have received a shot in the arm followed by a shot in the back of his head, his body must have rotated first toward Officer Garza, then away from him. This change in body position could have occurred very quickly, in half of a blink of an eye, or 14/100 to 18/100 of a second.
[¶36] Lewinski testified that Officer Garza was not able to perceive the change in Hamilton's position during the time he was shooting, and that was true regarding whether Choi's opinion or Teas' opinion was correct concerning Hamilton's body position. Lewinski testified that " when [officers are] focused on aligning and controlling the recoil of their gun and getting it on target and their attentional processes are focused for a second and a half on trying to make that happen, their ability to detect, to note change on the part of the person they're shooting at and to stop shooting, even to see where their bullets strike, it's near impossible." In a situation involving a perceived threat, an officer is focused on shooting and making his weapon work effectively in order to survive the threat.
[¶37] Dr. Choi, the deputy chief medical examiner and the forensic pathologist who performed Hamilton's autopsy, also testified. Choi concluded that the shot to Hamilton's head was the shot that killed him and that he died instantly. Choi also testified that there were abrasions on Hamilton's body that were consistent with Hamilton's falling forward after receiving the head wound, in particular an abrasion on the back of his right wrist consistent with landing on that hand. Choi disagreed with plaintiff's expert, however, and opined that the shot to Hamilton's arm was the reverse from Teas' opinion, and that the bullet went from the front to the back of his arm, not from the back to the front. Choi opined that the bullet that hit Hamilton's arm entered through the top of Hamilton's upper arm in front and exited through the back of his arm.
[¶38] Ruling on Plaintiff's Motion In Limine to Bar Reference to Hamilton's Pending Gun Case
[¶39] Before trial, plaintiff moved in limine to bar defendants from introducing evidence that Hamilton had a court date the day after the shooting on a pending gun charge. During the hearing on the motion in limine, defendants argued that they intended to read a certified court record showing that Hamilton had a pending hearing for the crime of unlawful possession of a firearm to support the defense theory of their case that Hamilton had motive to avoid being apprehended on the night of the shooting. The defense argued:
" We certainly are allowed to present evidence to explain why Darryl Hamilton did what he did. And *** having court the very next day on a gun charge is certainly motive for a young man to say, [']you know what, there's no way I'm going to be caught by the police. There's no way I'm doing that so I'm going to turn and point a gun at a police officer.['] Much more motive than someone who doesn't have court the next day.
So to *** bar us from presenting that evidence is essentially barring us from presenting our case. *** The probative value is clearly our entire case. That is the ...