Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 08 CR 9367. The Honorable Evelyn B. Clay Judge, presiding.
On appeal from defendant's multiple convictions for shooting one man and firing at, but missing, an off-duty police officer who happened upon the scene, defendant's convictions were reduced pursuant to the one-act, one-crime rule to one conviction for the attempted first degree murder of the man who was hit and one conviction for the attempted first degree murder of the off-duty officer, notwithstanding defendant's contentions that the eyewitness testimony was inconsistent and inaccurate, and that the State failed to prove beyond a reasonable doubt that defendant intended to kill the officer, since there was no basis to disturb the trial court's acceptance of the identification testimony as the trier of fact, and the trial court did not err in finding defendant had the requisite intent to kill the officer.
For Plaintiff-Appellee: Alan J. Spellberg, Mary P. Needham, Brad D. Dickey, Office of the State's Attorney, County of Cook, of Chicago, IL.
For Defendant-Appellant: Alan D. Goldberg, Benjamin Wimmer, Office of the State Appellate Defender, First Judicial District, of Chicago, IL.
JUSTICE HYMAN delivered the judgment of the court, with opinion. Presiding Justice Pucinski and Justice Mason concurred in the judgment and opinion.
[¶1] Defendant Timothy Petermon shot and injured one man and shot at an off-duty police officer who came on the scene and was attempting to make an arrest. Petermon seeks to reverse his convictions for attempted first degree murder, aggravated discharge of a firearm, and aggravated battery, contending reasonable doubt exists. He contends that the shooting victim repeatedly changed his testimony as to who shot him, and the State's other two witnesses gave inaccurate and inconsistent descriptions of Petermon to the police immediately after the incident and incorrectly testified that they identified Petermon in a photo array. Petermon also contends that even if his other convictions stand, his conviction for attempted murder of the police officer should be reversed because the State failed to prove beyond a reasonable doubt that he intended to kill him. Alternatively, Petermon contends that if we affirm his conviction, the one-act, onecrime rule requires us to vacate all of his convictions except the two attempted murder convictions.
[¶2] We affirm, as modified. The credibility of the eyewitnesses was a matter for the trier of fact to decide, and their testimony linking him to the shooting supported Petermon's conviction. Further, the trial court did not err in finding Petermon had the requisite intent to kill the off-duty police officer when he shot at him, even though he did not hit him despite his close proximity. Regarding the one-act, one-crime rule, the State concedes and we agree, the mittimus should be corrected to reflect two convictions for attempted first degree murder and the aggravated discharge of a firearm and aggravated battery convictions and sentences should be vacated.
[¶4] On the afternoon of March 29, 2008, Gary Riley, an off-duty police officer on his way to work, saw Petermon, Terrell Johnson, and a third man beating Kelvin Jemison in an alley on the south side of Chicago. Officer Riley then witnessed Petermon shoot Jemison; Riley reacted by pulling out his service weapon, announced himself as a police officer, and attempted to stop the attack. Petermon shot at Riley, who returned the fire. Riley was unscathed. Following an investigation in which Riley, Jemison and a third eyewitness, Benjamin Smith, identified Petermon and Johnson as the perpetrators, the Chicago police arrested both men.
[¶5] On May 20, 2008, an indictment issued charging Petermon with: (1) two counts of attempted first degree murder of
a peace officer for shooting at Riley (720 ILCS 5/8-4, 9-1 (West 2008)) (counts I and III); two counts of attempted first degree murder for shooting at Riley (720 ILCS 5/8-4, 9-1, 9-1 (West 2008)) (counts II and IV); three counts of attempted first degree murder for shooting Jemison (720 ILCS 5/8-4, /9-1(a)(1) (West 2008)) (counts V, VI, and VII); three counts of aggravated discharge of a firearm (720 ILCS 5/24-1.2(a)(2), (3) (West 2008)) (counts VIII, IX and X); one count of aggravated battery with a firearm (720 ILCS 5/12-4.2(a)(1) (West 2008)) (count XI); and four counts of unlawful use of a weapon (720 ILCS 5/24-1.1(a) (West 2008)) (counts XII, XIII, XIV, and XV).
[¶6] Petermon waived his right to a jury trial and he and Johnson were tried together in March 2011. Riley, the State's first witness, testified he is a Chicago police officer and on March 29, 2008, at about 2 p.m., while on his way to work at central detention, he stopped at a dry cleaning store on 47th Street near Michigan Avenue. Riley wore plain clothes and carried his service revolver. When Riley got out of his pickup truck, he saw three men in an alley about 10 feet away beating up another man, Kelvin Jemison, who was on the ground. Riley said he saw Petermon first pistol-whipping and then shoot Jemison. Riley testified he did not see anyone hand the gun to Petermon and he did not hear anyone tell Petermon to shoot. Riley announced himself as a police officer, shouted " stop," and drew his service weapon. Petermon then turned and shot the gun in his direction two or three times. Riley took cover behind his truck and returned fire two or three times. Riley did not know if he hit anyone. Riley then saw Jemison get up, stagger out of the alley, head east on 47th Street and collapse. Riley testified that Petermon, Johnson, and the other man got in a car and drove off.
[¶7] Riley called 911 and when the police arrived, Riley told them what happened and described the perpetrators, telling the officers they were about 5 feet 10 inches tall and weighed 175 pounds. He also told the officers the shooter had on a red baseball cap and a red jacket. Later that day, Riley went to the police headquarters and viewed a photo array but did not identify any of the perpetrators. On cross-examination, Riley said that about a week after the shooting, he viewed a photo array and identified Petermon as the shooter. The State stipulated that Riley never viewed a photo array containing Petermon's photo and never identified him in a photo array.
[¶8] On April 10, 2008, Riley returned to police headquarters and viewed a lineup. He identified codefendant Johnson as one of the men he saw standing over Jemison, beating him. The next day he viewed another lineup and identified Petermon as the shooter. Riley also made in-court identifications of Petermon and Johnson as the perpetrators.
[¶9] The State's next witness, Benjamin Smith, testified that at about 2 p.m. that day, he was leaving a restaurant near 47th Street and Michigan Avenue when he saw three men in an alley about 10 feet away beating up another man. Smith did not recognize Jemison, the victim, but did recognize one of the perpetrators, Travell Johnson, not by name but as the son of " Pumpkin," who ran a restaurant in the neighborhood, where Smith sometimes saw Johnson. Smith did not know the other perpetrators but later identified Petermon in a lineup and in court. Smith said the three men were punching Jemison, who was trying to get away. Smith saw Johnson pull a gun out of his coat pocket, hand it to Petermon, and say " Shoot the motherfucker." (On cross-examination, Smith testified Johnson actually said, " Shoot the son of a bitch." ) Smith said he saw Petermon
shoot Jemison a couple of times. (On cross-examination, Smith denied telling the police that Johnson shot Jemison or that he was unsure who shot Jemison.) Smith then saw an off-duty police officer get out of his car and identify himself. Smith said Petermon shot at the police officer twice and the officer shot back, firing about four times. Smith saw Jemison get up and run away and collapse ...