Court of Appeals of Illinois, First District, Fifth Division
Appeal from the Circuit Court of Cook County. No. 08 CR 12211. Honorable Angela Munari Petrone, Judge Presiding.
Defendant's convictions and sentences for attempted murder, aggravated battery with a firearm, aggravated discharge of a firearm, and aggravated unlawful use of a weapon, including a 25-year mandatory enhancement, were upheld on appeal, notwithstanding defendant's contentions that the trial court's improper admission of hearsay evidence required a new trial, that the trial court improperly admitted as substantive evidence two officers' testimony about an alleged prior identification made by a victim who did not make an in-court identification and testified that he never made an identification, and that the sentences were excessive, since the evidence either did not constitute inadmissible hearsay or was substantively admissible under section 115-12 of the Code of Criminal Procedure, and defendant's personal history and the aggravating and mitigating factors were considered along with defendant's rehabilitative potential, and under the circumstances there was no abuse of discretion in the sentences imposed.
For Appellant: Stefan K. Fenner, of counsel, Giovannini & Olshansky, of Chicago.
For Appellee: Alan J. Spellberg, Peter D. Fischer, Joan F. Frazier, Assistant States Attorneys, of counsel, Anita M. Alvarez, Cook County State's Attorney.
PRESIDING JUSTICE PALMER delivered the judgment of the court, with opinion. Justices McBride and Gordon concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant Jodeci Whitfield was convicted of two counts of attempted murder, aggravated battery with a firearm, aggravated discharge of a firearm, and aggravated unlawful use of a weapon (UUW). He was
then sentenced to an aggregate term of 45 years' imprisonment, which included a 25-year mandatory enhancement. On appeal, defendant contends that hearsay evidence was improperly admitted at trial, requiring remand for a new trial; and that the sentences imposed by the court were excessive. We affirm.
[¶3] Prior to trial, defendant filed a motion in limine requesting, in pertinent part, that the State be precluded from introducing at trial testimony that people at or near the scene of the incident pointed in his general direction in the presence of police. He alleged that the pointing was a nonverbal assertive statement communicated by unknown individuals, which would violate his right to confrontation. Defendant maintained that the jury could easily conclude from this testimony that he fired a gun.
[¶4] At the proceeding on this motion, defendant argued that even if a limiting instruction is given to the jury, a normal person is likely to speculate that the person they were pointing at had a gun or fired a weapon. Defendant maintained that because what these people were indicating or had seen is unknown, this evidence was irrelevant, had no probative value, and is highly prejudicial.
[¶5] The State responded that the evidence at trial would be that at least one of the victims ran toward police yelling, " he is shooting," and pointed in the direction of defendant. Other evidence would show that a group of people on a porch pointed at defendant and the police began to pursue him. The State asserted that this evidence was admissible because identification is an exception to the hearsay rule, and, further, that pointing goes to the course of conduct of the officers.
[¶6] The court denied defendant's motion, finding that police may recount the steps leading up to defendant's arrest. The court noted that defendant never indicated that there were specific words he wanted excluded, but only that he did not want testimony regarding the people pointing, and that if he wanted certain words excluded, he should present a motion on it.
[¶7] Defendant also filed a motion to bar the State from calling David Baker, one of the victims, as a witness. Defendant alleged, in relevant part, that according to a detective's supplementary report, Baker identified defendant as the person who shot him. However, when Baker met with defendant's investigator, he told the investigator that he did not know who shot him, but that he knew it was not defendant, and never identified defendant. Baker also provided a signed, written statement to that effect. Defendant maintained that if Baker was allowed to testify in the State's case, such testimony would only be admissible as impeachment and not substantive evidence under section 115-10.1 of the Code of Criminal Procedure of 1963 (Code) (725 ILCS 5/115-10.1 (West 2012)) as no prior inconsistent statements had been memorialized in writing, audio or video. He also claimed that his due process rights would be violated if the State was allowed to call Baker for the sole purpose of impeaching him with unmemorialized statements, where he had not been provided with any impeachment evidence that conformed to section 115-10.1 of the Code and any unrecorded oral statement is inadmissible under that section.
[¶8] At the proceeding on this motion, defendant informed the court that the State could not call a witness solely to impeach him, but must also offer substantive evidence. The State responded that Baker was not being presented solely to impeach him, that he was going to testify
regarding everything that occurred on the night of the incident and that the only thing Baker was recanting was his identification of defendant as the shooter. The State also informed the court that Baker's prior identification of defendant could be admitted as substantive evidence. The court denied defendant's motion, noting that Baker may testify consistently with what he told the State or consistently with what he told defendant's counsel.
[¶9] At trial, Deon Stewart testified that at 5 p.m. on June 3, 2008, he and his friend Baker were on the 400 block of North Lavergne Avenue watching two people rapping. While there, a male in a black " hoodie" with orange stripes came up to them and said something unintelligible. Stewart could see the lower part of his face and identified defendant in court as this person. When defendant was 10 feet away from Stewart, he pulled out a gun and pointed it at Stewart's head. Stewart fled, hearing several gunshots, and when he turned around, he noticed that defendant's gun had jammed. Stewart kept running with Baker, but they separated, and when he returned to the location of the shooting to find Baker, Stewart saw defendant in the back of a police car. Stewart informed police that defendant was the shooter and identified him in a lineup.
[¶10] Stewart acknowledged that he had a 2010 conviction for possession of a controlled substance, for which he received probation but violated it and was then incarcerated. He also had a 2007 ...