Court of Appeals of Illinois, First District, Third Division
Appeal from the Circuit Court of Cook County. No. 08 CR 19575. The Honorable Jorge Luis Alonso, Judge Presiding.
FOR PLAINTIFF-APPELLEE: Anita M. Alvarez, State's Attorney, Chicago, IL, OF Alan J. Spellberg, Douglas P. Harvath, and Tasha-Marie Kelly.
FOR DEFENDANT-APPELLANT: Abishi C. Cunningham, Public Defender of Cook County, Chicago, IL, OF Evelyn G. Baniewicz, Assistant Public Defender.
PRESIDING JUSTICE PUCINSKI delivered the judgment of the court, with opinion. Justice Hyman concurred in the judgment and opinion. Justice Mason dissented, with opinion.
PUCINSKI, PRESIDING JUSTICE.
[¶1] All expert opinion testimony requires an adequate foundation. The foundation requires a factual reason or basis for the expert's opinion. Where no factual basis is given, " trust me" is not enough.
[¶2] The defendant was convicted in a jury trial of first-degree murder based on circumstantial evidence and the expert opinion testimony of a firearm/toolmark examiner who identified the bullet found by the victim as being fired from defendant's gun. Defendant argues that the court erred in admitting the firearm/toolmark examiner's expert opinion testimony. We agree and hold the court erred in allowing the testimony of the firearm/toolmark identification expert because the expert's testimony lacked an adequate foundation where the expert testified that he found " sufficient agreement" but did not testify to any facts that formed the bases or reasons for this ultimate opinion that the bullet matched defendant's gun.
[¶3] We further hold that the expert's opinion testimony substantially prejudiced defendant, as it essentially placed the murder weapon in defendant's hands, and thus we reverse and remand for a new trial.
[¶4] Defendant also argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt, but due to our disposition we do not reach this issue.
[¶5] Defendant further argues that the court also erred in not giving a second-degree murder instruction. We hold that defendant waived this argument by not including it in his post-trial motion, and the plain error exception to waiver does not apply here because, even if there were any error, such error was invited by defendant where he indicated to the court that he did not want the instruction.
[¶7] Defendant, Joe Jones, was charged with the first-degree murder and armed robbery of his friend Ivory Anderson that occurred on September 12, 2008, near the intersection of Garfield Boulevard and Winchester Avenue in Chicago, Illinois. Defendant was charged via indictment with several counts of first-degree murder and two counts of armed robbery. The following facts are from the testimony at trial:
[¶8] The day of the shooting, defendant was with Ivory Anderson and Valerie Myrick, known to her friends as " Red," at defendant's house on the 5600 block of South Seeley Avenue in Chicago, Illinois. Defendant was Valerie's boyfriend at the time, and Valerie and Ivory had been friends for about 20 years. Valerie drank and did drugs with both Ivory and defendant and partied in defendants' basement. That night, the three of them were smoking crack cocaine and drinking alcohol.
[¶9] Shortly before 9:30 p.m., Valerie, Ivory and defendant ran out of cocaine and Ivory suggested that they go buy more. Neither Valerie nor defendant had any money, so Ivory offered to go to his house to get some money. After Ivory got some money, the three began walking towards Winchester and 55th Street (Garfield Boulevard), where they planned to buy cocaine. Drugs were sold at a house on the comer of 55th Street and Winchester Avenue. Around the same time, Danies Escobar and her boyfriend Stanley Sparks were standing under the canopy of a currency exchange located nearby at 55th Street and Damen Avenue. Danies and Stanley earned their living by selling " cigarettes" at this location for fifty cents apiece. Danies had known Ivory for about 25 years, had been friends with Valerie for about 18 years, and had known defendant for about 7 or 8 years. Danies also partied in defendant's basement. Stanley also knew Valerie, Ivory and defendant and sometimes also partied in defendant's basement.
[¶10] Danies and Stanley saw Valerie, Ivory and defendant approach them. Defendant was wearing a long blue denim jacket. As Valerie, Ivory and defendant approached, Valerie split and proceeded towards a gas station to get cigarettes and a cigarette lighter. Ivory gave Valerie a roll of quarters and Valerie went inside the gas station.
[¶11] After Valerie went inside the gas station, Danies and Stanley heard gunshots. Danies heard four or five shots and that all the shots had the same sound. Stanley testified that he heard two shots, then two or three more, and stated that the shots all sounded alike to him, like they came from the same gun. To Stanley, the shots sounded like they came from a .38-caliber gun. Stanley testified that he may have told Detective Lewis that he heard two shots, a pause, and then four more shots.
[¶12] After hearing the gunshots, Danies and Stanley immediately went through the alley and headed towards 55th Street and Winchester Avenue, because Stanley's son frequented the area and they were concerned for him. There were no cars or people in the alley. At the end of the alley, they looked both ways and did not see anyone. When they got to the area, they looked around and did not see anyone at first. Danies saw two umbrellas and a lot of blood on the ground. Danies and Stanley were turning to walk away when they saw a body in between the garage at 5512 S. Winchester Avenue and the alley. Danies and Stanley both did not recognize who it was at first.
[¶13] Meanwhile, Valerie came out of the gas station and did not see defendant and Ivory, who were supposed to wait for her at the corner. As she looked around for them, defendant came running towards her and said, " your friend just got shot." Defendant did not say how it happened or who shot Ivory. Valerie ran towards the other side of the boulevard to where Danies and Stanley had just discovered the body. Danies and Stanley were standing by the body but still did not recognize who it was. When Valerie arrived, she screamed, " Oh, hell, no, he shot Ivory...[.]" Valerie began screaming Ivory's name and telling him to " hold on." Danies then realized it was Ivory, saw blood around his head, and ran towards the gas station and found a police officer on 55th Street, coming off Damen. She told the officer there was a man laying down at 55th and Winchester, Danies then went back to where Ivory was and stayed there until the police came. Stanley saw that Ivory's head wound " was really bad" and that Ivory's torso was covered in blood stains. Danies flagged down a marked police car on 55th Street, turning from Damen Avenue, and returned to where Ivory was.
[¶14] When the police arrived on the scene, Danies gave officers her name and address and went to the home of Ivory's sister, Dorothy Hunter, to tell her what happened. Danies told Dorothy and remained with her for about 15-20 minutes and then returned back to 55th and Damen. Dorothy then proceeded to 55th and Winchester. When she reached the alley, she saw Ivory's body covered with a white sheet and was told she could not walk closer because it was still a crime scene. A short time later, her nephew, who was a police officer arrived and identified the body as Ivory. Ivory Anderson was later pronounced dead from a gunshot wound to his back. The manner of death was ruled homicide.
[¶15] After Valerie talked to the police at the scene, she saw defendant near 55th and Damen. They walked together towards the E & J Liquor Store. Valerie asked defendant what had happened, and defendant told her that " two guys came behind them and tried to stick them up." Defendant said that " one guy pulled a gun and started shooting" and so defendant " pulled his gun and was shooting back." Valerie asked defendant if he killed Ivory and defendant said, " no." Valerie and defendant went to Valerie's house and slept there that evening.
[¶16] About 20 minutes after the shooting, at 55th and Damen, Danies and Stanley ran into Valerie and defendant by the bus stop in front of the gas station, near the E & J Liquor Store. Defendant was wearing a different jacket. When Danies and Stanley first saw defendant that night, he was wearing a long blue denim jacket, but when they saw him at the bus stop he was wearing a black leather jacket. Stanley did not think it was significant that defendant had changed his jacket, as it had been raining all day. Danies and Stanley stopped outside the liquor store on the sidewalk. Danies testified that Valerie was crying but defendant was not saying anything and was acting " jittery and nervous." Defendant started talking about a car accident where people were hurt at the bus stop in front of the gas station that took place 20 to 30 minutes after the shooting. Danies did not ask defendant about Ivory's shooting, and defendant did not talk about it or ask about it. Stanley testified it was not much of a conversation and they were with defendant for two or three minutes. After a few minutes, Valeri and defendant went to the liquor store and Danies and Stanley left and slept at Valerie's house.
[¶17] Chicago Police Department personnel arrived at the scene of the shooting at 5512 South Winchester to begin investigating and processing the scene. Detective John Halloran was assigned to the investigation, along with Detectives Garza, Gorman, Solecki, Butler, Cervin, and Wright, as well as investigator Joseph Bembynista. At this point it was heavily raining. After interviewing witnesses, the detectives attempted to locate defendant but were unsuccessful. Valerie talked to the police at the scene, Stanley told the police his name was Otis Brown because he had a warrant for child support.
[¶18] Retired Investigator Joseph Bembynista testified to his processing of the crime scene. Investigator Bembynista testified that when he arrived it was pouring rain. Ivory was laying on a garage drive next to a blue Pontiac. The driveway where Ivory was lying was slightly slanted down toward the alley. Bembynista found two spent .380 caliber shell casings approximately 17 feet southwest of the car, an overturned umbrella, a jacket and a sweater. The two cartridge cases were from different manufacturers: " Win"  and Remington. The investigators also found an overturned umbrella, a jacket and a sweater. Photographs were also taken of the scene, depicting blood splatter on a car door and on a panel of a garage door in the alley, People's Exhibit Numbers 12 and 15. Bembynista did not swab the blood on the garage door, the blood on the Pontiac, or the blood north of the car. Bembynista searched Ivory's body and found a fired bullet under this shirt. He did not find any money, wallet, or identification on Ivory.
[¶19] Detective Halloran also testified regarding the processing of the crime scene. He was assigned to the investigation, along with Detectives Garza, Gorman, Solecki, Butler, Cervin, and Wright. Detective Halloran testified that two .380 caliber shell casings were found in the street about 25 feet south of Ivory's body at the mouth of the alley.
[¶20] Detective Halloran sent Detectives Solecki and Butler to the Cook County Medical Examiner's Office to observe Ivory's autopsy. When the bag containing Ivory's body was opened and personnel began removing Ivory's body, a fired bullet fell out. Detective Solecki found a $20 bill, some change, keys, and a bottle of gin.
[¶21] The bullet and the shell casings from the scene were sent to the Illinois State Crime Laboratory for testing.
[¶22] Dr. James Filkins, a deputy Medical Examiner, reviewed Ivory's case, whose autopsy was originally performed by Dr. Michel Humilier. Dr. Filkins reached an independent conclusion as to Ivory's cause of death to a reasonable degree of scientific certainty. Dr. Filkins opined that Ivory died from a single gunshot wound to the back, with damage to both his lungs and aorta. Ivory died from the shock of blood loss.
[¶23] Danies testified that she did not see defendant with a gun on September 12. Before that date, she had seen him with a small black gun. Stanley had seen defendant carry a gun, a .380 semi-automatic. Defendant had the gun for three or four weeks. Stanley thought defendant had the gun earlier in the day on the 12th, around noon, when they talked while sitting at the bus stop, but Stanley did not see it. Defendant said, " It is too hot out here, I am going to put this thing up." Defendant did not specifically refer to his gun, but Stanley thought that was what defendant was referring to. Stanley did not actually see the gun.
[¶24] Two days after the shooting, on September 14, Valerie and defendant went to Dorothy Hunter's house to give Ivory's family their condolences. Dorothy Hunter was Ivory's older sister. Dorothy and six of her family members were there. Dorothy asked what happened to Ivory, Defendant told her that as he and Ivory were walking, two young men came up to them and said, " This is a stick-up, robbery, give me your money and wallet." Defendant described them as 19 to 20 years old. One of them was light-skinned, tall, wore a black hoodie, and had a gun. Defendant told the family that his nephew knew who the gunman was but he did not go to the police. The situation at Dorothy's house became chaotic and the police were called. Defendant was arrested and taken to the police station.
[¶25] On September 14, 2008, Detectives Halloran and Gorman interviewed defendant in a taped interview. People's Exhibit No. 52 was a redacted typed version of their interview, which was published to the jury. In the taped interview, defendant said he was at the E & J Liquor Store with a man named Al and Valerie when Ivory stopped by. Ivory told Valerie that he would be back at 9 p.m. Ivory came back before 9 p.m., and he, defendant, and Valerie walked over to defendant's house, where they talked, smoked rock (crack cocaine), and drank gin. The three of them left defendant's mother's house to walk Ivory to his house. Ivory was going to get some money to smoke some more crack cocaine. Defendant and Valerie waited on the comer while Ivory went home. Ivory did not want his sister to see them. When Ivory came out of his house, he said he had a little money. They all then went down Winchester Avenue towards 55th Street. Before they crossed the street, Valerie left to get some cigarettes from the gas station. They told her they would meet her. Valerie left, and Ivory and defendant crossed the street going south on Winchester. They crossed 55th Street (Garfield Boulevard) and saw Danies's nephew selling drugs. Defendant described him as 19-20 years old, dark-complected, around 5'10" to 6' tall, heavy set, with bushy hair and wearing a blue hooded sweatshirt. Defendant asked whether there was anything going on, meaning did he have any drugs, and the nephew said no. There was a second individual at the top of the stairs of the house on the comer. This individual was slender, 5' 10" to 6'1" , light-complected, and was wearing a grey hoodie.
[¶26] Defendant said that a confrontation started on the sidewalk, by the alley. Defendant stated that the individual with the grey hoodie " ran up behind" Ivory and " snatched at his pocket" in a robbery attempt and that Ivory " swung his arm" and was " spun around." Defendant said that this individual then opened fire on Ivory, without any provocation. Defendant did not know if he heard two, three or four shots. Defendant denied that he had a weapon at the time Ivory was shot and denied shooting Ivory the night of September 12. Defendant told the detectives he had no reason to shoot Ivory.
[¶27] On cross examination, Detective Halloran acknowledged that if the shooter had a revolver, casings would not be found, as revolvers do not eject the cartridge cases; they stay inside the cylinder of the gun.
[¶28] On the early morning of September 16, at about 3 a.m., Detectives Halloran and Gorman returned to the crime scene to conduct another search. The detectives looked for bullet impacts, fired bullets, shell casings, or any other physical evidence. They found two more .380 shell casings in the street, in front of 5514 South Winchester Avenue, which was south of the alley and the location where the original shell casings were found. The shell casings were forwarded to the crime lab for testing. The police did not search north of the comer and did not search the parkway or Garfield Boulevard (55th Street).
[¶29] Later that afternoon, around 2:00 to 2:30 p.m., Detective Halloran and four other officers executed a search warrant for defendant's home at 5516 South Seeley. A Grendel .380-caliber semi-automatic pistol was found on a shelf in the basement storage room. The pistol contained one live round. It was sent to the crime lab for testing. Defendant's jacket was also inventoried but was never sent for testing.
[¶30] Other detectives checked the businesses in the vicinity of the shooting for video surveillance footage. The video at the gas station showed Valerie inside the gas station at 9:40 p.m. Detective Halloran also canvassed the neighborhood for other witnesses but did not find any.
[¶31] An individual named Charles Pettis also testified. Pettis was arrested on September 17, 2008 on a drug charge and was taken to the criminal court at 26th and California for a bond hearing. While in the receiving area he saw defendant in a cell. Pettis stated that he was friends with both defendant and Ivory and described his relationship with Ivory as " drinking buddies." Pettis asked defendant what happened to Ivory. According to Pettis, defendant denied shooting Ivory and told him that Ivory was shot by an individual who came up from behind a dumpster. Defendant said he fired one time at this individual. The individual shot at Ivory once and then three or four more times when Ivory was down. Defendant told Pettis that he went over to see if Ivory was still living and then took the money from his pocket and left. Three weeks after this conversation, the police picked up Pettis and questioned him. Pettis admitted that at the time of his arrest and conversation with defendant he used crack cocaine once a week and regularly drank a six-pack of beer a day but said the cocaine did not affect his memory. While he did not remember his arrest on September 18 or what he told police at that time, he did remember his conversation with defendant.
[¶32] Prior to trial, defendant moved to suppress his statements, arguing that the detectives ignored the Illinois statute requiring the videotaping of all interrogations and defendant's assertion of his constitutional rights. The trial court granted defendant's motion to suppress in part and suppressed the first unrecorded statement defendant made and the pre- Miranda summary of an earlier interview by Detective Halloran after he moved defendant to a room with recording equipment, ruling that recording was required. The court suppressed all statements made by defendant before Miranda warnings were given. The court allowed all of defendant's statements to Detective Halloran which followed defendant's Miranda rights. The court allowed the State to use the statement defendant made at 10:30 p.m. up until the interrogation by Detectives Lewis and Adams, but suppressed defendant's statements to Detectives Lewis and Adams because defendant made a clear invocation of his rights prior to that statement. We therefore do not consider defendant's statement to Detectives Lewis and Adams.
[¶33] Defendant also filed a motion seeking to bar " misleading opinion statements by the prosecution concerning firearms identification," requesting that the State be barred from using phrases such as " to a reasonable degree of scientific certainty" or " to a reasonable degree of ballistic certainty." The State agreed that its firearms expert would not use such terms and that he would state his testimony was his " opinion" as to any identification of ballistics.
[¶34] The State's firearms expert at trial was Justin Barr, a forensic scientist at the Illinois State Police laboratory who specialized in firearms identification. The trial court found Barr qualified to testify as an expert witness, without objection. Barr explained the basics of firearms identification to the jury, which is based on class characteristics of a weapon based on its caliber and other features determined prior to manufacture, such as rifling from the interior part of the barrel of a firearm, which creates lands and grooves and the direction of twists. Barr testified that these striated markings within the barrel are impressed onto the bullet as it travels down the barrel. Individual characteristics are the irregularities or imperfections that are caused by the manufacturing process or " abuse of the tool." A particular firearm will have its own set of individual characteristics that set it apart from other firearms. The comparison of fired test bullets from a particular firearm is made through a comparison microscope, which is " basically two compound microscopes connected by an optical bridge where two items can be seen in the same field of view." In making the comparison, he looks for striations, or scratch markings, on the bullet, " individual characteristics, or the overall pattern" that is " based on class and individual characteristics." Barr testified that " [t]he basis for an identification is sufficient agreement of class and individual characteristics." Barr testified that the question of what is " sufficient agreement" between the items is based on his training and experience. Barr testified that he does not use a national standard, and that examinations at the Illinois State Police Laboratory are " just based on our training and experience, which is verified by another examiner," and that there is no Illinois State Police standard.
[¶35] Barr testified that he received several pieces of evidence in this case, including the fired bullet recovered from Ivory's body, the Grendel Model P12 .380-caliber pistol recovered from defendant's home with one magazine and unfired cartridge, and the four fired cartridge casings recovered from the scene of the shooting. Barr examined the gun and determined that the rifling inside was " six right," meaning there were " six lands and grooves in the barrel with a righthand twist." Barr testified these were class characteristics. Barr did not testify to any individual characteristics of the gun. Then Barr fired the firearm to determine if it was in operable condition and fired two test shots using two unfired cartridges from the lab. He fired the test shots through the gun into a water recovery tank. The test bullets and their cartridge casings are also the control group used to compare to the recovered bullet and casings.
[¶36] Barr then compared those test bullets to the bullet recovered from Ivory's body and the test casings to the casings that were recovered from the scene. In making the comparison, Barr used a comparison microscope with two stages, one on the right and one on the left, and through the oculars he sees both sides to compare. Barr determined that there was sufficient agreement between the bullet recovered from Ivory's body and the test bullets fired from defendant's gun and that the bullet recovered from Ivory's body was fired from defendant's gun. Barr also compared the four cartridge casings under the comparison microscope and determined that they also were fired from defendant's gun.
[¶37] Following Barr's testimony on direct examination, defense counsel made an objection on " foundation'' that was " based on Safford [ People v. Safford, 392 Ill.App.3d 212, 910 N.E.2d 143, 331 Ill.Dec. 70 (2009)] in that we don't believe that a foundation has been properly laid or discovery properly given as to the specifics of the striations that this examiner used to come to his conclusion." The State responded that this area of inquiry was proper for cross-examination. The trial court overruled the objection.
[¶38] On cross examination, Barr explained that at the Illinois State Police Crime lab, they " don't really count the number of lines or how many things were in agreement, but it is an overall pattern based on class and individual characteristics." Barr testified that " there is no set number of how many lines" he was looking for and the striations " don't all have to line up," and that examiners at the Illinois State Police Laboratory " don't count them." Barr also testified that he does not look at every single line. Barr testified that the standard used to make the determination whether there was an identification is " sufficient agreement" and that this standard is commonly accepted in his field. Barr testified there is no specific standard as to the number of markings which have to match; each examiner decides on his or her own what is sufficient agreement. Barr testified that the question of what constitutes " sufficient agreement" between the two bullets for comparison is based on his training and experience. Barr further testified that he heard of the practices of " consecutive matching stria[tions]" and line counting, but those practices are not used in the Illinois State Police Laboratory. Barr was not aware of the quantifiable method, which uses a number standard.
[¶39] Barr also testified that the Illinois State Police Laboratory uses a verification system, where each examiner asks an available co-worker to verify the conclusion. Barr concluded that the recovered fired bullet was fired from defendant's pistol. Barr then lined up his microscope at the index mark and asked another technician to verify it. Barr told the other technician it was an identification, and the other technician agreed with Barr's findings. Barr did not recall any other technician ever disagreeing with him or him disagreeing with any other technician. Barr knew there had been disagreements in the laboratory but was not sure if they kept track of them. Barr further explained there is no set procedure for choosing a verifier. The verifier is free to make his own determination.
[¶40] On cross-examination Barr testified that he did not know specifics of the gun manufacturing process, how the lands and grooves were made within a gun, and whether all guns produced by a manufacturer on the same day had the same lands and grooves. On redirect, Barr clarified that all guns made on a particular day may have the same class characteristics.
[¶41] On redirect, Barr agreed that he uses methods and procedures commonly accepted in the area of firearms examination to determine whether a certain piece of evidence was fired from a particular firearm, but then it is his determination if a sufficient ...