Court of Appeals of Illinois, First District, Fourth Division
Appeal from the Circuit Court of Cook County. No. 09 C6 62080. Honorable Brian Flaherty, Judge, presiding.
For APPELLANTS: OFFICE OF THE ILLINOIS STATE APPELLATE DEFENDER, Chicago, IL, Michael J. Pelletier, State Appellate Defender, Alan D. Goldberg, Deputy Appellate Defender, Robert Hirschhorn, Assistant Appelate Defender.
For APPELLEES: OFFICE OF THE ILLINOIS STATE'S ATTORNEY, Chicago, IL, Anita Alvarez, State's Attorney, Alan J. Spellberg, Mary P. Needham, Morgan E. Muslin, Assistant State's Attorneys.
JUSTICE COBBS delivered the judgment of the court, with opinion. Presiding Justice Fitzgerald Smith and Justice Howse concurred in the judgment and opinion.
[¶1] Following a jury trial, defendant James Williams was convicted of aggravated discharge of a firearm pursuant to section 24-1.2(a)(2) of the Criminal Code of 1961 (the Code) (720 ILCS 5/24-1.2(a)(2) (West 2008)), and sentenced to seven years in prison. On appeal, defendant contends that (1) the State did not prove him guilty beyond a reasonable doubt because he was acting in self-defense when he allegedly committed the offense at issue in the case; (2) the trial court committed an abuse of discretion in delaying its ruling on his motion in limine to exclude his prior convictions and failing to perform the balancing test required under People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695 (1971), to determine their admissibility; (3) his trial counsel was ineffective, thereby depriving him of a fair trial; and (4) the sentencing statutes used in his case are in conflict and should be resolved in his favor.
[¶3] On November 26, 2009, defendant was charged by information with two counts of aggravated discharge of a firearm and one count of reckless discharge of a firearm. Ultimately, the State nol-prossed one count of aggravated discharge of a firearm and one count of reckless discharge of a firearm, and proceeded on the remaining count of aggravated discharge of a firearm. On March 20, 2012, defendant filed a pretrial motion in limine in which, inter alia, he requested that " the State be barred from any mention of the defendant's past criminal history." The trial court reviewed defendant's motion in limine in the presence of both parties. The trial court, noting that " there's been no motion for a Montgomery [hearing]," then asked the State whether it intended to use defendant's record at trial. The State responded that it would use defendant's record for the purposes of impeachment if defendant decided to testify. The matter was not revisited until August 2, 2012, following the State's case-in-chief. At that time, the trial court ascertained that defendant would testify. The State informed the trial court of two convictions that it intended to use as impeachment: a 2004 conviction for possession of a controlled substance (PCS) and a 2006 conviction for unlawful use of a weapon by a felon (UUWF). Defense counsel notified the trial court that defendant received probation for his 2004 PCS conviction. The State corrected defense counsel and informed the court that the probation was not successfully completed. The trial court then made the following ruling:
" [D]oing the balancing that the law requires, the probative value versus the prejudicial effect, I am not going to allow whether or not it was any violation on the possession of controlled substance. I will allow the unlawful use of weapon by a felon conviction to be used to impeach the defendant."
Defense counsel then asked that the name of the prior conviction not be used because it was a firearm conviction. The trial court stated:
" I will not allow the felony to be named, but he was convicted of unlawful use of a weapon by a felon. Certainly that will be allowed in, the term by a felon. That will be allowed because that is the charge he was convicted of."
[¶4] At trial, Dwayne Adams testified that on November 26, 2009, after returning home from work at about 12:25 a.m. he went outside to have a beer. He lived in a townhouse at 13743 South Parnell Avenue in the " Pacesetter community" located in Riverdale, Illinois. He entered his 2004 Ford Taurus, which was parked in his driveway, facing the street, to listen to the radio. While seated, he saw two men walk toward his house, whisper to each other, and then separate. Adams recognized one of the men, Deandre White from the neighborhood, but did not recognize the other. He later identified defendant as the other man.
[¶5] When the men separated, defendant stayed back and White walked past Adams' car and began looking east and west by moving his head back and forth. Adams felt that something was not right. Adams then saw defendant pull a mask over his head and continue to approach his location by scaling walls. At that point, Adams feared for his life. He locked the doors and tried to hide in the car. Defendant approached the car and tried to open the door and then tapped the driver's window with his gun. In response, Adams started the car and drove forward out of his driveway. Adams heard two gunshots as he pulled out of the driveway and the rear driver's side car window shattered.
[¶6] Adams then observed White and defendant, who was no longer wearing the mask, run off together and then separate. Adams did not have a cell phone to contact the police and decided to follow defendant in order to keep track of where defendant was headed in order to inform the police. Adams continued to follow defendant; when defendant looked in Adams' direction, defendant shot at the front passenger door of the car. Defendant turned a corner and ran into a field, and Adams drove around the field to keep track of defendant. Defendant then fell to the ground, put the gun down, and said " Okay, I give." At that point, Riverdale police officer Hubbard arrived.
[¶7] On cross-examination, Adams admitted to his prior conviction for drug dealing. Defense counsel then led Adams through his interrogation by Officer Hubbard which was conducted at the scene. In his police report, Hubbard indicated that Adams had not told him that defendant and White had been whispering, or that it had been an attempted robbery when he was confronted in his car. Adams did not tell Hubbard that defendant tried to break or tap on his window. Adams had testified that defendant had a mask on; however, none was found on defendant when he was searched. Further, Adams had described defendant as wearing a black and red jacket; however, when defendant was arrested he was wearing all black. Adams had also not told Hubbard that defendant had fallen down and was trying to surrender to Adams. Hubbard only saw defendant running and being chased by Adams.
[¶8] Officer Hubbard next testified that on November 26, 2009, just after 12:25 a.m., he was on patrol in the Riverdale area. He heard two gunshots and could tell that the gunshots were coming from the Pacesetter community of townhomes, which was about 2 1/2 blocks west of his location. Hubbard drove toward the shots and then stopped to listen to see if he could hear a car or anybody yelling or screaming. He radioed in to dispatch regarding possible shots fired in the area. About one minute later, Officer Hubbard heard two more gunshots from the same general area. Approximately 30 seconds later, he saw a man running from the area whom he identified in court as defendant. Defendant was running toward Officer Hubbard and carrying a black object. About 10 to 15 seconds later, Officer Hubbard observed Adams' Ford Taurus coming from the same direction as defendant and noticed that it appeared to be following defendant. He positioned his squad car between defendant and Adams' car. Officer Hubbard then drew his gun and advised defendant and Adams to freeze and show him their hands. At that point, he radioed to responding officers that he had the subjects at gunpoint.
[¶9] Adams exited his car and told Officer Hubbard that defendant was shooting at him. Officer Hubbard observed what appeared to be two bullet holes in the rear driver's door and that the rear window was shattered. As he focused on Adams, defendant got up off the ground and ran into the alley. Officer Hubbard then pursued defendant. When he located defendant in the alley, defendant got down on his knees and placed his hands in the air and said, " Don't shoot, don't shoot." Shortly thereafter, Officer Hubbard returned with defendant and Adams identified him as the shooter.
[¶10] Riverdale police officer Belleview and Officer Nathan Roudez, an evidence technician, arrived to assist Hubbard. Adams identified defendant as the person who had been shooting at him. Hubbard advised Officers Belleview and Roudez that defendant had a black object in his possession before he entered the alley and that he may have tossed it. Belleview recovered a 9-millimeter handgun from the alley and turned it over to Officer Roudez. Adams positively identified the recovered weapon as the gun that defendant used in the shootings. Defendant was transported to the Riverdale police department. Officer Roudez then began processing the scene.
[¶11] Officer Roudez testified that he observed the semiautomatic firearm, removed the magazine, cleared the chamber, took out the live round, photographed it, and then properly inventoried the recovered items. He also recovered one shell casing in the area, a few inches from the curb, photographed it and placed it in a marked evidence protection box. Officer Roudez then relocated to 13743 Parnell Avenue, where he learned the incident had originated. There, he recovered three more shell casings from the sidewalk and apron of Adams' driveway. Officer Roudez photographed these casings and placed them in an evidence box; he properly inventoried all of the casings he recovered.
[¶12] Officer Roudez then went to the police station garage bay to process Adams' Ford Taurus. At the station, he photographed the interior and exterior of the car. Officer Roudez observed that the rear driver's side door had sustained three gunshots, and noted that two of the three did not penetrate through the door. Officer Roudez observed one bullet hole in the front passenger's side door. He traced the bullets' trajectory to below the front seat passenger's seat control. The bullet fragments from the car were properly inventoried, and all of the evidence collected was sent to the Illinois state police crime lab.
[¶13] Illinois State Police forensic scientist Patricia Wallace, an expert in the area of firearms and firearms identification, testified that she identified the firearm recovered as a high-power nine-millimeter semiautomatic pistol that was in operating condition. She had test-fired the firearm and compared the casings with the casings recovered by Officer Roudez from the scene. Her conclusion, within a reasonable degree of scientific certainty, was that the four shell casings recovered from the two crime scenes were fired from that firearm. Following Wallace's testimony, the State then rested.
[¶14] Defendant testified on his own behalf that on the evening of November 25, 2009, he accompanied a friend and his friend's girlfriend to the Riverdale neighborhood. He testified that he took his 9-millimeter gun with him for his own protection. When they arrived at the Riverdale area, they encountered Deandre White, whom defendant knew. White asked defendant to accompany him when he confronted a drug dealer. Defendant and White walked down the street to talk with Adams, who was sitting in his car, which was parked in the driveway and facing the street. Defendant remained at the end of the driveway on the sidewalk, while White walked up to the driver's side window of Adams' car. Defendant stated that he " hear[d] a lot of yelling and [saw] hands moving" and " [n]ext thing you know I hear a car revving its motor. It's flying toward me." Adams then drove out of the driveway and turned left and the front bumper of Adams' car grazed defendant's right knee. As the car approached defendant, he moved out of the way and pulled his gun out and fired shots at the car door because he was " trying to save [himself]."
[¶15] Defendant further testified that after he shot at Adams' car, White ran away, and defendant ran in the opposite direction of the car. He then noticed Adams driving toward his direction and following him. Adams never drove on the curb or the sidewalk but continued to follow defendant saying that he was " fixing to kill [me]" and " I am fixing to run you over." Defendant was trying to cross the street to get away, but Adams blocked his way. Defendant then went back to the sidewalk and shot at Adams' car two more times to get him to go away. Defendant shot at the bottom of the passenger's door, and defendant explained that he was shooting down basically, " like trying to hit the tire of the door to get him to just move, leave me alone." Defendant then ran across the street into a field. Adams circled the field to keep an eye on him. Defendant fell because he was tired and his leg hurt. He was lying on the ground in the street with his gun in his right hand when Hubbard arrived. He then ran away, ...