Appeal from the Circuit Court of Winnebago County. No. 10-CF-58 Honorable John R. Truitt, Judge, Presiding.
JUSTICE McLAREN delivered the judgment of the court, with opinion. Justice Hutchinson concurred in the judgment and opinion. Justice Zenoff dissented, with opinion.
¶ 1 After a jury trial, defendant, Franklin Lofton, was found guilty of three counts of first-degree murder (720 ILCS 5/9-1(a)(1), (a)(2), (b)(6) (West 2006)) and one count of attempt (armed robbery) (720 ILCS 5/8-4, 18-2 (West 2006)) arising out of the shooting death of Tyrone Dowthard. Two of the murder counts merged into the third (under subsection (a)(2)), and defendant was sentenced to a mandatory term of natural life in prison for first-degree murder, to be served consecutively to a term of 20 years for attempt. These sentences were to be served consecutively to defendant's 75-year prison sentence arising from a prior, unrelated murder conviction. Defendant now appeals from his convictions. We reverse and remand for a new trial.
¶ 2 I. BACKGROUND
¶ 3 At trial, the victim's sister, Karen Dowthard, testified that she was at her home at 2319 West Jefferson Street in Rockford with Tyrone and a friend, Henry Sanders, in the evening of May 23, 2006. At around dusk, she walked out her door to her front porch and saw Tyrone, standing by his truck in her driveway, and a small, slender, light-skinned black man with a gun standing near him. Her porch light was on, so she could see the man, whom she thought was between 17 and 19 years old. He was wearing a hoodie with the hood "partially" up and had a bandana wrapped around his face; she could see only from the bottom of his eyes to the middle of his forehead. She noticed his eyes and the structure of his neck even though she saw the man only from the side. The man said, "Stick your hands up, " and Tyrone laughed. The man shot him. Karen could not identify the shooter that night.
¶ 4 About a year later, police showed her a photo line-up, and she picked out a photo "[i]mmediately." She could "tell his neck" and she believed that she had seen the shooter's "braids out of the back." She recognized the shooter "from his body structure, his neck, and his eyes." The photo "jumped out" at her because "spiritually, emotionally, " she felt she was "in the presence." She identified the man in the photo as defendant.
¶ 5 Sanders, who had been sitting near the bottom of the stairs of the porch at the time of the shooting, testified that, at about 11:30 p.m., a young, small black man, probably a teenager, with something covering his face came from behind the house with a "big, chrome gun" and told Tyrone to put up his hands. Sanders remembered Tyrone "putting it like I guess he thought it was a joke." The man shot Tyrone and ran away in a different direction. Sanders did not remember that he called the police, nor did he remember what he told the police that night. About a year later, he was shown a photo line-up by the police, but he could not identify anyone as the shooter.
¶ 6 Officer Patrice Turner of the Rockford police department testified that she responded to a call of a shooting at 2319 Jefferson at about 11:30 p.m. on May 23, 2006. When she first saw the man she later learned was Sanders, he was "distraught, he was crying and very frantic." She later interviewed Sanders and described him as cooperative and answering questions appropriately. Sanders described the shooter as "short" and a "shorty, " a term that meant a "younger person" or "a kid." Sanders further described the shooter as five feet three inches tall with a medium build. The shooter had on a gray sweater that was pulled up over the lower half of his face and something over his head. Sanders described the shooter as "a 16 or 17 year old black male" with the voice of "a younger teenager." The shooter had a "long barrel, silver handgun." Sanders said that he had never seen the shooter before that night and was unsure if he would be able to identify him.
¶ 7 Detective Mark Jimenez of the Rockford police department testified that he interviewed Karen within hours of the shooting. He described Karen as "a little bit emotional" but able to talk. Although Jimenez initially testified that Karen thought that she could identify the shooter, on cross-examination he reviewed the report that had been written by another detective and stated that he was mistaken; Karen had stated that she "could identify his description and not his actual physical identity." Karen gave a description of a black male, five feet three inches tall, 130 pounds, wearing gray pants, a gray hooded sweatshirt, and a red and white bandana. She did not mention that his eyes, neck, or facial structure stood out to her. Karen told him that she would be unable to identify the shooter if she saw him again. Jimenez gave defendant's date of birth as January 6, 1985.
¶ 8 Deputy Dennis Hill of the Winnebago County sheriff's department testified that he was assigned to the canine unit when he was called to Karen's house around midnight on May 23, 2006. He and his canine, Hoss, were directed to the east side of the house, near the front. Hoss picked up a scent, taking Hill north, along the side of the house to the garage, then northwest, through some backyards, to the intersection of Soper and Andrew, about one block north and one block west. Hoss lost the scent there. Hill stated that, when he arrived, the scene was contaminated by the many people already there and he could not tell whether Hoss was tracking "a suspect or a witness or somebody completely unrelated" to the situation.
¶ 9 Diane McLaurin was called to testify but either could not remember events or denied that they occurred. This applied to events on or about May 23, 2006, talking to police and identifying defendant in a photo array in April 2007, and testifying before the grand jury. She did admit that her signature was on a "photo spread notice" (which had been marked as People's exhibit No. 8), but she did not recognize the document or remember what was included on it. She stated that she did not know defendant, but later admitted signing the back of "the photograph of Franklin Darielle Lofton." The State went through each question and answer from McLaurin's testimony before the grand jury, asking her if she remembered the question and giving the answer. McLaurin was confused, sometimes answering whether she remembered or not, sometimes answering as though the recited question was currently being asked. Several times, the court reminded McLaurin that "that's not the question. The question is do you remember being asked that question and giving that answer." After saying that she did not remember what year she testified before the grand jury, she denied remembering going before the grand jury at all.
¶ 10 Robert Jones, defendant's cousin, testified that he met with detectives in May 2007 and told them that he was with defendant during the day in question and that defendant had a silver .357 revolver. Defendant told him that he was planning on committing a robbery ("hitting some licks") that evening because he was broke. Defendant walked away from Jones's house but called Jones a half hour to an hour later. Defendant asked Jones to pick him up at defendant's house on Sherman because he had just shot somebody. Jones did not do so.
¶ 11 Jones saw defendant a day or two later at the home of Alonda Johnson, defendant's sister. Jones heard defendant and Johnson arguing; defendant "didn't really say anything, " but Johnson was "hollering at him." The State then began reading questions and answers from Jones's grand jury testimony involving what Jones heard of that conversation; Jones did not remember his grand jury testimony. He stated that defendant never confessed any crime to him. Jones admitted that, when he talked to the assistant State's Attorney and an investigator the day before trial, he told them that defendant had told him over the telephone that he had shot someone and needed a ride; however, Jones denied that defendant had said that the shooting had occurred on Jefferson.
¶ 12 Robert Tate testified that he was currently on federal parole following a 2008 conviction and had also been convicted of state felony charges. In May 2006, he lived with his girlfriend, Johnson, and defendant. Tate was asked if, on the morning after Dowthard's murder, he overheard a conversation among defendant, Johnson, and Jones. Tate stated, "I just know what they told me." When asked again if he had overheard defendant "telling his sister or [Jones] anything, " Tate responded, "I just-I really didn't catch the conversation. I was just hearing them in there talking." The State then questioned Tate about a signed statement that he had given to police on July 12, 2007, the procedure for which he described as "what's in there is like the questions they asked me and my answers to them, but that's not my word for word, it's not what I said." Tate denied telling officers that he " 'could hear Franklin say that he had shot the dude from the night before on Jefferson.' " Instead, he explained, "What I said is what they had told me" and "everything I answered to is-is what I heard. I didn't hear the conversation." On cross-examination, Tate denied that he ever heard defendant say that he shot or robbed anyone. He heard the conversation on the morning after the murder, "but I don't know what they was [sic] talking about."
¶ 13 Detective Scott Mastroianni of the Rockford police department testified that he spoke with Jones in May 2007. Jones was providing information regarding Dowthard's murder in order to help Tate, who was being held in federal custody. According to Mastroianni, Jones told him that he was with defendant at 301 Royal prior to the murder and that defendant told him that he was going to "hit a lick" because he was broke. The Royal address was about three blocks away from Karen's house. Jones told him that, after defendant left, defendant called Jones's telephone and the telephone of McLaurin, who was Jones's girlfriend. Jones did not speak to defendant on either telephone. Defendant told McLaurin to have Jones pick him up "somewhere off Andrew Street"; Jones drove around but could not find him. He saw defendant the next day at the home of defendant's mother. Defendant told him that he had tried to commit a robbery on West Jefferson Street but that the intended victim laughed at him, and "he had to shoot him." Jones also said that he was with defendant at Johnson's home and heard defendant tell Johnson "about the robbery that had gone bad and where he had shot the guy on West Jefferson." Jones did not come forward with this information until almost a year after the shooting, because he was afraid that defendant would kill him.
¶ 14 Mastroianni also testified that he and Detective Jason Bailey interviewed Tate in July 2007. Bailey took notes during the interview and produced a written statement that Tate eventually reviewed and signed for accuracy. After Mastroianni described the procedure of taking the statement, the State quoted segments of the statement verbatim and asked Mastroianni if that was what Tate said. According to the statement, Tate said that he had heard about a murder on West Jefferson the year before and that, on the morning after the murder, defendant and Jones showed up at the home of Tate and Johnson and began talking to her. Tate said: (1) "They were in the dining room area talking while I was in the kitchen"; (2) "I could hear Franklin say he had shot the dude from the night before on Jefferson"; (3) "Franklin was telling his sister that he had tried to rob the guy and ended up shooting him"; (4) "I can't remember his exact words because it was over a year ago, but I know he said he shot the guy on Jefferson. Alonda and I both told Franklin he could not stay at our house anymore"; (5) "Franklin went on to say he would quote do it again if anybody told what he had done"; and (6) "I am not sure if he was directing his comments towards me and Alonda but at [Jones] and [Jones's] girlfriend, Diane McLaurin." The State also introduced the written statement into evidence.
¶ 15 Sergeant Kurt Whisenand of the Rockford police department testified that he met with McLaurin on April 19, 2007. She told him that Jones was her ex-boyfriend and a friend of defendant. She did not know defendant very well but had seen him several times with Jones. About a year before McLaurin met with Whisenand, she, Jones, and defendant were in a car as it pulled up to her cousin's house at 301 Royal. Defendant got out, said that he was going to rob somebody because he was broke, and pulled a large silver handgun from his waistband. After replacing the gun in his pants, defendant walked north on Royal, toward Andrew Street. About 20 or 30 minutes later, she received a telephone call from defendant on her telephone; she answered the call and gave the phone to Jones. About 10 minutes after Jones finished his phone conversation, he told McLaurin that defendant was hiding in some bushes and needed a ride. Jones then left. McLaurin noticed police down the block that night and heard from a neighbor that there had been a murder at 2319 West Jefferson.
¶ 16 McLaurin told Whisenand that she saw defendant the next day when he and Jones pulled up in front of 301 Royal. McLaurin went up to the car, and defendant showed her the same gun that he had the night before and told her not to tell anyone that she had seen him the night before. Two to three weeks before McLaurin spoke to Whisenand, she saw defendant out in traffic, and he made a motion "like he was pointing a gun at her and pulled the trigger." She did not come to the police sooner because she was afraid.
¶ 17 Whisenand also learned from McLaurin that "Darielle" had a sister "Teeka, " who dated Tate. Based on conversations with other officers, Whisenand was able to identify "Teeka" as Johnson and her brother as defendant. Whisenand created a photo array that included defendant's picture; McLaurin picked out defendant's picture and indicated that that was the person she knew as Darielle. She did not know any of the other five individuals shown in the array.
¶ 18 On cross-examination, Whisenand said that he never gave McLaurin the opportunity to provide a written statement. McLaurin did not tell him that defendant had "turned in" Tate to federal authorities on a drug case, although he learned that fact later.
¶ 19 The transcripts of the grand jury testimony of McLaurin and Jones were then entered into evidence by stipulation. In his grand jury testimony (redacted to two pages), Jones agreed that defendant told him "about trying to rob a guy on Jefferson [S]treet." When asked if defendant "said anything about having to shoot him, " Jones replied, "Yeah, it was something like that." However, Jones denied that defendant shot the man "because the guy laughed at him"; instead, "it was because he couldn't take the money or something from the guy, something. He got in a struggle or something with the guy."
¶ 20 Investigator Greg Lindmark of the Winnebago County State's Attorney's office testified that, two days before trial, he sat in on an interview of Jones by the assistant State's Attorney trying the case. Jones told them that he was at McLaurin's house on Royal Avenue when defendant asked him if he "wanted to go do a lick, " meaning rob someone. He did not go with defendant, who had a chrome .357 Magnum handgun. About 30 minutes later, defendant called Jones and told him that he had had to shoot someone and that he needed a ride from Andrew Street. Jones did not pick up defendant. The next day, Jones was at Johnson's home, where he heard defendant "talking about the shooting and robbery" with Johnson. Lindmark did not take a written statement from Jones, and Lindmark wrote a report about the interview only on the morning of his testimony; he did not know that such a report would be necessary until Jones had testified the day before, providing testimony that was that different from his interview.
¶ 21 After the State rested, defendant moved for a directed verdict. The trial court denied the motion, and defendant rested without calling any witnesses. The jury then returned ...