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People v. Henderson

Court of Appeals of Illinois, First District, Fifth Division

March 31, 2017

THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
RONALD HENDERSON, Defendant-Appellant.

         Appeal from the Circuit Court of Cook County No. 09 CR 16803 (03) The Honorable William G. Lacy, Judge Presiding.

          GORDON PRESIDING JUSTICE delivered the judgment of the court with opinion. Justices Lampkin and Reyes concurred in the judgment and opinion.

          OPINION

          GORDON PRESIDING JUSTICE.

         ¶ 1 Defendant Ronald Henderson was convicted after a jury trial of the attempted first degree murder of Andre Turner and Joe Walker and the first degree murder of Chastity Turner during a drive-by shooting on June 24, 2009, and sentenced to a total of 100 years with the Illinois Department of Corrections.

         ¶ 2 On this appeal, defendant claims: (1) that the State failed to prove defendant guilty beyond a reasonable doubt; (2) that the trial court erred by allowing testimony by a police officer that he issued an investigative alert for defendant's arrest after a photo array and statement by a witness who did not testify at trial; (3) that defendant was denied a fair trial when the State was permitted to introduce evidence of allegedly unrelated guns and other allegedly unrelated information; (4) that defendant was denied a fair trial by being tried jointly with codefendant Kevin Stanley when the evidence against Stanley was allegedly greater; (5) that defendant was denied a fair trial by allegedly inaccurate or misleading jury instructions; and (6) that the State committed prosecutorial misconduct during its closing arguments.

         ¶ 3 For the following reasons, we affirm defendant's conviction and sentence.

         ¶ 4 BACKGROUND

         ¶ 5 I. Procedural History

         ¶ 6 On September 15, 2009, a grand jury indicted defendant, and codefendants Kevin Stanley and Davionne Whitfield for the first degree murder of nine-year-old Chastity Turner, as well as for the attempted first degree murder of Chastity's father, Andre Turner; and Joe Walker. All three were shot in front of Andre Turner's home on June 29, 2004.

         ¶ 7 On October 29, 2012, defendant filed a motion for severance, arguing that both of his co-defendants might assert a defense antagonistic to him in the joint trial, which would then prejudice him and violate his right to confront witnesses if he could not cross-examine his co-defendants. However, on May 13, 2013, when the motion was heard, the trial court asked defendant's counsel who defendant wanted to be severed from, and counsel replied only "I want to be severed from Mr. Whitefield [sic], " but did not mention Kevin Stanley.

         ¶ 8 As a result, the trial court stated that it was granting defendant's motion and severed defendant and Stanley's trial from Whitfield's trial. Thus, defendant and Stanley were tried together before a single jury, while Whitfield had his own trial.

         ¶ 9 II. State Witness Testimony

         ¶ 10 At the trial, which began on March 18, 2014, the State called fifteen witnesses: (1) Dr. Lauren Woertz; (2) Andre Turner; (3) Julius Davis; (4) Donise Robertson; (5) Tawanda Sterling; (6) Joe Walker; (7) Officer Edward Garcia; (8) Officer John Sanders; (9) Officer Nancy DeCook; (10) Paul Presnell; (11) Mike Mazurski; (12) Aaron Horn; (13) Detective Timothy O'Brien; (14) Detective Michael O'Donnell; (15) Lakesha Edwards.

         ¶ 11 Codefendant Kevin Stanley called four witnesses: (1) Darren Keith Paulk; (2) Keyon Taylor; (3) Alfonzo Deadwiler; and (4) Sergeant John Nowakowski.

         ¶ 12 The State's theory of the case was that defendant was the driver of the van used in the drive-by shooting. The evidence showed that a van approached Andre Turner's home and that shooters inside the van opened fire, killing Andre's nine-year old daughter Chastity and also hitting Andre Turner and Joe Walker.

         ¶ 13 No physical evidence linked defendant to the shootings. The evidence against him consisted primarily of identifications by three eyewitnesses: (1) Andre Turner; (2) Andre's girlfriend, Tawanda Sterling; and (3) Julius Davis. At the time of the shooting, Andre Turner and Tawanda Sterling were in front of Andre's home, [1] with the passenger side of the van facing them, while Julius Davis was across the street with the driver's side of the van facing him.

         ¶ 14 We provide below a detailed description of the evidence at trial because defendant argues on appeal that the three witnesses who identified him at trial all had obstructed or distracted views, that they did not identify him immediately after the shooting even though they had all known him for years, and that they all had a motive to frame him due to their connection to a rival gang. Defendant argues that, since their identifications were all weak or tainted, the scales were tipped against him by a police officer's testimony that a nontestifying witness viewed a photo array and the officer then immediately issued an alert for defendant's arrest.

         ¶ 15 We also provide a description of the evidence against codefendant Kevin Stanley and the evidence presented by Stanley, since one of defendant's claims is that he was denied a fair trial by being tried jointly with Stanley.

         ¶ 16 1. Dr. Lauren Woertz

         ¶ 17 Dr. Lauren Woertz testified that she has been an assistant medical examiner with the Cook County medical examiner's office since 2009, and that she is a forensic pathologist.

         ¶ 18 Dr. Woertz testified that, on June 25, 2009, a postmortem examination of Chastity Turner was performed by Dr. Valerie Arangelovich, who no longer works for the Cook County medical examiner's office. Dr. Woertz reviewed the postmortem examination performed by Dr. Arangelovich, since it is common practice for forensic pathologists to review examinations by colleagues who have left the medical examiner's office.

         ¶ 19 The examination of Chastity's body revealed that she had a bullet entrance wound on the right side of her back. Given the lack of gun powder stippling, Dr. Woertz opined that this gunshot wound was not the result of close range firing. A bullet was recovered from the right side of Chastity's neck.

         ¶ 20 With a reasonable degree of medical and scientific certainty, Dr. Woertz opined that the cause of death was a gunshot wound to the back and that the manner of death was a homicide. These opinions were consistent with those of Dr. Arangelovich in her postmortem exam of Chastity.

         ¶ 21 Dr. Woertz testified that Dr. Arangelovich noted some bruising on Chastity's body as well as three other healed wounds, none of which were gunshot wounds. Dr. Woertz noted that, given the "classic straightforward entrance wound, " she was able to determine that this bullet was not a ricochet. The parties stipulated that a proper chain of custody was maintained at all times with regard to the sealed envelope containing the lead bullet fragment removed from Chastity's body.

         ¶ 22 2. Andre Turner

         ¶ 23 Andre Turner testified that Chastity was his nine-year-old daughter and that Lakesha Edwards was Chastity's mother. He identified both defendant and Kevin Stanley in the courtroom, and testified that had had known defendant for 10 or 11 years, and had known Stanley almost all of his life.

         ¶ 24 Andre testified that, in June 2009, he was the leader of a set of the Gangster Disciples ("GD") gang on the block of 7400 South Stewart Avenue, which was also where he lived. Andre knew a man named Gargamel, who was defendant's brother and the leader of the same set of GDs that occupied the 7500 block of South Normal Street, which was a short distance from Andre's block. Andre also knew Davionne Whitfield, otherwise known as Gucci, who was affiliated with the Normal block of GDs. At some point before June 2009, defendant and Whitfield were friendly with Andre and the Stewart block of GDs. However, by June 2009, they were no longer friendly with each other.

         ¶ 25 A few weeks prior to the shooting, Andre met with Gargamel, defendant's brother, to discuss a territorial proposition regarding the drug business between each other's blocks. Andre testified that he declined Gargamel's offer and, afterwards, Gargamel appeared to be upset.

         ¶ 26 Andre also testified that, in the few weeks before the shooting, there were several fights and shootings between his faction and Gargamel's faction, which revolved around disputes between the young members of each faction. Andre testified that he was present for some of these fights and shootings, and that at one point he had won a fight between himself and defendant.

         ¶ 27 On June 24, 2009, at 6:45 p.m., there was a sizeable group of both adults and children outside Andre's home on South Stewart Avenue, including his girlfriend, Tawanda Sterling. Andre and Chastity were in the process of washing their three dogs. Andre was standing in his driveway in front of his house and facing the street when he received a phone call from Deannosha Sharkey, [2] and then observed a van that he had never observed before driving on his street. Andre is colorblind, so he could not provide the accurate color of the van but he observed it was moving toward himself, southbound, at a high rate of speed. When the van pulled up to where Andre was standing, the passenger's side was facing him, and the passenger side sliding door was already open. In addition, the front passenger side window was down.

         ¶ 28 Andre testified that, as the van approached, he was able to observe the front of the van and identified defendant as the driver. He also identified codefendant Kevin Stanley as the person in the front passenger seat, who was hanging a little out of the open window and who began shooting at him. Andre believed that he heard over 10 shots fired, not all of which sounded the same. Andre witnessed only Kevin Stanley shooting, and observed that Stanley was using a rifle with a wooden stock.

         ¶ 29 Andre testified that, after the shooting started, he began grabbing the children and throwing them over a nearby fence. Andre had his back toward the van while he was in the process of placing the children behind the fence. While he was placing the children over the fence, he was struck by a bullet in his left bicep. He tried to jump over the fence, but was unsuccessful, so he ran towards the van. The van sped off southbound when Andre came within 15 feet of it. As the van sped off, Andre observed Davionne Whitfield closing the passenger side sliding door.

         ¶ 30 Andre testified that, shortly after the van fled, a friend named Tim pulled up in front of his house. Andre's arm was gushing blood from a gunshot wound, so Andre asked Tim to drive him to the hospital. Tim transported Andre to St. Bernard's Hospital. However, Andre testified that he later woke up at Stroger Hospital in the intensive care unit ("ICU") at some point during the night on June 24, 2009. Chicago police officers visited Andre in the ICU and notified him that Chastity had died. Andre believed from the officers' tone of voice that they were blaming him for Chastity's death, and that they were not on his side. As a result, Andre refused to cooperate with the officers.

         ¶ 31 In the days and weeks following the shooting, Detectives Michael O'Donnell and Timothy O'Brien became involved in the murder investigation. Andre testified that his feelings toward the investigation changed after these detectives became involved because they were asking questions about the individuals who did the shooting rather than focusing on him. The detectives also were present at Chastity's funeral, which made a good impression on Andre.

         ¶ 32 Andre testified that, after he met with an assistant State's Attorney ("ASA"), he decided to cooperate with the investigation. On August 7, 2009, Andre was contacted by the detectives and travelled to the Area 1 Violent Crimes Office in order to view a lineup of suspects. During the first lineup, Andre identified Kevin Stanley as the shooter in the front passenger seat of the van. That same night, Andre met with an ASA and provided a typewritten statement. About ten days later, Andre visited a courthouse and provided sworn testimony in front of a grand jury.

         ¶ 33 Andre testified that, on August 28, 2009, the detectives contacted him again, and he returned to the Area 1 Violent Crimes Office to view another lineup. Andre identified defendant as the driver of the van. Andre testified that he never identified defendant as a shooter, and did not ever observe a gun in defendant's hands.

         ¶ 34 Upon cross-examination by counsel for Kevin Stanley, Andre testified that, around the time of the shooting, Andre was selling crack-cocaine and using marijuana. However, Andre could not recall if he had used marijuana on the day of the shooting. Andre also testified that, when he received the phone call from Deannosha Sharkey, prior to the van pulling up, his back was facing the street.

         ¶ 35 Upon cross-examination by counsel for defendant, Andre again testified that he was not facing the street when he received the phone call from Deannosha Sharkey. When Andre received the call, he heard Julius Davis scream, "put you head up on that van, " which means pay attention. After that statement, Andre was facing the street, and the shooting started. Andre's view of the van's driver was not obstructed by any glare from the sunlight. Defendant's counsel asked Andre about the statement he provided to an ASA on August 7, 2009, in which Andre stated that shots were fired before he could turn around and face the street. Andre testified that he did, in fact, state this in his statement to the ASA.

         ¶ 36 Upon redirect examination by the State, Andre testified that the sun was not in his eyes when he identified defendant as the driver. He also told the ASA in his statement on August 7, 2009, that he identified defendant as the driver.

         ¶ 37 3. Julius Davis

         ¶ 38 Julius Davis testified that he recalled being on the 7400 block of South Stewart Avenue around 7 p.m. on June 24, 2009. At the time, Davis was standing on the southbound corner which was down the block and across the street from Andre's house. Davis observed many people in front of Andre's home, when he also observed a van heading down South Stewart Avenue toward Andre's home. When he observed the van pulling up, he yelled "on that van, " which meant to pay attention to it. Davis observed that the van stopped in front of Andre's home and that the occupants of the van began to shoot in the direction of the residence. Davis testified that he had known defendant for six or seven years, and he identified defendant as the driver of the van. As the van drove away from Andre's house, defendant shot at Davis from the driver's side. Davis observed that defendant had a gun, but Davis was unable to provide a description of the gun. Davis observed the van drive southbound, and then make a westbound turn in the direction of Normal Street.

         ¶ 39 Davis testified that, during the evening of July 4, 2009, he met Detectives O'Brien and O'Donnell at the Area 1 Violent Crimes Office in order to view a photo array, from which he identified defendant. On August 28, 2009, Davis returned to Area 1 to view a physical lineup.

         ¶ 40 Upon cross-examination by counsel for defendant, Davis testified that the corner on which he stood was halfway down the block from Andre's house, on the opposite side of the street. He was standing by a liquor store on the corner, and was drinking alcohol, but he did not state the type of alcohol. Even though Stewart Avenue allows parking on either side, Davis testified that there were probably not many vehicles parked at the time "because there don't be that many cars out there like that." He observed the van coming down the street and stopping in front of Andre's house. When the shots started, Davis took cover behind a nearby tree. Davis heard bullets ricochet off the tree which he was using for cover, and he tried to duck under some bushes in an attempt to escape from the bullets. Davis testified that the van drove past him at the same time he was moving away from the bullets. The van was not moving fast, but the whole incident lasted only a few seconds.

         ¶ 41 4. Donise Robertson

         ¶ 42 Donise Robertson testified that, on June 24, 2009, she resided on South Stewart Avenue, on the opposite side of the street from Andre's home. Robertson had babysat two of Andre's children on June 24, 2009, and at around 5:45 p.m., Robertson and the children departed her home and walked across the street to Andre's home. Thirteen or fourteen people were present at that time.

         ¶ 43 Robertson testified that she and others went to purchase snow-cones for the children. Chastity was outside preparing to wash Andre's dogs. Andre and Chastity were near the front fence and in the driveway which was close to the sidewalk in front of the house. After returning, Robertson remained at Andre's home where she sat at the top of the porch with other people to watch the children playing in the front yard.

         ¶ 44 Robertson testified that she was still sitting on the porch at 6:50 p.m. when gunshots drew her attention to a teal green van traveling southbound on Stewart Avenue toward her at Andre's house, with the passenger side of the van facing her. Robertson first observed the van when it was near the garbage receptacles next door to Andre's home. She was not able to observe the driver, but was able to identify Kevin Stanley as the shooter in the front passenger seat. She observed Stanley hanging out of the front passenger window as he was shooting. Robertson testified that she had known Stanley for four or five years at this point, and that she had a clear, unobstructed view of Stanley during the shooting.

         ¶ 45 Robertson testified that she observed another individual, Davionne Whitfield, shooting from the right-side passenger sliding door of the van. She identified him as "Gucci Man." Robertson's eldest son was friends with Whitfield, and she recognized him as someone who had come in and out of her home during the past two or three years.

         ¶ 46 Robertson testified that, when the shooting began, she dropped to the floor of the porch, and thus was unable to observe what happened to the van after the shooting started. Following the shooting, Robertson took the two children she was babysitting back to her house across the street. After a couple of minutes, the police arrived. She went back to the scene after the police asked to talk to her. Robertson informed the first responding officers that she knew who did it and provided them with the nicknames of the shooters-"Kevo" for Kevin Stanley and "Gucci" for Davionne Whitfield.

         ¶ 47 Robertson testified that, at around 8:30 p.m. that same night, she went to the Area 1 Violent Crimes Office, where she met with Detective Timothy O'Brien. Robertson received a set of photographs to review and identified Whitfield from the first photo array. Approximately three hours later, Robertson met with another detective, Detective Brian Lutzow, and viewed a second photo array, from which she identified Kevin Stanley as the shooter in the front passenger seat. About an hour after that, Robertson viewed a physical lineup and identified Whitfield as the shooter in the back of the van.

         ¶ 48 Robertson testified that, on June 26, 2009, she met with an ASA and a detective, and gave a handwritten statement. On July 9, 2009, Robertson appeared before a grand jury. On August 7, 2009, Robertson returned to Area 1 to view another physical lineup, from which she identified Kevin Stanley as the other shooter.

         ¶ 49 5. Tawanda Sterling

         ¶ 50 Tawanda Sterling testified that, on June 24, 2009, she was living with Andre Turner and his mother on South Stewart Avenue, and was in a relationship with Andre. Sterling was at Andre's home at 6:50 p.m. on June 24, and there were many people, both on the porch and in the front yard. Around 6:50 p.m., Sterling was at the bottom of the porch and observed Andre and his daughter washing their three dogs in the driveway, near the sidewalk.

         ¶ 51 While sitting on the bottom step of the porch, Sterling's attention was drawn to the van when Julius Davis shouted "on that van, " which meant to pay attention to the van. The passenger side of the van was facing the house. Sterling turned around and looked at that van, which had already stopped in front of the house. Then shots began firing from the van. The van's passenger side sliding door was open, allowing Sterling to identify Davionne Whitfield kneeling and shooting. Sterling was unable to obtain a clear view of the person shooting from the front passenger seat, but she was able to observe the driver, whom she identified as defendant. Sterling had known defendant for a couple of years at this point. Sterling then attempted to corral the children, but Andre was already in the process of doing that, so she ran into the house through the front door.

         ¶ 52 Sterling testified that, later that same evening, she went to the Area 1 Violent Crimes Office in order to talk to some detectives. At around 1 a.m., she viewed a physical lineup, from which she identified Gerald Lauderdale and Davionne Whitfield. However, Sterling identified Lauderdale only because he hangs around with Whitfield, and she made the detective aware of her mistake after she viewed the lineup.

         ¶ 53 Sterling testified that, on June 26, 2009, she gave a handwritten statement to an ASA. On July 9, 2009, she testified before a grand jury. On August 28, 2009, she returned to Area 1 in order to view another lineup. From this lineup, Sterling identified defendant as the driver of the van.

         ¶ 54 Upon cross-examination by counsel for defendant, Sterling was shown the statement she had provided to the ASA on the night of June 24, 2009, and Sterling recognized her signature on every page. Counsel for defendant noted that, in the statement, Sterling stated that "she noticed the driver of the van had a gun, but did not recognize who he was[.]" Counsel for defendant and counsel for the State agreed to stipulate that this was indeed in the statement. However, when asked if she had in fact stated this, Sterling testified that she did not. Next, Sterling was asked if she had mentioned defendant's name during her grand jury testimony. Counsel for each side agreed to stipulate that she did not, but Sterling testified that she remembered mentioning his name.

         ¶ 55 Returning to the events of the shooting Sterling testified that it was a hot day, and while sitting outside, she was drinking from a pint of Amsterdam Vodka, but added that it "wasn't enough to get me super drunk."

         ¶ 56 Upon redirect examination by the State, Sterling testified that, right after the shooting, she travelled to the hospital to be with Andre. At Stroger Hospital, Sterling provided a statement to detectives and an ASA while Andre was lying in a bed next to her. She stated that she observed the driver and thought he had a gun. Sterling then testified that, before the grand jury on July 9, 2009, she was never asked about defendant, and had not identified defendant at that point.

         ¶ 57 Upon recross-examination by counsel for defendant, Sterling testified that the first time she mentioned defendant's name to the police was when she visited the police station in August.

         ¶ 58 6. Joe Walker

         ¶ 59 Joe Walker testified that, on June 24, 2009, he had known Andre Turner for almost 20 years. Walker was at Andre's home on June 24, 2009, at 6:50 p.m., when many people were also present. Walker recalled facing the house and conversing with Andre in the driveway, near the sidewalk, with Andre facing South Stewart Avenue. Andre received a phone call and, approximately at that moment, Walker heard gunshots coming from behind him. Walker was shot in his back and fell in the driveway, where he remained until the paramedics arrived to take him to Stroger Hospital. Since he remained on the ground after he was shot, he was unable to identify anybody in the van.

         ¶ 60 7. Officer Edward Garcia

         ¶ 61 Officer Edward Garcia testified that he is a Chicago police officer stationed in the Englewood neighborhood. During the evening of June 24, 2009, he was patrolling the Englewood area with his partner, Officer Torres. At 7:20 p.m., Garcia received information over his radio concerning a green van believed to be involved in a shooting earlier that day. Garcia and his partner found a van matching the radio description in an alley off of South Parnell Street, approximately three blocks from the crime scene. The van was parked on the grass in the alley with its doors open and the engine still running. Garcia observed a man named Christopher Cannon walking away from the van, and approximately 50 or 60 feet from the van. Garcia did not observe Cannon or anyone else inside the van. While Garcia and his partner secured the van, another police vehicle transported Cannon to Area 1 around 7:30 p.m.

         ¶ 62 8. Officer John Sanders

         ¶ 63 Officer John Sanders testified that he was a Chicago police officer assigned to the Englewood police district. On June 24, 2009, at 10:40 p.m., Sanders was on patrol in the area of the 7400 block of Normal Street with his partner, Derrick Patterson, when Sanders noticed multiple people enter a dark colored van at a quick pace and drive off. Sanders was aware of the shooting that had occurred a few hours before.

         ¶ 64 When the van disobeyed a stop sign, Sanders pulled the van over. As he approached the stopped van, Sanders observed four individuals in the van, including Gerald Lauderdale, who was a known associate of Davionne Whitfield. Sanders observed a bag in the van and what he believed to be a handle of a weapon protruding from it.

         ¶ 65 Sanders testified that he detained all of the individuals in the van. Lauderdale was transported to Area 1 Violent Crimes Office. A rifle was recovered from the bag that Sanders had observed in the van.

         ¶ 66 9. Officer Nancy DeCook

         ¶ 67 Officer Nancy DeCook testified that she is a Chicago police officer and forensic investigator. On June 24, 2009, around 7 p.m., she received an assignment at South Stewart Avenue with her partner, John Miller.

         ¶ 68 On the scene, DeCook observed fired cartridge cases from a .22 caliber rifle in the street in front of Andre Turner's home. She also found two spent .40 caliber cartridges, one at the top landing of the porch and one on top of the steps.

         ¶ 69 DeCook testified that she recovered two weapons from the scene. First, she recovered a Smith & Wesson .38 caliber revolver from within the barbecue grill under the back porch. Second, she recovered a .40 caliber Kel-Tec semiautomatic weapon from the top of the roof. The firearms and casings were identified, photographed, and inventoried. From the time the evidence was recovered, it was in the sole possession of the Chicago police department.

         ¶ 70 DeCook testified that she was then directed to Stroger Hospital to photograph and collect evidence from Joe Walker, Andre Turner, and Ricardo Foster.[3] DeCook performed a gunshot residue test on all three men and also collected Walker's clothing.

         ¶ 71 Upon cross-examination by counsel for Kevin Stanley, DeCook testified that gunshot residue may be washed off one's hands. DeCook did not know whether or not any of the three men had washed their hands or if the hospital had disinfected their hands prior to her administration of the gunshot residue test.

         ¶ 72 10. Paul Presnell

         ¶ 73 Paul Presnell testified that he is a forensic investigator for the Chicago police department and was on duty on June 24, 2009, when he received an assignment to perform a gunshot residue test on Davionne Whitfield at Area 1 Detective Division. Presnell arrived at Area 1 at 10:25 p.m. and performed the test. In addition, Presnell collected Whitfield's shirt to inventory as evidence.

         ¶ 74 11. Mike Mazurski

         ¶ 75 Mike Mazurski testified that he was an evidence technician with the Chicago police department and that he was on duty at 9:46 a.m. on June 25, 2009, when he received an assignment to recover a tote bag containing a handgun and ammunition. The bag was recovered on top of a barbecue grill in the backyard of Andre's residence on South Stewart Avenue. After photographing the tote bag as it appeared at the scene, Mazurski transported the tote bag back to his office. At his office, Mazurski removed all the items and photographed them individually. Afterwards, he inventoried each item.

         ¶ 76 12. Aaron Horn

         ¶ 77 Aaron Horn testified that he was a forensic scientist with the Illinois State Police, specializing in the area of firearms. Horn examined: (1) a Serrifile Incorporated Model Terrier One .32-caliber Smith & Wesson revolver, (2) a Smith & Wesson Model 10-5 revolver, (3) a Ruger 1022 semiautomatic rifle, and (4) a Kel-Tec Model P40 semiautomatic pistol. Horn determined that all four firearms were functional.

         ¶ 78 Horn testified as follows about the difference between a revolver and a semiautomatic firearm. Revolver cartridges must be manually removed after being discharged. In contrast, a semiautomatic firearm automatically ejects spent cartridges out of the weapon after being discharged. Semiautomatic rifles and pistols work in the same fashion. Though the ejection port on a semiautomatic firearm is supposed to eject the spent cartridge in one direction, Horn testified that, due to numerous variables, there was no reliable way to determine if the cartridge ejects in the same direction every time. Shooter position, type of ammunition used, and the surface the cartridge hits all affect where the spent cartridge ultimately lands.

         ¶ 79 Horn testified that he examined a fired bullet from the medical examiner's office and determined that the bullet was a .22 caliber and that this bullet could not have been fired from any of the four firearms which he had previously examined.

         ¶ 80 Horn testified that he determined that all five .22-caliber long rifle casings recovered from South Stewart Avenue were fired from the same firearm. These five .22-caliber long rifle casings could not have been fired from any of the four firearms which he previously examined. Seven other .22-caliber long rifle cartridges were also fired from the same weapon as the previous five .22 cartridges. None of the 12 total .22-caliber cartridges were fired from any of the four firearms examined. Another cartridge casing recovered was a .223 caliber which could not have been fired from any of the four firearms examined.

         ¶ 81 Horn testified that two .40 caliber cartridge casings found on the front porch of Andre's home were fired from the same firearm and only the Kel-Tec Model P40 could have fired these cartridges. After further examination, he determined that the two .40 caliber cartridges found at the scene were fired from the Kel-Tec.

         ¶ 82 Horn testified that a carbine is a generalized term for a short-barrel rifle, though there is no specific length requirement. The two .40 caliber cartridges came from the Kel-Tec, but it is possible for the .22-caliber long rifle or .223 caliber cases to have been fired from a carbine type rifle. The .22 caliber cartridge casings could also have been fired from a semiautomatic pistol as well as a revolver designed to fire that caliber. It was possible that the bullet he received from the medical examiner's office could have been fired from a revolver.

         ¶ 83 Horn testified that bullets typically cannot be compared to casings as "any markings transferred from the casing to the bullet would be obliterated by the time it travels down the barrel." However, bullets can be compared to firearms. Horn opined that, based upon the number of shell casings he examined, there was a minimum of two firearms in this incident and a maximum of three.

         ¶ 84 13. Detective Timothy O'Brien

         ¶ 85 Detective Timothy O'Brien testified that he was a homicide detective with the Chicago police department and was assigned to the Area 1 Detective Division on June 24, 2009, which is the police district where the incident occurred. During the ten years that he worked as a detective in Area 1, he had personally investigated nearly 1000 murders and shootings. In the course of his ...


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