People v. Anderson

• Court: Appellate Court of Illinois
• Writing for the Court: Justice LAMPKIN concurred in the judgment and opinion.
• Citation: People v. Anderson, 2012 IL App (1st) 103288, 977 N.E.2d 222, 364 Ill.Dec. 733 (Ill. App. 2012)
• Decision Date: 24 August 2012
• Docket Number: No. 1–10–3288.,1–10–3288.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Mark ANDERSON, Defendant–Appellant.

2012 IL App (1st) 103288

977 N.E.2d 222

364 Ill.Dec. 733

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Mark ANDERSON, Defendant–Appellant.

No. 1–10–3288.

Appellate Court of Illinois, First District, Sixth Division.

Aug. 24, 2012.

Michael J. Pelletier, Alan D. Goldberg, and Alison L.S. Shah, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago; Alan J. Spellberg, Janet C. Mahoney, and Peter Maltese, Assistant State's Attorneys, of counsel, for the People.

OPINION

Presiding Justice GORDON delivered the judgment of the court, with opinion.

[364 Ill.Dec. 736]¶ 1 Defendant Mark Anderson was charged by indictment with six counts of the first degree murder of Darryl Hart, two counts of the attempted first degree murder of Ozier Hazziez, and one count of aggravated discharge of a firearm for an incident that occurred on July 25, 2008. After a jury trial, defendant was convicted of all three charges, as well as two firearm enhancement allegations. On October 8, 2010, the trial court sentenced defendant to serve 20 years in the Illinois Department of Corrections for the first degree murder conviction, with a 25–year enhancement for the discharge of a firearm. Defendant was also sentenced to a consecutive 6–year term in prison for the attempted first degree murder conviction, with an enhancement of 20 years for the discharge of a firearm. Thus, defendant's consecutive terms amounted to a total of 71 years in the Illinois Department of Corrections.

¶ 2 On this direct appeal from the judgment of the trial court, defendant argues: (1) that the trial court erred when it instructed the jury regarding the firearm enhancements in a manner contradicting the directions of the drafting committee of the Illinois Pattern Jury Instructions, (2) that defendant's right to have the jury properly instructed was violated where the instructions for attempted first degree murder indicated “an individual” rather than the victim “Ortier Hazzier” specifically, and (3) that defendant is entitled to an additional 13 days of presentence credit.

¶ 3 For the following reasons, we find: (1) that the trial court did not err when it failed to instruct the jury on the firearm enhancements in the exact manner directed by the drafting committee, (2) that the trial court erred when it instructed the jury that the subject of the attempted first degree murder was “an individual” rather than the victim “Ortier Hazzier,” and (3) that defendant is entitled to an additional 13 days of presentence credit.

¶ 4 BACKGROUND

¶ 5 I. Evidence at Trial

¶ 6 Ozier Hazziez testified, on behalf of the State, that, on July 25, 2008, shortly after 2 o'clock in the morning, he went to Orbitz Submarine restaurant on 71st Street and Euclid Avenue after leaving his job as a hotel convention worker. Another man, who was not a restaurant employee, was also in the restaurant, talking on a cellular telephone. This man was later identified as Darryl Hart. After Hazziez placed his food order, three males, whom Hazziez did not know, entered the restaurant and placed a food order. Hazziez described the three men as a tall, skinny man; a short man; and a chubby man. At trial, Hazziez identified the “tall, skinny man” as defendant. Later, another “older” man entered the store, and Hazziez observed one of the first three men sell drugs to the older man inside the restaurant.

¶ 7 Hazziez testified that Hart, the man on the cellular telephone, began to argue with the three males, stating, “You don't belong around here. This is my area.” Hazziez did not hear a response from the three men. Hazziez testified that he stepped outside, remained outside for a minute, and when he returned to the inside of the restaurant, the men were still arguing. Hazziez could not hear what the men were saying, other than the bickering about who sold the drugs. Hazziez testified that Hart subsequently stepped outside the store, followed by Hazziez, and later the “tall, skinny man,” whom Hazzier identified as defendant. Hazziez testified that the “chubby man,” whom he identified as Quentin Cooper, was outside, as well. Hazziez testified that Hart and defendant continued to argue outside. Hart then said, “You might as well shoot me,” and Hazziez observed defendant shoot Hart. Hazziez testified that defendant was 5 feet away from Hart when defendant shot Hart and that he (Hazziez) was 10 feet away from defendant when the shots were fired. After Hart fell to the ground, Hazziez “took off in [his] car” and heard three more gunshots. He was not sure in which direction the shots were fired. Hazziez testified that defendant was wearing a jacket, and Hazziez identified the jacket in the store video surveillance introduced by the State at trial. He also testified that he did not observe a weapon on Hart.

¶ 8 Hazziez testified that, after the shooting, Hazziez drove for approximately 20 minutes, then exited his vehicle to check for bullet holes. He did not find any. Hazziez subsequently went to the police station, talked to the police, and viewed two photographic arrays. In the first photographic array, he identified the “short man” from the restaurant as Centrell Jackson. In the second photographic array, which included photographs of defendant, he was initially unable to identify anyone as being present at the restaurant. Three weeks later, Hazziez returned to the police station and viewed a physical lineup, during which he identified defendant as the shooter in the July 25 incident. At trial, Hazziez identified defendant in still photographs obtained from the restaurant's surveillance video.

¶ 9 Detective Sylvia Vanwitzenburg testified on behalf of the State that Hazziez identified Jackson as the individual with the shooter. She testified that, while viewing the second photographic array at the police station (the one in which defendant appeared), Hazziez stated that one of the individuals “looked familiar,” but he was not “one hundred percent sure.” Vanwitzenburg testified that Hazziez said that he would be able to identify the individual if he were to see him in person.

¶ 10 The State called Quentin Cooper as a witness. Cooper had known defendant for 12 years. Cooper testified that he was at Orbitz Submarine restaurant with defendant and another friend, Centrell Jackson, on July 25, 2008, at around 2 o'clock in the morning. Cooper testified that the three placed an order and sat in the restaurant, waiting for their food. Cooper was talking to a “young man,” whose name he did not know. Cooper testified that he obtained his food and went outside to his vehicle, where he waited for Jackson to receive his food. Cooper claimed that “nothing happened” while he was there. Cooper testified that he and Jackson left with defendant and that he did not remember any type of shooting at the time. According to Cooper, after leaving the restaurant, his vehicle ran out of gas five blocks from the restaurant on 71st and Cornell Streets. Cooper testified that he and Jackson walked to a gas station, purchased gas, and walked back to his vehicle. Afterwards, Cooper drove Jackson home and then drove himself home. Cooper testified that he did not see defendant again that night and did not see him again until three weeks after the incident.

¶ 11 After Cooper's testimony, the State introduced a written statement, signed by Cooper, as well as Cooper's grand jury testimony as impeaching documents. At trial, Cooper testified that he provided a written statement and grand jury testimony because a detective with whom he met on August 13, 2008, forced him to. Cooper could not remember the name of the detective. Cooper claimed that the detective told him that, if he did not sign the papers, he would be charged with the murder of Hart. Cooper testified that he told the assistant State's Attorney (ASA) and testified at the grand jury to what the detective had coached him to say. At trial, the prosecutor read Cooper his statement, and Cooper responded that he did not recall everything in the statement and that he could not recall any of his grand jury testimony.

¶ 12 Cooper testified that he could not recall whether he had a gun in his vehicle on the night of the incident. He also testified that he did not know whether Jackson had drugs on him that night and that he did not dispose of a gun during the five-block drive. Defense counsel asked Cooper whether the reason he said that he had been threatened was because he was actually the one who had shot and killed Hart. Cooper responded “no” to this question. The defense also asked if the detective said he would “put [the murder] on [Cooper]” because he believed that Cooper was the shooter, to which Cooper again responded “no.”

¶ 13 Chicago police detective Darryl Shaw testified on behalf of the State that in the early morning of August 13, 2008, he interviewed Cooper at the police station. He testified that he asked Cooper to tell him what he knew about the incident that transpired at Orbitz Submarine Restaurant. Shaw testified that he never coached or told Cooper what to tell the assistant State's Attorney. He stated that he never threatened to charge Cooper with murder of Hart if he did not testify a certain way. He also testified that Cooper was never under arrest.

¶ 14 An ASA testified on behalf of the State to the statement that Cooper provided him at the police station on August 13, 2008. The ASA testified that Cooper did not tell him that Detective Shaw had threatened to charge Cooper with the murder if Cooper did not make a statement or tell a certain story. Cooper also did not tell the ASA that Shaw told him what to say or that Shaw had coached him. The ASA told Cooper that he would like to write down what Cooper said in his statement and that Cooper would be able to review this statement and make any changes, corrections, or additions. Cooper agreed. When the ASA finished handwriting the statement, Cooper...