People v. Carlisle

• Decision Date: 30 June 2015
• Docket Number: No. 1–13–1144.,1–13–1144.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Rashaun CARLISLE, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

35 N.E.3d 649

The PEOPLE of the State of Illinois, Plaintiff–Appellee

v.Rashaun CARLISLE, Defendant–Appellant.

No. 1–13–1144.

Appellate Court of Illinois, First District, Fifth Division.

June 30, 2015.

Michael J. Pelletier, Alan D. Goldberg, and Gabrielle Green, all of State Appellate Defender's Office, of Chicago, for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Jeffrey Allen, Tasha-Marie Kelly, and Patricia Pantoja, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 Defendant was found guilty by a jury of five counts of attempted first degree murder, one count of aggravated battery with a firearm, and one count of aggravated discharge of a firearm after he used a sawed-off shotgun to shoot police officer Robert Vicari and shot at police officer Terry Carr in Stone Park, Illinois. 720 ILCS 5/9–1(a)(1) (West 2008); 720 ILCS 5/ 12–4.2(a)(1) (West 2010); 720 ILCS 5/24–1.2(a)(3) (West 2010). After hearing arguments in aggravation and mitigation, defendant was sentenced to 60 years with the Illinois Department of Corrections (IDOC) for five counts of attempted first degree murder.

¶ 2 On this direct appeal, defendant claims that: (1) the trial court erred by barring the testimony of expert witness Donald Mastrianni, a gun store owner whose testimony would have helped establish defendant's intent; (2) defendant received ineffective assistance of counsel because defense counsel failed to lay a proper foundation to introduce into evidence a supplementary investigation report from Detective Christopher Pavini, which defendant claims would have impeached the testimonies of Vicari and Carr, and supported defendant's claim as to his intent, and; (3) the mittimus should be corrected to reflect only two counts of attempted first degree murder, and the counts of aggravated battery with a firearm and aggravated discharge of a firearm should be merged into the two counts of attempted first degree murder. At to the last point, the State agrees and the mittimus is corrected accordingly.

¶ 3 Defendant's five counts of attempted first degree murder derive from two single acts, and they must be reduced to two counts of attempted first degree murder pursuant to the one-act, one-crime rule. People v. King, 66 Ill.2d 551, 566, 6 Ill.Dec. 891, 363 N.E.2d 838 (1977). Further, pursuant to the oral pronouncement given by the trial court, defendant's counts for aggravated battery with a firearm and aggravated discharge of a firearm are merged into the two counts of attempted first degree murder. Thus, the mittimus should reflect only two counts of attempted first degree murder and is corrected accordingly.

¶ 4 For the following reasons, we do not find persuasive defendant's claims: (1) that the trial court erred in barring the testimony of Donald Mastrianni; and (2) that the denial to enter into evidence Carr's and Vicari's previous statements to Detective Christopher Pavini was error and prejudiced defendant. We affirm.

¶ 5 BACKGROUND

¶ 6 We provide a detailed description of the testimony below, but in sum, the State's evidence at trial established that on May 8, 2010, at 2:50 a.m., defendant stood on the median strip of Mannheim Road near Division Street in Stone Park, Illinois, and fired two rounds from a sawed- off

shotgun at police officers Robert Vicari and Terry Carr, who were called to investigate a disturbance. Officer Vicari was wounded in the face and shoulder, and Officer Carr was not injured. Defendant fled the scene and was subsequently apprehended.

¶ 7 I. Pretrial Motions

¶ 8 Before trial, the trial court allowed Donald Mastrianni, the owner of Illinois Gun Works and a certified instructor of firearm and gun safety classes, to examine the sawed-off shotgun used by defendant. Based on Mastrianni's visual inspection and firing of the sawed-off shotgun and measurements of the crime scene, Mastrianni was prepared to opine that the shotgun was not deadly at the distance from which it was fired.

¶ 9 On March 8, 2012, the State sought to bar his testimony, and the court held a hearing on the admissibility of his expert opinions. The State argued that, pursuant to Illinois case law,¹ the State would not be required to prove that a gun is a deadly weapon. The State argued that, because a gun is a per se deadly weapon, there was no reason for defense counsel to call an expert witness who would opine that the shotgun was not a per se deadly weapon from a certain distance. Defense counsel agreed that a sawed-off shotgun was a per se deadly weapon; however, “[w]hat our expert would testify to is that [the sawed-off shotgun is] old and the distance from which it was fired, it is not deadly.” Defense counsel and the State then engaged in the following exchange:

“DEFENSE COUNSEL: * * * I think the gun, the sawed-off shotgun from the distance we're all here, clearly it's deadly, but that's not what's being done here. And [defendant] he's certainly no firearm expert. He can have some knowledge of the gun. He knows what it can do. He could testify what he thought it could do from the distance that he fired it. That's for the trier of fact. But the expert could bolster, reinforce, that indeed what [defendant's] perception was was true. And that's what we want to do.

THE STATE: Judge, and my argument is that's exactly what Counsel is trying to do, is get in through the back door the argument that his client didn't intend to kill. This would prelude or at least allow Counsel to not put his client on the stand to testify to what this defendant's intent was that night. That's totally improper, Judge. That would be an improper purpose for the expert to come in and testify as to this defendant's intent when he fired that sawed-off shotgun at Officer Vicari.”

¶ 10 The trial court barred the expert testimony, finding as a matter of law, a gun is considered a deadly weapon. On February 20, 2013, after jury selection, defense counsel renewed his motion to allow the testimony of Mastrianni, which was denied.

¶ 11 II. Evidence at Trial

¶ 12 The State's evidence consisted of the testimony of eight witnesses: (1) a Stone Park police officer, Andrew Morales, who observed the shooting; (2) a Stone Park police officer, Robert Vicari, who was shot by defendant; (3) a Stone Park police officer, Terry Carr, Officer Vicari's partner; (4) a Cook County sheriff's police officer, Sergeant Melvin Jenkins, who observed the shooting; (5) a Franklin Park police officer, Sergeant Michael Jones, the arresting officer; (6) Mark Pomerance, a forensic scientist who analyzed the shotgun used by defendant; (7) a Stone Park police detective, Christopher Pavini, who investigated the shooting; and (8) as assistant State's Attorney (ASA), who interviewed defendant.

¶ 13 A. Officer Andrew Morales

¶ 14 Police Officer Andrew Morales testified that at 2 a.m. on May 8, 2010, he was on patrol when he responded to a call to close a bar located in a strip mall on North Mannheim Road in Stone Park, Illinois, in response to complaints of gang activity. Morales was in uniform and was driving a marked police Ford Expedition. Morales was familiar with the bar as a frequent “hang out” location for the Latin Kings. Morales, joined by a number of other police officers at the strip mall, closed down the bar. The patrons of the bar were compliant with the officers' requests to vacate the premises, and the patrons promptly exited the bar and the bar's parking lot.

¶ 15 Morales then entered a liquor store located in the same strip mall to discuss nearby traffic issues with the liquor store clerk. An unidentified male entered the liquor store and complained that he was being harassed by an individual in front of the bar. At this time, the other officers involved in closing the bar had vacated the strip mall. However, Officer Carr and Officer Vicari arrived shortly at the liquor store, and Morales instructed them to investigate the disturbance in front of the bar. Carr and Vicari were dressed in “plain clothes,” but they wore bulletproof vests outside of their clothes, with their police badges showing, and belts containing their firearms, handcuffs, and other equipment. They were driving an unmarked police Chevy Malibu.

¶ 16 Morales observed Carr and Vicari handcuff an individual who was shouting outside the bar. Morales was standing outside of the liquor store, approximately 100 feet away from Carr and Vicari, when he heard two gunshots. Morales observed an individual standing in the median strip of Mannheim Road pointing a shotgun at Carr and Vicari,² who, besides the individual they had handcuffed, were the only people in the parking lot. Officer Morales returned the fire at the individual in the road, who promptly fled. Morales gave pursuit but did not apprehend the individual. Upon returning to the parking lot, Morales observed Vicari bleeding from his face.

¶ 17 Morales testified, on cross-examination, that when he exited the liquor store the individual creating the disturbance was yelling but that there was no one else in the parking lot. He further testified that his marked vehicle was in front of the liquor store and that neither of the two police vehicles in the strip mall parking lot had its mars lights flashing. On redirect, Morales identified the sawed-off shotgun that the individual in the median of the street was holding. This exhibit was later admitted into evidence without objection.

¶ 18 B. Officer Robert Vicari

¶ 19 Police officer Robert Vicari testified that, on May 8, 2010, at 2 a.m., he received a call to proceed with his partner, Officer Terry Carr, to close down the bar on Mannheim Road in response to gang activity at the bar. Vicari's and Carr's bulletproof vests had the word “Police” written on the back, and the parking lot of the bar was well lit. After the bar and its parking lot were cleared, Vicari and Carr drove to a garage behind the bar to investigate a report of gang...