People v. Davis

• Decision Date: 29 June 2018
• Docket Number: 1–15–2488,Nos. 1–15–2413,s. 1–15–2413
• Citation: 2018 IL App (1st) 152413,109 N.E.3d 281
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Andrew DAVIS and Donate Graham, Defendants–Appellants.
• Court: United States Appellate Court of Illinois

2018 IL App (1st) 152413
109 N.E.3d 281

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Andrew DAVIS and Donate Graham, Defendants–Appellants.

Nos. 1–15–2413
1–15–2488

Appellate Court of Illinois, First District, THIRD DIVISION.

June 29, 2018

Michael F. Clancy, of Chicago, for appellant Andrew Davis.

James E. Chadd, Patricia Mysza, and Jonathan Krieger, of State Appellate Defender’s Office, of Chicago, for other appellant.

Kimberly M. Foxx, State’s Attorney, of Chicago (Alan J. Spellberg, John E. Nowak, and Jessica R. Ball, Assistant State’s Attorneys, of counsel), for the People.

OPINION

JUSTICE HOWSE delivered the judgment of the court, with opinion

¶ 1 The State charged defendants Andrew Davis and Donate Graham with first degree murder for the shooting death of Mark Cooper and attempt (murder) for the shooting of Rakyah Whittier. Following separate but simultaneous jury trials, the circuit court of Cook County convicted Davis and Graham of murder and attempt (murder). The court sentenced Davis to a total of 55 years' imprisonment for murder and 25 years' imprisonment for attempt murder with the sentences to run consecutively for an aggregate sentence of 80 years. The court sentenced Graham to a

109 N.E.3d 288

total of 50 years' imprisonment for murder and 25 years' imprisonment for attempt (murder) to run consecutively. Defendants appealed. This court consolidated defendants' appeals. For the following reasons, we affirm.

¶ 2 BACKGROUND

¶ 3 We begin with a brief overview of the events leading to this case and a discussion of the evidence adduced at trial. Additional facts will be discussed in connection with the issues to which they pertain. On April 8, 2009, two men wearing "hoodies" which covered their heads exited a fenced area between two homes across the street from Burnside Park in Chicago. The two men were armed with handguns and started shooting in the direction of the park. A bullet struck Mark Cooper in the head, killing him. Rakyah Whittier suffered gunshot wounds to the buttocks and hip.

¶ 4 Patrick Stribling spoke to police, gave a written statement, and testified before a grand jury. Stribling was in the park at the time of the shooting and believed he was an intended target of the shooting. Just over a week after testifying before a grand jury, someone shot and killed Stribling. An off-duty police officer was working as private security in the area of the shooting in the park when he heard a radio dispatch of shots fired. He then saw a vehicle matching the description of the vehicle seen in the area of the shooting driving past him at a high rate of speed.

¶ 5 Before trial, the State filed a motion in limine to admit Stribling's grand jury testimony under the forfeiture-by-wrongdoing doctrine. Following arguments, the trial court granted the motion. The State also filed a motion in limine to admit gang evidence. The court also granted that motion. The case proceeded to simultaneous separate jury trials. The pertinent occurrence witnesses at defendants' trials were Rakyah Whittier, Archie McKnight, and Ronald Brown.

¶ 6 Whittier testified he was in the park on the night of the shooting. He described houses across the street from the park. The deceased, Cooper, was there along with Stribling, and Ronald Brown. Whittier was sitting on a bench while Cooper and Stribling were standing by a tree when Whittier heard gunshots. Whittier first heard approximately three gunshots, but someone in the park said the noise was firecrackers. Then he heard approximately 14–15 more gunshots. Whittier looked across the street and saw two people wearing black hoodies coming from the gangway between houses across the street from the park. Whittier and others ran to the back of the park where a gate was located, but he could not jump the gate because he had been shot. Whittier testified he waited approximately five minutes then walked to the front of the park. He heard people shouting that Cooper was dead. Whittier was walking out when police arrived. He told one of them he had been shot. An ambulance came and took Whittier to the hospital. Whittier testified Stribling was a member of the Gangster Disciples gang. Whittier testified there was a rumor in the neighborhood that the Gangster Disciples were in a war in his neighborhood with the Four Corner Hustlers gang. Whittier identified pictures of the area of the shooting, including the area where the shooters stood. Whittier testified he was not "trying to look over at" the shooters and was not trying to pay attention too closely to them.

¶ 7 On cross-examination by defendant Graham, Whittier testified he could not tell if the shooters were Black or White, or male or female, because they had the hoods of their hooded sweatshirts up and he ran when he heard the gunshots. Whittier stated Mark Cooper (who he called

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"Ducey") was not in a gang. On cross-examination by Davis, Whittier testified he smoked marijuana when he got to the park. Whittier did not see Archie McKnight in the park but he did see Ron Brown. Whittier repeated his testimony that because the shooters had their hoods up he could not see their faces, their race, or their sex.

¶ 8 Archie McKnight testified he knew Mark Cooper, Whittier (nickname Doobie), Ronald Brown (nickname Chillie), and Stribling. McKnight identified defendants Davis (nickname Bay Bay) and Graham in court as people he knew. McKnight could not recall defendants being in a gang. At the time of the shooting, McKnight was 16 years old. He arrived at the park on the day of the shooting during twilight hours. Several people were sitting around when he heard gunshots. McKnight could not immediately tell where the gunshots were coming from because when the shooting started he "hit the dirt." McKnight looked up from the ground twice but each time there were "sparks coming from the gun." He saw the shots coming from the right side of a house. During the first couple of shots McKnight saw black hoodies and a caramel colored hand holding a gun in the same spot the shots were coming from. McKnight testified he saw the black hoodies "running back to the gate" then he saw "a white truck scratch off, a white Suburban" through the alley. The prosecutor asked McKnight whether, when he heard the shots and saw the sparks coming from the gun, he saw Davis at anytime. McKnight responded he saw a "like seven feet tall guy" but he did not see Davis. McKnight also testified that he did not see Graham at any time after the shots went off. After the shots stopped and the vehicle drove off McKnight ran to the back of the park. When he got to the back of the park, Whittier said Cooper was shot. McKnight went back and saw Cooper "laid out."

¶ 9 McKnight admitted on direct examination that he spoke to two police officers in connection with this case. Police picked up McKnight, Brown, and Warren Magnum and took them to a police station. McKnight stated he talked to police about the shooting of Cooper because police said they were looking for him and would have a warrant issued if they could not find him. McKnight said he did not want to be charged and did not want his friends or anyone else to get hurt. The State asked McKnight directly whether he was saying police threatened to charge him with Cooper's murder. McKnight responded: "They like, they like—I was like, * * * a kid at the time, State's Attorney. * * * I don't know what I'm doing. I'm just—a man, grown man come pick me up off the street. He like yeah, we know and the other one, [Detective] Forberg, there was another colleague, he came and said he wanted me and Chillie [ (Brown) ] to come with him somewhere." McKnight testified he told police he saw "some light-skinned hand shooting across the street." McKnight agreed he told Detective Forberg he (McKnight) heard three loud gunshots and looked over and saw a light-skinned black hand with a gun reaching over a gate across the street. McKnight did not recall telling Detective Forberg the gate opened, but he did recall telling Detective Forberg some people were shooting in the front lawn at the park. McKnight denied telling Detective Forberg a person he knew as Donate [Graham] opened the gate. McKnight said: "No. He [ (Detective Forberg) ] pointed out some pictures to me and he said these are the guys that we caught that did the (expletive)." McKnight testified Detective Forberg told him "these are the people we are charging with killing your friend." McKnight identified two photographs as the same ones Detective Forberg showed him at the police station.

109 N.E.3d 290

McKnight testified one photograph was of defendant Graham and the other was of defendant Davis. McKnight testified Detective Forberg asked McKnight "do you know this guy [ (Davis) ]" and McKnight said "yeah."

¶ 10 McKnight did not recall telling Detective Forberg Graham came through the gate with Davis. McKnight testified he recalled telling Detective Forberg "seven foot figure, light-skinned hand come out of the gate followed by another dark-skinned figure with a hoody come out of the gate." McKnight did not recall telling Detective Forberg that both Graham and Davis came through the gate into the front yard of the house across the street from the park; that once he saw Davis come through the gate he knew it was Davis' hand...