People v. Davis

• Decision Date: 26 June 2009
• Docket Number: No. 1-06-3748.,1-06-3748.
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy DAVIS, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

913 N.E.2d 536

393 Ill. App. 3d 114

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Timothy DAVIS, Defendant-Appellant.

No. 1-06-3748.

Appellate Court of Illinois, First District, Sixth Division.

June 26, 2009.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, Maya Szilak, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Appellant.

Anita Alvarez, State's Attorney, Cook County, James E. Fitzgerald, Alan J. Spellberg, Douglas P Harvath, Brian K. Hodes, Assistant State's Attorneys, Chicago, IL, for Appellee.

Justice JOSEPH GORDON delivered the opinion of the court:

Following a jury trial in the circuit court of Cook County defendant, Timothy Davis, was found guilty of first degree murder and sentenced to natural life imprisonment. On appeal, defendant asserts that we should reverse his conviction and remand for a new trial on three grounds. First, he contends that the trial court denied him his rights to due process and to cross-examine witnesses against him when it improperly answered a jury question during jury deliberations in such a manner so as to provide unsworn testimony to the jurors on a critical factual issue. Second, defendant contends that during opening and closing arguments, the State made improper and prejudicial comments regarding defendant's prior criminal background so as to imply that defendant had a propensity for crime. Third, defendant argues that he was denied his right to intelligently and knowingly waive his right to testify when the trial court refused to rule on his motion in limine to preclude the use of a murder conviction as impeachment evidence, until after defendant testified at trial. Defendant also contends on appeal, and the State concedes, that the mittimus must be corrected to reflect that he was convicted of one count of first degree murder instead of two under the "one-act, one-crime" rule. For the reasons that follow, we reverse and remand for a new trial.

I. BACKGROUND

On January 22, 2003, defendant was charged with six counts of first degree murder for his involvement in the shooting of the victim, Brian Henderson, on June 1, 2001 near the corner of Augusta Boulevard. and Pulaski Avenue in Chicago. The victim died 22 days later, on June 23, 2001, from complications arising from his gunshot wounds. At the time of the shooting defendant was 16 years old.

On February 22, 2006, defendant filed a motion to suppress inculpatory statements he had made to the police on May 3, 2002, and after a hearing, that motion was denied by the trial court. No claim was ever made, nor evidence presented, of any bargains, coercive or otherwise, made with defendant in return for his inculpatory statements at that hearing, or for that matter at trial.

On September 18, 2006, immediately prior to the commencement of his jury trial, defendant filed a motion in limine to preclude the State from introducing his prior unrelated murder conviction as impeachment evidence in the event that he chose to testify at trial. The trial court, however, indicated that it would reserve ruling on defendant's motion until after defendant testified at trial, if he chose to testify at all, which he ultimately chose not to do. The trial court then proceeded with jury selection.

During jury selection, the trial court, inter alia, read to the potential jurors the murder charges brought against defendant, but informed them that this was not a death penalty case. Specifically, the trial court stated:

"The defendant is charged with first degree murder. I will inform all of you in the jury box and anyone in the gallery that this is not a death penalty case, so anyone who has qualms or reservations about the death penalty, this is not a case in which the death penalty is being sought, and should there be a verdict of guilty I will be sentencing the defendant just for your own peace of mind or clarification."

During trial, the parties presented the following evidence. The State first called Chicago police officer Gilbert Espinoza, who testified that about 10:25 p.m. on June 1, 2001, together with his partner Officer Eddie Carroll, he was instructed to proceed to 4022 West Augusta Boulevard where a man had been shot. Approximately five minutes later, Officer Espinoza arrived at the scene and observed a man with a gunshot wound lying on the ground and bleeding. Officer Espinoza immediately called for an ambulance and had the victim, Brian Henderson,¹ transported to Mt. Sinai Hospital. Officer Espinoza remained on the scene, attempting to locate witnesses, and eventually spoke to two individuals who witnessed the shooting, and who provided the officer with a description of the offender.

On cross-examination, Officer Espinoza acknowledged that the description of the offender, which he obtained from the two witnesses, revealed that he was an African American male in his teens, approximately 6 feet, 150 pounds, wearing a gray shirt, gray hat and white jeans.

The State next called two eyewitnesses, Sophia Allen and her cousin, Robin Moss. Both women testified at trial that they saw defendant shoot the victim somewhere between 10 p.m. and 10:30 p.m. on June 1, 2001, at 4022 West Augusta Boulevard. Allen averred that she knew defendant from the neighborhood, that they grew up together, and that defendant's mother sometimes babysat her children.

With respect to the events of June 1, 2001, Allen specifically testified that at approximately 10:30 p.m. on that date, she was inside the liquor store on the corner of Pulaski Avenue and Augusta Boulevard with her cousin when she observed the victim enter the store. Soon thereafter, defendant's mother, Eva entered the store as well. According to Allen, the victim was standing in line to purchase items, when defendant, and one of defendant's friends (Chris), came into the store and "cut the line" in front of the victim. An argument broke out between defendant and the victim about who would purchase items first. Allen, her cousin Moss, and defendant's mother all attempted to diffuse the situation and calm defendant down, asking him to leave the store and "go on about his business." Allen then left the store with defendant's mother and the victim, but remained on the store's front steps talking. When defendant exited the store, he and the victim started arguing again, and defendant leaned toward the victim, pointed his finger at the victim's face and said that he would "shoot the sh — out of him." Allen averred that, at that point, defendant's friend, Chris, drove up in a purple Dodge Intrepid, exited the car and whispered something in defendant's ear, and the two left, walking in the direction of the Intrepid. According to Allen, the victim also left the store and started walking up the street.

At this point it started to rain. As Allen opened her umbrella, she saw gunshots flashing and the victim running back toward the store. Allen observed defendant running and shooting after the victim, and then the victim's body jerking as he fell to the ground. According to Allen, as the victim was attempting to roll over, defendant approached him and fired the rest of the shots into his already wounded body. Defendant ran away, and Allen ran toward the victim to help him.

On cross-examination, Allen admitted that she was approximately 40 feet away when she observed defendant shooting the victim, that it was dark outside and that she had her umbrella in front of her as it had started to rain.

On cross-examination, Allen also testified that after the ambulance arrived at the scene and took the victim to the hospital she had occasion to speak with the police. Allen admitted, however, that at that time she gave the police a fake name "Tasha Bijou," and told them she knew nothing about the shooting. Allen explained, however, that a few weeks later, she spoke to the police again and told them the truth. She averred that she lied to the police initially because she was "scared," and implied that she had been threatened by someone not to disclose what she knew.²

On cross-examination, Allen further admitted that her statements to the police two weeks after the shooting were inconsistent with some of her testimony at trial. Specifically, Allen acknowledged that she had then told the investigating officers that it was dark and raining outside and that it was not until she ran over to the man who had been shot that she realized it was the victim, Brian Henderson.

Robin Moss was the second eyewitness called by the State. Her testimony was consistent with the testimony of her cousin Sophia Allen. On cross-examination, Moss admitted that after she called the ambulance, she left before the police arrived and went to Allen's house on the corner of Keystone Avenue and Augusta Boulevard. Just as Allen, Moss admitted that on the night in question she did not voluntarily tell the police that she saw defendant shoot the victim.

Officer Michael Kapior next testified that at approximately 10:25 p.m. on June 1, 2001, together with Officers John Lipka and Roy Isaacson, he responded to a report of a shooting at 4022 West Augusta Boulevard. Once at the location, Officer Kapior observed the victim on the ground and numerous bystanders that had gather in the area. Officer Kapior testified that an older woman approached him and provided him with a description of a man she had observed fleeing from the scene.

After obtaining this description, Officer Kapior toured the area in his squad car and soon thereafter observed a black male teenager sitting on the porch of 1036 N. Keystone Avenue, with a bottle of liquor in his hand, fitting the description of the offender. Officer Kapior made an in-court identification of defendant as that individual. Officer Kapior said that together with his partners he exited the vehicle and approached defendant. Defendant fled up the stairs of the house and was chased down by the officers and placed...