People v. Green

• Decision Date: 27 May 2003
• Docket Number: No. 1-99-1384.,1-99-1384.
• Citation: 791 N.E.2d 134,274 Ill.Dec. 338,339 Ill. App.3d 443
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lemark GREEN, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

791 N.E.2d 134

339 Ill. App.3d 443

274 Ill.Dec. 338

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Lemark GREEN, Defendant-Appellant.

No. 1-99-1384.

Appellate Court of Illinois, First District, First Division.

May 27, 2003.

Richard A. Devine, Cook County State's Attorney (Renee Goldfarb, Margaret J. Campos, Kimberly A. Hamlin, Assistant State's Attorneys, of counsel), for Plaintiff-Appellee.

Michael J. Pelletier, Deputy Defender (Gordon H. Berry, Assistant Appellate Defender, of counsel), for Defendant-Appellant.

Justice SMITH¹ delivered the opinion of the court:

Following a jury trial, Lemark Green was convicted of two counts of attempt (first-degree murder) and one count of aggravated discharge of a firearm. The trial judge sentenced Green to concurrent prison terms of 30 years for each of the attempt counts and an extended concurrent term of 25 years for the single count of aggravated discharge of a firearm, with credit for time served. Green now appeals his convictions, asserting that the State failed to prove the elements of the charged offenses beyond a reasonable doubt. Green also claims that the trial court committed reversible error both in barring the admission of certain evidence ostensibly supporting the defense theory of a police "frame-up," as well as in imposing an extended-term sentence on the aggravated discharge of a firearm count. For the reasons that follow, we affirm in part and reverse in part.²

Evidence adduced at trial demonstrates that on October 1, 1997, after receiving an informant's tip that a produce stand on Ogden Avenue would be burglarized, Chicago police officers Daniel DeLopez and Mark Zawila of the Area Four mission team conducted stationary undercover surveillance of the produce stand. The officers were wearing jeans and black hooded sweatshirts with their hoods pulled up and were sitting in a "covert" (nonpolice) vehicle, a blue Pontiac Sunbird. Zawila sat in the driver's seat, DeLopez in the front passenger seat. The Sunbird was parked in a lot located at 643 North Ogden Avenue. The car was facing and perpendicular to the street, with the front end of the car approximately 8 to 10 feet from the curb. The street was well-lit.

Two other Chicago police officers assigned to the Area Four mission team, Baudilio Lopez and Jacob Galavan, were conducting mobile surveillance of the produce stand from a "covert" white Buick, with Lopez driving and Galavan in the front passenger seat. Lopez and Galavan were also dressed in jeans and black hooded sweatshirts with the hoods pulled up. Around 11 p.m., Lopez and Galavan drove northbound on Ogden Avenue and approached the parking lot where DeLopez and Zawila were parked. Lopez pulled onto the sidewalk so that the white Buick was perpendicular to the blue Sunbird and parallel to Ogden Avenue, with the driver's door of the Buick approximately two to three feet from the curb. The front ends of the two vehicles were approximately one to two feet apart.

Galavan rolled down the passenger side window and began speaking with DeLopez and Zawila. About 30 seconds later, a brown Oldsmobile approached the parked cars in the northbound lane of Ogden Avenue nearest the curb. Because they were facing right, toward the blue Sunbird, Lopez and Galavan did not see the Oldsmobile approaching from their left rear. DeLopez and Zawila observed the brown Oldsmobile slow to 5 to 10 miles per hour and saw defendant Green lean out of the passenger window and extend his hand. The officers saw that Green was holding a small-caliber semiautomatic pistol. As Green's car passed the white Buick, Green fired four to five times in the direction of the officers. Green's car never came to a complete stop. Green's car then fled northbound on Ogden Avenue with both of the police vehicles in pursuit.

DeLopez notified the 911 communications center that shots had been fired at police officers. The officers pursued Green's car as it turned left onto Milwaukee Avenue and left again onto Chicago Avenue, moving approximately 50 to 55 miles per hour. Green's car then attempted to turn left onto Ada, but was prevented from doing so by a marked squad car moving along Ada in the opposite direction. Green's car veered back onto Chicago Avenue and then turned left onto Noble Street, where it was stopped by another marked squad car. The two "covert" cars pulled in behind Green's, with several other marked squad cars arriving within moments.

Green and the driver of the brown Oldsmobile, Eric Fields, both exited the vehicle as it stopped. Green fled toward the sidewalk. Zawila and DeLopez pursued Green on foot. DeLopez reached Green first, tackling Green and pushing him into a parked car. Zawila then joined in DeLopez's attempt to subdue Green, who was struggling violently. Lopez and Galavan also assisted in the struggle; together, the officers were finally able to handcuff Green. Green continued to resist and rolled on the ground, kicking his legs and shouting obscenities. As Green was taken to a waiting police wagon, DeLopez noticed that Green was bleeding from his head. Galavan and Lopez conducted an initial search of the Oldsmobile but were unable to locate the pistol used in the shooting.

Officers Castaneda and Burmisterz, also assigned to the Area Four mission team, responded to the "shots fired" call. Castaneda was assigned to search for weapons in the area around the shooting scene but found no weapons. Castaneda then went to the Noble Street location where the Oldsmobile had been stopped and was told to search the vehicle. During his search, Castaneda noticed that a plastic panel between the driver's side doors was pulled out from the sidewall of the Oldsmobile approximately one-half inch. Castaneda pulled on the exposed edge of the plastic and a small semiautomatic pistol fell onto the back floor of the car. The pistol was left in place for forensic recovery.

Around 11:40 p.m., forensic investigator Officer Joseph Dunigan and his partner were called in to analyze the scene of the shooting. Dunigan observed expended pistol cartridge cases in the street along the curb at 643 North Ogden Avenue. Dunigan also found a cartridge case and a portion of a spent bullet along a wrought-iron fence at the rear of the lot where the "covert" police cars were parked. Dunigan and his partner photographed the entire area and all of the firearm evidence in situ. Dunigan then recovered the spent casings and the bullet fragment, which he determined to be .25-caliber. Dunigan placed the spent casings and the bullet fragment in a Chicago police department envelope, which he then sealed and initialed.

Dunigan also examined certain vehicles present at the shooting scene. He inspected a camper, a van, a construction crane and DeLopez and Zawila's blue Pontiac Sunbird, which a detective had returned to the shooting scene after Green was in custody. Dunigan determined that both the crane and the Sunbird had sustained probable bullet damage. The crane had a dent in the metal door facing Ogden Avenue and the Sunbird had a cylindrical gouge on the front of the passenger-side windshield, which had also been facing Ogden Avenue.

Dunigan next went to the scene of Green's arrest to process the brown Oldsmobile. Dunigan photographed the vehicle, searched it and recovered the .25-caliber semi-automatic pistol from the floor of the rear seat area. He removed the magazine from the pistol, determined that it was empty, and prepared it for analysis.

Tonia Brubaker, a forensic scientist for the Illinois State Police, analyzed the pistol and the firearm evidence recovered from the shooting scene. Brubaker determined conclusively that the bullet fragment and the expended cartridge casings recovered from the shooting scene were fired from the .25-caliber semi-automatic pistol recovered from the brown Oldsmobile in which Green had been riding.

Green testified at trial and offered an entirely different account of the events of that evening. Green stated that around 10:40 p.m., Fields arrived at Green's apartment at 725 North Ada, where Green was living with Vanessa DeRussy. Fields and Green left in Fields' brown Oldsmobile with the eventual goal of visiting a friend at Norwegian Hospital; however, they first went to look for Juan Renteria in the neighborhood of Green's apartment. They were unable to locate Renteria, so Green asked Fields to take him to meet DeRussy at a local gas station near the intersection of Grand and Armour. Green testified that while he and Fields were parked at a stop sign at the intersection, a white Buick Skylark rear-ended the Oldsmobile. Both the driver and the passenger of the Buick were wearing sweatshirts with the hoods pulled over their heads. Fields asked the occupants of the Buick for insurance information. The occupants did not respond; instead, they "stared down" Fields and Green. The passenger of the Buick then threw garbage at Fields' car through the window of the Buick, after which the Buick drove off. Green testified that the car had neither license plates nor a city sticker. Fields then engaged in a high-speed pursuit, chasing the Buick several blocks and through at least one red light. The Buick finally turned northbound onto Ogden Avenue and, after a few more blocks, pulled abruptly onto the sidewalk on the right side of the street, ending up perpendicular to a blue Pontiac Sunfire that was parked in a lot at that location. Green stated that as he and Fields pulled up next to the white Buick, the driver of the Buick extended his arm out of the window and was holding a gun in his hand. Green and Fields both ducked down, and Fields drove off with the Buick and the Pontiac in close pursuit. Fields turned left onto Milwaukee Avenue and left again onto Chicago Avenue. Green testified that he asked Fields to take him home, but as they attempted a left turn onto Ada, a marked squad car was coming up Ada from the opposite direction. Fields then pulled back...