People v. Jones, No. 1–12–1016.

• Court: United States Appellate Court of Illinois
• Writing for the Court: Presiding Justice PUCINSKI delivered the judgment of the court, with opinion.
• Citation: 34 N.E.3d 1065
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Joe JONES, Defendant–Appellant.
• Docket Number: No. 1–12–1016.
• Decision Date: 22 April 2015

34 N.E.3d 1065

The PEOPLE of the State of Illinois, Plaintiff–Appellee
v.
Joe JONES, Defendant–Appellant.

No. 1–12–1016.

Appellate Court of Illinois, First District, Third Division.

Modified Opinion Filed April 22, 2015.
Rehearing Denied Aug. 10, 2015.

34 N.E.3d 1068

Abishi C. Cunningham, Public Defender, of Chicago (Evelyn G. Baniewicz, Assistant Public Defender, of counsel), for appellant.

Anita M. Alvarez, State's Attorney, of Chicago (Alan J. Spellberg, Douglas P. Harvath, and Tasha-Marie Kelly, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 All expert opinion testimony requires an adequate foundation. The foundation requires a factual reason or basis for the expert's opinion. Where no factual basis is given, “trust me” is not enough.

¶ 2 The defendant was convicted in a jury trial of first-degree murder based on circumstantial evidence and the expert opinion testimony of a firearm/toolmark examiner who identified the bullet found by the victim as being fired from defendant's gun. Defendant argues that the court erred in admitting the firearm/toolmark

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examiner's expert opinion testimony. We agree and hold the court erred in allowing the testimony of the firearm/toolmark identification expert because the expert's testimony lacked an adequate foundation where the expert testified that he found “sufficient agreement” but did not testify to any facts that formed the bases or reasons for this ultimate opinion that the bullet matched defendant's gun.

¶ 3 We further hold that the expert's opinion testimony substantially prejudiced defendant, as it essentially placed the murder weapon in defendant's hands, and thus we reverse and remand for a new trial.

¶ 4 Defendant also argues that the evidence was insufficient to prove him guilty beyond a reasonable doubt, but due to our disposition we do not reach this issue.

¶ 5 Defendant further argues that the court also erred in not giving a second-degree murder instruction. We hold that defendant waived this argument by not including it in his posttrial motion, and the plain error exception to waiver does not apply here because, even if there were any error, such error was invited by defendant where he indicated to the court that he did not want the instruction.

¶ 6 BACKGROUND

¶ 7 Defendant, Joe Jones, was charged with the first-degree murder and armed robbery of his friend Ivory Anderson that occurred on September 12, 2008, near the intersection of Garfield Boulevard and Winchester Avenue in Chicago, Illinois. Defendant was charged via indictment with several counts of first-degree murder and two counts of armed robbery. The following facts are from the testimony at trial.

¶ 8 The day of the shooting, defendant was with Ivory Anderson and Valerie Myrick, known to her friends as “Red,” at defendant's house on the 5600 block of South Seeley Avenue in Chicago, Illinois. Defendant was Valerie's boyfriend at the time, and Valerie and Ivory had been friends for about 20 years. Valerie drank and did drugs with both Ivory and defendant and partied in defendant's basement. That night, the three of them were smoking crack cocaine and drinking alcohol.

¶ 9 Shortly before 9:30 p.m., Valerie, Ivory and defendant ran out of cocaine and Ivory suggested that they go buy more. Neither Valerie nor defendant had any money, so Ivory offered to go to his house to get some money. After Ivory got some money, the three began walking toward Winchester and 55th Street (Garfield Boulevard), where they planned to buy cocaine. Drugs were sold at a house on the corner of 55th Street and Winchester Avenue. Around the same time, Danies Escobar and her boyfriend Stanley Sparks were standing under the canopy of a currency exchange located nearby at 55th Street and Damen Avenue. Danies and Stanley earned their living by selling “cigarettes” at this location for 50 cents apiece. Danies had known Ivory for about 25 years, had been friends with Valerie for about 18 years, and had known defendant for about 7 or 8 years. Danies also partied in defendant's basement. Stanley also knew Valerie, Ivory and defendant and sometimes also partied in defendant's basement.

¶ 10 Danies and Stanley saw Valerie, Ivory and defendant approach them. Defendant was wearing a long blue denim jacket. As Valerie, Ivory and defendant approached, Valerie split and proceeded toward a gas station to get cigarettes and a cigarette lighter. Ivory gave Valerie a roll of quarters and Valerie went inside the gas station.

¶ 11 After Valerie went inside the gas station, Danies and Stanley heard gunshots.

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Danies heard four or five shots and all the shots had the same sound. Stanley testified that he heard two shots, then two or three more, and stated that the shots all sounded alike to him, like they came from the same gun. To Stanley, the shots sounded like they came from a .38–caliber gun. Stanley testified that he may have told Detective Lewis that he heard two shots, a pause, and then four more shots.

¶ 12 After hearing the gunshots, Danies and Stanley immediately went through the alley and headed toward 55th Street and Winchester Avenue, because Stanley's son frequented the area and they were concerned for him. There were no cars or people in the alley. At the end of the alley, they looked both ways and did not see anyone. When they got to the area, they looked around and did not see anyone at first. Danies saw two umbrellas and a lot of blood on the ground. Danies and Stanley were turning to walk away when they saw a body in between the garage at 5512 S. Winchester Avenue and the alley. Danies and Stanley both did not recognize who it was at first.

¶ 13 Meanwhile, Valerie came out of the gas station and did not see defendant and Ivory, who were supposed to wait for her at the corner. As she looked around for them, defendant came running towards her and said, “your friend just got shot.” Defendant did not say how it happened or who shot Ivory. Valerie ran towards the other side of the boulevard to where Danies and Stanley had just discovered the body. Danies and Stanley were standing by the body but still did not recognize who it was. When Valerie arrived, she screamed, “Oh, hell, no, he shot Ivory * * *.” Valerie began screaming Ivory's name and telling him to “hold on.” Danies then realized it was Ivory, saw blood around his head, and ran toward the gas station and found a police officer on 55th Street, coming off Damen. She told the officer there was a man lying down at 55th and Winchester. Danies then went back to where Ivory was and stayed there until the police came. Stanley saw that Ivory's head wound “was really bad” and that Ivory's torso was covered in bloodstains. Danies flagged down a marked police car on 55th Street, turning from Damen Avenue, and returned to where Ivory was.

¶ 14 When the police arrived on the scene, Danies gave officers her name and address and went to the home of Ivory's sister, Dorothy Hunter, to tell her what happened. Danies told Dorothy and remained with her for about 15 to 20 minutes and then returned to 55th and Damen. Dorothy then proceeded to 55th and Winchester. When she reached the alley, she saw Ivory's body covered with a white sheet and was told she could not walk closer because it was still a crime scene. A short time later, her nephew, who was a police officer, arrived and identified the body as Ivory. Ivory Anderson was later pronounced dead from a gunshot wound to his back. The manner of death was ruled homicide.

¶ 15 After Valerie talked to the police at the scene, she saw defendant near 55th and Damen. They walked together toward the E & J liquor store. Valerie asked defendant what had happened, and defendant told her that “two guys came behind them and tried to stick them up.” Defendant said that “one guy pulled a gun and started shooting” and so defendant “pulled his gun and was shooting back.” Valerie asked defendant if he killed Ivory and defendant said, “no.” Valerie and defendant went to Valerie's house and slept there that evening.

¶ 16 About 20 minutes after the shooting, at 55th and Damen, Danies and Stanley ran into Valerie and defendant by the bus stop in front of the gas station, near

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the E & J liquor store. Defendant was wearing a different jacket. When Danies and Stanley first saw defendant that night, he was wearing a long blue denim jacket, but when they saw him at the bus stop he was wearing a black leather jacket. Stanley did not think it was significant that defendant had changed his jacket, as it had been raining all day. Danies and Stanley stopped outside the liquor store on the sidewalk. Danies testified that Valerie was crying but defendant was not saying anything and was acting “jittery and nervous.” Defendant started talking about a car accident where people were hurt at the bus stop in front of the gas station that took place 20 to 30 minutes after the shooting. Danies did not ask defendant about Ivory's shooting, and defendant did not talk about it or ask about it. Stanley testified it was not much of a conversation and they...