People v. Kidd

• Decision Date: 07 March 2014
• Docket Number: No. 1–11–2854.,1–11–2854.
• Citation: 7 N.E.3d 188,379 Ill.Dec. 762,2014 IL App (1st) 112854
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Shandra KIDD, Defendant–Appellant.
• Court: United States Appellate Court of Illinois

2014 IL App (1st) 112854

7 N.E.3d 188

379 Ill.Dec. 762

The PEOPLE of the State of Illinois, Plaintiff–Appellee,

v.Shandra KIDD, Defendant–Appellant.

No. 1–11–2854.

Appellate Court of Illinois, First District, Fifth Division.

March 7, 2014.

Michael J. Pelletier, Alan D. Goldberg, Tomas G. Gonzalez, State Appellate Defender's Office, Chicago, for appellant.

Anita M. Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Anthony O'Brien, Iris G. Ferosie, Assistant State's Attorneys, of counsel), for the People.

OPINION

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

¶ 1 On May 15, 2007, defendant Shandra Kidd and two friends were walking in the vicinity of 2727 East 78th Street in Chicago when they were approached by police officers. Kidd ran away. One of the officers, Officer Charles Johnson, gave chase. According to Johnson, during the chase, Kidd pulled out a gun and attempted to shoot him. In a statement later given to police, Kidd admitted that she was in possession of a gun and pointed it in Johnson's direction but denied pulling the trigger.

¶ 2 Following a jury trial, Kidd was convicted of attempted murder of a peace officer. She was sentenced to 40 years' imprisonment, plus a 15–year sentencing enhancement for committing the crime while armed with a firearm. Kidd now appeals her conviction and sentence. For the reasons that follow, we reverse and remand for a new trial.

¶ 3 I. BACKGROUND

¶ 4 Kidd was charged with both attempted murder of a peace officer and unlawful possession of a weapon by a felon. (The latter charge is not at issue in this appeal.) The indictment for attempted murder stated the following, in relevant part:

“Shandra Kidd committed the offense of attempt first degree murder in that she, with intent to commit the offense of first degree murder, without lawful justification, did any act, to wit, while armed with a firearm, pointed a firearm at Charlie Johnson and pulled the trigger * * * which constituted a substantial step toward the commission of first degree murder of a peace officer.”

¶ 5 Because the defendant challenges the sufficiency of the evidence against her, a complete recitation of the facts presented at trial is necessary to a disposition of this appeal.

¶ 6 Officer Johnson testified that on May 15, 2007, at around 12:40 a.m., he was on patrol in his unmarked police car when he received a call of shots fired near the intersection of 78th Street and Burnham Avenue. He was with his partners Darryl Bowen and Janice Wilson. Upon arriving at 78th and Burnham, Johnson observed three individuals who appeared overdressed for the weather, with sweatshirts and skull caps. They were the only individuals in the vicinity. The three individuals looked in the direction of the unmarked police car and quickened their pace. All three officers exited their squad car and approached the three individuals, telling them to stop. The officers were in plainclothes, but their police stars were visible and they were wearing their guns in their holsters as well as bulletproof vests.

¶ 7 Johnson testified that two of the individuals stopped, but the third individual, whom he identified in court as Kidd, immediately ran. Johnson chased after Kidd on foot while his partners remained with the other two individuals. Kidd rounded the corner at 78th and Burnham and began running south on Burnham down the middle of the street. As she rounded the corner, her hat came off and Johnson realized that she was a female. He stated that as she was running, he “noticed something dropping out” from her person.

¶ 8 When Johnson caught up to Kidd, he grabbed the back of her sweatshirt, attempting to push her body against a car so that he could handcuff her. He testified that she turned around and pushed a hard metal object against his chest. He did not see the object at that time, but he heard a click, which he recognized instantly as being the sound of a gun's trigger being fired. No bullet was discharged.¹

¶ 9 Johnson testified that as soon as he heard the click, he immediately pushed Kidd away, sending her flying over the hood of the car. At this point, Johnson drew his weapon and ordered Kidd to show her hands. He saw her pointing a black revolver directly at him and heard two more clicks. Again, no bullets were discharged. Kidd then began running away. Johnson fired his gun multiple times in her direction and took cover behind a tree. He heard Kidd screaming that she had been hit. Peeking out from behind the tree, he saw her flailing on the ground. He ordered her to drop the gun. He stated that she pushed the gun away, though not as far as he would have liked, because it was still close enough for her to grab it. Johnson then asked her whether she was trying to kill him. Kidd responded, “They sent me off.” Shortly thereafter,

¶ 10 On cross-examination, Johnson testified that he is 5 feet 8 inches, while Kidd is 4 feet 11 inches. He further testified that the only people who saw what happened between them were himself and Kidd.

¶ 11 Officer Bowen testified that on May 15, 2007, he, Johnson, and Wilson exited their unmarked squad car to conduct a field interview with three individuals wearing hoodies and skull caps. When Kidd took off running, Johnson gave chase while Bowen and Wilson detained the other two individuals, named Aaron Ballard and Antwaun Smith. Bowen testified that he lost sight of Johnson and Kidd as they rounded the corner. Shortly thereafter, he heard at least three gunshots. He ran to Johnson's aid, leaving Wilson with Ballard and Smith. When he reached 7821 Burnham, he saw Johnson pointing his gun at Kidd, who was lying on the ground and bleeding. Bowen testified that Johnson told him, “She tried to kill me.”

¶ 12 Former Assistant State's Attorney Jennifer Geyer testified that around 1 p.m. on May 15, 2007, she took Kidd's handwritten statement at the hospital in the presence of two detectives. According to Geyer, Kidd gave the following statement.

¶ 13 Kidd stated that around midnight on May 15, 2007, she was outside near 78th and Burnham with Ballard and Smith. Ballard had two guns and asked Kidd to hold one. Kidd stated that they needed the guns for protection because there was shooting in the area. She also stated that Ballard gave the gun to her because female officers are less common, and it was unlikely that a male officer would search her. Kidd took the gun, which she knew was loaded, and placed it in her pocket.

¶ 14 Kidd stated that a “bubble car” (police car) pulled up. Smith said, “Here come the dicks.” The officers exited the car, wearing bulletproof vests. One of them was a woman. Kidd ran away because she was carrying a gun and believed that the female officer would search her. As she ran, she was holding the gun in her pocket. She was aware that an officer was chasing her. She took the gun out of her pocket as she turned onto Burnham. When she reached the middle of the block, she turned around to see where the officer was. As she did so, she pointed the gun at him, although she stated that she did not know why she pointed the gun at him. At the time, the chamber that held the bullets to her gun was hanging open, but she did not know if there were any bullets inside.

¶ 15 Kidd said that she saw the officer run into the side of a parked truck. She kept running and did not turn around again. She heard a gunshot, and her leg went numb. She fell down with the gun still in her hand. She started crying and told the officer that she was sorry.

¶ 16 The parties stipulated that if Dr. Matthew Kleinmaier were called to the stand, he would testify that on May 15 to 17, 2007, he treated Kidd for a gunshot wound on her left buttock. Dr. Kleinmaier opined that when Kidd gave her statement to the Chicago police department on May 15, 2007, her mental status, ability to understand, and clarity of thought were not diminished or adversely affected.

¶ 17 The State also introduced various evidence about Kidd's gun and the physical evidence at the scene. The parties stipulated that Officer Daniel Pruszewski would testify that he arrived on the scene to assist Johnson shortly after the shooting. When Pruszewski arrived, Kidd was lying on the ground with a .38–caliber revolver lying near her. Johnson identified the revolver as the one Kidd had used. Pruszewski turned over the revolver for ballistics testing and a proper chain of custody was maintained at all times.

¶ 18 Joseph Dunigan, a forensic investigator for the Chicago police department, testified that he processed the scene for evidence. He recovered five live unfired .38–caliber cartridges on the street between 7812 and 7817 Burnham. He also recovered two fired 9–millimeter cartridge cases, one at 7821 Burnham and the other at 7825 Burnham, as well as a third fired cartridge in the dirt under a porch at 7829 Burnham.

¶ 19 Dustin Johnson, a firearms examiner with the Illinois State Police, testified that he tested the .38–caliber revolver. He stated that the revolver was operable and capable of firing bullets. He also stated that the five unfired .38 cartridges recovered at the scene were suited to fit the recovered revolver and could not be used in a 9–millimeter pistol.

¶ 20 The sole witness called by the defense was Jennifer Bell, a forensic scientist employed by the Illinois State Police Forensic Science Center. Bell testified that Kidd's DNA was not found on the trigger, hammer, sight, or cylinder of the gun. On cross-examination, she stated that it was possible that Kidd touched the gun but did not leave behind enough DNA to be detected.

¶ 21 During the jury instruction conference, counsel for the defense requested that the court instruct the jury on aggravated assault as a lesser included offense of attempted murder. The trial court denied counsel's request.

¶ 22 The jury found Kidd guilty of attempted murder of a peace officer and unlawful possession of a weapon by a felon. Following a sentencing hearing, the...