People v. Safford

• Decision Date: 01 June 2009
• Docket Number: No. 1-06-3083.,1-06-3083.
• Citation: 910 N.E.2d 143
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cory SAFFORD, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

910 N.E.2d 143

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. Cory SAFFORD, Defendant-Appellant.

No. 1-06-3083.

Appellate Court of Illinois, First District, First Division.

June 1, 2009.

Andrea D. Lyon, Chicago, IL, for Defendant-Appellant.

James E. Fitzgerald, Samuel Shim, Richard A. Devine, State's Attorney, Chicago, IL, for Plaintiff-Appellee.

Justice GARCIA delivered the opinion of the court:

Following a jury trial, Cory Safford was convicted of aggravated battery with a firearm and attempted murder of Harvey police officer John Marcano. He was sentenced to natural life in prison under the habitual criminal sentencing statute. The defendant advances numerous claims. His first claim is that the trial court committed reversible error when it allowed a fingerprint examiner to testify to his conclusion that a print found on the complainant's vehicle belonged to the defendant without providing an evidentiary foundation for his opinion. For the reasons that follow, we agree; we reverse and remand for a new trial.

BACKGROUND

On January 21, 1998, Officer John Marcano of the Harvey police department was on patrol, when shortly after midnight on the 22nd of January, he came across Antoine Pate, an individual he recognized, standing on the street with an individual he did not know. Officer Marcano, knowing Pate was wanted on a robbery charge, stopped both men, asked for identification, and had them place their hands on his patrol car. Pate provided Officer Marcano with his identification card. When the second man was unable to produce a state identification card, Officer Marcano asked him to provide something with his name on it. As Officer Marcano held Pate's identification in his left hand, he used a device on his lapel to call for backup. As he did, the second individual took out a gun and shot him twice. Officer Marcano survived the shooting. The defendant was arrested the evening of January 22, 1998. After a jury trial, the defendant was found guilty.

Trial Proceedings

Prior to trial, defense counsel filed a motion to dismiss based on Harvey police officer Gentry's claim that Officer Marcano was "out of it" and unable to speak when he identified the defendant from a photo array. The trial court denied the motion.

At trial, Officer Marcano testified the individual who shot him on January 22, 1998, was the defendant. He recalled the defendant was wearing a derby hat, a "[b]eautiful three-quarter length leather coat," and a "[n]icely pressed denim shirt and matching pants." When the defendant was arrested, he identified a black leather three-quarter length coat as his. Officer Marcano testified that after he asked the men for identification, he had them place their hands on the patrol car. Pate placed his hands near the windshield and the defendant placed his near the headlight. Officer Marcano testified that prior to being shot, he was three feet from the individuals and could observe their faces. Officer Marcano testified he was shot in the shoulder and fell to the ground. While he lay there, the defendant stood over him and shot him in the face. Officer Marcano closed his eyes and pretended to be dead. He heard footsteps running away, one set to the north and one to the south. Then, he felt a set of footsteps coming toward him from the south and someone took Pate's identification card out of his hand and ran off. Officer Marcano called for assistance and identified one of the offenders as Antoine Pate. Officer Marcano testified he gave a physical description of the second offender, but the police transmission tape does not contain a description from Officer Marcano.

Officers Forbes and Murphy arrived at the scene. Officer Michael Murphy testified that at the scene, Officer Marcano mentioned Pate as one of the offenders and described the second offender as a black male, 5 feet 4 inches to 5 feet 6 inches in height, wearing a black derby hat and a black leather coat. Officer Marcano is 5 feet 7 inches. After accompanying Officer Marcano to the hospital, Officer Murphy went back to the scene of the shooting. In preparing his report of the shooting, Officer Murphy listed an individual named Lee Cole, 5 feet 6 inches tall, weighing 135 pounds, as the suspected shooter. Officer Murphy testified Officer Marcano never mentioned the name Lee Cole to him.

At the hospital, on the day of the shooting, Officer Marcano was shown three sets of photo arrays. From the two arrays shown during the early morning, Officer Marcano identified Antoine Pate as one of the offenders. Officer Marcano identified no one else from the two arrays. Around 6:30 p.m. that day, Detective Thomas and Commander Arnold of the Harvey police department showed Officer Marcano additional photographs from which he identified the defendant as the shooter. He also identified a derby hat and black jacket depicted in a photograph as similar to the hat and jacket worn by the shooter. At the hospital, Officer Marcano marked photographs of his patrol car where Pate and the shooter placed their hands.

In court, Officer Marcano testified that he described the shooter as being 5 feet 6 inches to 5 feet 7 inches in height in his 911 call. Officer Marcano admitted he never saw a lineup and that at the time of the identification he was on pain medication that made him somewhat drowsy. Dr. Scott Donnelly testified Officer Marcano was receiving morphine at the time of the photo identification.

Toni Powe testified she witnessed the shooting. She testified that on the night in question, she was riding on a public bus with her sister, the bus driver. After being dropped off shortly after midnight, she saw Officer Marcano, Pate, and another individual standing in the street as she was on her way home. Ms. Powe was acquainted with Officer Marcano. She later identified the unnamed individual as the defendant, though she did not know him on the night of the shooting. Ms. Powe's description of the shooting corroborated Officer Marcano's testimony. She testified that she watched the shooting while hiding in some nearby bushes. She recalled the shooter wore a derby hat and black jacket. Ms. Powe testified that Pate ran to Tina Butler's house after the shooting and that the defendant ran through a vacant field to Margaret Williams's house, before ending up at Tina Butler's house.

On cross-examination, Ms. Powe admitted that on the night of the offense, she gave the police Pate's name, but not the defendant's. She testified that she told the officers that night that she did not know the other individual involved. In February 2002, about four years after the shooting, Ms. Powe met with a prosecutor who showed her some photographs. From the photo array, Ms. Powe identified Pate and the defendant as the offenders in the shooting of Officer Marcano.

Sergeant Eric Douglas spoke with Officer Marcano at the hospital on the night of the shooting. Later that morning, Sergeant Douglas went to the scene of the shooting with Commander Wells. At the scene, they had a brief conversation with a woman, later determined to be Toni Powe. At the time of their conversation, Ms. Powe expressed apprehension and declined to disclose her name. On cross-examination, Sergeant Douglas admitted that during their initial conversation, Ms. Powe did not state that she saw the shooting or that she knew the other man with Pate. Sergeant Douglas testified Ms. Powe told him that the man with Pate was wearing a blue jumpsuit.

Over defense counsel's objection, the State elicited testimony from Sergeant Douglas that after talking with Margaret Williams, who lived across the street from the scene of the shooting, Harvey police officers sought Pate and an individual named "Cory." Sergeant Douglas testified that after his conversation with Ms. Williams, he discovered a derby hat and two guns close to the scene of the shooting.

In his testimony, Detective Joseph Thomas described the defendant as 5 feet 8 inches to 5 feet 9 inches and between 180 and 190 pounds, with long hair. He admitted that at the start of the investigation, the search was for an individual who was 5 feet 4 inches to 5 feet 6 inches.¹ Detective Thomas also testified regarding the photo identification at the hospital by Officer Marcano. Detective Thomas testified five photos were used in the photo array he showed to Officer Marcano. Detective Thomas admitted that four of the five photographs had similar backgrounds and listed the height of the individuals depicted. The photograph of the defendant differed in background and did not list a height for the defendant. Officer Marcano identified the defendant as the shooter from this photo array.

Derrick Jones, while serving a nine-year sentence in the Illinois Department of Corrections, with prior felony convictions for unlawful use of weapons, delivery of a controlled substance and obstruction of justice, testified he sold a gun to the defendant, whom he knew as "Squeak." He identified the bluesteel revolver recovered by Sergeant Douglas near the scene of the shooting as the gun he sold to the defendant.

Walter Sherk, a forensic scientist in the field of firearms investigations with the Illinois State Police, testified as an expert to the comparison tests he performed on a recovered bullet and the recovered handgun. Forensic scientist Sherk concluded that the bullet recovered from the scene of the shooting was fired from the recovered gun.

Prior to the second day of trial, defense counsel objected to any testimony by the fingerprint expert because the fingerprint reports received in discovery did not list any points of comparison from which the expert could have drawn his conclusion of a match. The objections were noted, but the court ruled the fingerprint examiner would be allowed to testify to his conclusions. Testimony regarding the recovery of latent fingerprints and the comparison prints of the defendant was presented before the fingerprint examiner testified.

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