People v. Simon
| Decision Date | 26 August 2011 |
| Docket Number | No. 1–09–1197.,1–09–1197. |
| Citation | 2011 IL App (1st) 091197,953 N.E.2d 1,352 Ill.Dec. 65 |
| Parties | The PEOPLE of the State of Illinois, Plaintiff–Appellee,v.Damon SIMON, Defendant–Appellant. |
| Court | United States Appellate Court of Illinois |
OPINION TEXT STARTS HERE
Michael J. Pelletier, State Appellate Defender Alan D. Goldberg, Deputy Defender, Chicago (John Koltse, Assistant Appellate Defender), for Appellant.Anita Alvarez, State's Attorney, Chicago (Alan J. Spellberg, Peter D. Fischer, of counsel), for Appellee.
¶ 1 Following a bench trial, defendant Damon Simon was convicted of first degree murder for the shooting death of Robert Hill. Defendant filed a motion for a new trial, which was denied, and after hearing aggravation and mitigation, the trial court sentenced defendant to 50 years in the Illinois Department of Corrections. On appeal,1 defendant argues that his conviction should be reduced to second degree murder and remanded for resentencing because he acted with an actual, though unreasonable, belief in self-defense. Alternatively, defendant claims that he is entitled to a new trial because: (1) the trial court erred in barring evidence that supported defendant's theory of self-defense, (2) the trial court relied on an erroneous recollection of the evidence in weighing witness credibility, and (3) the State failed to disclose a witness's felony conviction and allowed the witness to provide perjured testimony when it failed to correct the witness's misstatement of his criminal history. We affirm.
¶ 3 On August 14, 2006, defendant was arrested and subsequently indicted for first degree murder (720 ILCS 5/9–1(a)(1) (West 2004)) for the shooting death of Robert Hill (the victim). In his answer to the State's motion for pretrial discovery, defendant stated that he would assert the affirmative defense of self-defense. Defendant waived a jury trial and proceeded with a bench trial on November 12, 2008.2
¶ 4 The State called Aaron Jackson as a witness, who testified that he was present in the parking lot at Corona's Food Mart in Calumet Park at approximately 1 p.m. on July 21, 2006, attempting to purchase marijuana. He observed defendant in the passenger seat of a vehicle in the parking lot, and another individual was in the driver's seat. Jackson approached the vehicle and asked defendant whether he had any marijuana. Defendant responded that he did and turned to reach behind his seat. Defendant then turned around quickly to face forward, left the vehicle, and told Jackson to move out of the way. Jackson observed that defendant appeared surprised when he turned to face forward, and he observed defendant remove a gun from his waistband.
¶ 5 When defendant left the vehicle, Jackson observed the victim approaching from behind Jackson, riding a bicycle in the direction of the vehicle. Jackson was familiar with the victim, as both Jackson and defendant were members of the Black P Stones gang and the victim was a member of the Gangster Disciples gang. Since the victim was behind him when Jackson was speaking to defendant in the automobile, Jackson was unable to observe the victim while he was approaching. Jackson did not observe any other people approaching defendant's vehicle with the victim. When Jackson first noticed the victim, the victim was approximately 8 to 10 feet from defendant. Both of the victim's hands were gripping the bicycle's handlebars.
¶ 6 From his location of approximately 10 feet from where the shooting occurred, Jackson observed defendant walking up to Hill while pointing the gun at Hill. When he spotted the gun, Jackson began running away, running approximately 30 feet before stopping and turning to face defendant; Jackson was unable to hear anything that was said while he was running. On redirect examination, Jackson testified that when he ran away, he ran backwards and was able to observe the scene while backing away without losing sight of either the victim or defendant. He overheard defendant tell the victim, “talk that shit now,” to which the victim responded “what, what,” while holding up his hands with his palms facing out; the victim was not holding anything in his hands. Jackson observed that the victim appeared surprised. Jackson observed defendant stand in place and shoot the victim twice. After Jackson observed defendant shoot the victim, Jackson “[t]ook off,” but heard an additional four gunshots. Jackson later testified that after the shooting, he observed defendant “tak[ing] off” in the vehicle. Jackson did not hear the victim make any threats to defendant, but during the entire altercation, Jackson was unable to determine whether the victim had anything in his back pocket.
¶ 7 Jackson testified that he did not have any felony convictions. The State objected to defense counsel's question, engaging in the following colloquy:
“STATE: Judge, we spoke with Counsel prior to the witness testifying regarding his background. We agreed with Counsel and I thought we were in agreement with this that we were going to look into his background. There is a question as to whether he has a felony conviction or not.
We don't believe he does, but we told Counsel we would look into it. So until we look into it, I would object to the question because it's our position that he does not have an adult felony conviction.
¶ 8 The State also called Anthony Green as a witness, and he testified that on July 21, 2006, approximately five minutes before the shooting, he was standing with defendant in front of the home of the victim's girlfriend, Star Gardner. Green observed the victim come out from the home with a handgun in his back pocket. When defendant observed the gun, he “disappeared.” Green ran up to the victim and told him to put the gun away because both the victim and defendant were Green's friends and he did not want to see either killed. The victim then went back to Gardner's home; when he emerged from the home, Green no longer observed the gun.
¶ 9 Green testified that he observed the victim “pistol whip” defendant several days before the shooting. Green also testified that he had heard about the victim previously shooting defendant and when the State objected, the trial court sustained the objection.
¶ 10 After speaking with the victim, Green left to find defendant and went to Corona's Food Mart, located a block from Gardner's home, to purchase a beverage. Green encountered defendant inside the store and they had a conversation as they walked from the store to a vehicle in the parking lot in which a man unknown to Green was sitting in the driver's seat; defendant entered the vehicle. Green spoke to defendant through the vehicle's passenger window when defendant pushed Green back and drew a gun. Green backed up, turned around, and observed the victim on a bicycle. Defendant opened the door, left the vehicle, and fired at the victim while he was on the bicycle. Green testified that once he observed the victim being shot the first time, “it was like, I blanked out.” 3
¶ 11 The State questioned Green about a statement that Green gave to a police detective on July 25, 2006; Green acknowledged making the statement, but could not recall the date because he “[u]sed a lot of drugs.” In the statement, Green stated that the victim did not have a weapon and never moved toward defendant. Green testified that while the statement included that assertion, “to be realistic, I didn't know what the hell was going on.” He acknowledged that he signed the page and was allowed to make corrections but “I can't barely even read cursive, so I don't know how I can correct something that [the detective] wrote.” However, Green admitted that there were several places within the statement where he had made corrections.
¶ 12 Green testified that after the victim was shot, Green was in shock and backed up, leaving the scene. He did not observe defendant entering the vehicle and leaving. The State read from Green's statement that Green was attempting to leave the scene when he observed defendant in a vehicle and heard defendant yell “GDK,” which Green knew to mean “Gangster Disciple killer.” After hearing the statement, Green testified that defendant “jumped in the car [, rode] past and said it to me, GDK.” Green later testified that the yell could have come from defendant or from another member of the Black P Stones named Mooney 4 who was nearby. Green testified that he was a Gangster Disciple with the victim, but that there were no other Gangster Disciples in the area of the shooting. Green later testified that there were people near the victim when he was riding his bicycle toward defendant, and the people were the same ones who had been present when the victim had pistol- whipped defendant.5
¶ 13 Green testified that he observed defendant shooting the victim once, after which “it...
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