People v. Sipp

• Decision Date: 26 November 2007
• Docket Number: No. 1-06-2667.,1-06-2667.
• Citation: 883 N.E.2d 1133,378 Ill. App.3d 157
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James SIPP, Defendant-Appellant.
• Court: United States Appellate Court of Illinois

883 N.E.2d 1133

378 Ill. App.3d 157

The PEOPLE of the State of Illinois, Plaintiff-Appellee, v. James SIPP, Defendant-Appellant.

No. 1-06-2667.

Appellate Court of Illinois, First District, First Division.

November 26, 2007.

Rehearing Denied January 28, 2008.

As Modified Upon Denial of Rehearing February 4, 2008.

Law Offices of Tod M. Urban, Chicago (Tod M. Urban, of counsel); Kirkland & Ellis, LLP, Chicago (Drew G. A. Peel, Harry N. Niska, of counsel), for Appellant.

Richard A. Devine, State's Attorney, County of Cook, Chicago (James E. Fitzgerald, Manny Magence, Judy DeAngelis, Jessica L. MaClean, of counsel), for Appellee.

MODIFIED ON DENIAL OF REHEARING

Justice ROBERT E. GORDON delivered the modified opinion of the court:

Following a jury trial in the circuit court of Cook County, defendant James Sipp was convicted of the first-degree murder of Demetrick Wright and sentenced to 45 years in the Illinois Department of Corrections. Defendant's posttrial motion for a new trial was denied. On appeal, defendant argues that the trial court erred by (1) denying defendant's requests for an involuntary manslaughter instruction and (2) for a second-degree murder instruction, (3) denying defendant's Batson motion, (4) refusing to permit defendant's sister to testify at trial, and (5) sustaining certain objections made by the State with no articulated basis for those objections. We affirm.

BACKGROUND

On June 8, 2003, defendant's seven-year-old daughter, Jacinta Sipp, was riding her bicycle in the vicinity of defendant's home, located on North Monticello Avenue in Chicago. Defendant sat on the porch of his home while his daughter rode her bicycle. Defendant testified that as he observed his daughter, an acquaintance from the neighborhood, known only to defendant as K.Y., approached and advised him that the victim had noticed Jacinta riding her bicycle and stated, "[S]omething bad might happen to her."

Defendant testified that he interpreted the victim's statement to be a threat to the safety of his daughter. Defendant knew the victim because defendant's sister, Keana, had dated him several years earlier. Defendant testified that he took the victim's threat seriously because the victim had beaten his sister during that relationship. One beating led to Keana's hospitalization. Defendant also stated that the victim was a known drug dealer, and he believed the victim carried a firearm and was dangerous.

Soon thereafter, defendant drove his daughter to Tennessee, taking her out of school to do so. Defendant immediately drove back to Chicago and then departed on a job for a moving company. A couple of days later, defendant returned to Chicago to work a shift at his second job at a local hardware store.

Defendant testified that he customarily carried a firearm in his car for protection. He testified that his work as a mover frequently took him out of town and he was usually paid in cash. The firearm was a semi automatic 9-millimeter, with a 17-round magazine that was full on June 12, 2003.

Defendant left his home between 10 and 11 p.m. on June 12, 2003. Upon driving away from his residence, defendant observed the victim and several others near a local liquor store. Angelica Barber, Gary Young, John Powell, and Renardo Gray were among those in the company of the victim. Defendant testified that upon seeing the victim he formulated a plan to "send some warning shots to let them know that [he] was willing to protect [his] family." He testified that he was going to fire warning shots to demonstrate that he and his family were not going to move or be scared out of the neighborhood by the victim or his friends.

Defendant then drove into the parking lot of the liquor store, exited his vehicle and unsuccessfully attempted to locate the victim. He then returned to his automobile and drove around the block into an alley, located behind the liquor store, west of North Monticello. Defendant parked his vehicle in the alley, exited, took a few steps east toward Monticello, and visually located the victim. According to defendant's testimony, the victim was to the east of the alley, facing north, with his left side to defendant. Defendant was to the west of the victim.

Defendant fired four shots in the general direction of the victim and the others in defendant's company. Angelica Barber was shot in the arm, and the victim was shot in the back. The victim died from the gunshot wound. The coroner's findings were stipulated to at trial. The coroner found that a single bullet entered the right side of the victim's back and exited his torso through the left side of his chest more than two inches higher than where it entered. The coroner found that "[t]here [was] no evidence of close range fire." The coroner also found that the victim's blood alcohol level was more than 10% at the time of the shooting.

Defendant testified as follows on direct examination:

"Q. And do you aim at anyone when you fire these four shots.

A. No.

Q. Where do you fire the four shots from?

A. I fired the shots—As I'm firing the shots I'm moving away. I don't even raise my gun. I fire the shots from the side of my body.

Q. And do you aim anywhere in particular when you shoot or—

A. Off to the right of the crowd.

Q. And why do you aim off to the right of the crowd?

A. Just because I just wanted to scare them."

On cross-examination, defendant testified as follows:

"Q. You pointed a gun in his general direction and you pulled the trigger not once, not twice, not three times, but four times, correct?

A. That is correct.

On re-direct, defendant testified as follows:

"Q. When you fired that gun were you pointing at that group?

A. No.

Q. Where were you pointing in relation to where those four people were standing?

A. Off to the right.

Q. Why did you point off to the right?

A. Because I just wanted to scare 'em.

Q. Were you trying to hit anyone?

A. No.

* * *

Q. Did you see what any of them were doing as you were shooting?

A. No.

Defendant thereafter ran and reentered his automobile before driving off. He testified that he did not observe the victim fall or whether anyone in the group had been shot. Forensic investigator Carl Brasic found two fired 9-millimeter cartridge cases in the street. One cartridge was approximately seven feet north of the victim and the other was next to the victim's leg.

After the shooting, defendant sold the firearm to "some guy" for $90 because he "didn't want anything to do with this gun anymore." Defendant also testified that he abandoned the automobile he used that night at Fullerton and Lockwood, because he also wanted nothing further to do with it.

Gray later identified defendant as the man who exited the white, four-door Buick Regal on the night of the shooting with a gun when he spoke to police, when he gave a statement to Assistant State's Attorney (ASA) DiBenedetto on June 15, 2003, when he testified before the grand jury on July 16, 2003, and at trial. Gray testified at trial that when defendant exited from his vehicle with his firearm, he was able to observe that the handgun had a metal attachment that he assumed to be a scope.

John Powell, who was with Gray on the evening of June 12, 2003, testified that he was drunk and repeatedly asserted that he did not remember the events of that evening. However, he later admitted that he had given a signed statement that he fled after someone had stated that someone had a gun. Powell stated that he did not remember telling the police that he observed defendant in the parking lot just prior to the shooting or that he told the police that he observed defendant driving away from the scene immediately after the shooting.

Lydale Durr was using the pay phone outside the liquor store on the evening of the shooting. He testified that he observed a white four-door Buick Regal pull into the parking lot. A man, standing at about 6 feet two 2 inches tall and weighing between 280 to 300 pounds, exited the automobile with an object in his right hand. Durr entered the liquor store and heard three or four gunshots about 5 to 10 minutes later. Durr did not observe the shooting and did not observe the white Buick Regal leave the area.

Young testified that he and the victim were selling marijuana in the alley at Monticello and Division on the night of the shooting. He testified that on the night of the shooting Angelica Barber had "shouted out" to him and the victim and that they greeted her, just prior to the gunshots. He testified that he did not see who shot the victim. Young did testify that defendant owned the white Buick Regal, but he did not observe anyone with a firearm. On cross-examination, Young testified that defendant's sister, Keana, and the victim dated in the past.

Angelica Barber did not testify at trial.

The trial judge denied defendant's request that his sister, Keana, be allowed to testify for the limited purpose of establishing that she and the victim had a previous dating relationship, that she was hospitalized after a fight with the victim, and that defendant had knowledge of the fight.

At the close of evidence, the trial court denied defendant's requests to instruct the jury on involuntary manslaughter and second-degree murder. The jury returned a guilty verdict for first-degree murder. Defendant's motion for a new trial was denied and this appeal followed.

ANALYSIS

Defendant first argues that he was entitled to a jury instruction on the lesser-included offense of involuntary manslaughter. Defendant contends that there is substantial evidence contained in the record of this case that supports the conclusion that defendant acted recklessly, rather than intentionally, in firing the shot that killed the victim, thus supporting a manslaughter instruction. Defendant emphasizes his own testimony that: (1) he did not aim or point the firearm at the victim or the people with the victim, (2) he discharged his firearm from his hip and did not raise his arm...