People v. Smith, No. 1–10–2354.

• Court: Illinois Appellate Court
• Writing for the Court: JUSTICE ROBERT E. GORDON
• Citation: 2012 IL App (1st) 102354,365 Ill.Dec. 302,978 N.E.2d 324
• Decision Date: 25 October 2012
• Docket Number: No. 1–10–2354.
• Parties: The PEOPLE of the State of Illinois, Plaintiff–Appellee, v. Seneca SMITH, Defendant–Appellant.

2012 IL App (1st) 102354
978 N.E.2d 324
365 Ill.Dec. 302

The PEOPLE of the State of Illinois, Plaintiff–Appellee,
v.
Seneca SMITH, Defendant–Appellant.

No. 1–10–2354.

Appellate Court of Illinois,
First District, Sixth Division.

Sept. 28, 2012.
Rehearing Denied Oct. 25, 2012.

[978 N.E.2d 329]

Michael J. Pelletier, Alan D. Goldberg, and Jean Park, State Appellante Defender's Office, Chicago, IL, for Appellant.

Anita M. Alvarez, State's Atty., Alan J. Spellberg and Peter D. Fischer, Asst. State's Attys., Chicago, IL, for the People.

OPINION
Presiding Justice LAMPKIN delivered the judgment of the court, with opinion.

[365 Ill.Dec. 307]¶ 1 After a jury trial, defendant Seneca Smith was found guilty of two counts of attempted first degree murder of a peace officer and two counts of aggravated discharge of a firearm. He was sentenced to a total of 55 years in prison.

¶ 2 On appeal, he contends that: (1) the State failed to prove his guilt beyond a reasonable doubt because the police officers' testimony was not credible and was contradicted by the physical evidence; (2) during closing argument, the State misstated and distorted the evidence and made improper suggestions; (3) defendant was denied effective assistance of trial and posttrial counsel; (4) defense counsel improperly coerced defendant to waive his right to testify; (5) the trial court erroneously instructed the jury about other offenses over defendant's objection; (6) the trial court failed to properly instruct the venire on fundamental principles of law; (7) the 20–year sentence enhancement imposed on defendant was improper under the statute; and (8) the number of defendant's presentence custody days should be corrected on his mittimus.

¶ 3 For the reasons that follow, we affirm defendant's conviction and sentence and order the correction of the mittimus.

¶ 4 I. BACKGROUND

¶ 5 The State arrested and charged defendant Seneca Smith with attempted first degree murder of Chicago police officers Calvin Chatman and Dwayne Collier, aggravated discharge of a firearm, aggravated unlawful use of a weapon, and unlawful use of a weapon by a felon, alleging that, on June 27, 2004, defendant shot at the officers with a handgun.

¶ 6 At the trial in October 2007, the State presented the testimony of Officers Chatman and Collier. According to the officers' testimony, on June 27, 2004, they were assigned to go to the 5300 block of West Congress Parkway and conduct surveillance on a red Chevy Caprice, which was believed to contain guns and drugs that were associated with a shooting that had occurred on that block earlier that day. Officers Chatman and Collier went to that location in a covert van. Officer Chatman was in the driver's seat, and Officer Collier was in the front passenger seat. They were in civilian dress and wore their police badges on chains around their necks. Officer Chatman was armed with a Sig Sauer 9–millimeter semiautomatic handgun with Luger hollow-point ammunition. Officer Collier was armed with a Smith and Wesson 9–millimeter semiautomatic weapon.

¶ 7 At about 10:30 p.m., the officers arrived on the block and parked their van facing westbound in front of 5310 West Congress Parkway, on the north side of the street. They were approximately five houses west of the intersection of Congress Parkway and Lockwood Avenue. The 5300 block of Congress Parkway is a [365 Ill.Dec. 308]

[978 N.E.2d 330]

one-way street for westbound traffic. Meanwhile, east of Officers Chatman and Collier's van, uniformed Chicago police officers Lacey Harris and Hymie Robertson were near the intersection of Congress Parkway and Lockwood Avenue. Officers Harris and Robertson's marked squad car was parked and facing southbound. They were at that location on a different assignment; they had responded to the shooting at 7:30 p.m. that day on the 5300 block of West Congress Parkway and were waiting for a tow truck to remove a vehicle allegedly involved in that shooting.

¶ 8 The red car under surveillance by Officers Chatman and Collier was parked on the south side of West Congress Parkway, approximately four or five houses west of the officers' van. The street lights were on, and other people were on the street, including a man watering his lawn, another man retrieving items from the trunk of his car, and a couple on the porch at 5310 West Congress Parkway. There was a group of 6 to 10 black males on the north side of the street about seven or eight houses to the west of the officers. One teen broke away from that group, approached the officers' van, and stopped directly in front of 5310 West Congress Parkway. He folded his arms and stared at the van. He stood parallel to the van's passenger-side door for 10 to 20 seconds and then walked back to the crowd and started to talk demonstratively and wave his hands. Then, he backed away from that crowd and pointed directly at the officers' van.

¶ 9 Within seconds, defendant came out of that crowd and walked east on the sidewalk, on the north side of the street, toward the van. Officer Chatman could not see both of defendant's hands as he walked towards the van. Defendant's right hand was underneath his jersey, so Officer Chatman unholstered his gun and held it in his right hand. He warned Officer Collier, who was using his cellphone, holding it about 10 inches in front of his chest while speaking into the speaker phone. Officer Chatman also pulled his badge out from beneath his jersey and draped it on his chest.

¶ 10 When defendant was approximately one house away from the van, his walk became a slight jog toward the van's passenger-side door. His hand was still underneath his jersey and he said, “What the fuck you niggers want, what you niggers on,” and “What you doing here.” Officer Chatman responded, “Relax, we're the police.” Defendant constantly turned his head to look eastward to the intersection of Congress Parkway and Lockwood Avenue and then back to Officers Chatman and Collier. Defendant looked eastward one more time, said, “Fuck that,” and raised a black-colored handgun in his right hand to the right side of Officer Collier's face. Officer Chatman extended his right hand, placed his knuckles into Officer Collier's chest area, and fired his gun twice in the direction of defendant.

¶ 11 Defendant went to the ground, and the officers exited the van. Defendant got up and ran westbound on the north side of the street. Officer Collier yelled, “Police, stop,” and chased him. Meanwhile, Officer Chatman ran parallel to them in the middle of Congress Parkway. Officer Collier continued to announce his office, and defendant ran in a southwesterly manner onto the street. Defendant turned and pointed his gun in his right hand in the direction of Officers Collier and Chatman and fired. Officer Collier testified that defendant fired once or twice, and Officer Chatman testified that he heard two gunshots. Although defendant was facing south, his upper body was twisted so that his arm was facing east. Officers Chatman and Collier veered back to the north [365 Ill.Dec. 309]

[978 N.E.2d 331]

side of the street but kept running westbound, and Officer Collier fired two gunshots at defendant.

¶ 12 Defendant ran to a building at 5331 West Congress Parkway and tried to force the door open with his right shoulder. Officer Collier took cover behind a large tree on the south side of the street at that address. Officer Chatman also took cover nearby behind a vehicle on the south side of the street. Officers Chatman and Collier testified that there was not a group of girls or civilians in the doorway of 5331 West Congress Parkway. Then, defendant pointed the gun in his right hand in the direction of Officer Collier, who fired two more gunshots. At that time, the door opened and defendant fell or went inside the dark vestibule. Officers Chatman and Collier never saw defendant throw or drop the gun during the entire incident.

¶ 13 Officer Collier cautiously approached the door with his gun drawn and went into the vestibule. He looked through an open doorway to a basement apartment and saw defendant lying at the bottom of the steps. At that point, Officer Collier heard women in the basement yelling and screaming. Officer Chatman testified that he heard people screaming after defendant entered the basement door, but he was not certain about the address from which the screams had emanated. Officer Collier went back outside and ran eastbound down the block to get assistance. He was met by Officer Robertson, and they returned to 5331 West Congress Parkway and stood in the street as more police cars started to arrive at the scene. Meanwhile, Officer Chatman returned to the van and drove around the corner to cover the back of 5331 West Congress Parkway to prevent anyone from leaving. Other officers, however, had arrived at the scene, so Officer Chatman directed them down the alley and then returned to the front of the building. When Officers Chatman and Collier met at the front of the building, they embraced, inquired into each other's well-being, and cried. The officers learned later that a bystander in the building, Chantel Davidson, had been hit by a bullet during this incident.

¶ 14 Fifty-six-year-old Jerry Blakes testified that he lived on the 5300 block of West Congress Parkway. At the time in question, he was cleaning glass out of his car, which had been damaged by the shooting earlier that day. He heard some noise and saw a policeman walk past with a badge around his neck. A few seconds later, the officer hollered, “police, police.” Blakes did not see anyone else running on the street that evening and did not hear any gunfire.

¶ 15 Chicago police officer Paul Presnell was a forensic investigator. He and his partner arrived at the scene about 11:55 p.m. and processed the scene. They did not administer a gunshot residue test to defendant because he had already been taken to the hospital for medical treatment. At 5331 West Congress Parkway, there were two bullet...