People v. Tabb
| Decision Date | 14 June 2007 |
| Docket Number | No. 1-05-1640.,1-05-1640. |
| Citation | 870 N.E.2d 914 |
| Parties | The PEOPLE of The State of Illinois, Plaintiff-Appellee, v. Triandus TABB, Defendant-Appellant. |
| Court | United States Appellate Court of Illinois |
DLA Piper U.S. LLP, Chicago, for Appellant.
Richard A. Devine, State's Attorney, Chicago, for Appellee.
Following a trial by jury, defendant, Triandus Tabb, was convicted of attempted first degree murder, aggravated battery with a firearm, and aggravated vehicular hijacking. The trial court merged the first two convictions and defendant was sentenced to 12 years' imprisonment for attempted first degree murder and 4 years' imprisonment for aggravated vehicular hijacking. The trial court found that defendant had caused great bodily harm to the victim and ordered the sentences be served consecutively pursuant to section 5-8-4(a) of the Unified Code of Corrections. 730 ILCS 5/5-8-4(a) (West 2004).
On appeal, defendant contends that: (1) the trial court erred when it granted the State's motion in limine, denying him the opportunity to use witness Norman Brown's juvenile delinquency adjudication record to impeach the testimony of Brown and Eyvonne Ford; (2) the trial court erred when it denied his motion for a directed verdict; (3) the State failed to prove him guilty beyond a reasonable doubt because the State's witnesses were not credible and the identification of defendant as the offender was unreliable; (4) the trial court violated the one-act, one-crime doctrine when it sentenced him for both aggravated battery with a firearm and attempted first degree murder convictions; and (5) the trial court violated the ruling in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), when it, rather than the jury, made a factual finding of "severe bodily injury" and imposed consecutive sentences.
On September 6, 2003, at approximately 1:20 p.m., Salvador Gomez (the victim) was in his car and stopped at a red light at the intersection of West 5lst Street and South Ashland Avenue in Chicago, Illinois. While stopped, the victim was attacked and shot at by an armed assailant who had threatened the victim and demanded he get out of his vehicle. Defendant, who lived in the vicinity of the crime at the Daniel J. Nellum Group Home (the group home), was later arrested for the crime.
Before defendant's trial began, the State presented an oral motion in limine to bar testimony regarding Norman Brown's prior juvenile delinquency adjudications on the grounds that the adjudications were irrelevant and highly prejudicial. Defense counsel argued that evidence regarding Brown's prior finding of delinquency for possession of controlled substances was proper for the purposes of impeachment. After argument on the issue, the trial court granted the State's motion on the ground that the prejudicial effect of the evidence outweighed its probative value.
The victim testified that on September 6, 2003, at about 1:20 p.m., he was driving his black GMC Yukon Denali sports utility vehicle on West 51st Street and South Ashland Avenue in Chicago, Illinois. According to the victim, while he was stopped at a red light, a tall black man wearing a white shirt and a white baseball jersey appeared at his open driver's-side window. The victim testified that the man put a gun to his left temple and told him to "get out of the fucking truck, mother fucker." The victim refused to do so and tried to pull the gun down, away from his head. The victim testified that he kept his eyes on the gun and the offender's face. The victim testified that he struggled with the man, but the assailant stepped back and fired into the truck, shooting him twice in the stomach and once in the left arm.
The shooter ran away and the victim drove a few blocks west to the intersection of West 51st Street and South Paulina Avenue and called 911. The victim testified that he could not really say how long his encounter with the assailant lasted, but finally explained it "could be five seconds, could be ten seconds, I don't know." The victim admitted that during the encounter he was scared for his life. On October 25, 2003, the victim went to the police station to view two lineups. The victim stated that he did not identify anyone in the first lineup, but that he identified defendant as the offender in the second lineup.
Norman Brown testified that, at the time of the shooting, he and defendant were residents of the group home, located at 1458 West 51st Street, which is overseen by the Illinois Department of Children and Family Services (DCFS). Brown testified that defendant had been under the care of DCFS since the age of four and was a member of the Blackstone street gang. On the day of the shooting, only three boys resided at the group home, defendant, Brown, and Isaac Prittard.
Brown explained that the group home was run by child care technicians who noted in a log book the comings and goings of the boys. Brown testified that the boys were free to leave the group home whenever they wanted before a 10:30 p.m. curfew. However, if one of the boys wanted to leave after curfew, he did not have to "sneak" out, but could simply walk past the child care worker on duty and out the back door. Brown testified that the child care worker would not stop the boy from leaving, but would note it in the logbook, and then the child care worker would file a report with the police. The police would then look for the boy.
Brown testified that on the day in question he, defendant, and Prittard left the group home to get some cigarettes. As the three were walking back to the group home, they saw the victim in his black Yukon Denali. Brown testified that when the victim stopped at a red light, defendant pulled out a chrome pistol, shot at the victim three or four times, and ran away. Brown stated that after the shooting, he ran back to the group home and did not recall seeing defendant again until the next day.
During cross-examination, Brown confirmed that during a conversation with defendant's counsel the day before trial, he said he did not know whether defendant had committed the crime or not. In addition, Brown testified that he had a daily marijuana habit both at the time of the offense and at the time of trial. Defense counsel questioned Brown extensively concerning his drug use and whether he sold drugs to Eyvonne Ford, another State witness. The State objected to this line of questioning.
The trial court held a sidebar to argue the issue. The State argued that this line of questioning was another attempt by the defense to introduce Brown's juvenile delinquency adjudications, which were already addressed in the motion in limine. The State argued that if the defense wanted to pursue this line of questioning, it would need an offer of proof. The trial court found that because defense counsel's information that Brown sold drugs to Eyvonne Ford and that she smoked crack was based solely on defense counsel's conversation with his client, and because defense counsel was not offering to put his client on the stand to lay the foundation, that he could not go any further with this line of questioning.
Eyvonne Ford, a 41-year-old woman, testified that she lived near the group home and that she knew defendant, Brown, and Prittard because they would "sneak" out of the group home late at night and go to her house to hang out with her 19-year-old son. Ford testified that she was so close to defendant and Brown that they called her "Mom." Ford testified that she allowed the boys to come into her home until a man from the group home asked her to stop.
Ford testified that on the day in question, she was walking on South Ashland Avenue toward West 51st Street when she was approached by defendant, Brown, and Prittard. Ford testified that defendant told her that he had just shot a "Scipe," which Ford understood to mean a member of the street gang Satan Disciples. Ford testified that she knew that defendant, Brown, and Prittard were members of the Blackstones street gang and that at the time of the shooting the Blackstones were at war with the Satan Disciples. Ford testified that, at first, she doubted what defendant told her because she knew him to be a liar.
However, Ford testified that she spoke with her sister after speaking with defendant. When she told her sister what defendant had said, her sister stated that she had seen a man lying on the ground who had been shot near West 51st Street and South Paulina Avenue. Ford testified that she and her sister went to the scene of the crime and spoke with a police officer who directed her to the 9th District. Ford testified that she called the 9th District and told them that she had information concerning the shooting.
Detective Will Svilar testified that he was assigned to investigate the shooting. Svilar testified that he was informed that Ford had contacted the 9th District with information pertaining to the shooting. During an interview with Ford, she gave Svilar two names and a nickname: Norman Brown, Isaac Prittard, and defendant's nickname "Travo." Svilar testified that on October 25, 2003, he went to the group home and placed Brown and Prittard under arrest. He brought them to Area 1 and arranged for them to take part in a lineup.
Svilar testified that he was with the victim when he viewed the first lineup. The lineup contained Brown, Prittard, and four other people. All six individuals stepped forward individually and said "get out of the truck mother fucker." Svilar testified that at the conclusion of this lineup, the victim was unable to identify anyone. Defendant subsequently entered the police station that evening looking for Brown and Prittard. Svilar took defendant into custody and called the victim back to the police station to view a second lineup, this time with de...
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...theory, a court's ruling limiting the scope of examination will be affirmed." People v. Tabb , 374 Ill.App.3d 680, 689, 312 Ill.Dec. 470, 870 N.E.2d 914 (2007). "The admissibility of evidence rests within the discretion of the trial court, and its decision will not be disturbed absent an ab......
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