The People Of The State Of Ill. v. Scott

• Decision Date: 14 May 2010
• Docket Number: No. 1-08-2600.,1-08-2600.
• Citation: People v. Scott, 401 Ill.App.3d 585, 929 N.E.2d 124, 340 Ill.Dec. 820 (Ill. App. 2010)
• Parties: The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Omar SCOTT, Defendant-Appellant.
• Court: Appellate Court of Illinois

401 Ill.App.3d 585

929 N.E.2d 124

340 Ill.Dec. 820

The PEOPLE of the State of Illinois, Plaintiff-Appellee,v.Omar SCOTT, Defendant-Appellant.

No. 1-08-2600.

Appellate Court of Illinois First District, Fifth Division.

May 14, 2010.

COPYRIGHT MATERIAL OMITTED

Anita Alvarez, State's Attorney, Chicago, IL, for the People.

Michael J. Pelletier, State Appellate Defender, Patricia Unsinn, Deputy Defender, David T. Harris, Assistant Appellate Defender, Office of the State Appellate Defender, Chicago, IL, for Omar Scott.

Presiding Justice TOOMIN delivered the opinion of the court:

In a spark of creativity, appellant maintains that his purported right to choose whether to testify was impeded by the trial judge's blanket policy of deferring rulings on motions limiting the admissibility of prior convictions. Although we presumed the issue had been laid to rest by our supreme court in Averett¹, the changing contours of the landscape require that we again weigh in on this resurrected saga. We also address appellant's additional claim that the trial court erred in admitting irrelevant and prejudicial testimony.

Following a jury trial, defendant, Omar Scott was convicted of first degree murder and aggravated battery with a firearm and sentenced to consecutive terms of 60 years' and 15 years' imprisonment, respectively. Additionally, defendant was found guilty of felony unlawful use of a weapon by a felon during a simultaneous bench trial and sentenced to an additional consecutive term of three years' imprisonment. For the following reasons, we affirm the judgment of the circuit court and correct the mittimus.

BACKGROUND

Defendant was charged inter alia, with first degree murder, aggravated battery with a firearm, and unlawful use of a weapon by a felon. The charges stemmed from a shooting at the Time Out Lounge at 8216 South Vincennes in Chicago on October 2, 2004, wherein Ike Steptore was killed and Gernard Fulton was seriously injured. Prior to trial, the trial court granted defendant's motion to sever the unlawful use of a weapon by a felon count. Defendant elected to proceed by a bench trial on that count and agreed to have it resolved simultaneously with the jury trial on the remaining counts. The jury returned verdicts finding defendant guilty of first degree murder and aggravated battery with a firearm. Likewise, the trial court found defendant guilty of unlawful use of a weapon by a felon. He was sentenced to 60 years' imprisonment for first degree murder and a consecutive sentence of 15 years' imprisonment for aggravated battery with a firearm. The record of proceedings reflects an additional sentence of 3 years' imprisonment on the unlawful use of a weapon by a felon conviction. However, this sentence is not clearly delineated in the mittimus. In the instant appeal, defendant does not challenge the sufficiency of the evidence. Therefore, we will review only those facts necessary to an understanding and resolution of the issues raised.

Ike Steptore's wife, Cordelia, testified as a life/death witness. She explained that Ike had gone to the Time Out Lounge for the birthday party of Roderick Love, her brother. Shortly after 1 a.m., she received a call from her niece concerning Ike. Cordelia immediately went to the Time Out Lounge and found Ike in an ambulance. He was conscious and able to talk. According to Cordelia, Ike referred to her by a nickname and said, “Dee Wee, I love you.” She rode in the ambulance to Christ Hospital. Ike underwent surgery, but later died due to his injuries.

Gernard Fulton testified that she met a friend at the Time Out Lounge on the night of October 1, 2004. She and her friend were there to have a drink. Fulton observed a party going on in the back portion of the bar. She also danced one time with Ike Steptore, who introduced himself to her that night. After dancing, as Fulton returned to her seat at the bar she noticed a commotion behind her, which sounded like two men arguing. Fulton did not turn to look at the argument. Instead, she decided to leave the bar. As she was about to put on her jacket, she “felt a hot sensation in [her] left back area” and fell down, without having heard gunshot. A great deal of commotion and screaming ensued. Fulton's friend was down on the floor with her as Fulton went in and out of consciousness. She could not feel anything as she laid on the floor and eventually blacked out.

Fulton regained consciousness in the ambulance, but did not open her eyes. She responded to the paramedics' questions, but was unable to move. She underwent surgery to remove a bullet and for a partially shattered spine, requiring spinal fusion. Following the surgery, Fulton was paralyzed from the neck down. She spent the next 12 days in the hospital, until she was transferred to the Rehabilitation Institute of Chicago (RIC). Fulton remained at RIC for two months receiving therapy to teach her to walk and take care of herself.

At this point in Fulton's testimony, defense counsel sought a side bar and objected to the testimony's relevance to the charge of aggravated battery with a firearm. Counsel maintained that the nature and extent of treatment were not relevant. The objection was noted, but overruled.

Fulton additionally testified that she participated in a study where a robot was used to help her learn to move her limbs. Other therapies involved stretching her legs and “working [her] out.” She eventually regained some movement in her right arm. Fulton did not regain the ability to walk while she was an inpatient at RIC. Thereafter, she was discharged and continued out-patient therapy for nine months. After extensive physical and occupational therapy lasting about one year, Fulton began to walk again.

Fulton explained how her injuries forced her to move in with her sister because she could no longer access her prior third-floor residence due to the paralysis. She likewise described how she was unable to return to work because of her physical limitations following the shooting. Additionally, as of the time of trial, she had not regained full use of her limbs. When asked what sorts of things she is no longer able to do, Fulton responded, “That's a long list of things. But things that I like to do like ride a bike, dance, skate, doing dishes, my hair.”

Rodrick Love was at the Time Out Lounge on the night of the incident for a birthday party for another brother-in-law, Charles Tyler. He and Ike shared a round of drinks. From his position about four to five feet from the dance floor, Love could see Ike arguing with another man. Love did not know what precipitated the argument. The situation escalated and Love approached. Another individual, named Rock, also approached. The men began pushing and shoving, but due to Ike's size and positioning, Love could not tell who was doing what. Other patrons in the area implored the men to quit arguing.

According to Love, “I asked the other guy to let it go. I told him it was family.” The “other guy” Love referred to was defendant, whom he did not know. Defendant responded, “it's no dam [ sic ] family of mine.” Defendant then produced a dark colored handgun from the right side of his body, possibly from his pocket. Love grabbed his arm and the gun discharged. Defendant continued to try to raise his arm and the gun fired a second time. Then, Love and Rock “all came over with [their] full body weight. And the third shot went wild or whatever. And [defendant] came underneath us and he ran for the door.” Love was unable to give chase because he was supporting Ike, who was leaning against him. Love yelled for the bouncers to stop defendant and called to his other brother-in-law that Ike had been shot. The crowd in the bar began stampeding toward the front door. Some of the people were “ trampling” and “jumping” over a woman who fell backwards and had blood coming from her head.

Love stayed with Ike until the police and paramedics arrived. Ike lifted his shirt to show Love that he had been shot in the stomach. Love remained at the bar after Ike was transported to the hospital. Thereafter, he spoke with investigators, gave a statement to an assistant State's Attorney, and identified defendant in a lineup.

Chicago police sergeant Dwayne Betts testified that he was at the Time Out Lounge, while off duty in the early morning hours of October 2, 2004. He was invited there to meet another Chicago police officer, then-Sergeant Eddie Johnson. Just as he received his drink order, Betts heard a commotion, consisting of fighting and yelling, coming from the dance floor. He had only been at the bar for about 10 minutes. Simultaneous to the DJ announcing last call, three gunshots rang out in rapid succession. According to Betts, “Pandemonium erupted in the lounge” amongst the patrons trying to flee. Betts exited the bar along with the crowd. Once outside, he waited for Johnson to exit. While he waited, Betts asked another patron, Mike Kraft or “Shug,” if he knew whom the shooter was.

Based on Shug's response, Betts proceeded northbound down Vincennes. He saw defendant walking alone at a fast pace, as if speed walking. Betts increased his pace, announced his office, and yelled for defendant to stop. Defendant continued walking away and Betts saw him toss a dark metallic object that he believed to be a handgun to a grassy area by the sidewalk. Thereafter, defendant stopped and Betts got him onto the ground. A uniformed officer arrived, provided handcuffs, and defendant was placed in custody. Betts then located the gun defendant jettisoned in the adjacent grassy area.

ANALYSIS

Defendant initially claims his constitutional right to testify in his own defense was effectively denied by the trial court's refusal to rule on his motion in limine to bar the use of prior convictions for the purposes of impeachment. According to defendant, the trial court's actions were part of a “blanket policy” employed by the judge. Finding that practice problematic, defendant...